An Analysis of Tom Brady’s Strategic Decision to Appeal or Not to Appeal
Tom Brady has given up on the appeals process with regard to his four game suspension to start the 2016-17 NFL season resulting from his involvement in the Deflategate scandal surrounding deflated New England Patriots footballs in the 2015 playoffs. However, the reasons behind his decision are likely strategic.
If Brady had chosen to appeal the decision of the 2nd Circuit upholding his suspension, that appeal would be to the Supreme Court of the United States. The Nation's highest court rarely hears appeals. In fact, it does so in less than 1% of cases in which it is petitioned to do so. The Court would not immediately consider whether it would hear the appeal. That decision would not likely come for months.
However, here is the catch. The Justice in charge of appeals coming from the 2nd Circuit, Ruth Bader Ginsburg, could order a Stay of the suspension until the full Court weighs in. In other words, Brady's four game suspension would be delayed. If later, the full Court decided not to hear the Appeal, the Stay of the suspension would be lifted and Brady would immediately serve his suspension at that point. This scenario could come about during the final stretch of the regular season, or even worse for Brady and the Patriots, at the beginning of the playoffs or during the Super Bowl.
In the end, it would be much better for Brady to serve his suspension now at the beginning of the regular season than to pursue a risky appeal that could land him on the sidelines for a much more critical stretch of games. This is likely the reason that Brady decided to not pursue the appellate process any further and it seems as though that was probably good legal advice from his attorneys.
However, even though Brady is going to accept the four game suspension at this point and not pursue an appeal himself, there have been reports that Brady will allow the NFL Players Association to continue to pursue the appeal on his behalf. This would allow the Players Association to challenge the future authority of NFL Commissioner Roger Goodell to hand out such punishments and to even potentially recover Brady's lost pay if the appeal is successful.
So, the process is not really over yet. Brady will serve the four game suspension and will not pursue an appeal. But, the NFL Players Association very well may pursue it. A truly strategic decision.