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Meet Judge Richard Berman


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Appreciate your thoughts. Was wondering if you could give me a breakdown of what Berman's role is and what responsibilities he has in this case? How does his role change throughout the course?

I understand that he is there to get the sides talking and to to try to work it out themselves but am not sure what else he does?

The Judge has two motions before him - one to confirm and one to vacate the arbitration award. He will likely set a timeline (with or without a conference) for the two sides to respond and then reply to the motions. He could have the parties argue their positions, but he does not have to do so. How the judges pull all the arguments in is really left to their specific preferences. Some like oral arguments. Some believe the arguments are a waste of time and only useful for getting concessions useful in limiting the scope of decisions.

Judges can order dispute resolution procedures (they cannot force settlements, but can try to facilitate them). I believe what you see in the quoted order is more a "try to work things out" statement, which is the goal of virtually any judge. Often parties are told to get together and see if motions (or issues in motions) can be resolved prior to bringing in the court, and certify good faith attempts were made to resolve the dispute in writing with the filed motion.

Briefing may well be done in months. From there, the judge will study the CBA and any other documents/evidence necessary to interpret the CBA, apply the facts set forth in that record, and then grant, deny or grant in part the two motions in a written order.

There is no timeframe for decisions in these cases. SDNY has a heavy civil docket, so barring some need to resolve the case quickly (motions to expedite decisions look good but tend not to have much effect) the decision could be ready for decision but pending long after the 2015 season is over.

If that sounds about as exciting as watching paint dry, then you get the picture (it is very much like a legal fight with an insurer over whether you are covered for some eventuality under the policy). I expect the media will be digging through written arguments trying to add drama to the legal procedures, because this may well amount to little more than legal briefs sitting on the desk of the judge and his assistant law clerks while the public waits for a written decision to hit the streets.

The application for a preliminary injunction to avoid enforcement of the suspension may show up in the same case (not sure if this case is all for Brady and his team). Given the schedule of the first game, that can and may well be given an expedited hearing. Those usually involve live witnesses and other evidence, so certainly a bit more lively than the core proceeding. The judge will establish a briefing schedule there as well, and will ultimately make factual findings as to whether Brady can show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” “[P]laintiffs seeking preliminary relief [must] demonstrate that irreparable injury is likely in the absence of an injunction.” You do not often see arbitration cases appear with an application for preliminary injunction, but as you can see the necessary findings (e.g., likely success on the merits) give strong evidence of where the primary case may be heading.

Hopefully that gives a decent overview of what you may see in the coming weeks and months.
 
I'm not underestimating it, I am completely dismissing it because it is nonsense. I don't care if he is a hardcore Jets fan. He won't allow his reputation among his peers to be tarnished due to lack of impartiality simply because he is a Jets fan.

It's nonsense.

Exactly, just like Wells wouldn't produce a piece of s#%t report because he wanted to sustain his reputation as an objective and fair lawyer.

Oh wait...nevermind.
 
Exactly, just like Wells wouldn't produce a piece of s#%t report because he wanted to sustain his reputation as an objective and fair lawyer.

Oh wait...nevermind.

Wells was hired by the league.
 
He's clearly a liberal. But I would like to learn more about his actual rulings, especially with regards to fair labor laws
So would I. Maybe one of our lawyer posters with knowledge of the right databases will do some research for us.
 
Wells was hired by the league.

I have no faith that anybody will be impartial....thinking Bush v Gore 2004....Was the Supreme Court impartial? Or on the recent gay marriage ruling was the court impartial.

It's gonna be tinged by bias, because all judges are humans, and I frankly have lost faith in all of the process at this point.
 
For those in need of optimism, there is an interesting venue paradox:

The Federal Arbitration Act at Title 9 of the U.S. Code sets forth the grounds by which a federal court can vacate an arbitration award. The critical one for this case is “where there was evident partiality . . .in the arbitrator.” What is absent from the applicable provision is what used to be the reason of choice: manifest disregard of the law. While under this rubric, an arbitration award cannot be reversed for an error of law or a misreading of the facts, it can be vacated if the arbitrator intentionally ignored well-settled law. For example, if the arbitrator knows the statute of limitations is two years, he or she cannot use one or three years as the time to bar an action.
The Circuits are split as to whether manifest disregard of the law is still a reason for vacating an award. The Eighth Circuit, which includes Minnesota, says it is not. The Second Circuit, on the other hand, which includes New York, says it is. Compare Crawford Grp., Inc. v. Holekamp, 543 F.3d 971 (8th Cir. 2008), with Stolt- Nielson SA v. Animal Feeds Int’l, 548 F.3d 85 (2d Cir. 2008).Thus, Brady and his team are actually better off in Giants territory than they would be in the land of the Vikings.

This would certainly be a critical play for Brady to call given that the under-inflation rule appears to apply only to teams not players and carries only a $25,000 fine.
My bet is still that Brady plays every game.
http://sports-law.blogspot.com/2015/07/more-of-brady-bunch.html
 
Wells was hired by the league.

And not just hired as an independent investigator. He was explicitly acting as an attorney for the league throughout the investigation. Couldn't claim attorney-client privilege otherwise.

I'm still shocked that Wells did that, must have had something big to hide I guess. Either that or I'm way too optimistic in thinking that it's a slam dunk to rule that an arbitrator is evidently partial when one side of what he's arbitrating was written by his own attorney as commissioned by the arbitrator himself.
 
Why are you people so pessimistic about Brady's chances in court? I know that things haven't gone exactly our way so far, but that was with Goodell playing judge, jury, and executioner. In an actual court of law, and with Kessler on Brady's side, I'm more hopeful of justice being served than ever.
For those in need of optimism, there is an interesting venue paradox:


http://sports-law.blogspot.com/2015/07/more-of-brady-bunch.html

well-settled law is not the same as NFL rules
 
I have friends who are or have been judges, DA's etc.. ....but when it comes to making legal decisions they take their jobs seriously. I doubt a good NFLPA argument will be over ruled by anyones fandom.

The guy went undergrad to a university in NY State and for grad school to two different universities in NYC. He sure sounds like a New Yorker to me.

So would I. Maybe one of our lawyer posters with knowledge of the right databases will do some research for us.

Well, I'm not a lawyer, and don't have acces to case law libraries per se, but 30 secs of Google and " judge biographies" got me this:
Biographical Directory of Federal Judges
Berman, Richard M.


Born 1943 in New York, NY[/b]
  • Federal Judicial Service:
  • Judge, U.S. District Court, Southern District of New York
  • Nominated by William J. Clinton on May 21, 1998, to a seat vacated by Kevin Thomas Duffy.
  • Confirmed by the Senate on October 21, 1998, and received commission on October 22, 1998.
  • Assumed senior status on September 11, 2011.
      • Education:
        Cornell University, B.S., 1964
        New York University School of Law, J.D., 1967
        Fordham University, M.S.W., 1996

        Professional Career:
        Private practice, New York, 1970-1974
        Executive assistant, U.S. Sen. Jacob Javits, New York, 1974-1977
        Executive director, New York State Alliance to Save Energy, Inc., 1977-1978
        General counsel and executive vice president, Warner Cable Corporation, 1978-1986
        Private practice, New York City, 1986-1995
        Judge, Queens County [New York] Family Court, 1995-1998

Let's hope Tony's right and fencer and my suspicions have no grounding.
But, you only have 2 choices. So, are we better off if he is a jester or a gints fan?
 
Last edited:
well-settled law is not the same as NFL rules

No, but a 4-year old collective bargaining agreement after, what 60 years of collective bargaining agreements full of punishments and procedures and precedents is absolutely well-settled Law of the Shop. That along with well-settled Labor Law is what this refers to.
 
The Judge has two motions before him - one to confirm and one to vacate the arbitration award. He will likely set a timeline (with or without a conference) for the two sides to respond and then reply to the motions. He could have the parties argue their positions, but he does not have to do so. How the judges pull all the arguments in is really left to their specific preferences. Some like oral arguments. Some believe the arguments are a waste of time and only useful for getting concessions useful in limiting the scope of decisions.

Judges can order dispute resolution procedures (they cannot force settlements, but can try to facilitate them). I believe what you see in the quoted order is more a "try to work things out" statement, which is the goal of virtually any judge. Often parties are told to get together and see if motions (or issues in motions) can be resolved prior to bringing in the court, and certify good faith attempts were made to resolve the dispute in writing with the filed motion.

Briefing may well be done in months. From there, the judge will study the CBA and any other documents/evidence necessary to interpret the CBA, apply the facts set forth in that record, and then grant, deny or grant in part the two motions in a written order.

There is no timeframe for decisions in these cases. SDNY has a heavy civil docket, so barring some need to resolve the case quickly (motions to expedite decisions look good but tend not to have much effect) the decision could be ready for decision but pending long after the 2015 season is over.

If that sounds about as exciting as watching paint dry, then you get the picture (it is very much like a legal fight with an insurer over whether you are covered for some eventuality under the policy). I expect the media will be digging through written arguments trying to add drama to the legal procedures, because this may well amount to little more than legal briefs sitting on the desk of the judge and his assistant law clerks while the public waits for a written decision to hit the streets.

The application for a preliminary injunction to avoid enforcement of the suspension may show up in the same case (not sure if this case is all for Brady and his team). Given the schedule of the first game, that can and may well be given an expedited hearing. Those usually involve live witnesses and other evidence, so certainly a bit more lively than the core proceeding. The judge will establish a briefing schedule there as well, and will ultimately make factual findings as to whether Brady can show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” “[P]laintiffs seeking preliminary relief [must] demonstrate that irreparable injury is likely in the absence of an injunction.” You do not often see arbitration cases appear with an application for preliminary injunction, but as you can see the necessary findings (e.g., likely success on the merits) give strong evidence of where the primary case may be heading.

Hopefully that gives a decent overview of what you may see in the coming weeks and months.


This post should be a stickie.
 
Silly iPad and forum tools jacked up that post, sorry if anyone had hard time reading, edited five times and can't get rid of the auto bulletins that somehow inserted
 
Well, the bright side is that if Brady wins noone can say that he hand picked a friendly venue.

I guess.

I suppose "only Nixon can go to China" so it would take a New York judge to tell Goodell and his NY minions they're in the wrong.

I can only hope that Kessler has enough juice to pull this off.
 
The Judge has two motions before him - one to confirm and one to vacate the arbitration award. He will likely set a timeline (with or without a conference) for the two sides to respond and then reply to the motions. He could have the parties argue their positions, but he does not have to do so. How the judges pull all the arguments in is really left to their specific preferences. Some like oral arguments. Some believe the arguments are a waste of time and only useful for getting concessions useful in limiting the scope of decisions.

Judges can order dispute resolution procedures (they cannot force settlements, but can try to facilitate them). I believe what you see in the quoted order is more a "try to work things out" statement, which is the goal of virtually any judge. Often parties are told to get together and see if motions (or issues in motions) can be resolved prior to bringing in the court, and certify good faith attempts were made to resolve the dispute in writing with the filed motion.

Briefing may well be done in months. From there, the judge will study the CBA and any other documents/evidence necessary to interpret the CBA, apply the facts set forth in that record, and then grant, deny or grant in part the two motions in a written order.

There is no timeframe for decisions in these cases. SDNY has a heavy civil docket, so barring some need to resolve the case quickly (motions to expedite decisions look good but tend not to have much effect) the decision could be ready for decision but pending long after the 2015 season is over.

If that sounds about as exciting as watching paint dry, then you get the picture (it is very much like a legal fight with an insurer over whether you are covered for some eventuality under the policy). I expect the media will be digging through written arguments trying to add drama to the legal procedures, because this may well amount to little more than legal briefs sitting on the desk of the judge and his assistant law clerks while the public waits for a written decision to hit the streets.

The application for a preliminary injunction to avoid enforcement of the suspension may show up in the same case (not sure if this case is all for Brady and his team). Given the schedule of the first game, that can and may well be given an expedited hearing. Those usually involve live witnesses and other evidence, so certainly a bit more lively than the core proceeding. The judge will establish a briefing schedule there as well, and will ultimately make factual findings as to whether Brady can show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” “[P]laintiffs seeking preliminary relief [must] demonstrate that irreparable injury is likely in the absence of an injunction.” You do not often see arbitration cases appear with an application for preliminary injunction, but as you can see the necessary findings (e.g., likely success on the merits) give strong evidence of where the primary case may be heading.

Hopefully that gives a decent overview of what you may see in the coming weeks and months.


Thanks for that. Looks like I'm going to need more popcorn.
 
The Judge has two motions before him - one to confirm and one to vacate the arbitration award. He will likely set a timeline (with or without a conference) for the two sides to respond and then reply to the motions. He could have the parties argue their positions, but he does not have to do so. How the judges pull all the arguments in is really left to their specific preferences. Some like oral arguments. Some believe the arguments are a waste of time and only useful for getting concessions useful in limiting the scope of decisions.

Judges can order dispute resolution procedures (they cannot force settlements, but can try to facilitate them). I believe what you see in the quoted order is more a "try to work things out" statement, which is the goal of virtually any judge. Often parties are told to get together and see if motions (or issues in motions) can be resolved prior to bringing in the court, and certify good faith attempts were made to resolve the dispute in writing with the filed motion.

Briefing may well be done in months. From there, the judge will study the CBA and any other documents/evidence necessary to interpret the CBA, apply the facts set forth in that record, and then grant, deny or grant in part the two motions in a written order.

There is no timeframe for decisions in these cases. SDNY has a heavy civil docket, so barring some need to resolve the case quickly (motions to expedite decisions look good but tend not to have much effect) the decision could be ready for decision but pending long after the 2015 season is over.

If that sounds about as exciting as watching paint dry, then you get the picture (it is very much like a legal fight with an insurer over whether you are covered for some eventuality under the policy). I expect the media will be digging through written arguments trying to add drama to the legal procedures, because this may well amount to little more than legal briefs sitting on the desk of the judge and his assistant law clerks while the public waits for a written decision to hit the streets.

The application for a preliminary injunction to avoid enforcement of the suspension may show up in the same case (not sure if this case is all for Brady and his team). Given the schedule of the first game, that can and may well be given an expedited hearing. Those usually involve live witnesses and other evidence, so certainly a bit more lively than the core proceeding. The judge will establish a briefing schedule there as well, and will ultimately make factual findings as to whether Brady can show “that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” “[P]laintiffs seeking preliminary relief [must] demonstrate that irreparable injury is likely in the absence of an injunction.” You do not often see arbitration cases appear with an application for preliminary injunction, but as you can see the necessary findings (e.g., likely success on the merits) give strong evidence of where the primary case may be heading.

Hopefully that gives a decent overview of what you may see in the coming weeks and months.
Thanks. Your posts are the best we've seen on the subject. You should go on TV.
 
Well, I'm not a lawyer, and don't have acces to case law libraries per se, but 30 secs of Google and " judge biographies" got me this:

Let's hope Tony's right and fencer and my suspicions have no grounding.
But, you only have 2 choices. So, are we better off if he is a jester or a gints fan?

I'm optimistic that he'll be impartial on most aspects of the case.

"Something smells here; a guy is being railroaded on little more than a hunch" is more of an emotional judgment, and could be influenced by fandom or whatever. Most of the rest would seem to be more cut and dried, or at least rooted in what he believes about the law.
 
I have no faith that anybody will be impartial....thinking Bush v Gore 2004....Was the Supreme Court impartial? Or on the recent gay marriage ruling was the court impartial.

It's gonna be tinged by bias, because all judges are humans, and I frankly have lost faith in all of the process at this point.

Relax. It looks like the NFLPA got a decent judge to handle this case. Being biased because of political or legal views is one thing but being unfair is another. This judge seems to have somewhat of a liberal bias which may favor the Pats position.
 
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