By Michael Hurley, CBS Boston
BOSTON (CBS) — Tom Brady hasn’t said a word publicly since Monday’s ruling from the Second Circuit Court of Appeals reinstated his four-game suspension from the NFL, but his actions on Friday indicate he is gearing up for a heavy-duty fight. And if that fight goes all the way to the Supreme Court, Brady will be prepared.
Brady’s side filed a notice on Friday indicating the addition of Theodore B. Olson as as additional counsel. The D.C. lawyer served as solicitor general from 2001-04 under George W. Bush, and he served as assistant attorney general from 1981-84.
The 75-year-old Olson has argued before the Supreme Court 62 times, winning more than 75 percent of them, according to his bio on Gibson Dunn’s website.
That experience included arguments in two Bush v. Gore cases. Recently, he was hired by Apple as the company fought the FBI over the ordering of the unlocking of an iPhone following the San Bernardino shooting. He also argued to repeal the ban on same-sex marriage in California’s Proposition 8.
Olson is no stranger to the NFL. He worked for the NFLPA during the 2011 lockout, saying of the NFL, “What they did, in short, is exercise monopoly power in an oppressive, predatory way.”
Additionally, the NFLPA filed a motion requesting an extension of the window to appeal the Second Circuit’s decision. The original window to request a rehearing or an en banc hearing was set at 14 days, but the motion requests an additional 14-day extension of time.
“Appellants have not determined their position on this motion at this time,” the motion reads. ”
The motion was filed by Olson. If the request is granted, the deadline for an appeal would be moved from May 9 until May 23.
The request lays out three reasons for the court to grant the request. First, “the Court’s opinion will affect the rights of every player in the NFL. Accordingly, the NFLPA and its members would benefit from additional time to analyze the implications of the decision for labor-management relations between the NFL and the NFLPA.”
Second, “the Court’s decision raises significant labor law issues that could have far-reaching consequences for all employees subject to collective-bargaining agreements” and “additional time is necessary to evaluate these issues.”
“These aspects of the Court’s opinion are of great importance not only to NFL players, but to all unionized employees,” the request states.
Last, “the NFLPA needs additional time to coordinate and consult with its leadership bodies and members.”
Olson stated that the request for an extension was “not made for purposes of unnecessary delay” and, given that the NFL season and Brady’s suspension does not begin until September, an extension would have no negative impact on the NFL.
Brady’s and the NFLPA’s options for appeal begin with a request for an en banc hearing, in which all of the judges of the Second Circuit would rehear the case. Though en banc hearings are rarely granted, the fact that Robert Katzmann — the chief judge of the court — dissented with the majority opinion in the ruling likely lends some reason for optimism from the NFLPA that there is a chance for this route. If the en banc hearing is rejected, the NFLPA could petition the Supreme Court.
While the request stated that Brady’s side had not yet determined a course of action, it seems safe to infer from the addition of Olson and the thorough request that Brady is gearing up to continue his fight.
UPDATE, May 2: The NFL has filed a motion in opposition to the request for an extension of the appeal window. Attorney Paul Clement wrote, “Appellees’ request to double the ordinary time for filing a rehearing petition runs contrary to the shared efforts of the parties and Court alike to obtain an expedited resolution of this case and should therefore be denied. … It is thus imperative that rehearing proceedings do not frustrate the collective effort to avoid that undesirable result. The first preseason game is just over three months away. Time remains of the essence.”
You can read the entire filing motion here.