#DeflateGate (Court of Appeals Reinstates Suspension)

[Roy H.]

I've been in cases where the judge has made every ruling against my side, significantly questioned and hammered my side far more than the other side, etc. only to then have the judge rule in my client's favor.  Makes an appeal almost impossible if you give the side you will ultimately rule against everything they want.  In this case, it also seems that the NFL's settlement position is the more unreasonable position (i.e. requiring Brady to acknowledge the Wells Report and essentially admit guilt) and thus that is the side I would be hammering on if I wanted to force a settlement.  That is basically law 101 for mediators, arbitrators, judges, etc.  It doesn't mean he won't rule against the NFL, I just wouldn't stake any significant dollars on it.  Outward appearances are often deceiving from judges.

Yeah, judging a case based upon a Judge's questions is, frankly, stupid. I'm a former law clerk, and a lot of times, my judge asked the winning side tougher questions because she knew what she was going to do, and wanted further argument to fill in the weak gaps in a potential opinion.  Of course, there were cases where she asked the losing side the more skeptical questions, too, because she was, well, skeptical.

Oral argument is fairly unimportant in my experience. It's mostly briefs + clerk research from my experience.

[Roy H.]

Bill Simmons just had two retweets up where different people were saying the rumors about Brady accepting a settlement are categorically false.  It sounds like the league is leaking again....

What's the incentive for the NFL to leak that, though?  The Judge has strongly urged settlement.  The NFL has no incentive to look like it's the one not bending.

Perhaps the NFL might hope that there would be calls from the Boston-area media for Brady to just accept the reduced suspension as "what's best for the team." 

If it's out there that Brady has the chance to only sit out one or two games without having to admit to cheating, it could make Brady look selfish to continue to stand on his demand that the suspension be wiped out entirely.

Wouldn't that make more sense if the report was the NFL was offering 2 games? Here, the report is that Brady is being reasonable, but that the NFL is being stubborn. That doesn't help the NFL.

[mef730]

Bill Simmons just had two retweets up where different people were saying the rumors about Brady accepting a settlement are categorically false.  It sounds like the league is leaking again....

What's the incentive for the NFL to leak that, though?  The Judge has strongly urged settlement.  The NFL has no incentive to look like it's the one not bending.

I anything, I buy the original report that Brady would take two games.  The NFL may not want to settle due to precedent reasons (i.e., it doesn't want to encourage players to go to Federal Court, and may be better in the long run with a favorable decision from the 2nd Circuit), but I don't think they gain anything by falsely leaking that Brady is being the more reasonable party.

I don't see how Brady could take two games, even if it's just for non-cooperation. He wouldn't have dragged it out this long to get "sort of acquitted." He wants his name clear.

Mike

[PhoSita]

Bill Simmons just had two retweets up where different people were saying the rumors about Brady accepting a settlement are categorically false.  It sounds like the league is leaking again....

What's the incentive for the NFL to leak that, though?  The Judge has strongly urged settlement.  The NFL has no incentive to look like it's the one not bending.

Perhaps the NFL might hope that there would be calls from the Boston-area media for Brady to just accept the reduced suspension as "what's best for the team." 

If it's out there that Brady has the chance to only sit out one or two games without having to admit to cheating, it could make Brady look selfish to continue to stand on his demand that the suspension be wiped out entirely.

Wouldn't that make more sense if the report was the NFL was offering 2 games? Here, the report is that Brady is being reasonable, but that the NFL is being stubborn. That doesn't help the NFL.

Initially there were reports Brady was willing to accept a reduced suspension along with an admission that he was wrong to not cooperate more with the NFL.  Then, very quickly, reports came out denying that Brady was willing to accept any kind of suspension at all.

[footey]

I've been in cases where the judge has made every ruling against my side, significantly questioned and hammered my side far more than the other side, etc. only to then have the judge rule in my client's favor.  Makes an appeal almost impossible if you give the side you will ultimately rule against everything they want.  In this case, it also seems that the NFL's settlement position is the more unreasonable position (i.e. requiring Brady to acknowledge the Wells Report and essentially admit guilt) and thus that is the side I would be hammering on if I wanted to force a settlement.  That is basically law 101 for mediators, arbitrators, judges, etc.  It doesn't mean he won't rule against the NFL, I just wouldn't stake any significant dollars on it.  Outward appearances are often deceiving from judges.

Yeah, judging a case based upon a Judge's questions is, frankly, stupid. I'm a former law clerk, and a lot of times, my judge asked the winning side tougher questions because she knew what she was going to do, and wanted further argument to fill in the weak gaps in a potential opinion.  Of course, there were cases where she asked the losing side the more skeptical questions, too, because she was, well, skeptical.

Oral argument is fairly unimportant in my experience. It's mostly briefs + clerk research from my experience.

You probably read the briefs.  Whose are more persuasive?

[PhoSita]

I've read most of the brief that the NFLPA originally submitted.  It seems to me like they've got a very strong case re the arbitrator lacking impartiality and lack of notice for the punishment (i.e. not based in the CBA).

As I understand it, the NFL's position is essentially -- the court has to give deference to the arbitrator, Goodell had a right to be the arbitrator, and so the court must basically affirm the decision that he made as arbitrator.

The NFL's position is a strong one, but I think they're asking for a really, really generous interpretation of the league's powers under labor law.  More or less a rubber stamp of any decision they choose to make.  Some judges probably would side with the NFL.  I hope Berman does not.

But hey, I'm a pro-labor liberal, and a Pats fan to boot.

[Bdiddy]

This deference for an arbitrator's decision is being vastly overrated in this case. This deference is based on the decision of an "independent" arbitrator. The crux of the Brady case is that Goodell was "evidently partial" which is a valid ground to vacate an arbitration award ie. he did not "fairly" evaluate all of the evidence and indeed manufactured "facts" in his appeal decision by "worksmithing" the Wells Report which did not even reference the deflation "scheme" to the Colts game. Given the record, ignoring the Judge's questions, the Judge can easily vacate this arbitration decision and order the NFL to appoint an truly independent arbitrator. I would suggest there is a 90% chance that this is what he will do as it will not create any new precedent for CBAs.

[Cman]

This deference for an arbitrator's decision is being vastly overrated in this case. This deference is based on the decision of an "independent" arbitrator. The crux of the Brady case is that Goodell was "evidently partial" which is a valid ground to vacate an arbitration award ie. he did not "fairly" evaluate all of the evidence and indeed manufactured "facts" in his appeal decision by "worksmithing" the Wells Report which did not even reference the deflation "scheme" to the Colts game. Given the record, ignoring the Judge's questions, the Judge can easily vacate this arbitration decision and order the NFL to appoint an truly independent arbitrator. I would suggest there is a 90% chance that this is what he will do as it will not create any new precedent for CBAs.

That seems reasonable to me.

[Roy H.]

This deference for an arbitrator's decision is being vastly overrated in this case. This deference is based on the decision of an "independent" arbitrator. The crux of the Brady case is that Goodell was "evidently partial" which is a valid ground to vacate an arbitration award ie. he did not "fairly" evaluate all of the evidence and indeed manufactured "facts" in his appeal decision by "worksmithing" the Wells Report which did not even reference the deflation "scheme" to the Colts game. Given the record, ignoring the Judge's questions, the Judge can easily vacate this arbitration decision and order the NFL to appoint an truly independent arbitrator. I would suggest there is a 90% chance that this is what he will do as it will not create any new precedent for CBAs.

That seems reasonable to me.

Doesn't that overturn the will of both the Union and the NFL as stated in the CBA, though?  I don't think there's any doubt that Goddell wasn't truly independent from the Wells investigation.  I'm not sure that matters, though, when the written, collectively bargained contract between the parties allows Goddell to arbitrate in these circumstances.

[Fan from VT]

This deference for an arbitrator's decision is being vastly overrated in this case. This deference is based on the decision of an "independent" arbitrator. The crux of the Brady case is that Goodell was "evidently partial" which is a valid ground to vacate an arbitration award ie. he did not "fairly" evaluate all of the evidence and indeed manufactured "facts" in his appeal decision by "worksmithing" the Wells Report which did not even reference the deflation "scheme" to the Colts game. Given the record, ignoring the Judge's questions, the Judge can easily vacate this arbitration decision and order the NFL to appoint an truly independent arbitrator. I would suggest there is a 90% chance that this is what he will do as it will not create any new precedent for CBAs.

That seems reasonable to me.

Doesn't that overturn the will of both the Union and the NFL as stated in the CBA, though?  I don't think there's any doubt that Goddell wasn't truly independent from the Wells investigation.  I'm not sure that matters, though, when the written, collectively bargained contract between the parties allows Goddell to arbitrate in these circumstances.

I do not believe that this non-impartial, non-noticed, non-due processed (appeal team had no access to data, was denied certain witnesses), arbitrary punishment, and ignoring the specific most applicable part of the cba in favor of a broad general clause is contrary to the will of th union in their cba. Any single of those violates labor law and is enough to vacate the punishment, and a cba is not carte blanche to ignore labor rights.

[Donoghus]

Trying to figure out why the heck the court would ask John Mara to get directly involved in settlement talks here.   Luckily he declined but wasn't the conflict of interest there apparent to begin with?

http://profootballtalk.nbcsports.com/2015/08/20/report-mara-declined-to-get-involved-in-brady-settlement-talks/

[BballTim]

I've read most of the brief that the NFLPA originally submitted.  It seems to me like they've got a very strong case re the arbitrator lacking impartiality and lack of notice for the punishment (i.e. not based in the CBA).

  I haven't fully read any documents, but from what I read the "lack of notice" argument has been successfully used by the union in the past, but it was for cases where the league set a new rule in place after an incident occurred and then tried to punish the transgression under a rule that didn't exist at the time it occurred. That doesn't seem to be what's happening here.

[Donoghus]

I've read most of the brief that the NFLPA originally submitted.  It seems to me like they've got a very strong case re the arbitrator lacking impartiality and lack of notice for the punishment (i.e. not based in the CBA).

  I haven't fully read any documents, but from what I read the "lack of notice" argument has been successfully used by the union in the past, but it was for cases where the league set a new rule in place after an incident occurred and then tried to punish the transgression under a rule that didn't exist at the time it occurred. That doesn't seem to be what's happening here.

From my understanding of it, the "lack of notice" issue here is that the Wells report cites the investigation pursuant to the competitive integrity policy.  The problem is that this particular policy applies to non-playing personnel and the players don't receive notice on this policy.

[Roy H.]

This is pretty much how I understand the law, too:

espn.go.com/espn/otl/story/_/id/13479971/fooled-judge-deflategate-case-nfl-win-end-new-england-patriots-tom-brady

[Fan from VT]

This is pretty much how I understand the law, too:

espn.go.com/espn/otl/story/_/id/13479971/fooled-judge-deflategate-case-nfl-win-end-new-england-patriots-tom-brady

The comments of the article are great.

Munson had been bizarrely pro-goodell the entire time. I think there is no way to know how berman will rule. However, he could legally rule either way. Arbitrators are not infallible dictators.

Info about munson
http://articles.chicagotribune.com/1991-04-17/news/9102040136_1_settlement-check-lawyer-disciplinary-supreme-court

Interesting quotes


Christopher Adams
Lester, the next time you cite the Garvey opinion, have whatever paralegal at the NFL picked the quotes for you actually read the entire opinion, particularly the part that states "It is only when the arbitrator strays from interpretation and application of the agreement and effectively 'dispense his own brand of industrial justice' that his decision may be unenforceable. Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960). Berman could very well find that Goodell strayed here both in the interpretation of what he could do under the agreement (the suspension based on a provision that applied to teams, not players), and his completely baffling refusal to allow Brady's lawyers to view the evidence underlying the findings of the Wells report and apply attorney/client privelege to Pash and refusing to allow his tesimony regarding his input on a document which Gooddell relied upon completely to make his initial decision and decision in the arbitration hearing.
I know the NFL pays ESPN - and consequently, you - to side with them on these issues. But for the love of God, if you're going to act like a lawyer on even an infotainment website, do your homework.
2 hours ago


S. Code ? 10 - Same; vacation; grounds; rehearing

(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration

(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.