Why NFL did not address leaks in Wells report

Dr Pain · May 10, 2015

I stole this FYI

The Wells report did not touch the "leaks" because admitting to the leaks would be tantamount to admitting to a league unfair labor practice, which opens the door to a neutral arbitrator and takes the case out of the Commissioner's and the NFL's hands. NFL Players Association agreed in the CBA (Article XI, s. 1(a)) that the "conduct detrimental" claims would be adjudicated solely by the Commissioner, without recourse to a neutral arbitrator.

Per the legal ruling discussed below, if the NFL has an interest, is biased or acts inappropriately, they cannot self arbitrate and have to go to an independent arbitrator. The leaks from management (the NFL) were an unfair labor practice demonstrating bias. If they brought the leaks up then they have to admit there is bias and Rodger or Pash can't play arbitrator and they need an independent one. Don't let that the case below is about a banned substance make you think it is not applicable as this is about a court ruling on why an arbitration must be taken out of the NFL's hands and be placed with a neutral arbitrator.

The first step in court to get the sanctions overturned is to find a way to invalidate the CBA (Article XI, s. 1(a)) that the "conduct detrimental" claims would be adjudicated solely by the Commissioner, without recourse to a neutral arbitrator. The way to do that is by demonstrating the NFL had a bias, was breaking a fiduciary responsibility to a player(s)or engaged in unfair labor practices like leaks. If they addressed this in the Wells report then they have gifted this to Brady so they did not touch it. (edited to try and make the point clearer)

Start https://pennstatelaw.psu.edu/_file/Sports Law Policy and Research Institute/BackgrounderOnJudReviewNFLSteroidDiscipline.pdf

"Summary of Decision
Judge Magnuson appears to have granted an extension of the preliminary injunction for the following reasons:
1) the balance of equities clearly favors the plaintiff
2) since the NFL's justification for its strict liability policy was IN PART based on the ability of players to obtain information from a hotline, it is inequitable for the league to withhold factual information from players and then impose strict liability
3) Jeff Pash's determination that strict liability still applied here is proof that Pash was "prejudiced" by his "partiality"
4) the arbitration award is void as contrary to the public policy of New York (the site of the NFL), because NFL employees breached a fiduciary duty owed to the players and the failure to create an exception to the strict liability policy in the face of such a breach means that the award "appears to sanction" the breaches
5) the effect on a playoff contender"

supafly · May 10, 2015

Dr Pain said:
The Wells report did not touch the "leaks" because admitting to the leaks would be tantamount to admitting to a league unfair labor practice, which opens the door to a neutral arbitrator and takes the case out of the Commissioner's and the NFL's hands.

Start https://pennstatelaw.psu.edu/_file/Sports Law Policy and Research Institute/BackgrounderOnJudReviewNFLSteroidDiscipline.pdf

"Under the league’s collective bargaining agreement with its players, discipline for violations of the Steroid Policy is not subject to review by a neutral labor arbitrator. This is in contrast to other provisions of the NFL/NFLPA agreement requiring arbitration before a neutral veteran labor arbitrator of disputes concerning the interpretation of a contract, or before a neutral medical doctor of disputes concerning whether an injury was football-related. This is also in contrast to provisions in the Baseball agreement that expressly provide that most off-field disciplinary matters are reviewable by a neutral arbitrator."

"Because the collective bargaining agreement does not allow review by a neutral arbitrator, these appeals were considered by the NFL’s designated “arbitrator,” Vice President/ General Counsel Jeffrey Pash. Pash concluded that the failure of NFL officials responsible for administering the drug policy to inform players of this banned substance did not excuse the players from discipline – in essence adopting the very strictest form of “strict liability” for drug violations."

"Summary of Decision
Judge Magnuson appears to have granted an extension of the preliminary injunction for the following reasons:
1) the balance of equities clearly favors the plaintiff
2) since the NFL's justification for its strict liability policy was IN PART based on the ability of players to obtain information from a hotline, it is inequitable for the league to withhold factual information from players and then impose strict liability
3) Jeff Pash's determination that strict liability still applied here is proof that Pash was "prejudiced" by his "partiality"
4) the arbitration award is void as contrary to the public policy of New York (the site of the NFL), because NFL employees breached a fiduciary duty owed to the players and the failure to create an exception to the strict liability policy in the face of such a breach means that the award "appears to sanction" the breaches
5) the effect on a playoff contender"

How is the steroids policy relevant here, though?

The steroids policy is different because it was understood to be an exception in the new CBA. All of the other suspensions are allowed to have a third party arbitrator. Why are you using the steroids policy as an example?

supafly · May 10, 2015

The short answer to your question is that the NFL wasn't going to turn on itself. That's why the introduction of unapproved balls wasn't brought up, even though someone was fired. Of course they weren't going to address media leaks.

It's also why there shouldn't have been much belief that our rival coaches and execs would be punished. It wasn't going to happen. As a matter of fact, the NFL actually tried to praise itself through the Walt Anderson comments. There was no way they were going to put themselves in a negative light. No way. It wasn't an independent investigation.

Dr Pain · May 10, 2015

supafly said:
How is the steroids policy relevant here, though?

The steroids policy is different because it was understood to be an exception in the new CBA. All of the other suspensions are allowed to have a third party arbitrator. Why are you using the steroids policy as an example?

This is the basis of this court case. Unfortunately I believe you are wrong that "All of the other suspensions are allowed to have a third party arbitrator." I would love it if you are correct. In this case, the player called the NFL hotline to see if something was banned, was told it was not but later tested positive for a substance in the item. Even though the player asked the NFL and the NFL gave them the wrong answer, Pash still suspended them. The fudge rules that Pash was was "prejudiced" by his "partiality". If the NFL leaked negative items this is proof the NFL was biased so it calls for an independent arbitrator taking it out of Goodells hands.

TouchDown Patriots · May 10, 2015

Because.......

Joker: But When I Say......

Bang!

Dr Pain · May 10, 2015

supafly said:
The short answer to your question is that the NFL wasn't going to turn on itself. That's why the introduction of unapproved balls wasn't brought up, even though someone was fired. Of course they weren't going to address media leaks.

It's also why there shouldn't have been much belief that our rival coaches and execs would be punished. It wasn't going to happen. As a matter of fact, the NFL actually tried to praise itself through the Walt Anderson comments. There was no way they were going to put themselves in a negative light. No way. It wasn't an independent investigation.

If the NFL were to be exposed as acting in anyway impartial, like an unfair labor practice like the leaks were, then they could not self arbitrate this and would have to call in an outside investigator and out of Goodell's hands.

supafly · May 10, 2015

Dr Pain said:
This is the basis of this court case. Unfortunately I believe you are wrong that "All of the other suspensions are allowed to have a third party arbitrator." I would love it if you are correct.

I thought we were speaking in terms of taking it to federal court? Since that seems to be the major consensus for what will happen here, I am assuming a scenario where Brady's case is heard by a 3rd party arbitrator or board of appeals (like in the Vilma case, where 3 people decided).

Ultimately, I'm not sure that it matters, because Goodell simply re-suspended (or technically "upheld") their cases after the court had decided.

If we're not speaking in terms of federal court, then you're right that Goodell could choose to hear the case himself as an arbitrator. He did it the first time, but not the second time in the Vilma case http://espn.go.com/nfl/story/_/id/8...ita-anthony-hargrove-overturned-appeals-panel

supafly · May 10, 2015

Dr Pain said:
This is the basis of this court case. Unfortunately I believe you are wrong that "All of the other suspensions are allowed to have a third party arbitrator." I would love it if you are correct. In this case, the player called the NFL hotline to see if something was banned, was told it was not but later tested positive for a substance in the item. Even though the player asked the NFL and the NFL gave them the wrong answer, Pash still suspended them. The fudge rules that Pash was was "prejudiced" by his "partiality". If the NFL leaked negative items this is proof the NFL was biased so it calls for an independent arbitrator taking it out of Goodells hands.

Since 4 players were implicated and given suspensions in the Saints bounty scandal, we can look at the cases of the other 3, and how they handled it in federal court :

Only Vilma has sued for defamation. The other federal claims, made by all four players, generally state that Goodell violated labor law by failing to act as an impartial arbitrator.

Dr Pain · May 10, 2015

supafly said:
I thought we were speaking in terms of taking it to federal court? Since that seems to be the major consensus for what will happen here, I am assuming a scenario where Brady's case is heard by a 3rd party arbitrator or board of appeals (like in the Vilma case, where 3 people decided).

Ultimately, I'm not sure that it matters, because Goodell simply re-suspended (or technically "upheld") their cases after the court had decided.

If we're not speaking in terms of federal court, then you're right that Goodell could choose to hear the case himself as an arbitrator. He did it the first time, but not the second time in the Vilma case http://espn.go.com/nfl/story/_/id/8...ita-anthony-hargrove-overturned-appeals-panel

The first step in court to get the sanctions overturned is to find a way to invalidate the CBA (Article XI, s. 1(a)) that the "conduct detrimental" claims would be adjudicated solely by the Commissioner, without recourse to a neutral arbitrator. The way to do that is by demonstrating the NFL had a bias, was breaking a fiduciary responsibility to a player(s)or engaged in unfair labor practices like leaks. If they addressed this in the Wells report then they have gifted this to Brady so they did not touch it.

supafly · May 10, 2015

Dr Pain said:
The first step in court to get the sanctions overturned is to find a way to invalidate the CBA (Article XI, s. 1(a)) that the "conduct detrimental" claims would be adjudicated solely by the Commissioner, without recourse to a neutral arbitrator. The way to do that is by demonstrating the NFL had a bias, was breaking a fiduciary responsibility to a player(s)or engaged in unfair labor practices like leaks. If they addressed this in the Wells report then they have gifted this to Brady so they did not touch it.

I just look at it as though they are going to try and get any sanctions overturned no matter what, whether that's based on the invalidation of the CBA, or the violation of the labor law since Goodell shouldn't be the judge, jury, and executioner. Either way, the issue will be addressed.

I do understand what you're saying though. The NFL didn't want to lob them a softball and make things any easier.

DarrylS · May 10, 2015

In the far reaches of my mind can see Goodell coming down with a very light penalty, as if this case goes to arbitration or to the courts all of the information would have to be exposed via discovery... all the tawdry emails and communications between the league, and various parties would have to be revealed .which might be detrimental to Goodell.

INOW Goodell has already gotten his pound of flesh via the media..

Goodell might be content to let the court of public opinion decide on Brady & the Patriots.. as they already have, which might be more of a punishment than anything else.. maybe that is why Kraft is not pursuing the issue more vigorously.. as he has been informed of the outcome.

State · May 10, 2015

I like what you say here, Darryl. But I have a question. Why would the commiss want to tarnish the SB champions and the most recognizable star in the game? Isn't that like shooting himself in the foot? Is he that stupid to spearhead a PR campaign that's grossly disproportionate to the alleged offense, as Mike Reiss writes about so eloquently this morning?

Rob0729 · May 10, 2015

Why?!? Because the Wells report can white wash a sting operation, but how can they make the League look good in the leaks? Claim that it is more probable than not that the Patriots leaked the damning information about themselves to make the League look bad?

One thing that you can read from the Wells report is that they went overboard to make the League look good. I think Ted Wells has a Walt Anderson poster in his bedroom.

PatsWickedPissah · May 10, 2015

Yet he reverses Anderson's testimony on which gauge he used to better fit the League's narrative.

reflexblue · May 10, 2015

Dr Pain said:
I stole this FYI

The Wells report did not touch the "leaks" because admitting to the leaks would be tantamount to admitting to a league unfair labor practice, which opens the door to a neutral arbitrator and takes the case out of the Commissioner's and the NFL's hands. NFL Players Association agreed in the CBA (Article XI, s. 1(a)) that the "conduct detrimental" claims would be adjudicated solely by the Commissioner, without recourse to a neutral arbitrator.

Per the legal ruling discussed below, if the NFL has an interest, is biased or acts inappropriately, they cannot self arbitrate and have to go to an independent arbitrator. The leaks from management (the NFL) were an unfair labor practice demonstrating bias. If they brought the leaks up then they have to admit there is bias and Rodger or Pash can't play arbitrator and they need an independent one. Don't let that the case below is about a banned substance make you think it is not applicable as this is about a court ruling on why an arbitration must be taken out of the NFL's hands and be placed with a neutral arbitrator.

The first step in court to get the sanctions overturned is to find a way to invalidate the CBA (Article XI, s. 1(a)) that the "conduct detrimental" claims would be adjudicated solely by the Commissioner, without recourse to a neutral arbitrator. The way to do that is by demonstrating the NFL had a bias, was breaking a fiduciary responsibility to a player(s)or engaged in unfair labor practices like leaks. If they addressed this in the Wells report then they have gifted this to Brady so they did not touch it. (edited to try and make the point clearer)

Start https://pennstatelaw.psu.edu/_file/Sports Law Policy and Research Institute/BackgrounderOnJudReviewNFLSteroidDiscipline.pdf

"Summary of Decision
Judge Magnuson appears to have granted an extension of the preliminary injunction for the following reasons:
1) the balance of equities clearly favors the plaintiff
2) since the NFL's justification for its strict liability policy was IN PART based on the ability of players to obtain information from a hotline, it is inequitable for the league to withhold factual information from players and then impose strict liability
3) Jeff Pash's determination that strict liability still applied here is proof that Pash was "prejudiced" by his "partiality"
4) the arbitration award is void as contrary to the public policy of New York (the site of the NFL), because NFL employees breached a fiduciary duty owed to the players and the failure to create an exception to the strict liability policy in the face of such a breach means that the award "appears to sanction" the breaches
5) the effect on a playoff contender"

So obviously this isn't an impartial investigation if the 'investigators' are looking out for one of the parties (the nfl) and trying to cover their ass's

reflexblue · May 10, 2015

DarrylS said:
In the far reaches of my mind can see Goodell coming down with a very light penalty, as if this case goes to arbitration or to the courts all of the information would have to be exposed via discovery... all the tawdry emails and communications between the league, and various parties would have to be revealed .which might be detrimental to Goodell.

INOW Goodell has already gotten his pound of flesh via the media..

Goodell might be content to let the court of public opinion decide on Brady & the Patriots.. as they already have, which might be more of a punishment than anything else.. maybe that is why Kraft is not pursuing the issue more vigorously.. as he has been informed of the outcome.

IMHO if those e-mails and phone calls became public goody would most likely lose his job.

Rob0729 · May 10, 2015

PatsWickedPissah said:
Yet he reverses Anderson's testimony on which gauge he used to better fit the League's narrative.

And he also points out Anderson couldn't remember if he signed K Ball one. Yet, when it comes to his recollection of the PSI of the 24 balls, Anderson's is of utmost integrity.

flasox27 · May 10, 2015

Rob0729 said:
And he also points out Anderson couldn't remember if he signed K Ball one. Yet, when it comes to his recollection of the PSI of the 24 balls, Anderson's is of utmost integrity.

He will make a great witness when it goes to trial.

patsfanincleveland · May 10, 2015

Dr Pain said:
If the NFL were to be exposed as acting in anyway impartial, like an unfair labor practice like the leaks were, then they could not self arbitrate this and would have to call in an outside investigator and out of Goodell's hands.

Isn't that what TB can argue?

The leaks did occur. If Missouri can figure Roger's game....why wouldn't anywhere else?

DarrylS · May 10, 2015

State said:
I like what you say here, Darryl. But I have a question. Why would the commiss want to tarnish the SB champions and the most recognizable star in the game? Isn't that like shooting himself in the foot? Is he that stupid to spearhead a PR campaign that's grossly disproportionate to the alleged offense, as Mike Reiss writes about so eloquently this morning?

Because the Patriots have repeatedly embarrassed him and some members of the league(Baltimore, St. Louis and the Colts come to mind).. this incident will not damage the NFL.

Consider the knee jerk reactions to some of BB's knowledge of the rules and how to manipulate them.. instead of admiring his intelligence, they bow to the "lowest level of incompetence" to make it a "level playing field"..

Why NFL did not address leaks in Wells report

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