Chief Judge Robert Katzmann issued a dissenting opinion in the Circuit Court of Appeals’ reinstatement of Patriots quarterback Tom Brady’s four-game "Deflategate" suspension.
In his dissent, Katzmann says "I am troubled by the Commissioner’s decision to uphold the unprecedented four-game suspension. The Commissioner failed to even consider a highly relevant alternative penalty and relied, instead, on an inapt analogy to the League’s steroid policy…the Commissioner’s decision reflected ‘his own brand of industrial justice.’"
"I would also find that the Commissioner’s decision fails at the second step of our analysis because it does not draw its essence from the CBA," Katzmann wrote. "It must be emphasized that the case at hand involves an unprecedented punishment."
The court ultimately voted 2-1 to restore Brady’s suspension.
"We hold that the Commissioner properly exercised his broad discretion under the collective bargaining agreement," the US Appeals Court ruling ruled Monday, "and that his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness."
"Accordingly, we REVERSE the judgment of the district court and REMAND with instructions to confirm the award."
In the ruling, the court specifically noted its lack of ability to determine whether Brady "participated in a scheme to deflate footballs or whether the suspension imposed by the Commissioner should have been for three games or five games or none at all."
The ruling overturns a previous ruling by Judge Richard Berman before the 2015-2016 season which eliminated the suspension.
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In early March, the 2nd U.S. Circuit Court of Appeals in Manhattan held a hearing on the suspension and gave a players’ union lawyer a tough time, with one of three judges even saying evidence of ball tampering was compelling, if not overwhelming.
All three judges put NFL Players Association attorney Jeffrey Kessler on the defensive with multiple reasons why they thought NFL Commissioner Roger Goodell might have been within his rights to order the suspension of Brady after finding the quarterback knew about the deflation of game balls before the January 2015 AFC Championship game between the Patriots and the Indianapolis Colts and that he had obstructed the league’s investigation.
The judges also were tough at times on Paul Clement, attorney for the NFL, questioning why the simple act of deflating footballs warranted such a severe suspension.
SI.com legal expert Michael McCann, who has covered deflategate extensively, also was surprised with the ruling bringing back Brady’s suspension.
"It is truly unprecedented. There’s no consistency in terms of this punishment and punishments given to other players," said McCann. "They basically said Goodell could do whatever he wants because the union lets him."
McCann said Brady can now petition to have all the judges on the Court of Appeals hear his case over again. Even more unlikely, Brady’s attorneys could try sending the case to the Supreme Court.
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