UNDER ANALYSIS: Pigs get skinned, hogs get slaughtered

Charles Kramer, The Levison Group

For many, football season is over. Not for the lawyers in the room, however. Those who practice their football in a court instead of on a field know that the NFL’s antics continue. Not only is there litigation in St. Louis against the once-again Los Angeles Rams for allegedly lying to their former St. Louis fan base about their future intentions, but the Tom Brady “deflated football” drama is back again. The appeal of Brady’s suspension is continuing to wind its way through the courts of our nation.

 In fact, the Second Circuit Court of Appeals heard oral argument a scant two weeks ago, in early March, on the NFL’s appeal of the New York District Court’s surprising reversal of the NFL “arbitration” decision — and the reception was not quite what Tommy Terrific would have liked. Unlike the “Brady Bunch” atmosphere of the lower court proceedings, the second circuit hearing seemed more league positive. The court’s questions appeared focused on facts that were not good for the Patriot quarterback; they labelled his lawyer’s advice hypertechnical and didn’t even let his lawyer go over the strict time limit for argument.

As is their practice, immediately after the oral argument the judges met for preliminary discussion as to their positions and vote. Although positions can, and sometimes do, get swayed in the opinion writing process, usually the initial vote tells the tale. At this initial meeting, one of the judges on the majority side is assigned the task of writing the opinion to support the majority vote.
Accordingly, one of the second circuit judges has already been assigned to write the decision and supporting decision, and all of the judges know Tom’s preliminary fate. We, of course, do not know who the scrivener will be or whether a well drafted opinion will sway the vote. Further, it is entirely possible that other judges could write consenting or dissenting opinions, rather than simply join the majority opinion, and indeed that seems likely. A decision is expected before the end of April, but in one real sense the decision has already been made.

America has moved on. Where once we were confounded by Bradyism, today we try to figure out Trump and Sanders, Cruz and Clinton. The attention is no longer on the hot air in the footballs, but rather on the cold air in the convention halls. Possible precedents give way to possible presidents.


© 2016 under analysis LLC Under analysis is a nationally syndicated column of the Levison Group. Charles Kramer, one of the Levison Group’s regulars, is a principal of the St Louis Missouri based lawfirm, Riezman Berger, P.C. Comments or criticisms about this column can be sent directly to the group at comments@levisongroup.com, or in c/o this newspaper.


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