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Friday, July 15, 2016
Why Tom Brady Was Smart to Not Seek a Stay from the Supreme Court

Update: Shortly after this post was published, Tom Brady announced that he will not be seeking a stay of his suspension at the Supreme Court, and will not litigate the DeflateGate case any further. For the reasons noted below, this was probably a smart decision, as receiving a stay could have backfired for Brady given the likely briefing schedule for his case at the Supreme Court.

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With the Second Circuit Court of Appeals having denied Tom Brady and the NFLPA a rehearing in the DeflateGate case, attention has turned to whether the U.S. Supreme Court will stay his four-game suspension in time for him to suit up for the Patriots week one of the NFL season. And as Alan Milstein noted yesterday, because the Supreme Court is currently in recess, any request by Brady for a stay would be decided by Justice Ruth Bader Ginsburg.

While I think the odds that Justice Ginsburg would grant Brady a stay are quite a bit lower than Alan, in some respects Brady may actually, surprisingly, be better off without a stay. Indeed, if Brady's suspension were to be stayed, only to have the Supreme Court ultimately deny his cert petition, then Brady could instead find himself sitting out the Patriots' final four regular season games, or even, potentially, the team's first playoff game.

Specifically, Brady's petition for certiorari is currently due October 13th. Once that brief is filed, the NFL would then have 30 days to file its opposition brief. However, under Supreme Court Rule 30.4, parties opposing a cert petition are entitled to one extension as a matter of right. This means that the NFL could, if it wanted, receive an additional 30 days to file its opposition brief.

Assuming the NFL does not, in fact, request an extension, then its opposition brief would be due November 14th. At that point, the Supreme Court would give Brady 14 days to file a reply brief, before submitting the case to the full Court for consideration.

This means that, should Brady receive a stay of his suspension, the Court could decide whether to grant his cert petition during its conference of Friday Dec. 9th, with a decision expected to be announced on Monday Dec. 12th. And if the Court were to deny Brady's petition -- the most likely scenario, in my opinion -- then his four-game suspension would presumably go into effect immediately.

That means the Patriots would find out they'd lost their star QB only hours before their Monday night game against the Baltimore Ravens. He'd then also miss New England's final three regular season games as well (at Denver, vs. the Jets, and at Miami).

Alternatively, while less likely, if the NFL didn't reinstate Brady's suspension in time for Monday Night Football, then his suspension could potentially run into the first week of the playoffs instead.

Either way, then, while receiving a stay from the Supreme Court would certainly be a short-term victory for Brady, it could ultimately backfire should the Court eventually deny his cert petition. In that case, Brady may well wish he'd just sat out the season's first four games.


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