BOSTON (CBS) — Monday brought some bad news for the Patriots and Tom Brady, but if fans are looking for a ray of sunshine on the horizon, sports attorney Daniel Wallach joined Zolak & Bertrand to lay out one scenario in which Brady may end up victorious in the ongoing fight.
There is the chance that the case gets heard again en banc, which means heard in front of all the judges on the Second Circuit.
“Most appellate panel decisions have uniformity and a consensus. The existence of a dissenting opinion is certainly an outlier among appellate decisions, and that it’s from the Chief Judge indicates that maybe he can garner support among his colleagues for rehearing the case en banc,” Wallach said. “But the Second Circuit rehears so few cases en banc. Over the 11 years between 2000 and 2010, I think there were eight or nine en bancs heard during that entire 10-year period. So the prospects for it are dim, but I believe this case, given its high profile, the dissenting opinion and the important issues affecting arbitration … [lean] highly in favor of a rehearing. So if any case is going to be reheard this year in the Second Circuit, I think this is going to be the one.”
That’s one route. The other involves Adrian Peterson, whose case is still ongoing in the Eighth Circuit.
“If you have two different federal appellate courts viewing the role of an arbitrator under the NFL CBA differently, you have a split among the circuit courts,” Wallach explained. “And circuit splits are the number one reason why the U.S. Supreme Court takes a case. Ninety percent of the Supreme Court’s dockets are because of circuit splits, to try to afford uniformity in federal law.
“Potentially, the Adrian Peterson decision could become Brady’s biggest ally for a potential rehearing en banc, or to be reviewed by the Supreme Court. So you’ve got to root for a circuit split if you’re a Patriots fan,” Wallach added.
Wallach said that a lot of that depends on how exactly a ruling is made, but it remains something to keep a keen eye on going forward.
Listen to the full interview below: