Tom Brady's lawyers are asking a federal appeals court for a new hearing before an expanded panel of judges, telling them Monday that the principle at stake is not just a silly dispute over underinflated footballs — it's the basic right to a fair process that is shared by all union workers.
Setting the stage for the "Deflategate" scandal to stretch into its third season, and putting Brady's four-game suspension back in the hands of the courts, the players' union asked that all 13 judges of the 2nd U.S. Circuit Court of Appeals hear the case that a three-judge panel decided in the league's favor.
"As a union that believes in its obligation to fight for its members, it's an easy call to fight on this," NFL Players Association Executive Director DeMaurice Smith told The Associated Press. "We are looking for affirmation that when a person decides to cloak themselves as a neutral arbitrator, they buy into due process. No arbitrator is allowed to go rogue."
The NFL did not immediately respond to a request for comment.
Brady was suspended four games for what NFL Commissioner Roger Goodell said was an illegal scheme to use improperly inflated footballs in the 2015 AFC Championship game. The suspension was overturned by a federal judge on the eve of last season, but a three-judge panel of the circuit court ruled 2-1 on April 25 that Goodell was within the rights granted to him by the collective bargaining agreement.
An appeal to the full 2nd Circuit — called "en banc" — is Brady's next step in his attempt to avoid the suspension, but such hearings are rarely granted. Brady could then appeal to the U.S. Supreme Court, where the odds of obtaining a hearing are even slimmer.
"That's always an option to litigants," said Ted Olson, the former U.S. Solicitor General who has joined Brady's legal team. "It is not something we have resolved ourselves to doing."
Still, pushing forward could pressure Goodell into a settlement so another NFL season is not dominated by talk of deflated footballs.
Olson, who was involved in Bush v. Gore, which settled the 2000 presidential election, and also the case that overturned California's ban on same-sex marriages, said he does not expect a lengthy appeals process before the 2nd Circuit.
"We don't know the timetable. They could call for additional briefings or just send out a notice that the petition has been accepted or denied," he said. "They have the right to drag it out, but that would be very atypical."
A four-time Super Bowl champion and two-time league MVP, Brady was suspended four games. The Patriots were docked $1 million and two draft picks after an NFL investigation found the team guilty of intentionally underinflating footballs used in the 45-7 victory over the Indianapolis Colts on Jan 18, 2015. Brady was found to be "at least generally aware" of the scheme.
Brady's first appeal was heard by Goodell himself, and when that failed the quarterback went to federal court, where Judge Richard Berman vacated the suspension. The league appealed to the 2nd Circuit, and two of the three judges ruled the players had negotiated away their right to an impartial arbiter when they agreed to allow the commissioner to hear the appeals of his own decisions.
Brady asked for a re-hearing by the entire circuit on Monday, saying in a filing last month that the case had "serious consequences for each of the NFLPA's over 1,600 members" and labor law issues that could have "far-reaching consequences for all employees subject to collective bargaining agreements."
The Patriots open the season Sept. 11 at Arizona. If Brady is suspended, backup quarterback Jimmy Garoppolo would take his place.
AP Sports Writer Jimmy Golen AP Writer Larry Neumeister contributed to this story.
This article was originally published on May 23, 2016.