Sports attorney Daniel Wallach: ’50-60 %’ that Tom Brady plays Week 1 – Boston Herald

Sports attorney Daniel Wallach joined Herald Radio this afternoon to shed some light on Tom Brady’s legal battles, past and forthcoming.

Wallach practices sports and gaming law out of Florida, and opened the interview by saying he doesn’t believe Brady’s case is dead to rights by any means.

“I don’t think he’s going to be serving his suspension just yet. He’s got a couple more legal avenues,” Wallach said. “They’re both uphill battles, but I’ll explain why Justice Ruth Bader Ginsberg may ultimately clear the way for Brady to play games one through four. It’s not over. In fact, his chances are much better before Justice Ginsberg than they ever were before the second circuit. Now this is just a temporary measure, but if we’re talking about 2016, I think Justice Ginsberg always presented the clearest path for Brady to play this year, (more) than the second circuit did. Because the second circuit had already ruled and in less than one percent of cases will they ever grant rehearing. While I was optimistic, certainly the outcome was 99 percent statistically certain.”

How will Brady’s lawyers repackage his case moving forward?

“This case going forward has to be about much more than how Brady got jobbed before the NFL commissioner. It has to present the highest level issues that could impact other labor settings involving unionized employees. So I think the bigger picture will be flushed out in the Supreme Court briefing. It’s going to be less about Brady going forward and more about how this can impact labor in a multitude of different settings. However, Judge Ginsberg will be the ultimate arbiter of whether Brady plays this season. The Supreme Court won’t decide this case – either by denying the petition, or granting the petition and ruling on it – until 2017. So it’s Ginsberg or bust, basically.”

Will there be another long wait for Brady to file?

“If you were frustrated by the slow pace of litigation leading up to yesterday’s decision, fear not, it’s about to take off and become a rocket docket. Within the next six days Tom Brady will be filing a petition or a motion to stay the issuance of the second circuit’s final order until the Supreme Court addresses and resolves his forthcoming petition for a certiorari. In plain English, he wants to stay the suspension so that he can pursue Supreme Court review. And he has to file that motion first with the second circuit. And the second circuit deadline of the practical matter is next Wednesday, when the mandate issues in the case… It is highly unlikely that the second circuit will stay the suspension or its own mandate, but it is a prerequisite that Brady needs to go through in order to push this case along to Justice Ginsberg who would be the next step in the process. I would expect between now and Tuesday: Brady files a motion for a stay, the NFL quickly responds, and the second circuit rules on it by the end of next week or the week thereafter. Highly likely that the second circuit will deny the petition because it will be addressed to the same three-judge panel who believed that Brady’s claims were meritless”

When does the Supreme Court come into play?

“Probably in about two weeks time, Brady will file another motion for a stay (to the Supreme Court), making similar arguments that were presented to the second circuit, but highlighting the fact that he will be irreparably harmed if he were be to suspended for four games while he pursues relief in the United States Supreme Court. And the reason he would be irreparably harmed is if the four games are served and he later wins before the United States Supreme Court, there’s nothing that the high court can do about it to restore those four lost games. They’re gone forever.”

What does Brady have going for him in terms of the stay?

“In a close case, Brady wins because he will suffer irreparable harm once those four games are missed, and the NFL suffers zero harm with a deferral of the four-game suspension. He just needs to keep it in the ballpark, and make it a close enough call so that Justice Ginsberg has enough to hang her hat on to grant a stay in favor of Brady. And I believe Brady will, in fact, get the stay. Or at least a temporary stay from Justice Ginsberg… I think if Brady does obtain a stay from Justice Ruth Bader Ginsberg, I think he’ll be pretty safe for the 2016 NFL season.”

What’s the bottom line? What are the odds that Brady plays Week 1?

“I think it’s at 50 to 60 percent. I’m probably the most optimistic person on the planet, but I believe that this is a close case, and in a close case you look at the balance of the equities. And the balance of equities decidedly favors Tom Brady. Admittedly, he does have an uphill battle in persuading Ginsberg that this is a reasonably probability, of the court taking the case and a fair prospect that there would be a reversal, but he couldn’t pick a more favorable justice to have on his side. She’s in her early 80’s. She’s not going to be overly concerned with having her decision disturbed later on. She’s the most liberal justice on the court.”