Tom Brady’s Uphill Battle with the Supreme Court

Majority of people are having difficulty fathoming how the infamous “deflategate” case, a seemingly insignificant issue to the general public, has the potential to be heard by the highest court in the United States. It is important to note that a lower court must consider whether the litigant, Tom Brady (“Brady”), is entitled to have the court decide the merits of his dispute with the NFL before the case has potential to be reviewed by the United States Supreme Court. In order to meet the minimum constitutional requirements a plaintiff must allege an actual or threatened injury to himself that is fairly traceable to the allegedly unlawful conduct of the defendant, and is likely to be redressed by the requested relief. Brady and the National Football League Players Association (“NFLPA”) were entitled to have their case heard by the Federal District Court because Brady is subject to a four game suspension, which is an economic injury. Brady and the NFLPA are alleging Roger Goodell and the NFL’s punishment and investigation of him was an unlawful breach of the collective bargaining agreement (“CBA”).

Review by the Supreme Court is considerably more burdensome and unlikely. In addition to establishing standing, the Supreme Court only reviews cases that have national significance, will avoid frequent and reoccurring litigation on the same matter, and/or establish precedent for future decisions.[1] Only 100-150 cases, out of the nearly 7,000 cases that are presented to the Supreme Court yearly, are accepted for review.[2] The circuit justice for the Second Circuit, Supreme Justice Ruth Bader Ginsburg, will review Brady’s petition for stay, which is a legal order that would postpone his suspension until the Supreme Court makes a decision on whether to review his case. Justice Ginsburg’s review of Brady’s petition entails a review of whether there is a “reasonable probability that four Justices will grant review of the case, irreparable harm will result with a denial of the stay, that there is a “fair prospect” that the lower courts decision was erroneous, as well as the lower courts rulings, relevant rulings of precedent cases and briefs filed by Brady, the NFL and possibly third-party amicus briefs.[3] If stay is granted then it will remain in effect until the Supreme Court makes a decision on the case, however, if the petition for writ of certiorari is denied then the stay will automatically terminate.[4] If stay is denied then Brady may present an application to each Justice, until a majority of Justices denies his request. This is not Justice Ginsburg’s first review against the NFL. Former Ohio State running back, Maurice Clarett, petitioned Justice Ginsburg to allow Clarett to participate in the 2004 NFL draft. Justice Ginsburg ultimately rejected Clarett’s petition, ruling there was no reason to overturn the Second Circuit’s decision in the case.[5]

Review of Brady’s case by the Supreme Court is unlikely because it is difficult to ascertain that the NFL’s handling of the issue at hand is of national significance. Sports labor attorney Jon Israel, a former assistant general counsel for the NBA, told Law360, that “there’s not really anything that’s unusual” with the case.[6] He added that, “To define labor management relations through the lens of professional sports is probably not the best place to establish labor law precedent.”[7] Justice Ginsburg will likely affirm the Second Circuit Court of Appeals decision because Brady’s petition does not present an issue of great national significance. In addition, resolution on Brady’s issue will not serve future, similar disputes, because of its specialized nature, as it is particular to only NFL players. This means that Ginsburg will likely deny Brady’s request for stay, which significantly dampens his chances of the Supreme Court reviewing his case. Subsequently, Brady will likely serve his four game suspension and the NFLPA will likely place heavy weight to the involvement of the NFL Commissioner in such labor disputes when they arise due to upcoming renegotiation’s of their CBA agreement, which expires in 2020.






[1] Supreme Court Procedures: Writ of Certiorari,, available at (last visited July 14, 2016).

[2] See id.

[3] Michael McCann, Tom Brady’s Last Shot: Taking Deflategate to the Supreme Court, (Jul. 13, 2016), available at See also infra note 4.

[4] Public Information Office Supreme Court of the United States, A Reporter’s Guide to Applications Pending Before The Supreme Court of the United States, (revised Feb. 2016), available at

[5] See id.

[6] Benjamin Horney, Deflategate Could Alter NFL’s Collective Bargaining, Law 360 (Jul. 13, 2016), available at

[7] See id.