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Pats unlikely to owe NFL legal fees for Brady case, but . . .

New York Giants v New England Patriots

FOXBORO, MA - SEPTEMBER 3: A fan shows support Tom Brady #12 of the New England Patriots during a pre-season game with the New York Giants at Gillette Stadium on September 3, 2015 in Foxboro, Massachusetts. (Photo by Jim Rogash/Getty Images)

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With the Patriots getting involved in quarterback Tom Brady’s effort to overturn the four-game suspension imposed against him by filing a friend-of-the-court brief with the U.S. Court of Appeals for the Second Circuit, the Patriots possibly could end up picking up a portion of Park Avenue’s legal tab.

The folks at have uncovered a 1997 NFL resolution that arguably makes the Patriots responsible to reimburse the NFL for its attorney’s fees based on the team’s decision to become involved in the case.

Here’s the relevant language: “If any member club . . . initiates, joins, has a direct, football-related financial interest in, or offers substantial assistance to any lawsuit or other legal, regulatory, or administrative proceeding (‘Claim’) against the League . . . each Claiming Party shall be obligated jointly and severally to reimburse the League . . . for all of such party’s legal fees, litigation expenses, and costs incurred in such Claim if the Claiming Party (or the third party that received substantial assistance from the Claiming Party, or in whose Claim the Claiming Party has a direct, football-related financial Interest) does not obtain a judgment on the merits which substantially achieves, in substance and amount, the remedy sought.”

For a variety of reasons, this language probably doesn’t apply to the Patriots in this specific case.

First, it was the NFL and not Brady who initiated the lawsuit. Thus, there is no claim “against the League.” The league filed a lawsuit in an effort to uphold Brady’s suspension.

Second, the Patriots arguably don’t have a “direct, football-related financial interest” in the case. The Patriots won’t lose any money at the box office if Brady serves his suspension. While the suspension could make it harder for the Patriots to get to the playoffs (and thus host playoff games and make even more money), this would seem to be more of an indirect football-related financial interest, a byproduct of the suspension itself.

Third, the NFL will incur only minimal additional expenses as a result of the brief filed by the Patriots, apart from the 0.5 hours that one or two (or more) lawyers will bill to the league for reading the eight-page document. Parties to a lawsuit don’t respond directly to friends-of-the-court briefs, and the arguments made by the Patriots track the arguments made by Brady and the NFL Players Association.

As evidenced by the title to this item, there’s a but. It comes from this provision from the 1997 resolution: “The Commissioner . . . shall determine the amount of said legal fees, litigation expenses, and costs, and such determination shall be final and binding.”

While the resolution doesn’t expressly state that the Commissioner also will determine the threshold question of whether fees are even owed, it’s a safe bet that both questions fall within the unassailable, do-what-I-want discretion of the Commissioner. So even if the arguments favor the Patriots, the Commissioner could choose to pick the team’s pockets for any, some, or all of the legal fees incurred by the NFL from this point forward, and there really won’t be anything the Patriots can do about it.