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Second Circuit’s Chief Judge would have scrapped Brady appeal, based in part on stickum rules

The argument that Stickum fines should be the starting point for Brady greatly impacted the suspension ruling.

Yes, the NFL won the Tom Brady appeal. No, it wasn’t a slam dunk.

Judge Robert A. Katzmann, the Chief Judge of the U.S. Court of Appeals for the Second Circuit, strongly disagrees with the two judges who ruled in favor of the NFL. In a separate dissenting opinion, Judge Katzmann explains that, in his opinion, Commissioner Roger Goodell’s punishment of Brady exceeded the findings of the Ted Wells report.

“The Wells Report . . . concluded that it was ‘more probable than not that Tom Brady . . . was at least generally aware of the inappropriate activities of [Jim] McNally and [John] Jastremski involving the release of air from Patriots game balls’ . . . and that it was ‘unlikely’ that McNally and Jastremski deflated the balls without Brady’s ‘knowledge,’ ‘approval,’ ‘awareness,’ and ‘consent,’” Judge Katzmann writes. “The Commissioner’s final written decision, however, went further. It found that Brady ‘knew about, approved of, consented to, and provided inducements and rewards in support of a scheme by which, with Mr. Jastremski’s support, Mr. McNally tampered with game balls.”

Judge Katzmann sees those differences as material: “The misconduct found in the Wells Report is indisputably less culpable than inducing and rewarding cheating through the payment of memorabilia, as was found in the Commissioner’s final decision.”

The dissenting opinion also points to the failure of the Commissioner to compare Brady’s alleged misconduct to the use of stickum, an equipment violation for which a first offense triggers a fine of $8,268.

“Given that both the use of stickum and the deflation of footballs involve attempts at improving one’s grip and evading the referees’ enforcement of the rules, this would seem a natural starting point for assessing Brady’s penalty,” Judge Katzmann writes. “Indeed, the League’s justification for prohibiting stickum — that it ‘affects the integrity of the competitive and can give a team an unfair advantage’ . . . — is nearly identical to the Commissioner’s explanation for what he found problematic about the deflation — that it ‘reflects an improper effort to secure a competitive advantage in, and threatens the integrity of, the game.’”

Judge Katzmann then ends the dissenting opinion with a message that will provide some (but not much_ solace to Patriots fans who will be unhappy with the luck of the draw that resulted in Katzmann not having a second judge on the three-judge panel who agreed with him: “It is ironic that a process designed to ensure fairness to all players has been unfairly used against one player.”