The odds of the Second Circuit granting Tom Brady a rehearing appear to be infinitesimal: Less than .03 percent of appeals in the Second Circuit were granted an en banc hearing between 2000-10.
But that hasn't kept the Patriots quarterback and his legal team from trying.
In their petition for a rehearing, a draft for which was released on Monday, they lean on two cases in making their argument to the Second Circuit that a rehearing should be granted. There are a handful of cases that back up their claims and are mentioned, but there are two in particular that are highlighted.
The first is Stolt-Nielsen S.A. v. AnimalFeeds International Corp., a Supreme Court decision that maintained an arbitrator's authority depends on an affirmative grant of authority by both parties that have come to a collectively bargained agreement. In other words, "an arbitrator must exercise only those powers expressly delegated to him by the parties," Brady's team notes.
In Brady's case, Stolt-Nielsen v. AnimalFeeds is relevant because, from Brady's point of view, it's not explicitly spelled out in the collective bargaining agreement that NFL commissioner Roger Goodell can issue a punishment based on facts other than those that were the focus of the initial appeal.
Because Goodell based his punishment in part on "new grounds" -- gifts given by Brady to Patriots employees and the destruction of Brady's cell phone -- the punishment could be vacated.
There's nothing in the CBA that says Goodell can't base his punishment on new facts or new examinations of the same case. But because that power isn't explicitly spelled out in the CBA, it should not be allowed, Brady's camp argues.
The second case that was prominently highlighted by Brady's team was a decision rendered by the Eighth Circuit: Boise Cascade Corp. v. Paper Allied Industries. It held that an arbitrator is required to, at a minimum, address relevant and critical provisions in a colletively bargained agreement.
The Boise ruling is relevant to Brady's case, his team explained, because Goodell failed to even acknowledge the argument made by Brady that ball-deflation should have been treated as an equipment violation.
"Brady’s defense relied on the collectively-bargained penalty schedule for equipment-related violations—and the provision stating that '[f]irst offenses will result in fines,' " the petition pointed out. "Brady argued that these provisions barred Goodell from suspending him for the alleged tampering with footballs."
Not only did Goodell not treat this case as an equipment violation, he ignored Brady's argument.
Whether or not Goodell agreed with Brady's assessment that this was an equipment vioation at best is irrelevent, Brady's team points out. (Clearly Goodell disagreed; instead he compared ball-deflation to performance-enhancing drug use.) That Goodell did not even address it, however, could be grounds for Brady's punishment being vacated.
The draft of Brady's entire petition for rehearing can be found at TheWhiteBronco.com.