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Brady’s lawyers asked Ken Feinberg to submit a brief


The parade of friend-of-the-court briefs in support of the litigation arising from Tom Brady’s suspension reminded some (OK, maybe only me) of the jersey scene in Rudy. Apparently, that comparison works only if Rudy had personally asked the Notre Dame seniors to each visit the head coach with a gesture that, cumulatively, sent a powerful message.

Appearing on Friday’s PFT Live on NBC Sports Radio, renowned arbitrator Kenneth Feinberg explained the genesis of his involvement in the effort to obtain a rehearing of the appeal in the U.S. Court of Appeals for the Second Circuit.

“Like a lot of people, I’ve been reading about the case and I was impressed by Judge Richard Berman’s decision in the district court in New York a few months ago determining that the arbitration was unfair, it was arbitrary, it was unbiased,” Feinberg said. “Then I continued my interest like a lot of people when I read the Second Circuit appellate court opinion, where by a vote of 2-1 the majority felt that the process had been fair and the Chief Judge of that court -- Judge Katzmann -- dissented, agreeing with Judge Berman. So there’s two judges that were with Brady and two judges that were with the Commissioner.

“Then I got a call from Mr. Brady’s lawyers asking, making requests to me, with my background, would I be willing to submit an amicus brief expressing concern about the arbitration process that governed in Mr. Brady’s case? I said I would and I submitted the brief. I never expected it to receive the type of publicity that 10-page brief received but I thought it was the right thing to do.”

So was the entire string of briefs submitted by parties not connected to the case instigated by Brady’s lawyers?

“It was all generated I assume by Mr. Brady’s lawyers,” Feinberg said, citing the “very steep challenge they’ve got to try and get the full appellate court to review the panel’s decision.”

“It’s very very rare that that happens and I think Mr. Brady’s lawyers are hoping that with some friend of the court briefs, mine, the AFL[-CIO], the physicists, that perhaps the full court will review what the appellate court did in voting in favor of the Commissioner,” Feinberg said.

In all, at least five briefs have been submitted on Brady’s behalf. The fact that at least one and possibly all five were instigated by Brady’s lawyers strips the dynamic of its organic, spontaneous feel. But it doesn’t make the briefs any less important.

Besides, with a 15-page limit on the submission from Brady and the NFL Players Association, the briefs from the various non-parties allowed Brady to, as a practical matter, exceed the limit significantly, reiterating the best arguments and delving into issues that aren’t directly relevant to the appeal but potentially persuasive to the Second Circuit judges, like the impact of the Ideal Gas Law on the PSI measurements taken at halftime of the January 2015 AFC title game between the Patriots and the Colts.