9/11 Victim Compensation Fund Special Master files pro-NFLPA/Brady Amicus

[letekro]

That's the thing. It wouldn't shock me if, in en banc review, the judges give the NFLPA, Feinberg, etc. everything it's looking for on this but still uphold Brady's suspension by saying that there was enough in the Wells Report for a fair even if misguided arbitrator to suspend Brady for.

Or they just deny en banc review on that basis.

 

[QuantumMechanic]

Or they just deny en banc review on that basis.

Well yes.

However, they might be uncomfortable with the panel ruling for the reasons Feinberg states and so want to review and overturn/pare back some of the more extreme language in the panel decision given arbitrators a free hand. But they can do that w/o Brady necessarily winning.

 

[Froob]

I expect us to win and then NFL brings it to SCOTUS because it's only fitting. Ultimately, NFL wins SCOTUS and Trump or Bernie (hope he's Pats fan?) sends the FBI after Goodell and the gang green squad is off to prison.

 

[BradyFTW!]

I expect us to win and then NFL brings it to SCOTUS because it's only fitting. Ultimately, NFL wins SCOTUS and Trump or Bernie (hope he's Pats fan?) sends the FBI after Goodell and the gang green squad is off to prison.

He does live in New England, seems like a reasonable hope.

 

[Patsfanin Philly]

He does live in New England, seems like a reasonable hope.

I just can't see Bernie popping open a cold one, propping his feet up on the couch on a Sunday at 1 PM and screaming at Ed Hoculi and those F'n Jets who suck.......while wearing a Steve Grogan Jersey......yelling for his wife to heat up the wings.....(rooting for 1%ers)while bleeding Brady Red and Belichick Blue....
Not feeling it..................

 

[RelocatedPatFan]

That's the thing. It wouldn't shock me if, in en banc review, the judges give the NFLPA, Feinberg, etc. everything it's looking for on this but still uphold Brady's suspension by saying that there was enough in the Wells Report for a fair even if misguided arbitrator to suspend Brady for.

The only way Goodell can invoke article-46 is if there was a scheme and that wasn't part of the original ruling. He only moved the chains when he was in front of Berman (as obstruction charge came after the appeal). If Article-46 isn't in play, then Goodell doesn't have much to stand on in the way of suspension.

I understand it's hard to keep these things in perspective giving the lies and 500+days of this saga .

 

[Palm Beach Pats Fan]

The most iron-clad argument seems to me to be the clear fact that Brady requested specific information on the evidence that was the basis for the charges against him, and was flat-out denied. This was as I recall asking for the interview notes of the people who were involved in the investigation.

This point may not be as important as some others, but it seems irrefutable. IANAL

 

[letekro]

The most iron-clad argument seems to me to be the clear fact that Brady requested specific information on the evidence that was the basis for the charges against him, and was flat-out denied. This was as I recall asking for the interview notes of the people who were involved in the investigation.

This point may not be as important as some others, but it seems irrefutable. IANAL

The problem is that the CBA doesn't mention discovery with respect to Article 46 proceedings, but does mention that it is allowed in other proceedings under the CBA. The question becomes, why did the NFLPA bargain for discovery in other proceedings but not under Article 46? The implicit answer to the rhetorical question, is that the NFLPA obtained other benefits under the CBA in exchange for that right. This is the big picture issue that pushes against Team Brady--where contracts are collectively bargained, the court is extremely reluctant to read something into the contract at the behest of one party, lest that party get something it did not bargain for.

 

[Ring 6]

Feinberg's brief was well done and to the point. But, by far, the most critical document with respect to the likelihood of a rehearing is Olson's brief.

In that brief, he laid out two grounds for rehearing. First, the appellate hearing was not an appeal before a neutral arbitrator, but the continuation of a biased investigation. I like this ground, and I think it is the one the Judges will consider. But it is not really different, in substance, from arguments that were made before and considered by the panel, although it is framed differently. On this point, Parker and Chin said:

We see nothing in the CBA that suggests that the Commissioner was barred from concluding, based on information generated during the hearing, that Brady’s conduct was more serious than was initially believed.

They also go on to say that there was enough in the Wells Report about memorabilia-for-deflation and noncooperation that, under the deferential Garvey standard, Goodell could have reached the more severe conclusions he reached in the ruling.

I think the bolded part above can be refuted fairly easily, but I would worry (a lot) about the other judges accepting the second rationale.

The second ground for rehearing is a technical contract interpretation point which I don't believe the judges will find compelling.

Olsen cites a Supreme Court ruling that backs up the bolded part stating that it doesn't matter what the CBA limits but what it allows.
That case says power is granted by a CBA not that power is limited by it.
This means the arbiter is relegated to what the CBA specifically authorizes him to do and he cannot do anything he wants that isn't expressly prohibited.
It is a very strong legal argument and the majority opinion is in conflict with the Supreme Court precedent.

 

[Ring 6]

The problem is that the CBA doesn't mention discovery with respect to Article 46 proceedings, but does mention that it is allowed in other proceedings under the CBA. The question becomes, why did the NFLPA bargain for discovery in other proceedings but not under Article 46? The implicit answer to the rhetorical question, is that the NFLPA obtained other benefits under the CBA in exchange for that right. This is the big picture issue that pushes against Team Brady--where contracts are collectively bargained, the court is extremely reluctant to read something into the contract at the behest of one party, lest that party get something it did not bargain for.

But again the CBA must give authority not limit it.
This is where CA2 got it wrong.

CA2 said of the CBA doesn't prohibit it goodell can do it. Supreme Court says if the CBA doesn't authorize it he can't.

 

[letekro]

Olsen cites a Supreme Court ruling that backs up the bolded part stating that it doesn't matter what the CBA limits but what it allows.
That case says power is granted by a CBA not that power is limited by it.
This means the arbiter is relegated to what the CBA specifically authorizes him to do and he cannot do anything he wants that isn't expressly prohibited.
It is a very strong legal argument and the majority opinion is in conflict with the Supreme Court precedent.

That's why I said the bolded part is easily refuted. It's the other argument that is more problematic.

 

[letekro]

But again the CBA must give authority not limit it.
This is where CA2 got it wrong.

CA2 said of the CBA doesn't prohibit it goodell can do it. Supreme Court says if the CBA doesn't authorize it he can't.

I must confess I don't know what you are saying here.

 

[Ring 6]

That's the thing. It wouldn't shock me if, in en banc review, the judges give the NFLPA, Feinberg, etc. everything it's looking for on this but still uphold Brady's suspension by saying that there was enough in the Wells Report for a fair even if misguided arbitrator to suspend Brady for.

Brady only has to win on ine point. The best one he has is that the arbiter has not been given the authority to determine new grounds to uphold the disputed penalty.
Arbitration law and the CBA says the arbitrator conducts a hearing to appeal the decision. The arbiter dies not have the authority to uphold the punishment by changing the decision.
Essentially it is tantamount to being fired for being late, appealing and bringing proof you were not late and having the arbitrator uphold your firing because you violated dress code. Supreme Court had ruled the CBA must explicitly give that authority to the arbiter.


Look at it this way. If someone other than goodell were arbiter and the hearing was to appeal goodells decision.
An arbiter could not find goodell wrong but then create a different reason to uphold the suspension.

This is exactly what happened and people are glossing over he fact that he changed it only because Brady's team proved that "generally aware" was not punishable.
Goodell actually ruled against his initial discipline and created a new one but just left the consequence the same.

 

[Ring 6]

That's why I said the bolded part is easily refuted. It's the other argument that is more problematic.

If the bolded is refuted then Brady is free.

 

[Ring 6]

I must confess I don't know what you are saying here.

Supreme Court ruled that an arbitrators authority is given not limited by the CBA.
In other words his authority is only what the CBA expressly permits.
CA2 ruled that nothing in the CBA said he couldn't reinvent the reason. That is backward.

Ca2 = arbiter can do anything CBA doesn't say he can't.

SCOTUS = arbiter can only do what CBA specifically gives him authority to.

 

[letekro]

If the bolded is refuted then Brady is free.

No, they gave other reasons why Goodell could do what he did. I don't think they are that great either, but they are harder to refute (the area is more grey) than the bolded part.

 

[Ring 6]

The most iron-clad argument seems to me to be the clear fact that Brady requested specific information on the evidence that was the basis for the charges against him, and was flat-out denied. This was as I recall asking for the interview notes of the people who were involved in the investigation.

This point may not be as important as some others, but it seems irrefutable. IANAL

Olson adds that this is an indication of bias as goodell the arbiter is siding with goodell the commissioner.
He is making the distinction that even though he can be the decision maker and arbiter as arbiter he must be fundamentally fair to both sides. The record is pretty clear that he was not.

 

[Ring 6]

No, they gave other reasons why Goodell could do what he did. I don't think they are that great either, but they are harder to refute (the area is more grey) than the bolded part.

No. his decision included changing the reason and actually the charge.
Brady was punished for being generally aware. The arbiter upheld the ounishment for being the leader of a conspiracy to deflate footballs.
He does not have that authority therefore his award is vacated even if he did everything else right.

 

[QuantumMechanic]

I find it somewhat ironic that if Goodell wasn't such an a*****e and didn't get a hair across his butt about smearing Brady, and just upheld the punishment in arbitration without bringing up anything new, it would probably all be over in his favor by now.

 

[PatsFanInVa]

Slightly off-topic gedanken experiment:

What would be the coverage on BSPN and NFL*N, if the suit was Brady Vs. the New England Patriots?

Answer: Wall to wall, gavel to gavel, hanging on every development, analysts arguing about what it all means... bla blah blah.

Brady vs. the NFL*?

Ha.

I hope he wins and sues for defamation, and I hope the team brings the same suit. All the significant facts are coming out here. I don't know whether defamation can be bootstrapped out of these facts - now that the "myths" page is getting into the public (legal) record rather than just the internet, I'd love to hear what our lawyer types say.