Is Brady's Appeal Against the NFL a Fight He Can Even Win?

obgod3 said:

It's a forum not a memo, get over it

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Good to here from you Rog. I'm not sure that your strategy of overwhelming the court system with your incompetence will work, but it sure does clear up what's going on.

obgod3 said:

It's a forum not a memo, get over it

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It is true that grammar/syntax is not important in a forum (versus, for instance, a work memo). However, a minimum standard of legibility is still required so a reader can actually understand what one is trying to say.

If that's not the case then allow me to join in: I when NFL is made going for mistakes Brady not guilty.

ThatllMoveTheChains!!! said:

Good to here from you Rog. I'm not sure that your strategy of overwhelming the court system with your incompetence will work, but it sure does clear up what's going on.

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Roger has no credibility. Every commentator predicting what Goodell will rule seems to never believe it will be "where the facts lead him". It's always something else.

Every commentator also seems to say they're just guessing because there is no rhyme or reason to Goodell's logic.

MagicMarker said:

Roger has no credibility. Every commentator predicting what Goodell will rule seems to never believe it will be "where the facts lead him". It's always something else.

Every commentator also seems to say they're just guessing because there is no rhyme or reason to Goodell's logic.

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What do you call a judge who has no predictable basis on which to make decisions. Honest question as I can't think of anything that a decent/reasonable human being should be called.

the fact that people are basing his "judgment" based on where he stands rather than the case and the facts speaks ton about how far down the rabbit hole this one has gone. some reporter should ask him, "If you had to do it all over gain, what would you have done differently."

I bet you he wouldn't have done anything differently because he's a f.ucking incompetent moron. Maybe if an owner with significant influence *cough* Kraft *cough* had actually tried to call him out on his ******** then maybe he'd have second thoughts but well, that didn't happen.

eom said:

I wish ppl would stop trolling with this phone nonsense

There will be no discovery of his phone.
There is nothing on the phone to find.
And brady's phone will play zero part in his decision to sie.

The entire phone thing is contrived nonsense to begin with

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Agree that there is probably nothing on the phone to find and that it will, therefore, play zero role in his decision to sue, but it could reasonably become part of the Discovery process in a court proceeding.

He didn't turn over the phone to Wells because the CBA states that he does not have to turn over his personal phone. Instead, it appears that he provided the information that was sought without surrendering the phone. It is Wells who has construed this as "non co-operation."

I suspect that part of Kessler's end game if this goes to court would be to force a Discovery process that includes Kensil and others in the League offices and on the Colts and Ravens turning over their phones, which I doubt they will want to do. In that case, Brady would have to be ready to turn over his phone on a reciprocal basis, which it is my opinion he would be more than happy to do.

MagicMarker said:

...
And, for everyone who says the NFLPA gave the commissioner that right, think of it this way. If I agree to lend you my car, you take it out and drive it recklessly and at a very high rate of speed, can you say "Well, you agreed to lend it to me, so that's what you get"? No! In Goodell's case there is implied promise to use the power fairly. And, that's why I think a court might be willing to take that power away from him.

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I'm not sure it's as simple as that, but that's the kind of stuff that lawyers like Wells and Kessler bill $1,000 an hour to sort out.

If you look at it from another perspective, if you lend your car to someone who drives it recklessly and if that driver causes damage to the property or person of another while doing so, the person who suffers the damages could turn around and sue you for enabling the reckless driver to cause the damage. It would be up to a judge to sort out whether and to what degreee you can be held responsible for the actions of the driver.

There is a way of looking at this that would argue that the NFLPA made a serious error in giving Goodell the kind of authority it ceded to him in the CBA and thereby shares responsibility for the current situation. One of the risks in Brady's suit would be that a judge might find along those lines and dismiss the suit before it is heard. Please note that I'm not saying I agree with that or that that is what might happen, but it is not out of the question.

obgod3 said:

It is a good question by the OP. I'm not convinced this is going to be easy.

At some point judges are going to start getting more particular about the cases they take firm NFL players, it will happen. Also its just a matter time when and NFL player loses.

If Brady takes this to court the concern would be that he ends up serving a suspension late in the season or playoffs. That would be devastating to the team.

I'll have five or six guys here disagree but I just have a bad feeling about all this and if he does two games then what's the big deal. Don't say "exonerate" because in the public eye it is too late for that.

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The only "exoneration" for which Brady can hope is exoneration by the League that would protect his legacy. I agree that "in the public eye" there will be no exoneration for Brady, whatever Goodell decides. Goodell could crawl on his hands and knees to Foxboro and beg Brady's forgiveness but the vast majority of fans would assume that Kraft bought him off somehow.

If he is not exonerated by the NFL, Brady has to rely on Kessler and, to some extent, Yee to calculate his likelihood of prevailing or even getting heard if he takes this to court.

I've heard people claim Brady could get screwed because if they go to court his phone can be looked at and / or even more damning things will be discovered. This threat / concern is misplaced.

The court appeal is in regard to the COMPLETED Wells investigation and the subsequent penalty. Correct me if I'm wrong but the only evidence permitted would be what they cited in the report. While not an attorney I am unaware of how the courts will allow the proceeding to be used as a new / different investigation.

Again the matter before the courts would be the COMPLETED Wells investigation and the penalty thereafter- to the best of my knowledge the NFL cannot introduce 'new evidence' that was not in the Wells report or get an investigation "do over" in court.

VectorPrime said:

Its not totally too late for some measure of exoneration, but that will disappear forever if Brady accept a compromise. I think the NFLPA wants to go all in with this case, which is good news for Brady.

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The only "compromise" Brady can accept is full exoneration of involvement in any real or imagined "deflation" of game balls or, as Sally Jenkins has suggested, a finding by Goodell that it can not be proven that any "crime" was committed in the first place, either of which is accompanied by a fine consistent with the CBA for "not co-operating fully" with the Wells inquisition.

Otherwise, he has to either take whatever Goodell hands down or take his chances in court.

I try to leave the NFLPA out of this as much as possible as one of the weaknesses of any lawsuit by Brady will be that the NFLPA agreed to the Appeals process that would have convicted Brady. Brady faces the risk that at some point some judge is going to say "enough is enough" and tell the NFL and its players to clean up their own house.

I know we all felt warm and fuzzy and were singing Kumbaya when the lockout was avoided and there was no strike over the last CBA, but at some point we, as fans, have to accept that there are intractable issues between the players and the owners, which will likely only be resolved by a strike.

Watch for trial balloons before Goodell rules on the appeal. The NFL office is so concerned about it's image over all else (including the truth), that they'll want to see how this is going to be perceived.

BrickPat said:

I've heard people claim Brady could get screwed because if they go to court his phone can be looked at and / or even more damning things will be discovered. This threat / concern is misplaced.

The court appeal is in regard to the COMPLETED Wells investigation and the subsequent penalty. Correct me if I'm wrong but the only evidence permitted would be what they cited in the report. While not an attorney I am unaware of how the courts will allow the proceeding to be used as a new / different investigation.

Again the matter before the courts would be the COMPLETED Wells investigation and the penalty thereafter- to the best of my knowledge the NFL cannot introduce 'new evidence' that was not in the Wells report or get an investigation "do over" in court.

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as far as the facts are concerned they would start over from scratch at the district court level if a judge agrees to even hear it. the wells report is just a piece of the puzzle.

PatsFanSince74 said:

The only "compromise" Brady can accept is full exoneration of involvement in any real or imagined "deflation" of game balls or, as Sally Jenkins has suggested, a finding by Goodell that it can not be proven that any "crime" was committed in the first place, either of which is accompanied by a fine consistent with the CBA for "not co-operating fully" with the Wells inquisition.

Otherwise, he has to either take whatever Goodell hands down or take his chances in court.

I try to leave the NFLPA out of this as much as possible as one of the weaknesses of any lawsuit by Brady will be that the NFLPA agreed to the Appeals process that would have convicted Brady. Brady faces the risk that at some point some judge is going to say "enough is enough" and tell the NFL and its players to clean up their own house.

I know we all felt warm and fuzzy and were singing Kumbaya when the lockout was avoided and there was no strike over the last CBA, but at some point we, as fans, have to accept that there are intractable issues between the players and the owners, which will likely only be resolved by a strike.

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Right on the money, 74. And when that job action seems imminent, the vast majority of fans everywhere, including here, will be fervently wishing that those greedy f###### players would cave in so we can watch our beloved NFL without interruption. Most of us won't give a fiddler's hoorah about arbitration language, pension reform, medical coverage or anything else.

Jackson 2 said:

Right on the money, 74. And when that job action seems imminent, the vast majority of fans everywhere, including here, will be fervently wishing that those greedy f###### players would cave in so we can watch our beloved NFL without interruption. Most of us won't give a fiddler's hoorah about arbitration language, pension reform, medical coverage or anything else.

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Exactly.

Many of us, perhaps myself included, would have been up in arms during the last CBA negotiations, if the NFLPA had played hardball with the owners and walked out over the absurd Appeals process and other matters unfavorable to labor in the final agreement. We would have been complaining about the "spoiled" players.

"I want my NFL and I want it now!"

BrickPat said:

I've heard people claim Brady could get screwed because if they go to court his phone can be looked at and / or even more damning things will be discovered. This threat / concern is misplaced.

The court appeal is in regard to the COMPLETED Wells investigation and the subsequent penalty. Correct me if I'm wrong but the only evidence permitted would be what they cited in the report. While not an attorney I am unaware of how the courts will allow the proceeding to be used as a new / different investigation.

Again the matter before the courts would be the COMPLETED Wells investigation and the penalty thereafter- to the best of my knowledge the NFL cannot introduce 'new evidence' that was not in the Wells report or get an investigation "do over" in court.

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First, it will not be an appeal if it goes to a District Court. It will be a review of the award/decision of the arbitrator. These actions are usually determined by the scope of the agreement. Anything that falls with the scope of the arbitration clause must be determined by the arbitrator. PatsDeb mentioned pre-emption in a separate thread, which means if a claim falls within a proper arbitration agreement it will never see the light of a full district court case with "more likely than not" standards of evidence that would be in Brady's favor with a neutral jury. The cases stand or fall with the arbitration proceeding.

Second, there are "very narrow" bases on which to contest the decisions of arbitrators in district court. Terms like "arbitrary and capricious" or "manifest disregard for the law" are the standards of review. These standards are much harsher than the typical standards of review commonly employed by appellate courts. Picture every statement relied upon in the decision, and ask if anyone could conclude as the NFL did under those facts. The goal is to uphold the decision under principles of law favoring the arbitration of disputes.

Third, discovery is not a huge issue in district court reviews of arbitration awards. They are not reviews de novo. Usually there are some affidavits and/or transcripts, but mostly they are decisions and the agreement. It is not a question of if it could have been decided differently with different evidence, but rather whether the existing evidence was sufficient to support the decision under the restrictive standard of review.

I believe there may be procedural issues in terms of what the CBA provides, but I cannot see a court sanctioning wholesale review of Brady's life (ie., his phone) given the limits of the proceeding. Defamation failed miserably in the Bountygate case (dismissed as pre-empted by the CBA and separately as legally unsupported - even with a valid defamation claim it would be flushed out as pre-empted by the CBA). With discovery rules governing electronic discovery, one simply does not get to copy a phone and all that's on it with a discovery request.

There are angles in these proceedings that can be challenged, but I still believe the greatest benefit will be the fact Brady called this nitwit out and that simple fact is recorded in history. I hope the procedural issues carry the day, but district court reviews are simply tough, almost always ending in decisions upholding the arbitrator's decision.

I hope I'm wrong, and the legal team empties all barrels on the NFL. Any attorney here who has seen or suspects differently, I would love to hear your explanation.

MassPats38 -- are you an attorney?

I'm curious about a few things:

- With the granting of final arbitration authority to the commissioner, is there any implied fiduciary responsibility or can they do anything they want?
- Does the "law of the shop" figure into this at all? Again, can the arbitrator just do anything they want?
- Are there other actions (defamation suits or otherwise) that could force the NFL to disclose how this all started, who did what and whether they prejudged the situation?

Even if you're right, MP38, I don't think this has to be a legal solution. This is public opinion, and even if the NFL successfully quashed any legal action, this is not going away.

I hope Roger realizes that even when he's 80 years old, he could come to Foxboro for a game, and he would still be booed!

MagicMarker said:

MassPats38 -- are you an attorney?

I'm curious about a few things:

- With the granting of final arbitration authority to the commissioner, is there any implied fiduciary responsibility or can they do anything they want?
- Does the "law of the shop" figure into this at all? Again, can the arbitrator just do anything they want?
- Are there other actions (defamation suits or otherwise) that could force the NFL to disclose how this all started, who did what and whether they prejudged the situation?

Even if you're right, MP38, I don't think this has to be a legal solution. This is public opinion, and even if the NFL successfully quashed any legal action, this is not going away.

I hope Roger realizes that even when he's 80 years old, he could come to Foxboro for a game, and he would still be booed!

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He has 31 other places he can go forever and be cheered, lauded and idolized.

Jackson 2 said:

Felger and Mazz believe Brady's phone contained incriminating communication with BB.

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I still don't understand why Felger and Mazz exist. Why does anyone watch this crap?

Jackson 2 said:

He has 31 other places he can go forever and be cheered, lauded and idolized.

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I don't think he's welcome in New Orleans either.

VectorPrime said:

I bet you he wouldn't have done anything differently because he's a f.ucking incompetent moron. Maybe if an owner with significant influence *cough* Kraft *cough* had actually tried to call him out on his ******** then maybe he'd have second thoughts but well, that didn't happen.

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I'm still waiting to see some sign of the "significant influence" Kraft has over Goodell. Far as I can tell Kraft keeps kissing his ass while Goodell keeps sh*tting on him and the team.