Tom Brady Suspension: Why Brady Still has a Fighting Chance – In HIs Own Court

Feb 2, 2015; Phoenix, AZ, USA; New England Patriots quarterback Tom Brady (left) and NFL Commissioner Roger Goodell pose with the Pete Rozelle trophy during the Super Bowl XLIX-Winning Head Coach and MVP Press Conference at Media Center-Press Conference Room B. Mandatory Credit: Joe Camporeale-USA TODAY Sports

New England Patriots Super Bowl winning quarterback Tom Brady (left) and National Football League Commissioner Roger Goodell share smiles for victories after Super Bowl XLIX, but no deflated egos are at play in a court battle for legal precedent in the NFL. (Photo Credit: Joe Camporeale-USA TODAY Sports)

Roger Goodell comes under fire so much you would think he was tied to a pole with a blindfold smoking a cigarette.

After fumbling the Ray Rice, Adrian Peterson, and Greg Hardy’s suspensions during a tumultuous 2014 NFL season, Roger Goodell needed to tuck the ball high and tight on the NFL shield and put up a properly timed stiff arm to Tom Brady and the NFLPA.

Roger Goodell did just that yesterday by upholding the NFL’s 4 game suspension of the New England Patriots star quarterback and simultaneously filling for declaratory relief in New York to make the appeal ruling binding in the US court system.

Roger Goodell and the National Football League’s legal maneuvering did not prevent Tom Brady and the National Football League Players Association from fling for an appeal in historically labor-friendly Minnesota to stay Goodell’s ruling.

The problem with Tom Brady suing the NFL after the NFL is Brady comes squarely up against a legal principle called the “First to File Rule.”

The rule is basically procedural housekeeping in the US federal court system where federal courts will defer to actions previously filed in other federal jurisdictions when the issues and parties in the two lawsuits are practically identical.

There is no question the parties are the same. The issues are also essentially the same. Tom Brady would be seeking to stop the NFL and Roger Goodell from preventing Brady from playing as punishment for his involvement with DeflateGate, while Goodell and NFL want the opposite.

The air would truly be let out of one of Tom Brady’s balls then, right?

Not so fast.

There is a narrow exception to the First to File rule called the “Anticipatory Suit Exception” where the second filing party can move to have the first filing party’s suit dismissed because the only reason the first party filed suit only to prevent the second party bringing their claim in the jurisdiction of their choice.

The burden of proof of the anticipatory suit exception rests with the second party bringing suit. In determining whether this burden has been met, a judge would look to several key factors. First, the court may look at pre-filing communications such as settlement talks between NFLPA, Brady and Goodell.

Those settlement talks include the NFL offering Tom Brady a reduced suspension of 1-2 games if he admitted his involvement in deflating balls in 2015 AFC Championship Game against the Indianapolis Colts, admitted to obstructing the NFL’s investigation of the matter by not cooperating and destroying his cell phone, as well as issuing an apology.

The court may also look at whether the first party filed as a direct response to a threat of litigation. Tom Brady and the NFLPA did in fact threaten to sue the NFL if the league upheld Brady’s suspension.

The court may also look at surrounding events, such as the timing of Goodell releasing his decision at approximately the same time as filing for declaratory judgment.

Most importantly for this case, a judge may look at special factors for declaratory judgment filings. If the judge determines the NFL filed for declaratory judgment for the sole purpose of approximating an affirmative defense, a judge could determine Goodell and NFL basically robbed Brady of his choice of venue.

In its statement on behalf of Tom Brady, the NFLPA said it would “appeal” the NFL’s ruling. It is reasonable a judge could find the NFL attempted to circumvent Tom Brady’s right to appeal the NFL’s ruling by forum shopping in a jurisdiction less favorable to Brady.

If Tom Brady and the NFLPA meets its burden of proving the NFL’s declaratory judgment was anticipatory, the NFL would have to present counter-evidence  showing the its declaratory judgment filing was not anticipatory.

The NFL’s filing has not been made available yet, but it would be no surprise if it had language in it giving reasons for its filing in contemplating that very defense.

After deciding whether reviewing the First to File Rule, the Anticipatory Suit Exception, and defenses to the exception, the judge would then decide in its discretion whether the exception has overcome the rule.

Roger Goodell and the NFL made a great legal procedural maneuver trying to keep the ball in their hands.

In a last ditch effort to fight for his reputation, Tom Brady is willing to grab his own ball and make sure the pressure is to his liking.

Exavier B. Pope I, Esq. is an award winning attorney, on air legal analyst, media personality, and Fortune 500 speaker. Mr. Pope has over 200+ appearances on air, including: international television on BBC and Al Jazeera English; national television on Fox News Channel, HLN, NBC Nightly News, Al Jazeera America, WGN Morning News, Fox Business Channel, and Huff Post Live; Top 3 Local Media Markets on Fox, CBS, and NBC; international radio on BBC Radio; national radio on ESPN Radio, Clear Channel Radio, NBC Sports Radio; contributed digitally to CNBC, Huffington Post, Jet, and Black Enterprise; and has appeared in other media outlets nationally and internationally. Mr. Pope is represented by top media and literary agency RLR Associates. All opinions expressed are those solely of Mr. Pope.

© 2015, Exavier B. Pope I, Esq.

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Categories: #SuitUP

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1 reply


  1. Tom Brady, NFLPA Suit Transferred from Minnesota to Manhattan: 3 Impacts of the Transfer | EXAVIER B. POPE I, ESQ.

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