Virginia Talk Radio Network’s Sportline radio hosts, Rich Roth and Ed Lane, asked King Tower to share his thoughts on the Tom Brady ‘deflategate’ ruling being reversed.

Q. Rich Roth: We are joined by King Tower of Woods Rogers, he’s going to talk about the ruling today from the Second District Court of Appeals on the “liar and cheater” Tom Brady. Hello King, how are you?

A. King Tower: Doing well, thanks for having me!

Q. Rich Roth: This came out of nowhere. I know talking with you earlier, you thought there might be something based on some oral arguments, but I think most of us “regular” folks had no idea anything was really progressing or moving along—and all of a sudden the ruling today. Can you tell us a little bit about what went on and what the ruling means?

A. King Tower: Back in March, oral arguments were presented for this case. The arguments seemed to be favoring the NFL against the Players Association representing Brady. But a lot of times, that’s not how the decision plays out. There was still a lot of uncertainty on how it would come down, and today we got the opinion from the Second Circuit Court of Appeals that covers New York. The court reversed the federal judge who had thrown out Roger Goodell’s suspension decision for four games. By reversing that, they effectively reinstated the four game suspension.

We talked a bit about the reasoning and that’s not actually because he was a “liar and a cheater”— although, they are saying it is not their job to figure that out. It’s their job to enforce the arbitrators decision, if it’s one that is consistent with what the parties agreed to. In this case, the parties are the players union and the NFL. They agreed to this somewhat odd system where Roger Goodell can be the arbitrator of a decision that the league is making on discipline. The Second Circuit says “even though that is a little bit unusual for a labor arbitration, we are going to apply the same rules and give a great amount of deference to that decision, and the judge who reversed it was wrong” so it’s back on.

 Q. Ed Lane: What’s the next step in this entire process for Tom Brady and his team, or is there one?

 A. King Tower: Well there is one, but it’s a pretty low likelihood of success. The courts of appeals usually handle cases with three judge panels, they have many more judges than that on the circuit, and the lawyers for the union could seek a rehearing of the case with the full group of 20-some judges who sit on the Second Circuit. The Second Circuit has to vote to agree to even allow them to do that and that is rarely something that happens. Their other option is to go directly to the U.S. Supreme Court. Again, the commentators seem to be pretty consistent in saying they don’t think the U.S. Supreme Court will be interested in a case like this. So they do have those options; I think they are more important for their ability to at least threaten to do those things as a part of some negotiation that would lead [maybe] to a slightly lower of number games.

Q. Rich Roth: As amusing as I find all of this, it seems like probably not the greatest use of our legal system. Is that fair to say? The U.S. Supreme Court could actually hear a case on deflated footballs, and I understand there is much more to it in terms of the labor situation and the contract between the players association and the NFL, but this really needs to end here, doesn’t it?

A. King Tower: I think until now we’ve had courts hearing this because of the way the rules work. The courts had to hear them, it is an appeal of right. Going forward, it would be the courts deciding to use their discretion to take their time on this issue. I think you’re right, there is a general feeling that the arguments have been made and the Second Circuit is really following a pretty consistent line of Supreme Court cases that say “we are not going to get into the business of re-litigating these decisions by arbitrators.” Partly that is self-interested, the courts don’t want to have to get back into the weeds of all these cases that get arbitrated all of the time. So there is a larger trend towards giving a great amount of deference to arbitrators and I think it is unlikely that the court is going to get involved going forward, so it then turns into a negotiation.

Q. Rich Roth: King, thank you! Thanks for the explanation and I guess that it probably would be inaccurate for me to say that the U.S. Second District Court of Appeals found that Tom Brady is a liar and a cheater, but I can’t really get into any trouble for saying that can I?

A. King Tower: No, you can say they certainly didn’t rule that out either.

Rich Roth: Thanks for your time!

King Tower: Sure thing! Take care!

Rich Roth: King Tower, member of the Woods Rogers Labor and Employment practice group.

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