TOM BRADY RULING
Today the U.S. Court of Appeals for the Second Circuit rejected Tom Brady’s request for a rehearing, all but ensuring Brady will be suspended for the first four games of this season.
This ruling wasn’t surprising to the legal community since it would have either required the same three judges who had just ruled in the previous hearing to hear the case again (why would they), or in a “hearing en banc,” a majority of all of the 13 active judges on the Second Circuit would have had to agree to hear the appeal, something that happens in approximately one percent of cases.
In the original appeal, a majority of the three judges on the panel ruled that none of Brady’s arguments overcame the fact that Article 46 of the Collective Bargaining Agreement (CBA) provided Commissioner Rodger Goodell with nearly unlimited authority to conduct the Brady hearing, decide the outcome of the case and punish, as he saw fit. He essentially had authority to be the judge, jury and executioner. The National Football Leagues Players Association (NFLPA) explicitly allowed Goodell to have this authority in the CBA and the players must live by the agreement.
It is important to remember, the appeal in this case was not over the inflation of footballs, but rather the process used by Goodell in suspending Brady, and in this instance, the court ruled for the NFL.
Brady’s last remaining hope is to take this all the way to the top, and petition the Supreme Court of the United States. In doing so, he will directly petition Supreme Court Justice Ruth Bader Ginsburg for a “stay” and also petition all the judges on the Court for a “writ of certiorari,” which would mean at least four members of the Court believe that the case involves a sufficiently significant federal issue in the public interest.
The “stay” would suspend the appeal, allowing Brady to play until all the justices decide on whether or not to grant Brady the “writ of certiorari.” As the circuit justice for the Second Circuit, Justice Ginsburg is the decision-maker for a stay petition. In considering a stay, Justice Ginsburg would simply review all the rulings and briefs up until now and decide whether or not this case would essentially be of interest to the Supreme Court due to the legal issues it deals with. Once again, this is not about deflating balls, this case is about the process of punishment and whether or not Goodell followed the proper procedures.
If they deny the writ, the Supreme Court is saying that it will let the lower court decision stand. On the other hand, if the stay and the writ of certiorari are both granted, then Brady would be allowed to play this season while his case is heard sometime in 2017.
Unfortunately, a writ of certiorari is rarely granted, especially now that the Supreme Court only has eight justices and usually only will review a case if there is a very compelling reason of law that needs to be ruled upon. Brady’s best arguments would be that this case poses significant arbitration and labor consequences that would affect many future labor decisions in all areas, not just football. He will also argue that without the stay he would suffer irreparable harm since he would miss 4 games that he could never get back.
Despite briefs submitted by many different parties, including the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), which represents over 12 million workers from teachers to pilots, arguing that Brady's case is one related to the core principles of labor / management relations, the appeals court still denied a rehearing and the Supreme Court is likely due to do the same, since Article 46 of the CBA was collectively bargained. If for some reason the Supreme Court does take this case, it would most likely be to re-affirm the validity of the arms length negotiated collective bargaining agreement. While Brady would lose in the long run, it provides a small chance that he plays this year.
I was surprised at the initial court's ruling in Brady’s favor, so I am not optimistic Brady will be successful in what amounts to his final hail-Mary.
BRADY SUSPENSION – FANTASY IMPACT
The only question many of us really care about is how this effects our fantasy teams.
Including the bye week, Tom Brady is going to miss FIVE weeks of the fantasy football season, which accounts for 38% of the regular fantasy season. Enter third year backup quarterback Jimmy Garoppolo. To this point he has thrown only 31 regular season passes in his NFL career, but he knows the offense well, is a quick decision maker, has a quick release, a decent, although not big arm, and possesses pretty good accuracy. Maybe his biggest asset is the presence of HC Bill Belichick who was able to coax an 11 game win season out of journeyman Matt Cassel when Brady went down in 2008.
Not only does this hurt Brady’s value, but also this puts a question mark on the value of players such as Julian Edelman and Rob Gronkowski. As a massive and rare talent, Gronk’s value should be okay, as he may become Jimmy Garoppolo’s security blanket, but the diminutive Edelman might not fair as well. The Patriots may also lean more on the run game, boosting the value of Dion Lewis and LeGarrette Blount, although without Brady, this whole offense could stall and it could also stress the team's defense, having unknown consequences.
As for the schedule, the Patriots play at Arizona and then have three straight homes games: vs. Miami, vs. Houston and vs. Buffalo. It’s not the easiest schedule playing against the Arizona and Houston defenses, along with division rivals Miami and Buffalo, but at least three of the four games are at home.
But like with any action, there is an equal and opposite reaction. This all provides a window of opportunity for fantasy teams that have enough depth to acquire all these players on the cheap, providing your team a massive boost once Brady returns.
JOSH GORDON
The other suspended fantasy player we are monitoring closely is Browns receiver Josh Gordon. Gordon was eligible for reinstatement earlier this year when one of his many (literally possibly hundreds) of tests resulted in a diluted result. Unfortunately for Gordon, a diluted result was treated the same as a failed result. Gordon is now eligible for reinstatement on August 1st, when he can petition Commissioner Goodell once again.
What makes the whole situation murky and complicated for outside observers, is that, as Pro Football Talk Reported, “Gordon’s status hinges on compliance with a specific treatment plan, the terms of which can’t be disclosed without someone committing a clear violation of the confidentiality terms of the substance-abuse policy. Without knowing the contents of the plan or Gordon’s ability to do everything he’s supposed to do (and to not do everything he’s supposed to not do), there’s no way of knowing whether Gordon has checked all the boxes. There’s also no way of knowing whether Commissioner Roger Goodell will conclude, in the exercise of his complete discretion, whether Gordon should be reinstated. Likewise, there’s no way of knowing when the decision will be made.”
Another complicating unknown is whether or not Gordon is a pawn in a larger battle between the NFL and the players over the use of Marijuana. Former running-back and noted weed toker, Ricky Williams, said today that he believes about 60 to 70 percent of NFL players smoke marijuana and he mentioned that some coaches do as well. This isn’t surprising given that marijuana is becoming legal in many States and its use is as frequent with young people as drinking a beer. NFL players are also tested only once in the pre-season and then not again until the next year. Is the NFL trying to make an example of Gordon? Quite possibly, but if they show there is no hope to return from exile, even after passing dozens to hundreds of tests, it’s a bad message to send and offers banned players little incentive to stay clean.
There have also been a few recent developments that can give us a bit of hope. Browns Hall of Fame running-back Jim Brown has been in contact with Gordon and says he sounds motivated to get back on the field and appears to be holding himself accountable for his actions. Gordon’s agent, Drew Rosenhaus, who recently dropped Johnny Manziel as a client, stated that he thinks Gordon would be reinstated this year and he has been working very hard to do so. Reading the tea-leafs, I think he is reinstated sometime this season.
GORDON SUSPENSION – FANTASY IMPACT
Josh Gordon is a fantasy season altering player and with a current ADP in the 16th round, there is very little downside to taking a shot on him at some point in your draft.
It’s worth remembering that in his last full season, with dreck at the quarterback position, Gordon went 87/1,646/9. Game script is also going to be in the offenses favor, playing with an already suspect defense that just lost one of their best players, Desmond Bryant, for the season.
The Browns did draft talented rookie receiver Corey Coleman in the first round this year, and while his long-term talent isn’t a question, it's also not easy being the man, and without any sort of viable receiver on the team right now, Coleman is going to see a lot of #1 cornerbacks. Coleman's numbers would benefit with the addition of Josh Gordon who would help dictate coverage legitimately pushing Coleman into WR2 territory with Gordon a WR1, as the Browns air it out, playing catch-up most of the season.
COLLECTIVE BARGAINING AGREEMENT (CBA)
One last thing worth noting is the effects that both of these situations are going to have when the league's labor deal runs out in 2020. The extent of the Commissioner's authority and the use of marijuana by the players are both going to be heavily negotiated in the next agreement.
Even more pressing will be player payments. With NBA bench players earning far more guaranteed money than NFL stars, despite NFL teams generating more revenue, something in the system will have to be changed. Players are also going to highly contest the use of franchise tags, with players such as Von Miller already speaking out heavily against them this year. Not to sound too cynical, but we should all enjoy football while we can, because come 2020, we may be without it for a year or so.
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