Basically, the NFLPA has just one option after the three-judge appeals panel reversed U.S. District Judge Richard M. Berman’s original pro-Brady ruling: To ask that the full 21-judge Second Circuit panel hear the case, a so-called “en banc” hearing. That may be a long shot for a number of reasons, according to sports-law expert Daniel Wallach.
Wallach says the Second Circuit has a “longstanding tradition of general deference” to decisions made by the three-judge panels and that cases have advanced to en banc hearings “only in rare and exceptional circumstances.” According to the Federal Bar Council, one of those rare instances was the Pentagon Papers case in 1971, when the full Second Circuit heard arguments without first relying upon a three-judge panel.
Key moments in the Deflategate scandal, in photos
The Second Circuit also has a “mini-en banc” procedure in which “proposed panel opinions are circulated to non-panel judges before issuance,” Wallach reports, in other words circumventing the need for a formal en banc hearing. However, it isn’t known whether the three-judge panel in the Brady case consulted with the rest of the Second Circuit judges before issuing its ruling. And such a move is pretty rare: According to the New York Law Journal, the Second Circuit has used the “mini-en banc” process 70 times over the past 50 years.
Nevertheless, Wallach notes, the fact that one of the judges on the three-judge panel sided with Brady may give the NFLPA some hope.
“So the prospects for [an en banc hearing] 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,” Wallach told Scott Zolak and Marc Bertram on 98.5 the Sports Hub. “So if any case is going to be reheard this year in the Second Circuit, I think this is going to be the one.”
And it’s not like there haven’t been a number of unexpected twists in this case already: