Will Patriots’ amicus brief in support of Tom Brady make a difference?

Will the Patriots’ amicus brief backing Tom Brady’s appeal fight make a difference in Deflategate’s endless court battle? It’s a small victory for Brady that the team filed a brief at all.

The Patriots took the very unusual step of petitioning the U.S. Court of Appeals for the Second Circuit on Wednesday to allow the team to file an amicus curiae brief—which is a filing by a non-party, or “friend of the court”—in support of Tom Brady and the NFLPA’s petition for a rehearing or an en banc rehearing. Here’s what to know about the brief—you can read a copy of the motion to file the brief and the brief itself in its entirety here—and whether or not the Patriots’ surprise filing will make a difference in the ongoing appeals process surrounding Deflategate.

Breaking down the logic of the Patriots supporting Brady in court

In one sense, the Patriots’ request is completely logical. As Daniel Goldberg, the Patriots’ top outside counsel, writes in the motion, the team has a “strong interest” in the punishment of Brady. “To state the obvious,” Goldberg asserts, “the Patriots will be severely adversely affected by the loss of Mr. Brady for four of the Patriots’ 16 regular season games.” In Brady’s expected absence, the team would be forced to start third-year quarterback Jimmy Garoppolo, who threw just 20 passes during his first two NFL seasons. While Garoppolo is highly regarded and could play well, it is sensible to assume that the team would be less likely to win those four games with him taking Brady’s place. Thus, the Patriots clearly have a stake in the NFL’s suspension of Brady and in the accompanying court decisions.

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Goldberg also identifies various procedural and substantive critiques in the manner in which the NFL investigated and ultimately punished Brady. For instance, Goldberg emphasizes that, in the view of the Patriots and many scientists (a group of whom filed their own amicus brief in support of Brady on Wednesday), no football tampering occurred. Along those lines, Goldberg insists that Ideal Gas Law “fully explains the PSI of the footballs that day,” a point explained in extensive detail by several prominent scientists, including within this video by MIT professor John Leonard. Further, Goldberg stresses that NFL commissioner Roger Goodell imposed “unprecedented, unjustified and unsupported penalties on Mr. Brady.” As has been written often, Goodell never explained why Brady deserved a four-game suspension while players who used stickum only deserved fines. Goldberg also argues that Goodell denying Brady an opportunity to review the investigative notes is indicative of a deceptive process in that it prevented Brady (and the Patriots) from knowing when the referees tested the footballs and how long the footballs had been inside the locker room. Not knowing the timing of these measurements arguably prevented Brady from being able to build a defense and validate or reject the NFL’s scientific conclusions. Goldberg highlights still other questionable aspects of the league’s investigation, all of which led to an allegedly “fundamentally unfair process” and “unjust punishment.”

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Goldberg also stresses alleged errors made by Judges Barrington Parker, Jr. and Denny Chin in their April 25 ruling in the NFL’s favor. Goldberg contends the duo “endorsed the outcome of a highly manipulated and fundamentally unfair process designed and used by the Commissioner to reach and justify a predetermined outcome in violation of the CBA and this Court’s precedents.” Along those lines, Goldberg asserts, the ruling “renders meaningless the vital protections afforded by a bargained-for right to appeal and to obtain and present pertinent evidence.” Goldberg adds the ruling by Judges Parker and Chin will impact parties “far beyond the NFL,” knowing that that a rehearing en banc is more likely to be granted if the 13 active judges believe the case poses consequences for labor-management relations in general.

The Patriots’ brief is not solely about the law. It probably also reflects certain public relations aspects of the team’s response to Deflategate. Many Patriots fans urged owner Robert Kraft to challenge Goodell and even sue the league, especially after serious scientific questions arose about the NFL’s conclusions and many around the NFL began to doubt the accusations against the Patriots. As I have explained, such legal efforts by Kraft would almost certainly have been futile. NFL team owners contractually accept the decision-making of the commissioner and waive away opportunities to sue the league and other teams. This legal relationship is not unusual in franchise law, and the Patriots are one of 32 franchises. Nonetheless, some fans—several of whom actually sued Kraft in a quixotic and unsuccessful lawsuit—remain deeply disappointed by the Patriots not somehow striking back at the NFL. On Wednesday, those fans received perhaps the closest the Patriots can get to retaliation while maintaining the team’s legal responsibilities as a franchise.

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The Patriots’ supporting Brady is remarkable from a legal standpoint

While it is completely rational from a football standpoint for the Patriots to support Brady’s efforts to obtain a new hearing, it is nonetheless remarkable from a legal standpoint. The NFL, the Patriots and the 31 other franchises constitute one side of NFL Management Council et al. v. NFL Players Association et al. (the case better known as Brady v. NFL). The NFLPA and Brady constitute the other side of this litigation. At least for the purposes of advocating for a rehearing or a rehearing en banc, the Patriots have essentially crossed over to support the NFLPA and Brady.

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​To be sure, the Patriots have taken this step in a careful way consistent with their legal obligations to the league, petitioning the Second Circuit as a non-party that purports to have an established stake in the case. In other words, the Patriots have not “switched sides” in the litigation; the team, through its outside counsel, is merely offering a view as a friend of the court. The Patriots are also only supporting the granting of a rehearing or a rehearing en banc—a request that is technically different from the team advocating that the NFL loses that rehearing.

Still, for a league that unpersuasively argued to the U.S. Supreme Court that it and its 32 teams ought to be regarded as a “single entity” under federal antitrust law—essentially one company with 32 different departments—it is stunning to see one of those franchises now openly criticize the commissioner in a federal appellate filing. Indeed, the Patriots go beyond merely supporting Brady and the NFLPA. Through Goldberg, the team sharply critiques the commissioner himself. Goldberg highlighting “fundamental unfairness” and “fundamental flaws” is tantamount to a full-scale rebuke of the commissioner.

The impact of the Patriots’ filing may be limited—but you never know

As I wrote on Monday, Brady faces very long odds in his pursuit of a rehearing, a rehearing en banc or any intervention by the Supreme Court. Even with this case’s star-studded set of attorneys, the odds of an additional hearing are very low. Amicus briefs, moreover, only have as much influence as judges see fit, since they cannot be filed by the parties in the appeal. The judges can ignore the amicus briefs or consider them meaningful—it’s entirely up to them.

Still, the 13 judges who are considering Brady’s petition probably will find it meaningful that the Patriots are openly criticizing the same disciplinary process that Brady and the NFLPA contend is unlawful. While most amicus briefs may play, at most, a minimal role in an appeal, one filed by a party that is technically a member of the opposing party should attract the judges’ attention. We’ll find out if it makes a difference.

Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. McCann also created and teaches the Deflategate undergraduate course at UNH. He serves on the Board of Advisors to the Harvard Law School Systemic Justice Project and is the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law. He is also on the faculty of the Oregon Law Summer Sports Institute.