Legal Setback for Patriots Fans

Yesterday, the N.F.L. prevailed in their appeal in the deflategate case. The 2-1 decision by the United States Court of Appeals for the Second Circuit in National Football League Management Council and National Football League v. National Football League Players Association and Tom Brady includes a dissent by Chief Judge Robert A. Katzmann.

An article in the New York Times about the decision, “N.F.L. Wins Appeal, and Tom Brady Has Little Recourse” holds out little hope for a reversal of the Court of Appeals’ decision: “The panel’s decision can be appealed to the full Second Circuit, or even the Supreme Court…”

Rule 35 of the Federal Rules of Appellate Procedure allow for En Banc Determination. The Rule states “a majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:(1) en banc consideration is necessary to secure or maintain uniformity of the court’s decisions; or(2) the proceeding involves a question of exceptional importance.”

The United States Supreme Court would need a compelling reason to review the Federal Court of Appeals decision. Review is “not a matter of right, but of judicial discretion.” Roger Groves of Forbes magazine has made an argument “Why Tom Brady Should Appeal To The United States Supreme Court.”