August 19th hearing transcript now available

[Rob0729]

It is becoming more and more apparent that the NFL outsmarted themselves. They thought they would out maneuver the NFLPA and pick the venue that they thought would be more sympathetic to the NFL. What they got was a judge who makes Judge Doty look like a Roger Goodell homer.

Sure, we all could be wrong and Lester Munson could be right and Judge Berman could be all set to rule for the NFL. But even so, Judge Berman has done more damage to the NFL than Judge Doty ever did. Even if the NFL wins this case and Judge Berman upholds the 4 game suspension, he has done so much damage to Goodell's and the NFL's reputation that they may never recover it.

 

[1960Pats]

Page 80

There were so many good pages that it was difficult to pick just one.

If Brady the defendant is anything like Brady the player, it could be a long day for the NYJFL.

 

[Tony2046]

There were so many good pages that it was difficult to pick just one.

If Brady the defendant is anything like Brady the player, it could be a long day for the NYJFL.

Goat on and off the field?

 

[Fencer]

And if anyone around here has his contacts you should ask him why he will not admit his mistake while someone innocent gets screwed.

Most professors have web pages that list an email address.

 

[Deus Irae]

For those interested in checking it out, Wallach has started his breakdown/interpretation of this transcript.

https://twitter.com/WALLACHLEGAL

 

[Deus Irae]

For J. Berman to make his ruling bullet-proof on appeal, he needs low-hanging fruit on "process." That would be exclusion of Pash testimony

https://twitter.com/WALLACHLEGAL/status/634198068796203008

 

[Bobsyouruncle]

Question for anyone that knows. Nash makes an argument I haven't heard.

Kessler argues the equipment policy has 1st offenses of a fine. Nash basically says he disagrees. He says reasonable people could read it either way but the court must defer to Goodell's reading of the policies.

I haven't heard that the court defers to Goodell for interpretation. That doesn't make much sense to me. Not that they must refer to his judgement of facts, or his judgement as arbitrator but that they must refer to his interpretation of policies.

 

[Fencer]

I am not a lawyer. But I do have experience conducting challenging interviews in another line of work, and what Berman did felt familiar to me. In essence:

• Somebody tells you "Bexaos3 X tgwn Y".
• You help them clarify that to "Because X, then Y."
• You try to help them further clarify to a point resembling the converse claim as well: "If not-X, then not-Y," which is to say "Either X and Y are both true or else neither is."
• At that point your interviewing work is basically done.

This all applies whether you lean to the "both" side of that or to the "neither" one.

And really, Kessler, Nash and Berman are all agreeing on most questions as to the structure of the disagreement, which is:

• Goodell has a lot of power.
• In this case, his exercise of that power had numerous bumps and flaws.
• Does Goodell have the sole right to determine whether Goodell's errors were sufficient to cancel what would ordinarily be Goodell's right to make decisions?

And Berman has already said that the answer to the bolded question is "No".

 

[Jlaff]

I'll answer one - my understanding is that giving Goodell deference entails allowing his "reasonable" interpretation of facts and law to stand. Someone correct me if they disagree with that.

This might be one of the best deflategate threads I've read, thanks guys I've been busier than ever and relying on the posters of this board. With that in mind, I can't believe it's only 5 pages so far.

 

[SVN]

To be honest Nash makes a lot of points which were not mentioned on wednesdays live tweets. e.g w

THE COURT: What does the sentence that says that for 16 a first offense it's limited to a fine, what does that mean? 17 MR. NASH: It says the first offenses will be fines, 18 but also before it says that -- it makes clear that these are 19 minimums. First of all, on page 1 of the document it 20 reinforces the notice that the Commissioner relied on that is 21 in Mr. Brady's player contract, it's in the CBA, that players 22 are all on notice, that they're subject to discipline, 23 including suspension, including banishment from the league for 24 engaging in conduct detrimental, conduct that affects the 25 integrity of the game, and says up to and including suspension and banishment from the league. 2 And then on page 20 -- 3
THE COURT: Is this in the award? 4
MR. NASH: No, I'm sorry, I'm reading from their 5 Exhibit 114, the document that Mr. Kessler was talking about. 6
THE COURT: Which is entitled what? 7
MR. NASH: Entitled "Player Policies." I think you 8 were referring to them earlier. But even the page that they 9 rely on in the very beginning says: Fines listed below are 10 minimums. Other forms of discipline, including higher fines 11 and suspension, may be imposed. 12 So the point isn't that you need to resolve how to 13 interpret this document. Even if you accepted Mr. Kessler's 14 arguments about it, there's clearly an interpretive dispute, 15 and under the law, that dispute is for the Commissioner. We 16 don't -- they don't get to come in and start doing that here in 17 federal court. 18 The same is true when they argue about how

One thing I dont get is when Nash said Commissioner has the power to increase suspension or compare it with steriods etc. , is he allowed to do that when he is playing the role of arbitrator ? Isnt that a big red flag in this thing which hasnt been questioned?

 

[Gronkowski123]

...the non cooperation is interesting. kessler admits brady would of cooperated if he knew he could be suspended.
too bad no player has ever been suspended for non cooperation.

i like how kessler mentioned that our kicker wasnt punished for non cooperation..too small of a fish!

 

[SVN]

Daniel Wallach ‏@WALLACHLEGAL 6h6 hours ago
Missed opportunity for NFL not to file an answer to Brady counterclaim. Without that filing, Brady wins "battle of pages" by 99 to 32 margin

What does he mean here?

 

[eom]

Daniel Wallach ‏@WALLACHLEGAL 6h6 hours ago
Missed opportunity for NFL not to file an answer to Brady counterclaim. Without that filing, Brady wins "battle of pages" by 99 to 32 margin

What does he mean here?

lol
think I've just read 6 posts and 3 of them were this question.

he's joking cuz brady's lawyers must have filed 99 pages, to date, while nfl only files 32

 

[SVN]

lol
think I've just read 6 posts and 3 of them were this question.

he's joking cuz brady's lawyers must have filed 99 pages, to date, while nfl only files 32

I get the 99 to 32 but not sure about the counterclaim. He posts this again

Daniel Wallach ‏@WALLACHLEGAL 1h1 hour ago
It's almost official: with one hour left before deadline, NFL still hasn't filed an answer to Brady's counterclaim, and probably won't.

Daniel Wallach ‏@WALLACHLEGAL 30m30 minutes ago
18 minutes to go and NFL still hasn't filed an answer to Brady's counterclaim (normally, that results in allegations being deemed admitted)

 

[Froob]

Is it official that they didn't file a counterclaim or is it possibly in but it hasn't been announced?

 

[ctpatsfan77]

I am not a lawyer. But I do have experience conducting challenging interviews in another line of work, and what Berman did felt familiar to me. In essence:

• Somebody tells you "Bexaos3 X tgwn Y".
• You help them clarify that to "Because X, then Y."
• You try to help them further clarify to a point resembling the converse claim as well: "If not-X, then not-Y," which is to say "Either X and Y are both true or else neither is."
• At that point your interviewing work is basically done.

This all applies whether you lean to the "both" side of that or to the "neither" one.

For those wondering, "If not X then not Y" doesn't, by itself, establish "Either X and Y are both true or both false."

This relies on a logical statement called the contrapositive. Consider "If you're in Foxboro, you're in Massachusetts." The contrapositive, which is necessarily true, is "If you're not in MA, you're not in Foxboro."

Combining "If X then Y" with "If not X then not Y", along with their contrapositives ("If not Y then not X" and "If Y then X," respectively), establishes the fact that either both statements are true or neither of them are true. [You can also do it by establishing that "If Y then X."]

 

[Bobsyouruncle]

So this is the question I had earlier. Nash's argument here hasn't appeared in any papers I've seen, and I haven't heard it from anyone, and it logically doesn't make much sense.

He is not just saying the court must give Goodell deference in arbitration, but also in interpretations the policy under arbitration. That would be like saying if Goodell chooses to believe a 4 game suspension for steroids should be interpreted as 6 games, then he wins because he gets final say. Not on whether they did steroids, but what the policy says.

Doesn't make sense to me. Two people have an agreement. One may have made a bad agreement, but here Nash is basically arguing that one side reserves the right to change that agreement against the others wishes essentially making it a non-voluntary non-agreement. Further he's saying the courts cannot settle that dispute about the underlying interpretation, which it seems to me that is exactly what they are charged with doing.

Maybe he just reflexively says deference so much he doesn't even know why anymore.

MR. NASH: So the point isn't that you need to resolve how to interpret this document. Even if you accepted Mr. Kessler's arguments about it, there's clearly an interpretive dispute, and under the law, that dispute is for the Commissioner. We don't -- they don't get to come in and start doing that here in federal court. The same is true when they argue about how.

 

[BradyFTW!]

https://twitter.com/WALLACHLEGAL/status/634198068796203008

That's been my thought on what I think/hope/wish he's trying to do. Use the exclusion of Pash as the undisputed fact which itself vacates the award. The NFL can't go back and rewrite history on that. They can't fix it. If you vacate on that basis, I can't imagine an appeals court would overturn it. So that's where you really plant the flag in your argument, and say "I'm vacating the suspension first and foremost because of this" (and potentially a bunch of other things as well, but most importantly this).

Then use the rest of the decision to blast Goodell on the various other ways in which he's an incompetent, corrupt ****up. Maybe even affirm the "general awareness, which was the standard set forth in the Wells Report that was the sole basis for the punishment" argument if you want to ensure that another round of arbitration would pretty much have to go in Brady's favor. Or not, whatever, at that point it's no longer Berman's problem.

But this is why I don't get these claims that Berman's hands are tied even if he wants to rule for Brady. He's made it abundantly clear that he can rule for Brady, and he's explicitly telegraphed the means by which he will probably do so if he elects to go that route. The arrogance of the NFL in maintaining that he can't do that even after he's pointed out exactly how he can would almost be impressive, if it weren't so weirdly ****ish.

 

[BradyFTW!]

So this is the question I had earlier. Nash's argument here hasn't appeared in any papers I've seen, and I haven't heard it from anyone, and it logically doesn't make much sense.

He is not just saying the court must give Goodell deference in arbitration, but also in interpretations the policy under arbitration. That would be like saying if Goodell chooses to believe a 4 game suspension for steroids should be interpreted as 6 games, then he wins because he gets final say. Not on whether they did steroids, but what the policy says.

Doesn't make sense to me. Two people have an agreement. One may have made a bad agreement, but here Nash is basically arguing that one side reserves the right to change that agreement against the others wishes essentially making it a non-voluntary non-agreement. Further he's saying the courts cannot settle that dispute about the underlying interpretation, which it seems to me that is exactly what they are charged with doing.

Maybe he just reflexively says deference so much he doesn't even know why anymore.

It seems to me that you're right to highlight the distinction. The NFL is claiming exactly that, and Berman has explicitly told them that they're wrong to extend Goodell's authority so far. This exchange was highlighted in the discussion re: whether or not Pash's testimony would've been cumulative. Nash explained that it would've been cumulative because Goodell said it would've been cumulative, and his interpretation is all that matters since, as arbitrator, he has the sole authority to make it.

Berman immediately called him on that and told him that argument was crap. While they all agree that Goodell's interpretation of the facts is (unfortunately) beyond reproach, it is not up to Goodell to decide what constitute facts and what do not. In fact, federal law explicitly states that misrepresenting or disregarding the facts before you are grounds for vacating an award.

 

[Bobsyouruncle]

It seems to me that you're right to highlight the distinction. The NFL is claiming exactly that, and Berman has explicitly told them that they're wrong to extend Goodell's authority so far. This exchange was highlighted in the discussion re: whether or not Pash's testimony would've been cumulative. Nash explained that it would've been cumulative because Goodell said it would've been cumulative, and his interpretation is all that matters since, as arbitrator, he has the sole authority to make it.

Berman immediately called him on that **** and told him that argument was crap. While they all agree that Goodell's interpretation of the facts is beyond reproach, it is not up to Goodell to decide what constitute facts and what do not. In fact, federal law explicitly states that misrepresenting or disregarding the facts before you are grounds for vacating an award.

That Pash part was great. You can't tell the tone for sure, but it sure seemed like the kind of moment where you could cut the tension with a knife. At one point Berman seems sort of tired of having smoke blown up his ass and actually lectures him with what the law says. Cannot be a good thing as a lawyer.