NFL Appeal oral arguments thread

[varjao]

Are we making a conscious effort to give ammunition to those who call us Pats fans "whiners" and "cry babies?"
The NFLPA's own filing with the appellate court, filed by and on behalf of Brady, lists him as:
"TOM BRADY, COUNTER-CLAIMANT-APPELLEE"

I wasn't complaining, I just noticed and thought it was interesting, I wasn't expecting shorts or nicknames in judicial documents.

 

[sb1]

I actually think Kessler scored some points here.

 

[Ivan]

If he has the judges on his side, who do you think is going to hold him accountable for misrepresenting the record to the court?

The press? Don't make me laugh.

Opposing counsel. Kessler and Johnson should be notifying the court that Clement lied to them about Brady's arbitration testimony. It's not a matter of perception it was an outright lie to the court and I can't imagine that would sit well with any court.

 

[sb1]

 

[juny]

Opposing counsel. Kessler and Johnson should be notifying the court that Clement lied to them about Brady's arbitration testimony. It's not a matter of perception it was an outright lie to the court and I can't imagine that would sit well with any court.

maybe one of the legal experts following this story (mccann, stradley, etc) will highlight this point. and as you said brady's lawyers definitely should be following up

 

[YOUGOTMOSSED]

Opposing counsel. Kessler and Johnson should be notifying the court that Clement lied to them about Brady's arbitration testimony. It's not a matter of perception it was an outright lie to the court and I can't imagine that would sit well with any court.

If opposing counsel "mistakenly" misstates the record, you're supposed to bring it up on rebuttal.

If push ever came to shove (and it won't), Clement will simply claim he misspoke.

 

[Ivan]

If opposing counsel "mistakenly" misstates the record, you're supposed to bring it up on rebuttal.

If push ever came to shove (and it won't), Clement will simply claim he misspoke.

There was no rebuttal they went directly to questioning Kessler. Only Clement was allowed a second chance.

 

[Ivan]

maybe one of the legal experts following this story (mccann, stradley, etc) will highlight this point. and as you said brady's lawyers definitely should be following up

As far as I know Hurley has already written about this.

 

[YOUGOTMOSSED]

There was no rebuttal they went directly to questioning Kessler. Only Clement was allowed a second chance.

Appellant argues. Then respondent. Then appellant can rebut. That's how it typically goes.

Did Clement say this in his initial argument or did he throw it out there in rebuttal?

 

[cmasspatsfan]

I was told by a lawyer Kessler can submit a letter stating Clement lied and what the facts are, can a lawyer her expand on that?

 

[QuantumMechanic]

I was told by a lawyer Kessler can submit a letter stating Clement lied and what the facts are, can a lawyer her expand on that?

I asked a lawprof friend of mine and he said:

"In a court of appeals, I'd just file a Rule 28(j) letter. It's not really what that is for, but it's relatively common to use a letter to provide something other than supplemental authorities. (The other alternative I could think of is to file a motion of some kind. But I think a letter is simpler and would work.)"

 

[YOUGOTMOSSED]

I was told by a lawyer Kessler can submit a letter stating Clement lied and what the facts are, can a lawyer her expand on that?

Better to just "clarify" when it's your time to speak. If, for whatever reason, you didn't get a chance, sending such a letter is a less than ideal solution but it is an option.

 

[voluntarysaftey]

I think the cell phone is being too closely examined as evidence of a cover up.

1. Destroying a cell phone when you get a new one --> normal for any privacy informed person. I do the same, and I'm not a celebrity

2. The NFL had no right to look at the private cell phone -- it's not in the CBA, they've never asked anyone else to submit -- either before or since (ie Peyton/hgh) -- it's not a legal right, etc.

Therefore, the destruction of the cell phone should have no bearing on the judge's beliefs; and shouldn't have mattered to Goodell -- except we know that Goodell has a history of making up the facts to match his intended outcome.

The judges should really ask, is there any independent, competent scientist who believes the footballs weren't at their specified temperature. And if not, then the rest of this doesn't matter because you can't prove a crime was commited

 

[ivanvamp]

I actually think Kessler scored some points here.

This is a really important point (IMO...I have no idea how the court will see it). Goodall was the one who dished out the punishment. It appeared to be Vincent, but that would be a violation of the CBA, so Goodell made it clear that Goodell handed down the punishment, and Vincent just "communicated" it to Brady.

The punishment was based on the evidence available at the time the penalty was handed down. Kessler makes the point that normally when a person appeals, the appeal is heard by a third party, not the guy giving out the penalty, nor the guy who got penalized. And the only purpose of the appeal - it's only function - is to determine whether the penalty handed down - AS IT WAS HANDED DOWN - was correct.

It is NOT the arbiter's job to sift through "new" evidence, or to make a new case against the player. It is simply to make a judgment on the validity of the penalty *as it was handed down*.

But in this case, Goodell was both the one handing down the penalty AND the one hearing the appeal. So when "new" evidence was introduced, Goodell used THAT to uphold the suspension. And thus, he violated his job description as arbiter.

It's one more piece of evidence that this entire thing was stacked against Brady from the beginning.

 

[Ring 6]

This is a really important point (IMO...I have no idea how the court will see it). Goodall was the one who dished out the punishment. It appeared to be Vincent, but that would be a violation of the CBA, so Goodell made it clear that Goodell handed down the punishment, and Vincent just "communicated" it to Brady.

The punishment was based on the evidence available at the time the penalty was handed down. Kessler makes the point that normally when a person appeals, the appeal is heard by a third party, not the guy giving out the penalty, nor the guy who got penalized. And the only purpose of the appeal - it's only function - is to determine whether the penalty handed down - AS IT WAS HANDED DOWN - was correct.

It is NOT the arbiter's job to sift through "new" evidence, or to make a new case against the player. It is simply to make a judgment on the validity of the penalty *as it was handed down*.

But in this case, Goodell was both the one handing down the penalty AND the one hearing the appeal. So when "new" evidence was introduced, Goodell used THAT to uphold the suspension. And thus, he violated his job description as arbiter.

It's one more piece of evidence that this entire thing was stacked against Brady from the beginning.

I've made this argument all along. Goodell at the appeal was both the 'plaintiff' and the judge.
What actually happened was Commissioner Goodell suspended Brady for being generally aware.
During the appeal it became obvious to Arbiter Goodell that generally aware was not something there was notice for or precedent of ever punishing anyone for.
Therefore Arbiter Goodell withheld the punishment based upon a scheme.

Look at it this way.
You are fired for being late for work at a union job.
During an appeal hearing it is found out that the clock your supervisor was relying on was wrong and you were actually on time.
During the appeal hearing they asked you to describe your job and it became apparent you didn't really know now to do it very well.
The arbiter cannot uphold the firing for tardiness due to that, because the arbiter does not have the ability to punish, only the ability to determine if the initial punishment was proper.

 

[ivanvamp]

I've made this argument all along. Goodell at the appeal was both the 'plaintiff' and the judge.
What actually happened was Commissioner Goodell suspended Brady for being generally aware.
During the appeal it became obvious to Arbiter Goodell that generally aware was not something there was notice for or precedent of ever punishing anyone for.
Therefore Arbiter Goodell withheld the punishment based upon a scheme.

Look at it this way.
You are fired for being late for work at a union job.
During an appeal hearing it is found out that the clock your supervisor was relying on was wrong and you were actually on time.
During the appeal hearing they asked you to describe your job and it became apparent you didn't really know now to do it very well.
The arbiter cannot uphold the firing for tardiness due to that, because the arbiter does not have the ability to punish, only the ability to determine if the initial punishment was proper.

This is exactly right, and I like the analogy, Andy. In this case, the arbiter Goodell acted not as an arbiter, but as the Commissioner. The punishment handed out in the appeal was NOT really the same thing as Commissioner Goodell handed out.

It's one of those things I'd hope an educated, intelligent Court of Appeals judge would realize, but I'm worried that they just think that the evidence that Brady did something was so "compelling" that they'll just go with Goodell anyway.

 

[Gronkowski123]

I think the cell phone is being too closely examined as evidence of a cover up.

1. Destroying a cell phone when you get a new one --> normal for any privacy informed person. I do the same, and I'm not a celebrity

2. The NFL had no right to look at the private cell phone -- it's not in the CBA, they've never asked anyone else to submit -- either before or since (ie Peyton/hgh) -- it's not a legal right, etc.

Therefore, the destruction of the cell phone should have no bearing on the judge's beliefs; and shouldn't have mattered to Goodell -- except we know that Goodell has a history of making up the facts to match his intended outcome.

The judges should really ask, is there any independent, competent scientist who believes the footballs weren't at their specified temperature. And if not, then the rest of this doesn't matter because you can't prove a crime was commited

kessler should of mentioned this.

 

[Ring 6]

kessler should of mentioned this.

I think he addressed it just fine.
Whether Brady destroyed a cell phone with 1000 secret messages to the Dorito Dink is irrelevant.
It was brought up in a very narrow context, and frankly one that doesn't mean much in the big picture.
It seems to me that the point of contention regarding the cell phone was to determine the role of the phone in the decision made at the arbitration hearing. The court is exploring whether Goodell was justified in changing 'generally aware' to 'scheme'. I think they will conclude he did use that approach, and exceeded his authority as arbiter by enacting new discipline.
Even if they do not conclude that, they still must deal with notice, and notice goes to whether Brady was given notice of what consequences he would suffer for being 'generally aware' of someone doing something wrong. They really cannot escape that one.
Further, they must overrule Berman's judgment that Brady was allowed due process during his hearing.

Beyond all of that, there is still the issue of impartiality, and the other issues Berman would then rule on again.
I'm not sure why people are distressed over this right now. Maybe just uncertainty?

 

[PatsFanSince74]

Practiced law there for about as long as you've lived there. I have stories about my experience with the judiciary that no one would believe . . . except other NY lawyers.

My wife's a lawyer down here as are, for better or worse, many of my friends, including one who used to be a Federal Prosecutor before he decided to make some money doing White Collar defense. Two of our friends are judges. Their legal training was all at the schools that produced the panel.

I was able last summer to get a pretty good read on Berman, which I shared with the Board and which turned out to be on target, but haven't had time to find much out about the members of the Appeals panel.

...I also used to date an ADA...but that's another story.

 

[YOUGOTMOSSED]

I think the cell phone is being too closely examined as evidence of a cover up.

1. Destroying a cell phone when you get a new one --> normal for any privacy informed person. I do the same, and I'm not a celebrity

2. The NFL had no right to look at the private cell phone -- it's not in the CBA, they've never asked anyone else to submit -- either before or since (ie Peyton/hgh) -- it's not a legal right, etc.

Therefore, the destruction of the cell phone should have no bearing on the judge's beliefs; and shouldn't have mattered to Goodell -- except we know that Goodell has a history of making up the facts to match his intended outcome.

The judges should really ask, is there any independent, competent scientist who believes the footballs weren't at their specified temperature. And if not, then the rest of this doesn't matter because you can't prove a crime was commited

You're approaching the issue like a sane, rational person with some understanding of science would.

This is the court system we're talking about. Science cleared Brady. A bunch of f*cking lawyers are devoting hours of time and effort to make sure he's punished and disgraced anyway.