Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only

Harry Hooper

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I disagree. The problem is that Kessler has to show the equipment rule applies, in order to avoid the broader "conduct detrimental" provision. As Berman wrote, the equipment provision would apply only because it is more specific notice. Absent such specifically applicable provision, the general con det provision would apply.



Thus, Kessler arguing that the specific notice provision doesn't fit does not leave a vacuum. It leaves the provision under which Brady was punished b
IANAL, but there's still the very different way the NFL punished the Jets tampering with the kicking balls.
 

PedroKsBambino

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I disagree. The problem is that Kessler has to show the equipment rule applies, in order to avoid the broader "conduct detrimental" provision. As Berman wrote, the equipment provision would apply only because it is more specific notice. Absent such specifically applicable provision, the general con det provision would apply.

Thus, Kessler arguing that the specific notice provision doesn't fit does not leave a vacuum. It leaves the provision under which Brady was punished b
I may be misremembering, but I thought the problem with the above argument was that the union specifically bargained for just the enumerated types of penalties, and so the league can't just create new categories under 'conduct detrimental' that way.

To put it a different way, doesn't your interpretation eviscerate all enumerated penalties? I thought the 'conduct detrimental' clause was far narrower in most views.
 

Ed Hillel

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The equipment violation is the clear and obvious route for punishment, since it specifically covers deflating footballs. It's like applying PED use to the PED policy. The NFL in 2009 applied the very same rule under similar circumstances (with a far lower punishment), and why wouldn't they have?The integrity clause is not the One Ring of the CBA, it does not undo or override any of the other specifically bargained for provisions. In fact it is quite the opposite, and should be viewed as more of a catch-all for things [not] specifically addressed by the sides in the CBA.

The only argument for increased punishment has to be that the "scheme" or whatever to deflate footballs goes beyond deflating footballs. But that begs the question, "how else are people going to illegally deflate footballs post inspection?" "Scheming" to deflate footballs seems like a pretty natural step in the process of football deflating, regardless of how the acts are dressed up by the NFL. Do players "scheme to take PEDs" with their suppliers before ingesting them? Beyond that, even if it is a separate act, how does it possibly warrant a punishment like 10,000 times worse than actually deflating footballs? Could Goodell wantonly decide to suspend the next PED user 5 years by incorporating scheme language and applying the integrity clause?

The idea that any of this is an "uphill" climb for Brady seems way off base to me, but I suppose we will find out.
 
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Steve Dillard

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I think the notice argument does not dispute Goodell's ability to punish under "conduct detrimental" -- only that if the offense is one also specifically enumerated, then that constitutes a violation of the notice requirement. In essence, players rely upon the penalties set forth on the schedule.

From Brady's bried:

For decades, the NFL has annually provided all players with the “League Policies for Players”—hundreds of pages defining myriad types of misconduct that the Commissioner deems “conduct detrimental.” Further, for many “conduct detrimental” infractions, the NFL and the NFLPA have collectively bargained specific penalties, and the NFL has provided notice of those penalties in the applicable Player Policy. That is the situation here.
In the “Discipline for Game-Related Misconduct Policy” and its “equipment violations” provision, the NFL repeatedly provides notice—in bold, italicized type —that “First offenses will result in fines.” Specific fine amounts have been collectively bargained with the NFLPA. But Goodell ignored the collectively bargained penalty in the applicable Player Policy, and the notice it provided, and affirmed Brady’s unprecedented suspension for an alleged equipment violation.
...
Essence of the agreement. The NFL argues that the decision below is an affront to Goodell’s “broad authority” to define “conduct detrimental.” Br. 1-2. No one, however, challenged that authority. Rather, this litigation concerns Goodell’s “remedial discretion” as an arbitrator, which the NFL concedes must not “contradict[] the terms of the CBA.” Br. 2. That is exactly what Goodell did. He never mentioned the collectively bargained fine announced to players as the only potential discipline for equipment violations; rather, he simply affirmed an unannounced (and unprecedented) four-game suspension. No principle of “deference” to labor arbitrations can justify that award.
Asserting that “general authority is not uncommon in labor contracts,” the NFL theorizes that “the CBA ‘does not require itemization’” of “specific discipline.” Br. 20 (citation omitted). Here, however, the parties did itemize “specific discipline” for the “specific categor[y]” of conduct—first-time equipment violations. Under the applicable Player Policy, that discipline could only be a fine. Thus, the NFL cannot credibly argue that the general language of the Player Contract provides “more than adequate notice” of Goodell’s authority to “suspend” players for the same conduct. Br. 26.
The parties have provided a concrete, collectively bargained answer to that question: For equipment violations, “First offenses will result in fines.” As the district court recognized, Brady had clear “notice that equipment violations under the Player Policies could result in fines,” but “no notice that he could receive a fourgame suspension.” SPA30, 21.
So, Brady does not challenge Goodell's broad authority, but argues that authority is limited if the offense is specifically enumerated. That is why Kessler's statement that the enumeration of the equipment violation doesn't apply is, to me, pretty fatal to that argument.
 
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oldetowneteam

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Mahoney makes it sound like a well respected federal judge completely and utterly dropped the ball and made egregious mistakes in his ruling. IANAL, so I guess that's possible. Team Brady could lose, but I'm skeptical it's as slam dunk of a case as Mahoney makes it out to be.
I think that Mahoney's view of what will happen is what the league's view of the law is and is the reason why the league decided to appeal in the first place. I've also heard that the league is convinced Brady is guilty because his phone was destroyed and thus was willing to overlook all of the other issues that call into question the report's conclusion about Brady.

Here are a few other things I thought I would add, based on my experience and practice before both of these courts:

First, Berman is not a well-respected SDNY judge. He is viewed as cantankerous and a bit of a maverick. While SDNY judges in general are rarely reversed (I think the average of the court is that less than 10% of decisions are reversed, if not lower), Berman is reversed far more often. This, of course, does not mean he will be reversed here, but Berman has a reputation of making errors and that often means that the Second Circuit scrutinizes what he does more often. That's in contrast from the usual approach of reviewing an SDNY judge's decision, which is to show the judge great deference (even if that's not the standard of review).

Second, as noted, the characterizations of Katzmann are accurate. The other thing to add is that Katzmann has 5 clerks as chief. In general, 3 of those clerks come from Judge Rakoff's chambers (SDNY) because Katzmann and Rakoff have an arrangement where they hire the same clerks at the same time and those clerks first work for Rakoff and then work for Katzmann. That means that three of Katzmann's clerks were likely with Rakoff when Berman issued the initial decision.

Rakoff could not be more different than Judge Katzmann in personality. Rakoff is the judge who challenged the SEC practice of permitting companies to settle cases with the SEC without admitting fault. Rakoff, like Katzmann, is ridiculously smart. The word on the street is that Rakoff thinks that Berman's decision in the Brady case was wrong and that Rakoff didn't hesitate to say as much when it came down. Who knows whether Rakoff actually thinks this or whether he influenced his former clerks by expressing such a view, but, if true, that's not a great thing because it predisposes the clerks to Rakoff's views.

Third, Clement's involvement in the appeal is really big from an appellate court standpoint. If he's not the best appellate lawyer in the country, he's the second best. For the Second Circuit, hearing Clement argue makes this an even more exciting case because he is such a good appellate lawyer. It is like going to a Sox playoff game and getting to see King Felix and David Price pitch on the same day.

That said, in general, oral argument is for show. 99% of appellate cases are decided before oral argument and based on the briefs. To the extent that judges have any uncertainty, they will ask questions geared toward that, or they will throw out questions/arguments to try to influence their colleagues to his/her viewpoint.

That's all I got for now. Like all of you, I'm very interested to hear how this goes today.
 

dcmissle

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I do believe that whatever happens, this panel is going to put a nail in the case for good. A remand to Berman is unlikely. If the panel rules for Tom, there is a very good chance it buries the NFL in an unpublished affirmance, which has no precedential impact. Despite Clement, this isn't going to the Supreme Court in that scenario. The Court has lost a great champion of arbitration in Scalia (see, for example, Amex v Italian Colors), and I don't think there would be 4 votes to take the case, much less reverse. If Tom loses, I don't think there would be much appetite for it either. And the Second Circuit almost never grants rehearings en banc. Everyone will soon be out out of this misery, thankfully and especially for BBTL.
 

edmunddantes

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While SDNY judges in general are rarely reversed (I think the average of the court is that less than 10% of decisions are reversed, if not lower), Berman is reversed far more often.
This, doesn't square with this

The NFLPA is likely confident it will win the appeal. It knows that Judge Berman is rarely reversed. As shown in a previous SI.com article, of the 204 decisions by Judge Berman that were appealed over the last 15 years, 159 (78%) were affirmed and only 17 (8%) were reversed or vacated.
So which is it? What are your numbers?
 

PeaceSignMoose

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First, Berman is not a well-respected SDNY judge. He is viewed as cantankerous and a bit of a maverick. While SDNY judges in general are rarely reversed (I think the average of the court is that less than 10% of decisions are reversed, if not lower), Berman is reversed far more often. This, of course, does not mean he will be reversed here, but Berman has a reputation of making errors and that often means that the Second Circuit scrutinizes what he does more often. That's in contrast from the usual approach of reviewing an SDNY judge's decision, which is to show the judge great deference (even if that's not the standard of review).
Is this actually true? I can't find it now, but everything I've read and heard in the past is that Richard Berman is only reversed something like 8% of the time, which statistically seems to put him right at the average.

Edit: Edmunddantes beat me to the punch.
 

oldetowneteam

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Is this actually true? I can't find it now, but everything I've read and heard in the past is that Richard Berman is only reversed something like 8% of the time, which statistically seems to put him right at the average.

Edit: Edmunddantes beat me to the punch.
A rate of 78% affirmance is low for an SDNY judge.

78 plus 8 is only 86. That means in 14% of the other cases, the court is sending back (remanding) to Berman for some reason or doing something else, like vacating the decision.
 

WayBackVazquez

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A rate of 78% affirmance is low for an SDNY judge.

78 plus 8 is only 86. That means in 14% of the other cases, the court is sending back (remanding) to Berman for some reason or doing something else, like vacating the decision.
This is wrong. That means the other 14% are dismissed (settled) or remanded. That number is low for the Circuit. Affirmance rate circuit-wide in the last 12-month period was 60%, 63% the 12 months before that, and 61% before that. 78% is significantly above the mean.
 

Bleedred

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Rakoff could not be more different than Judge Katzmann in personality. Rakoff is the judge who challenged the SEC practice of permitting companies to settle cases with the SEC without admitting fault. Rakoff, like Katzmann, is ridiculously smart. The word on the street is that Rakoff thinks that Berman's decision in the Brady case was wrong and that Rakoff didn't hesitate to say as much when it came down. Who knows whether Rakoff actually thinks this or whether he influenced his former clerks by expressing such a view, but, if true, that's not a great thing because it predisposes the clerks to Rakoff's views.

.
If this is true, this is the first time I've heard it, and given that you're an insider, it's the first time I've really started to worry about what will transpire today.
 

WayBackVazquez

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So are we going to find out anything about the oral arguments today, or just the usual dueling press conferences afterward?
Depends on the media, doesn't it? We will certainly get the press conferences, and I am sure some media members will be better than others in interpreting how things went. There will 100% be a rush put on the transcript, so we'll have it fairly soon.

Somebody else (dcmissile?) can say how long it usually takes to have the audio CD made available. I've never ordered one.
 

DegenerateSoxFan

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For obvious reasons that have already been explained by the other lawyers, the oral argument probably won't be the difference in this case. But I'm curious to see how Kessler holds up against Clement (who really is THAT good - just read some of the transcripts from cases he's argued before SCOTUS and you'll see why).
 

mandro ramtinez

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For today's hearing, Stephen Brown, the NYPost reporter who gave constant updates during the hearings before Berman, recommended following the tweets of Max Stendahal, whose handle is @MaxLaw360. He has quite a few updates on the hearing so far on his twitter feed.
 

oldetowneteam

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This is wrong. That means the other 14% are dismissed (settled) or remanded. That number is low for the Circuit. Affirmance rate circuit-wide in the last 12-month period was 60%, 63% the 12 months before that, and 61% before that. 78% is significantly above the mean.
With all due respect, this does not prove that what I've said about Berman is wrong. It depends on what you are actually referring to in collecting your statistical sample. Do those stats include courts outside the SDNY? Do they include cases that have been dismissed for lacking jurisdiction? For instance, here's a link to the US courts website providing the latest stats on the Second Circuit: http://www.uscourts.gov/statistics/table/b-5/statistical-tables-federal-judiciary/2015/06/30

Take a look at Table B-5 (page 2). The top table on that page breaks down cases that were terminated in the Second Circuit. In the private civil category there are a total of 800 cases, spanning the entire Second Circuit. 507 are affirmed, which creates a 63.375% affirmance rate based on total cases in the other private civil category. But that is misleading because it includes cases where the court did not reach the merits. 202 cases were dismissed, meaning they were either settled or the court did not have jurisdiction to decide the dispute. That means that the number of cases where the court reached the merits in some way is 598 (800 - 202). That gives an affirmance rate of 84.78%.

That breakdown, of course, is based on the entire circuit, which includes EDNY, WDNY, NDNY, D. Conn, and D. Vt, in addition to the SDNY.

In my experience, SDNY judges do better before the Second Circuit than other courts. I recognize that is anecdotal, but I can tell you that, from working in the Court and appearing before it, the SDNY is considered to be the cream of the crop.

And, in terms of SDNY judges, Berman is not considered to be a top-tier jurist. Does that mean he gets reversed today? Of course not. But I can tell you from personal experience that some circuit judges scrutinize what he does more than others. Could that have changed? Yes. But it does not change that it has happened in the past.

Now, in my opinion, the bottom-line take away is that people should not think that what Berman did is bullet-proof or that Berman is the type of jurist the Circuit is going to go out of its way to affirm.
 

WayBackVazquez

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With all due respect, this does not prove that what I've said about Berman is wrong. It depends on what you are actually referring to in collecting your statistical sample. Do those stats include courts outside the SDNY? Do they include cases that have been dismissed for lacking jurisdiction? For instance, here's a link to the US courts website providing the latest stats on the Second Circuit: http://www.uscourts.gov/statistics/table/b-5/statistical-tables-federal-judiciary/2015/06/30

Take a look at Table B-5 (page 2). The top table on that page breaks down cases that were terminated in the Second Circuit. In the private civil category there are a total of 800 cases, spanning the entire Second Circuit. 507 are affirmed, which creates a 63.375% affirmance rate based on total cases in the other private civil category. But that is misleading because it includes cases where the court did not reach the merits. 202 cases were dismissed, meaning they were either settled or the court did not have jurisdiction to decide the dispute. That means that the number of cases where the court reached the merits in some way is 598 (800 - 202). That gives an affirmance rate of 84.78%.

That breakdown, of course, is based on the entire circuit, which includes EDNY, WDNY, NDNY, D. Conn, and D. Vt, in addition to the SDNY.
The table you're citing is where I got the data I used in my post. Berman's 78% affirmance rate relates to the 63.375% circuit-wide (although I don't know why you're limiting your consideration to "other private civil" cases when there's no indication that Berman's 78% is so limited). You're also being inconsistent by excluding cases that didn't reach the merits from this table, while (without any apparent basis) counting those very kinds of cases against Berman. Using your methodology, Berman has a 90.3% affirmance rate.

As to there being a higher rate of reversals outside of SDNY - maybe. But there are like 5 judges in Vermont and Connecticut compared to the dozens in SDNY. The SD judges are having a greater impact on the overall statistics.

There's nothing wrong with you saying that based on your personal experience Judge Berman is not well respected among the Second Circuit judges. But if you're going to make actual statistical claims, you're going to have to do a much better job of showing your work.

EDIT: Here's an apples to apples comparison between Berman and Rakoff:



 
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Steve Dillard

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Very briefly, why Brady faces an uphill fight. Brady's first and main argument is notice, contending that Commissioner was restricted in punishment by the penalties agreed upon by the union and league.

I think Clement knocked Kessler off his spot on that first argument, so Kessler will have to prevail on two other issues. ..... [Bias/Discovery] I suspect this is where Kessler will make most of his headway with the Panel. It will be interesting to see how he quickly moves off the first argument.... perhaps the Panel will take him there.
Never got off the argument into the others.
 

Mooch

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Consensus on Twitter is that Kessler got crushed during the hearing and that it doesn't look great for Brady, with the obvious disclaimer that "you never know".
 

PedroKsBambino

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Any of the appellate lawyers have a point of view on the relationship between tough questioning/'appearance' of where these judges are leaning and what actually occurs in the opinion later on?

Also, was puzzled at Chin's comment about the evidence of ball deflation being compelling---not so much the conclusion (which of course is odd) but why that is a question at issue in the appeal.
 

tims4wins

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Another question: Chin said that the cell phone didn't add to the punishment. But didn't the NFL say exactly the opposite - in both Vincent's original letter, as well as the appeal?? If Chin is incorrect, what can be done about it? Will Kessler get to file anything after the proceedings today? Thanks.
 

edmunddantes

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Clement also got the lie about Jastremski and Brady conversation into the record. So lots of stuff at odds from the official record were stated today.
 

WayBackVazquez

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Any of the appellate lawyers have a point of view on the relationship between tough questioning/'appearance' of where these judges are leaning and what actually occurs in the opinion later on?

Also, was puzzled at Chin's comment about the evidence of ball deflation being compelling---not so much the conclusion (which of course is odd) but why that is a question at issue in the appeal.
There are some panels where one can't tell (for instance where one judge is completely silent, while the other two are clearly split in whom they are aggressively questioning), but in my experience, when you come out of the room feeling like at least two panel members are going one way, you;re nearly always correct.

I would only caution that none of us have read the transcript yet, and my faith in media reports (including legal analysts) is not such that I would decide the case based on them at this point.

Another question: Chin said that the cell phone didn't add to the punishment. But didn't the NFL say exactly the opposite - in both Vincent's original letter, as well as the appeal?? If Chin is incorrect, what can be done about it? Will Kessler get to file anything after the proceedings today? Thanks.
We don't know what exactly was asked and answered. In most cases, if a judge bases a question on an incorrect understanding of the facts, the correct thing to do is gently correct him on the record. Unless the Court has asked for clarification on some point, or there was a blatant mischaracterization of the record, or new and pertinent authorities (eg the Peterson decision) become available, nothing else will be filed. Generally, a judge's misunderstanding of the record does not warrant a Rule 28(j) letter to the Court.
 

djbayko

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Another question: Chin said that the cell phone didn't add to the punishment. But didn't the NFL say exactly the opposite - in both Vincent's original letter, as well as the appeal?? If Chin is incorrect, what can be done about it? Will Kessler get to file anything after the proceedings today? Thanks.
Yeah, relying on the fact that the penalty didn't increase seems foolish. What if the penalty should have been decreased on appeal, but it stayed the same because of the newly introduced evidence?
 

DJnVa

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Fuck it--unless the OL is that much better, 4 games off can only help Brady.
 

tbb345

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Zero possibility of what you describe. The record is complete.
I know basically nothing about the law. I know Michael McCann brought up on Twitter that there was a possibility of a "remand" meaning it would then go back to Berman. Do you not see that happening?
 

DennyDoyle'sBoil

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Any of the appellate lawyers have a point of view on the relationship between tough questioning/'appearance' of where these judges are leaning and what actually occurs in the opinion later on?
My experience is much like WBV. Unless the panel doesn't talk, I'm rarely surprised. Where the panel is "hot" like it sounds like it was today, and all three ask questions, I usually know where I stand and am not often surprised. A couple of times, maybe.

The bad sign is it sounds as though there was no deference paid at all to Berman's decision. They sound like they were deciding the case fresh.
 

WayBackVazquez

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I know basically nothing about the law. I know Michael McCann brought up on Twitter that there was a possibility of a "remand" meaning it would then go back to Berman. Do you not see that happening?
That could happen (though I very much doubt it), but it wouldn't be based on a lack of evidence. It would be because the Second Circuit reverses on the grounds Berman decided on, but didn't consider bias/partiality. They could ask him do so on remand.
 

Bleedred

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Reading the knowledgeable lawyer posts in this thread, it sounds like we should start getting prepared for an NFL victory and the shitstorm that ensues. I know it's crazy premature to conclude that, but WBV, DDB, etc. were not this pessimistic last time.
 

troparra

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That could happen (though I very much doubt it), but it wouldn't be based on a lack of evidence. It would be because the Second Circuit reverses on the grounds Berman decided on, but didn't consider bias/partiality. They could ask him do so on remand.
Didn't Berman already decide on bias/partiality?
 

JakeRae

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There are some panels where one can't tell (for instance where one judge is completely silent, while the other two are clearly split in whom they are aggressively questioning), but in my experience, when you come out of the room feeling like at least two panel members are going one way, you;re nearly always correct.

I would only caution that none of us have read the transcript yet, and my faith in media reports (including legal analysts) is not such that I would decide the case based on them at this point.



We don't know what exactly was asked and answered. In most cases, if a judge bases a question on an incorrect understanding of the facts, the correct thing to do is gently correct him on the record. Unless the Court has asked for clarification on some point, or there was a blatant mischaracterization of the record, or new and pertinent authorities (eg the Peterson decision) become available, nothing else will be filed. Generally, a judge's misunderstanding of the record does not warrant a Rule 28(j) letter to the Court.
Judge Chin wasn't misunderstanding the record. His point was that the penalty did not increase at the disciplinary hearing. The full context of the questioning and argument made that clear. (I was at the argument today. I won't pretend to be able to recite said context, but this was a repeated line of questioning that began with Clement's argument, where they were pushing on the issue of whether we know that the penalty wouldn't have decreased without the reliance on the destruction issue, and then turned it around on Kessler by pointing out that the penalty didn't increase. It seems clear that Judge Chin was very interested in pushing the boundaries on this issue. Judge Parker also got involved a bit in this line of questioning.)
 

tims4wins

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So if it is reversed, that basically means the NFL's original appeal is upheld, correct? And then the NFL will just suspend Brady the 4 games and it is over?
 

DennyDoyle'sBoil

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Based on your line of thinking and Brady loses this, would he just appeal this ruling and keep stringing it out?
Based on the way the case has been argued so far, there doesn't seem to be something the Supreme Court would be interested in. But, and I have a feeling this will need to be reiterated over and over around here, until we actually see the opinion one way or the other it's a very hard question to answer. It depends not so much on what they decide, but on how they decide it. A circuit split, for example, on industrial custom might attract the Court. I would think it unlikely that the Second Circuit would write an opinion in a way that would invite cert, but you just never know and we won't until we see it.