Chances aren’t good for the U.S. Supreme Court to hear the Deflategate case. (Andrew Burton/Getty Images)
Appellate lawyer Raffi Melkonian joined Ordway, Merloni & Fauria Wednesday morning to discuss the Second Circuit Court of Appeals denial of Tom Brady’s request for a rehearing in the Deflategate case. To hear the full interview, visit the OM&F audio on demand page.
With his rehearing request denied, Brady’s only chance at getting his four-game suspension overturned is through the U.S. Supreme Court. Melkonian said that the Supreme Court only takes about 70 cases a year, but he still expects Brady and his legal team to give it a shot.
“I do think they’re going to Supreme Court because they hired one of the best Supreme Court lawyers in the country just before filing this en banc petition, a guy named Ted Olson,” Melkonian said. “You wouldn’t have hired Ted Olson if you didn’t intend to take a shot at the Supreme Court, so that’s what they’re going to do.”
Melkonian also explained that Brady will have to request a stay from both the Second Circuit and the Supreme Court in order to put off his suspension at the beginning of the season.
“They’re going to have to go and ask for a stay because right now, the suspension is on,” Melkonian said. “There’s nothing stopping the suspension, so if no one stays it, Tom Brady is out for the first four games. They have to first go to the second circuit and ask for a stay, in other words they’ll ask the court to stay it’s own judgement, probably that will be denied, but you never know. Then they go ask the Supreme Court for a stay, they’ll ask the court to stay the Second Circuits judgement while the Supreme Court decides whether to hear the case. That stay application would first go to Ruth Bader Ginsberg because she is the Justice that covers the second circuit. If she decides to refer it to her colleagues, she’ll ask the whole court to think about it, then it might go to the whole court. Those are really hard to get, the chances of getting that stay aren’t terrific.”
Added Melkonian: “As for whether it goes to the court, you need four judges out of the nine to decide to take the case. Right now there are eight, but probably by time this comes around for the justices to decide whether to take it, there will be nine, because Brady has 90 days to file the thing. That’s really hard, the Supreme Court gets 8,000-10,000 cases a year, it hears 70, so those chances aren’t really good.”
Following are more highlights from the interview. For more Patriots news, visit the team page at weei.com/patriots.
On what exactly Brady was requesting from the Second Circuit: “Brady had been asking for the whole second circuit court of appeals to rehear his case, the 13 judges instead of just the three that had heard his appeal the first time, and that was denied today. There was no explanation of why, which is typical, but there had been such a delay since he signed this thing, it was 30 days ago, I was expecting that one of the 13 judges was writing what was called a dissent, or in other words an explanation of why the case should have been reheard. But that didn’t happen, it’s just a one-page order that says denied, so that is over.”
On how this decision can be extended and further pushed off: “The way that it could be extended is he has 90 days from today to file the petition in the supreme court. You can get an additional number of days, I think it’s an additional 60 days, so it’s a total of 150 days to file. So that’s not guaranteed, the court can say no. But let’s say he files after 150 days, that’s all assuming he got a stay. If he didn’t get a stay, then the suspension is going to be served.”
On how soon the stay request will be decided on: “Typically, with the stay they’re going to go ahead immediately, I would do that in a week or two. … So the stay is going to be decided in July or August, whether he’s going to get a stay or not. The question of whether the court hears the case or not, that’s not going to be decided for a long time.”
On the possibility of Brady serving the suspension before the Supreme Court rules in favor of Brady: “There’s really no way to remedy that for him, the NFL Player’s Association would get its precedent if it won that case, but Brady would not get anything. Again, that’s a low possibility, just because of the numbers of the cases the Supreme Court takes. But yeah, Brady could not get a stay, serve the suspension, then the Supreme Court takes the case and decides in favor of Brady, and there would really be nothing they could do for Brady at that point.”