NFL Commissioner Roger Goodell stands on stage during the 2016 NFL Draft on April 28 in Chicago. Photo by Brian Kersey/UPI | License Photo
New England Patriots quarterback Tom Brady will return to court, filing an appeal for a secondary hearing by the 2nd U.S. Circuit Court of Appeals to overturn a 2-1 decision on April 25 to reinstate his four-game suspension.
Brady is challenging the appeals court ruling that commissioner Roger Goodell was fully within his rights and treated Brady without special considerations in handing down a suspension for his actions and conduct around the Delfategate scandal in January 2015.
Monday was the deadline to file a formal appeal and Brady's legal team was previously granted a two-week extension.
The appeal format is not yet approved but Brady is requesting an appeal en banc, meaning the full panel of the 2nd U.S. Circuit Court of Appeals participates. To be granted the hearing, a majority or seven of 13 judges, must first agree that hearing is necessary.
Brady's team said it will aim to put the target back on Goodell, questioning whether he acted fairly and fully within his rights as granted by the collective bargaining agreement. Relative to other "equipment violations" Brady's punishment is on the extreme end of the spectrum.
NFL Players Association attorney Theodore B. Olson said on "Good Morning America" Monday that the appeal was a certainty.
"The facts here are so drastic and so apparent that the court should rehear it," he said.
Should the en banc session be denied, Brady's lone recourse is to take his case to the Supreme Court.
Olson, who served as Solicitor General under George W. Bush, is new to the NFLPA legal team and has argued 62 Supreme Court cases. He represented the NFLPA during the 2011 labor strike. A Supreme Court case could be months or years down the road.
"Our two primary arguments are that the commissioner in the first place conducted an investigation and then the commissioner imposed discipline. Then the commissioner appointed himself as an appellate judge or an arbitrator and then decided something new in the appellate process, abandoning the grounds that were the original basis for the supposed discipline," Olson told ABC News. "That's No. 1, and an appellate judge is supposed to look at the record and make a decision on the basis of what happened before. He departed from what happened before. Secondly he ignored important provisions of the CBA about discipline that might be imposed for equipment violations. He departed from that completely and went off the track."
If Brady is suspended for the first four games of the regular season, the Patriots would likely start Jimmy Garoppolo in his first regular-season game. The former first-round pick would draw the Arizona Cardinals - In Glendale as part of the Week 1 primetime slate - Miami Dolphins, Houston Texans and Buffalo Bills.
Goodell said at the 2016 NFL Draft he is not inclined to consider reducing Brady's suspension to two games.
Brady, if suspended, could return to the Patriots for Week 5 against the Cleveland Browns. He renegotiated his contract in the offseason to save about $2 million in salary should the suspension stand.