Judge Berman Speaks

SVN · Jul 31, 2015

So what the court is going to judge on what went on in the arbitration meeting and Goodel's ruling based on destroyed phone and that arbitration meeting minutes are sealed and confidential ?

Biggs1221 · Jul 31, 2015

SVN said:
Matt Chatham ‏@chatham58 2m2 minutes ago
If I'm working on (or party 2) another suit on Judge Berman's docket that isn't jetted thru the system like the NFL's hot mess...not pleased

not sure what he means

If things are moving fast for the NFL and Tom Brady's sake, thats pretty preferential treatment. Things that are important to lots of folks sit around for a while.

But the fact that both sides are comfortable with no discovery means there really is no need for any delay at all. Typically its discovery and motions that extend things out for a while.

Biggs1221 · Jul 31, 2015

SVN said:
Bob McGovern ‏@BobMcGovernJr 21m21 minutes ago
There will be no extra digging by either the NFL or NFLPA. The entire case will be based "on the arbitration record." #DeflateGate

So . . . anyone looking for this thing to bring down the NFL, dont hold your breath. Kind of disappointing.

I was wondering if the NFLPA would seek to have certain issues expedited (eg the stuff like a player cant be suspended for an equipment violation) and hold off on the others. But it looks like the NFLPA is satisfied without any discovery period.

SVN · Jul 31, 2015

Biggs1221 said:
So . . . anyone looking for this thing to bring down the NFL, dont hold your breath. Kind of disappointing.

I was wondering if the NFLPA would seek to have certain issues expedited (eg the stuff like a player cant be suspended for an equipment violation) and hold off on the others. But it looks like the NFLPA is satisfied without any discovery period.

Yeah thats how I read it. Doesnt look good for a +ve outcome . But what do I know. Maybe its brady who wants it this way. Get it over with. Kinda sucks. I hope there is another play here.

PatsFanSince74 · Jul 31, 2015

Dr Pain said:
I disagree. The NFLPA's contentions are not that difficult to understand and prove. I like it being done this way, rip the band aid off

Judge Berman's is now the only opinion that matters as to whether the NFLPA's contentions are not difficult to "prove," but I agree that they are not difficult to "understand."

The NFLPA's argument is clearly stated in Sections three to six of the original Petition to Vacate. The rest of the Petition is 50 or so pages of blah blah blah.

By asking him to expedite, both sides are taking a risk, but I would agree that it probably is best to "rip the band aid off," one way or the other. Whether Berman agrees is another matter. He doesn't strike me as the kind of guy who is rushed into much.

PatsFanSince74 · Jul 31, 2015

Biggs1221 said:
So . . . anyone looking for this thing to bring down the NFL, dont hold your breath. Kind of disappointing.

I was wondering if the NFLPA would seek to have certain issues expedited (eg the stuff like a player cant be suspended for an equipment violation) and hold off on the others. But it looks like the NFLPA is satisfied without any discovery period.

I'm puzzled as to whence the expectation of a "discovery" that would "bring down the NFL" ever arose.

If we read the Petition to Vacate, it lays out the grounds for vacating the Arbitrator's ruling in § 3 through § 6. There is nothing there that needs "discovery." The NFLPA argues that Brady was not given advance notice, that the punishment was without precedent in the context of the CBA, that "general awareness" is an insufficient/unknown standard for assigning responsibility for a deed, that the punishment is outside the range of the fines provided by the CBA and that the arbitrator was ruling on authority that he had improperly delegated in the first place.

All of those things are matters of fact. The only "discovery" that the Judge and his clerks need to do is to read the NFLPA's Petition, read the NFL's version of the same "facts," read the CBA and consult relevant case law, including perhaps the findings of the Minnesota Court in the Petersen case.

Then, Judge Berman has to assemble all of the above and decide whether these facts are sufficient or insufficient to overturn the results of the arbitration. Arbitration results are, according to various public sources this week, upheld on petition by the Arbiter 75% of the time.

RIpats88 · Jul 31, 2015

BUT how many of those decisions upheld are because the employer followed their agreement with the union though.

0Percent of the nfls arbitration decisions have been held up because goodell fails do follow the agreed upon cba and i think the nflpa has a strong case on that basis

Biggs1221 · Jul 31, 2015

PatsFanSince74 said:
I'm puzzled as to whence the expectation of a "discovery" that would "bring down the NFL" ever arose.

If we read the Petition to Vacate, it lays out the grounds for vacating the Arbitrator's ruling in § 3 through § 6. There is nothing there that needs "discovery." The NFLPA argues that Brady was not given advance notice, that the punishment was without precedent in the context of the CBA, that "general awareness" is an insufficient/unknown standard for assigning responsibility for a deed, that the punishment is outside the range of the fines provided by the CBA and that the arbitrator was ruling on authority that he had improperly delegated in the first place.

All of those things are matters of fact. The only "discovery" that the Judge and his clerks need to do is to read the NFLPA's Petition, read the NFL's version of the same "facts," read the CBA and consult relevant case law, including perhaps the findings of the Minnesota Court in the Petersen case.

Then, Judge Berman has to assemble all of the above and decide whether these facts are sufficient or insufficient to overturn the results of the arbitration. Arbitration results are, according to various public sources this week, upheld on petition by the Arbiter 75% of the time.

I wouldnt rule out that it was beyond the scope of the petition to depose the arbitrator and others, or to obtain documents, records, etc from them. One claim (and a good chunk of the tenure of the petition) revolves around the fairness of the discipline AND decision. I would think evidence of extreme bias would be relevant to that claim, and that the petition sets out enough for at least cursory discovery in that regard.

And I honestly would have thought that they would have requested / subpoenaed various individuals personal phone records, just to make a point. The NFL would then certainly oppose that request (and Im sure be successful) - but it would purely be the "optics" (everyone's new favorite word) of that denial that would have been nice, at the least Patriots fans.

PatsFanSince74 · Jul 31, 2015

Biggs1221 said:
I wouldnt rule out that it was beyond the scope of the petition to depose the arbitrator and others, or to obtain documents, records, etc from them. One claim (and a good chunk of the tenure of the petition) revolves around the fairness of the discipline AND decision. I would think evidence of extreme bias would be relevant to that claim, and that the petition sets out enough for at least cursory discovery in that regard.

And I honestly would have thought that they would have requested / subpoenaed various individuals personal phone records, just to make a point. The NFL would then certainly oppose that request (and Im sure be successful) - but it would purely be the "optics" (everyone's new favorite word) of that denial that would have been nice, at the least Patriots fans.

I'm not a litigator, so I'll bow to anyone who knows more about this than I do, but the Petition is clearly and narrowly and (from a laymen's perspective), very well stated. It makes a powerful argument without drifting into personal motives or the realm of opinion.

The Petition infers nothing about the motivation of the arbiter, but rather sticks to the five facts that it puts in question in § 3 through § 6: notice, precedence, the weak standard implied by "generally aware," the imposition of a penalty outside of what is provided in the CBA and the arbiter's improperly delegated authority.

The court isn't being asked to distinguish between first and second degree murder or murder and manslaughter, where motive could play an important role, but rather it is being asked to rule on specific violations of specific sections of a collectively bargained agreement.

Despite all of the passion on both sides, this is ultimately going to be a dry-as-dust ruling. Judge Berman is either going to find that the NFL violated the CBA in a material way or that it did not do so.

As to paragraph two above, from what I've heard about Judge Berman, I don't think he'd have much time for tactics designed to enhance the "optics" of either side.

Bobs My Uncle · Jul 31, 2015

Geez, seems complicated to go to all of the trouble exhausting all the procedural things the CBA allows or disallows when all that probably needed to be put forth to any judge is that the science was dubious at best, due to insufficient ball testing protocols ...... which ended up turning this into a fiasco due to suspect "what if" conditions that the Wells report made.

TommyD4207 · Jul 31, 2015

Bobs My Uncle said:
Geez, seems complicated to go to all of the trouble exhausting all the procedural things the CBA allows or disallows when all that probably needed to be put forth to any judge is that the science was dubious at best, due to insufficient ball testing protocols ...... which ended up turning this into a fiasco due to suspect "what if" conditions that the Wells report made.

The entire petition is on, and can only be on, procedural violations in the CBA.

The science is footnoted in context, but it's not a legal reason to vacate the suspension being upheld.

By the way, it's entirely possible that Brady "wins", but the two sides still have to go to neutral arbitration. It's not what I think will happen, especially considering the expedition, but it can.

Bobs My Uncle · Jul 31, 2015

TommyD4207 said:
The entire petition is on, and can only be on, procedural violations in the CBA.

The science is footnoted in context, but it's not a legal reason to vacate the suspension being upheld.

By the way, it's entirely possible that Brady "wins", but the two sides still have to go to neutral arbitration. It's not what I think will happen, especially considering the expedition, but it can.

I suppose this is why I went into medicine instead of law.

As a scientist, if I could objectively demonstrate that science showed no wrongdoing was committed in the first place, then I guess I would ask "why bother with everything else?"

TommyD4207 · Jul 31, 2015

Bobs My Uncle said:
I suppose this is why I went into medicine instead of law.

As a scientist, if I could objectively demonstrate that science showed no wrongdoing was committed in the first place, then I guess I would ask "why bother with everything else?"

Well, that's the logical conclusion the league should have come to in January.

Now it's about violation of Labor Law. The NFLPA really does have a pretty solid case.

Bobs My Uncle · Jul 31, 2015

TommyD4207 said:
Well, that's the logical conclusion the league should have come to in January.

Now it's about violation of Labor Law. The NFLPA really does have a pretty solid case.

I just re-read the NFLPA’s Petition to Vacate and note that, starting on page 19, in the

DETAILED STATEMENT OF ARBITRATION FACTS

D. THE NFL INVESTIGATES THE PATRIOTS' ALLEGED DEFLATION OF FOOTBALLS IN THE AFC CHAMPIONSHIP GAME

1. The NFL Implements No Protocols for Collecting Information About Football Deflation Prior to the AFC Championship Game

55-83

The request vacating the award due to the NFL's undisputed failure to implement procedures for testing the footballs at the AFC Championship Game such that there was no fair and consistent basis for the NFL to base any punishment on its consultants' conclusions”

Would this not mean that attacking the science is still an option for the NFLPA?

TommyD4207 · Aug 1, 2015

Bobs My Uncle said:
I just re-read the NFLPA’s Petition to Vacate and note that, starting on page 19, in the

DETAILED STATEMENT OF ARBITRATION FACTS

D. THE NFL INVESTIGATES THE PATRIOTS' ALLEGED DEFLATION OF FOOTBALLS IN THE AFC CHAMPIONSHIP GAME

1. The NFL Implements No Protocols for Collecting Information About Football Deflation Prior to the AFC Championship Game

55-83

The request vacating the award due to the NFL's undisputed failure to implement procedures for testing the footballs at the AFC Championship Game such that there was no fair and consistent basis for the NFL to base any punishment on its consultants' conclusions”

Would this not mean that attacking the science is still an option for the NFLPA?

That's what I meant by "footnoted in the context".

Look at the last couple of pages, where it directly asks for certain violations of labor law to vacate the suspension ("Award").

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