Never before has an interception caused such a ruckus. Generally, Tom Brady throws a pick-off and his fans pout until the Pats regain control of the ball. But on January 18, 2015, Tom Brady threw an interception during the AFC Championship Game between the New England Patriots and the Indianapolis Colts that snowballed into the latest infamous NFL scandal: Deflategate.

An intercepted football passed off to a Colts’ sideline equipment manager sparked a controversy that has persisted for more than a year and is now traveling upwards through the federal court system. Suspicion that people in the Patriots organization were underinflating footballs to give their players an offensive advantage, prohibited by the NFL Rulebook, led to a four-month investigation conducted by the NFL.

The investigation focused on Brady, a locker-room attendant, and an equipment assistant. A report released on May 6, 2015, revealed suspicious text messages and surveillance video of the equipment assistant taking all 24 AFC Championship game balls into a restroom for approximately 90 seconds before the game began. The investigation resulted in the imposition of a four-game suspension prohibiting Tom Brady from starting the 2015 regular season. The National Football League Players Association (NFLPA) filed an appeal on Brady’s behalf, presided over by NFL Commissioner Roger Goodell. Goodell issued an arbitration award upholding the suspension.

The NFLPA then took the suit to federal court. It sought an injunction from Southern District of New York Judge Richard Berman to reverse the NFL’s arbitration award. To the surprise of many, Judge Berman granted the players union’s motion, holding that the NFL, and Commissioner Goodell in particular, had not abided by the 2011 collecting bargaining agreement between the NLFPA and the NFL. He further found that various aspects of the arbitration proceeding were fundamentally unfair and in violation of the Federal Arbitration Act. This was a serious departure from the general practice of federal judges according a high level of deference to arbitration awards—indicating that Judge Berman found the award exceptionally unjust. For a more thorough review of Judge Berman’s decision, see here.

The NFL immediately filed an appeal with the Court of Appeals for the Second Circuit. This appeal actually has little to do with Tom Brady’s alleged conduct in Deflategate at all. The appeal will focus primarily upon whether Judge Berman correctly applied the law in reasoning that Commissioner Goodell acted outside his authority under the collective bargaining agreement in applying a “conduct detrimental to the game” standard when he upheld the four-game suspension in his capacity as arbitrator, discretion allegedly conferred upon him by the agreement. This will require review of the agreement itself and the Federal Arbitration Act, an act that Judge Berman said Goodell violated.

Oral arguments were heard by the Second Circuit on Thursday, March 3, 2016. A three-judge panel comprised of Chief Judge Robert Katzmann and Circuit Judges Denny Chin and Barrington Parker, Jr. heard the appeal. With the decision pending, sports pundits will inevitably speculate at length what the opinion of the Second Circuit will reveal and what it will mean for Commissioner Goodell, the collective bargaining agreement between the NFL and the NFLPA, and Tom Brady’s suspension.

Because this appeal concerns judicial review of an arbitration award, the panel will review Judge Berman’s decision de novo. According the lower court’s opinion no deference could assist the NFL in a way it may not have had the standard of review been different. A review of Judge Berman’s track record before the Second Circuit reveals that he has only been reversed in 8% of his decisions raised on appeal. When one of the three judges on this panel was involved in reviewing a Judge Berman decision, his opinion was only reversed in 11% of those appeals. Of course, few of those decisions are comparable to the issue before the Second Circuit here, so predicting how his opinion will stand up to judicial scrutiny remains tenuous. That is not to say that some have not tried, however. For a comprehensive analysis of the players in this game, see Michael McCann’s article written for Sports Illustrated. McCann’s review leans slightly toward an outcome favoring Brady and the NFLPA, but he carefully qualifies his opinion as hinging on many unpredictable variables.

One thing does, however, seem certain: Tom Brady will never regret an interception more than that of January 18, 2015.

–Natalie Gabrenya

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