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Tom Brady

Venue of upcoming legal battle could impact Tom Brady's fate in 2015

Lorenzo Reyes
USA TODAY
New England Patriots quarterback Tom Brady (12) on the field before the start of the game against the Cincinnati Bengals at Gillette Stadium.

Now that the verdict is finally in, things are about to intensify.

Tom Brady gave the NFL Players Association the go-ahead to take the league to federal court after Commissioner Roger Goodell upheld the New England Patriots quarterback's four-game Deflategate suspension Tuesday, according to a person familiar with the situation. The person added that the union intends to file its case in Minnesota, where U.S. District Judge David S. Doty has historically ruled in favor of players in labor cases against the NFL.

The person spoke under the condition of anonymity because the person was not authorized to publicly discuss Brady’s case.

The NFLPA also plans to ask the court to either rule before the Patriots' Sept. 10 opener or grant an injunction that lets Brady play until it does, another person with knowledge of the union's thinking told USA TODAY Sports. The person spoke on condition of anonymity because the suit had not yet been filed.

The NFL, however, took a clever step in this impending legal battle.

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The league’s management council preemptively filed a request Tuesday for a U.S. District Court in Manhattan to confirm the league’s decision to uphold Brady’s suspension. It’s a tactic often used in high-stakes litigation when an organization anticipates an adversary will sue to prevent the case from being heard in an unfavorable venue.

Jodi Balsam, who served as the NFL's counsel for operations and litigation from 1994-2002 and as counsel to football operations from 2002-2007, thinks the league now holds a significant advantage.

“Courts are very protective of their jurisdiction,” Balsam, an associate professor and director of civil externship programs at the Brooklyn Law School, told USA TODAY Sports. “It’s very rare that a court would not honor the first filer in their jurisdiction. There are now two conflicting lawsuits with the NFL’s and the union’s. And the first one filed usually has the presumption of jurisdiction and usually is the seat where the case is tried.”

For the NFLPA to get its wish, it needs to convince the judge presiding in Manhattan to pass a motion to hold the lawsuit in abeyance in favor of proceeding in Minnesota.

“Courts are very reluctant to do that,” Balsam added. “The NFL, very wisely, took advantage of that presumption to take the case to a more neutral forum for them. I don’t think the Manhattan court is going to defer.”

Balsam acknowledged that it was still possible for a New York District judge to grant the NFLPA’s wish but said “it’s now far more likely this case will be heard in Manhattan.”

This all means that an immediate resolution now seems almost impossible with a contentious battle looming.

“This is one of those circumstances where the relationship between the league and the union is so curt that there is no hope for a win-win solution,” David Cornwell, a partner at Barnes & Thornburg LLP who has represented high-profile players such as Jameis Winston, told USA TODAY Sports recently in a phone conversation.

“They are in a world of win-lose. The relationship is beyond frayed. It’s frightfully fractured. The success of this business is premised upon the effective cooperation between players and owners. That doesn’t exist. There’s only so much longer this business can endure with that deficiency.”

Deflategate is just another chapter in the ongoing battle between the NFLPA and the league. The union challenged the Ray Rice domestic violence and Adrian Peterson child abuse cases in neutral arbitration, and won both. The NFLPA is also considering whether to appeal Greg Hardy’s case (and four-game suspension) to court.

Brady’s situation, however, is different.

Mark Schamel, a partner at Womble, Carlyle, Sandridge & Rice, who has represented players such as Richie Incognito and Von Miller, said Brady is one of the only players — due to “success and reputation” — who could launch an aggressive case to attack the way Goodell and the league levy discipline, despite it being collectively bargained.

“Not only that, but Tom Brady has one of the best lawyers in the country in Jeff Kessler to be able to go toe-to-toe with whatever the NFL has to offer,” Schamel said.

Because the union retained Kessler and is footing the legal bills, Cornwell said he doesn’t “see a major downside” to Brady suing the NFL — even with the threat of damaging information becoming public knowledge.

But the one element of risk Brady can’t ignore is time.

The union could argue that Doty should preside over Brady’s complaint based on the related-case rule, which has helped steer similar claims to certain judges. Doty overturned the NFL’s ruling on Peterson’s suspension in February and both Peterson’s and Brady’s cases involve Article 46, Section 1(a) of the collective bargaining agreement.

“If Judge Doty were to take this case, Brady would be fairly comfortable with that,” Balsam said. “He would make sure nothing would happen to Brady during the season. I have no doubt he would do whatever he could to make sure no player or the PA would suffer as a result of pending litigation. That’s just a Doty trademark.”

If it’s not Doty, however, Brady would be at the mercy of whichever judge hears the case. Though Brady’s camp would still have several legal alternatives to push a hearing until after the season, his case could ultimately become a distraction for the Patriots, who are trying to defend their Super Bowl title. Even worse for New England, if another judge were to rule in favor of the NFL, poor timing could result in Brady being suspended late in the year, or even in the playoffs.

As training camps open this week, it’s safe to expect the legal maneuvers from both sides to dominate the headlines. It could be months before a resolution is reached.

And whenever that happens, it might be difficult to detect any change in future cases.

“The NFL doesn’t have the best track record in court," Cornwell said, “and despite that, adverse legal rulings have not deterred the NFL from running its business in a way that it thinks is in its best interest.”

Contributing: Tom Pelissero

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Follow Lorenzo Reyes on Twitter @LorenzoGReyes

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