We all could have completed this life peacefully without ever having heard of the Second Circuit, en banc proceedings or Judge Barrington Parker.
You’re excused if you aren’t excited to digest the means for Tom Brady to wriggle off the NFL’s hook and play without serving his upheld suspension. At this point, “Just wake me when it’s over,” is an understandable position.
That said, our buddy Mike Florio explained how Brady can be on the field in September even if the Second Circuit doesn’t decide to listen to his case “en banc” (all the judges on that circuit rendering a decision).
By next Monday, Brady and the NFLPA will formally file a request for the entire Second Circuit to hear his appeal of the NFL’s DeflateGate decision and discipline.
If that’s granted, the process could conceivably take months to resolve and Brady’s suspension would be stayed while that unfolds, said Florio. That we knew.
But if the Second Circuit declines to rehear the case, Florio says: “Brady will need to take swift and successful action to further delay the suspension pending an effort to persuade the U.S. Supreme Court to consider the case.”
First, Brady would ask the Second Circuit for a stay of the suspension while an appeal to the U.S. Supreme Court is prepared and pursued. If that request is denied, Brady would present the question of whether the suspension will be stayed not to the full U.S. Supreme Court but to the lone Supreme Court justice assigned to the Second Circuit.
Currently, Justice Ruth Bader Ginsburg has the Second Circuit assignment. Which on the surface is good news for Brady, given that Justice Ginsburg was appointed to the Supreme Court by a Democratic president and has been part of the liberal/progressive voting block on the Court since joining it in 1993.
The background and overall philosophy, which suggests an inclination to side with labor over management, could make her more apt to allow Brady to keep playing while he throws one last Hail Mary pass aimed at overturning his suspension for good.
Bottom line? Even if the Second Circuit refuses to take any further action and the U.S. Supreme Court later refuses to consider the case at all, Justice Ginsburg becomes the key to keeping Brady on the field through issuance of the Supreme Court’s decision not to take up the case, which if she issues the stay means that Brady likely wouldn’t be suspended until 2017 at the earliest.
In other words, #GoGinsburgGo.