New Order From Judge Berman (Friday 7/31 Afternoon)

It will be interesting to see where the middle ground is. Brady, if he believes this whole process is a sham, would have to agree to a mutual agreed upon arbitrator. The NFL might go as far as a fine only (but no suspension). What does the NFLPA have to get? I would think SOME change in the process.

bradydaman29 said:

No such thing as a neutral arbitrator.

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Give me Tags again. Goodell will start packing up his office 5 minutes after Tags gets chosen.

This order is nothing exceptional.

You have a 'suggestions' from the judge (he could blow everything up and just direct what will be filed and when - he appears to be open to getting everything covered that needs to be addressed and adjust course as necessary). You have motions from the opposing sides, which are essentially responses (one says bad, the other says good). The judge is saying file what is essentially a reply. Nothing radical there. He also writes that the parties will discuss whether more is require at the 8/12 status conference.

Federal courts routinely use magistrate judges to work settlement conferences. Principals with the authority to settle actions are ordered to attend hearings, so that the courts avoid the "I will have to check with my boss" from attorneys. That can make a productive conference unproductive if an attorney lacks authority to agree to a deal. This occurs in the typical federal cases, as settlement agreements are always the peaceful way out for a court (and generally represent the easiest way to end a case).

I would expect the judge may push the NFL to consider a "status quo" injunction on Brady's suspension at that conference until the issues are resolved here. If the NFL's true target is Brady, and the NFL is playing checkers, then it would likely not agree. If the NFL's true target is a judicial interpretation of the CBA that validates the authority exercised in Brady's case (bad for all targets of discipline in the future) and avoids future federal cases (chess), then it might agree to that "status quo" in order to curry favor with the court and demonstrate how reasonable the NFL is in this case.

Deus Irae said:

Give me Tags again. Goodell will start packing up his office 5 minutes after Tags gets chosen.

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Tough for the NFL to object to the immediately past commissioner.

And yeah -- I'd like to see Goodell out, with Tags back as interim commissioner period. He wouldn't have to do much significant except change the discipline process, although a nice additional option would be to launch a general simplification of the rulebook.

QuantumMechanic said:

I think he has a 3rd option -- vacate the award and then order re-arbitration. I don't know if he has the power to appoint a neutral arbitrator or can only suggest but not require that Goodell do so.

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But that means ruling against the NFL and calling out their process. Can he do that -force reabitration - or he will only decide to uphold or vacate what is being filed for ?

MagicMarker said:

It will be interesting to see where the middle ground is. Brady, if he believes this whole process is a sham, would have to agree to a mutual agreed upon arbitrator. The NFL might go as far as a fine only (but no suspension). What does the NFLPA have to get? I would think SOME change in the process.

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wishful thinking...

Stephanie Stradley retweeted
Raffi Melkonian ‏@RMFifthCircuit 5h5 hours ago
Raffi Melkonian retweeted Daniel Wallach

Judge Berman's order, revised: "Dear Settlers; I have settled on a settlement conference where you should settle"

Raffi Melkonian added,

Daniel Wallach @WALLACHLEGAL
The word "settlement" appears five times in Judge Berman's latest order. He is sending a strong signal to the parties to SETTLE. Two games?

Stephanie Stradley ‏@StephStradley 5h5 hours ago
Stephanie Stradley retweeted Raffi Melkonian

Biggest issue to settlement? No way Brady will admit guilt of anything. That's what Goodell wants the most.

MassPats38 said:

This order is nothing exceptional.

You have a 'suggestions' from the judge (he could blow everything up and just direct what will be filed and when - he appears to be open to getting everything covered that needs to be addressed and adjust course as necessary). You have motions from the opposing sides, which are essentially responses (one says bad, the other says good). The judge is saying file what is essentially a reply. Nothing radical there. He also writes that the parties will discuss whether more is require at the 8/12 status conference.

Federal courts routinely use magistrate judges to work settlement conferences. Principals with the authority to settle actions are ordered to attend hearings, so that the courts avoid the "I will have to check with my boss" from attorneys. That can make a productive conference unproductive if an attorney lacks authority to agree to a deal. This occurs in the typical federal cases, as settlement agreements are always the peaceful way out for a court (and generally represent the easiest way to end a case).

I would expect the judge may push the NFL to consider a "status quo" injunction on Brady's suspension at that conference until the issues are resolved here. If the NFL's true target is Brady, and the NFL is playing checkers, then it would likely not agree. If the NFL's true target is a judicial interpretation of the CBA that validates the authority exercised in Brady's case (bad for all targets of discipline in the future) and avoids future federal cases (chess), then it might agree to that "status quo" in order to curry favor with the court and demonstrate how reasonable the NFL is in this case.

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Good stuff. With a magistrate Judge overseeing the settlement talks does he have the power to point out things to the plaintiff and defendent? For example, if Brady brought up 4 case points from the cba that his rights were violated. Would that judge look them over and validate that they were to Goodell? Vice versa for the NFL?

Or he there to make sure they are negotiating?

As a fan I'm pretty adamant he shouldn't miss one game to this nonsense. If Brady feels the same way and will take no suspension whatsoever does it show bad faith in the eyes of the Judges?

Patriot Missile said:

Good stuff. With a magistrate Judge overseeing the settlement talks does he have the power to point out things to the plaintiff and defendent? For example, if Brady brought up 4 case points from the cba that his rights were violated. Would that judge look them over and validate that they were to Goodell? Vice versa for the NFL?

Or he there to make sure they are negotiating?

As a fan I'm pretty adamant he shouldn't miss one game to this nonsense. If Brady feels the same way and will take no suspension whatsoever does it show bad faith in the eyes of the Judges?

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The styles vary in terms of conducting conferences. Whether it is a magistrate, parajudicial officer (look at those as super attorneys a judge has asked to run the mediation process), the judge himself/herself (not really appropriate here as the judge may need to make formal findings on facts), or a professional mediator, the process is often periods of listening to issues (any and all, facts, procedures and law), discussion with individual parties, and discussions with all the parties. I have seen the use of "ex parte" briefs (essentially providing the details of "here is my issues, here is what I stand to lose, and here is what I will accept to shut this down"), which are not made known to the opposing party and only serve the mediator. Every court-associated variant of mediator I met in the Second Circuit was well acquainted with the legal issues and understood the strength of respective cases (contrast that with some Texas examples in which you could be 100% likely to win with damages of $1 million and mediation is literally divide that number by 2 - Take $500k? Not very sophisticated at all, which is why the mediators are frequently not attorneys.).

The only way a district court gets annoyed is if the procedures are delayed because a party or parties claim(s) they want to work things out but ultimately offer nothing (for example a lost wages case when an employer requests mediation, delays a trial and then offers an absurdly low number or nothing - it is a delay tactic and thus bad faith). Brady could say I will pay a fine for obstruction, as I see now that I should have been more cooperative, but I need that sanction to be identified as limited to that issue. However, his good faith negotiation could be I cannot take anything here due to the effects on my career and legacy. That is not bad faith (it just won't lead to settlement in many cases). But I doubt that would go to a magistrate as he or the NFLPA would not look upon the sessions as useful/productive in resolving the dispute. Settlement discussions may just be calls or e-mails asking "What will you take?" or "Would you consider this?" followed by responses or counter-offers.

If the settlement discussions are going well, then the district judge may push the procedures back to facilitate more discussions. The district judge could order a report that the parties have used some form of mediation in order to demonstrate attempts at settlement. The district judge is often only concerned with if there is value continuing those sessions. If not, then it is back to the district court and procedures there. These judges know they cannot force deals, so I wouldn't expect any backlash if the talks fail (other than refusing to engage in the discussions at all).

If you were Tb, would you take 1 game, BUT with the written explanation that it is for being non cooperative, rather than for anything related to PSI. In exchange, the team gets back both their picks, but would still need to pay the 1 mil fine. Also, the 2 employees would be reinstated based on Toms preference. AND, the NFL agrees to terminate Jeff Pash indefinitely and suspend Mike Kensil for 1-2 years, with a demotion when he comes back.

Trycked said:

If you were Tb, would you take 1 game, BUT with the written explanation that it is for being non cooperative, rather than for anything related to PSI. In exchange, the team gets back both their picks, but would still need to pay the 1 mil fine. Also, the 2 employees would be reinstated based on Toms preference. AND, the NFL agrees to terminate Jeff Pash indefinitely and suspend Mike Kensil for 1-2 years, with a demotion when he comes back.

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Kensil needs to be kept away from Gameday ops. The guy ran a sting and assumed deflated footballs were used which compromised the integrity of the game.

He should be fired.

robertweathers said:

Kensil needs to be kept away from Gameday ops. The guy ran a sting and assumed deflated footballs were used which compromised the integrity of the game.

He should be fired.

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Heck he should be fired if there's a written paper trail that comes out, but until then the bastard is still unfortunately innocent/ignorant

Trycked said:

Heck he should be fired if there's a written paper trail that comes out, but until then the bastard is still unfortunately innocent.

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You're right. That'll be Monday's emails

Fencer said:

Tough for the NFL to object to the immediately past commissioner.

And yeah -- I'd like to see Goodell out, with Tags back as interim commissioner period. He wouldn't have to do much significant except change the discipline process, although a nice additional option would be to launch a general simplification of the rulebook.

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Maybe a purge of the NYJFL maggots at HQ?

Trycked said:

If you were Tb, would you take 1 game, BUT with the written explanation that it is for being non cooperative, rather than for anything related to PSI. In exchange, the team gets back both their picks, but would still need to pay the 1 mil fine. Also, the 2 employees would be reinstated based on Toms preference. AND, the NFL agrees to terminate Jeff Pash indefinitely and suspend Mike Kensil for 1-2 years, with a demotion when he comes back.

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None of those things related to draft picks of employee terminations or reinstatements would be on the table.

MagicMarker said:

It will be interesting to see where the middle ground is. Brady, if he believes this whole process is a sham, would have to agree to a mutual agreed upon arbitrator. The NFL might go as far as a fine only (but no suspension). What does the NFLPA have to get? I would think SOME change in the process.

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We tend to think of this only in terms of Brady and the Pats, but from the NFLPA's perspective there is a lot at state. it is clear the Goodell is really trying to take on all encompassing powers. If he just uses the phrase conduct detrimental to the game, they he is essentially asserting his powers are unlimited. If the NFLPA believes in what it put in its complaint there are multiple levels of conduct by the commissioner that are unacceptable. If Brady is bound only by player conduct rules and he is being punished under rules that really only apply to teams how much of a penalty would the NFLPA want Brady to accept? that is, how much of a [penalty would have the long term consequence of affirming Goodell's power to punish Brady for Team as opposed to player violations? If he accepts even 1 game doesn;' that ratify Goodell's power to do what he did? Delegate punishments to someone else, act as the arbitrator and make up the rules as he goes along with what is and what is a violation and make up the penalties as he goes along all without prior notce to the player? Wouldn't a million dollar fine do the same thing? In other words, I think, and perhaps its only my hope, is that the NFLPA has to hold out along with Brady for a pretty low penalty or risk a dangerous precedent. so is the penalty for using stickum, only 8500 or is it whatever Goodell thinks it should be?

I am pleased with the selection of this judge. He is showing fairness and sincerity in trying to get this settled and not "create precedent" as Albert Breer writes. He also is showing the kind of leadership Goodell didn't (as Tom Curran wrote).

If I'm Brady my proposals follow my position that "I'm innocent and any penalty I accept has to come with release of documents to help me defend myself in the court of public opinion."

First choice, suspension is vacated
Second, fine only (for non cooperation), but the transcript of the appeal must be released. (Might not be a big deal. If it goes to court, Florio states that likely WILL happen).
Third, if any games are loss, all supporting documentation for the Well's Report must be released.

The NFL likely won't accept any of those.

MagicMarker said:

I am pleased with the selection of this judge. He is showing fairness and sincerity in trying to get this settled and not "create precedent" as Albert Breer writes. He also is showing the kind of leadership Goodell didn't (as Tom Curran wrote).

If I'm Brady my proposals follow my position that "I'm innocent and any penalty I accept has to come with release of documents to help me defend myself in the court of public opinion."

First choice, suspension is vacated
Second, fine only (for non cooperation), but the transcript of the appeal must be released. (Might not be a big deal. If it goes to court, Florio states that likely WILL happen).
Third, if any games are loss, all supporting documentation for the Well's Report must be released.

The NFL likely won't accept any of those.

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The NFL might not have a choice if Berman rules on it. They (the NFL) could appeal, but that actually would be a long shot.

MagicMarker said:

I am pleased with the selection of this judge. He is showing fairness and sincerity in trying to get this settled and not "create precedent" as Albert Breer writes. He also is showing the kind of leadership Goodell didn't (as Tom Curran wrote).

If I'm Brady my proposals follow my position that "I'm innocent and any penalty I accept has to come with release of documents to help me defend myself in the court of public opinion."

First choice, suspension is vacated
Second, fine only (for non cooperation), but the transcript of the appeal must be released. (Might not be a big deal. If it goes to court, Florio states that likely WILL happen).
Third, if any games are loss, all supporting documentation for the Well's Report must be released.

The NFL likely won't accept any of those.

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Breer and his "couple lawyers" are reading a whole lot into what's basically nothing. The next judge I see who says anything like "Yeah, there's a settlement conference scheduled. Use that waste of time if you want" will be the first.

TommyD4207 said:

Total vacating of the punishment.

No games. No fine.

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I dont think he'll get out of it without a fine, since there is already precedent set from the Favre case for not turning over his phone