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

I hope Berman's good "understanding" of the case already didn't come from "knowledge" provided by the NY media.

shmessy said:

PFS74, you are the Patfanken of this legal case.

Thank you for your great insight. I'm learning lots just from reading your continuing commentary.

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OK.

But, please know that I have zero idea what this guy is going to do. I could just as easily see him telling Goodell to shove his "Findings" up his butt and go home to his faux manse in Bronxville as I could see him telling Tom Brady and his jillionaire wife to get out of his sight.

That's what would make this such great theater to me if I didn't care so much about Brady.

A book could and no doubt will be written around the themes that will play themselves out in lower Manhattan over the next few weeks.

This is "Real New York" being played out in front of our eyes.

Two guys with a lot in common (Berman and Kessler) and two guys with long histories in the state (Berman and Goodell's father...remember, Berman was Jacob Javits' AA...I wouldn't be surprised if Berman met Goodell when he was in short pants).

It could really go either way. The tipping point might be the interloper, Wells. I have a gut feeling that Berman disdains weasels like Wells.

The one thing I'll be watching on the 12th is whether Kessler and Berman get into some sort of tribal argument and whether Berman shows any deference at all to the son of his mentor's colleague...

Jlaff said:

I hope Berman's good "understanding" of the case already didn't come from "knowledge" provided by the NY media.

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I would be very surprised if this guy reads anything beyond the front section of the NYT, the NYT's Sunday Review and Magazine (which ran a very favorable article on TB in January), the New York Review of Books and the New Yorker, when it comes to local media. He probably has his clerks scan the Post and Daily News.

And, as hard as it might be to believe, he probably has never tuned to ESPN, has no idea who "Mike and Mike" are, thinks "Pardon the Interruption" is a sex site and thinks "Florio" has something to do with water policy and advocacy around fluoride in the city's water supply.

XLIX said:

What if, as some in the media have speculated, the main sticking point is an admission of guilt? If the NFL absolutely insists on an admission, and Brady absolutely insists on refusal, then which side is the one not acting in good faith?

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Might depend on what he had for breakfast...
On a serious note, he's already formed an opinion on the basic facts in play. He as much as said so in his directions to the parties. Everybody should read it carefully. It's only a few words and we should pay attention to each one.
If he thinks that Goodell has an agenda and Wells is a weasel, that's one thing.
If he thinks that Brady is Too Cool for School and if Brady does anything to reinforce that impression in his court room, then fuhgettabout it.
If I were Brady's team, I'd plant an article about Brady's dad in the NYT this week and keep Gisele as far away from the courtroom as possible...or maybe run an article on her parents, a teacher and postal worker in Brazil.

I don't understand how a judge can be so blase about wanting to get through a case as fast as possible because he doesn't want to deal with it. It's his ****ing job and maybe he should be in a different line of work if he can't handle cases with nuance.

VectorPrime said:

I don't understand how a judge can be so blase about wanting to get through a case as fast as possible because he doesn't want to deal with it. It's his ****ing job and maybe he should be in a different line of work if he can't handle cases with nuance.

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The two sides that have requested an expedited hearing. The judge is accommodating them.

And people need to stop reading into the settlement letter from the judge, because it's just a letter telling the two sides that he would prefer to see this settled. The judges always want arbitration cases to settle outside of their courtrooms. That doesn't mean that either side has any inherent advantage if they don't, or that both sides have to sacrifice their principles or get screwed just because the judge had to actually do his job.

VectorPrime said:

I don't understand how a judge can be so blase about wanting to get through a case as fast as possible because he doesn't want to deal with it. It's his ****ing job and maybe he should be in a different line of work if he can't handle cases with nuance.

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I agree with this to a large extent. I have seen several comments about how he has "much more important stuff to do."

OK, I admit that (as a wise man once said) "This isn't ISIS," but it is a pretty important labor issue for the largest sports league in the country and there are a couple million dollars at stake, to say nothing of the public fascination with the whole thing.

VectorPrime said:

I don't understand how a judge can be so blase about wanting to get through a case as fast as possible because he doesn't want to deal with it. It's his ****ing job and maybe he should be in a different line of work if he can't handle cases with nuance.

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well, to be fair about it, it's possible he may have some other cases that are marginally more serious than this flea circus

XLIX said:

I agree with this to a large extent. I have seen several comments about how he has "much more important stuff to do."

OK, I admit that (as a wise man once said) "This isn't ISIS," but it is a pretty important labor issue for the largest sports league in the country and there are a couple million dollars at stake, to say nothing of the public fascination with the whole thing.

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and it's also petty nonsense that really doesn't belong in court

Joker said:

I'm fuzzy on this...Brady will get fined for not turning over his phone that Wells never asked for and didn't want? How exactly does THIS make sense?

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What has made sense so far anyway?

PatsFanSince74 said:

And unless one side is willing to roll the dice and risk Berman's vacating or upholding the entire finding, each side is going to have to give something. Woe to the side that Berman feels was not cooperating. I've never met this guy, but I've lived in New York for 25 years and I feel like I know him from dealing with so many people like him in the legal and financial worlds.

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I think thats why the outcome might not be happy for both sides in the end.

Deus Irae said:

The two sides that have requested an expedited hearing. The judge is accommodating them.

And people need to stop reading into the settlement letter from the judge, because it's just a letter telling the two sides that he would prefer to see this settled. The judges always want arbitration cases to settle outside of their courtrooms. That doesn't mean that either side has any inherent advantage if they don't, or that both sides have to sacrifice their principles or get screwed just because the judge had to actually do his job.

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The truth probably lies somewhere between your view and, for example, Steph S's. Lawyers are being quoted all over the interwebs saying that they've rarely seen an order from a judge this emphatically pushing the sides to settle. Each side would be well-advised to at least look to the judge as if it's trying to settle things.

My view, in my capacity as a former negotiation expert, is that Brady's best strategy is to let the league pick between very two different styles of outcomes, while taking a hardline in either version:

1. Immediate resolution. Here Brady should absolutely refuse any admission of guilt -- not even the didn't-fully-cooperate he proffered before -- and should either refuse any suspension, or else should accept one game on the theory that that will affect his team contributions less than the distraction of an ongoing case will. (I'd favor that he accepts zero suspension.) He should however accept a fine, as that's in reality a big money-saving move for him (let alone for the union) vs. further litigation.
2. Neutral arbitration. Here Brady should insist that it happen early NEXT offseason, both to minimize the impact on his football play and to leave time for gathering more PSI data. He further should get a couple of stipulations, one being waived attorney/client privilege for Wells, Pash et al. -- that good idea was suggested to me across Twitter -- and another being that a finding of guilt must be fully reconciled with well-researched PSI data over the season. (If the arbitrator doesn't think the league got really good and relevant data, then he doesn't find against Brady on the cheating claim.)

The league really has no basis for rejecting BOTH those offers other than "We don't like the precedent this sets!" To that the judge and the public can say "Duly noted. Please feel free to make that stipulation as loudly as you choose. Then settle anyway."

In #2, Brady doesn't get to take non-cooperation off the table, because of a similar argument -- his only really good basis for insisting on doing so would be his concern over precedent.

Berman has obviously leaped to the judgment that there are only a few actual issues in this case. That makes sense, because Kessler and the NFL are each saying that same thing. I'd summarize them as:

• "What is due process for findings of fact in NFL player discipline cases?"
• "What is due process for determining punishment in NFL player discipline cases?"

The NFL's answer to both questions may be summarized as "Whatever the Commissioner says they are." Kessler and Judge Doty and Tags and that other arbitrator whose name I forget have said otherwise.

Less obvious, but in my opinion probably also true, is that Berman already has a pretty good idea what he thinks the answers to those questions are.

What I'm GUESSING he's going to do is say, in effect, "Look, that stuff about Goodell delegating to Vincent is pretty thin, but otherwise Kessler's brief is mainly correct. If I have to decide this case, I'm going to order a re-hearing with a neutral arbitrator. And while I don't know what that arbitrator will decide on matters of fact, I'm pretty sure she'll decide that punishment can't go beyond a wrist slap.

"So you guys have three choices:

1. Have me decide.
2. Agree yourselves on the details of a neutral arbitrator, which will probably be more convenient for all concerned than if I specify the details of the arbitration.
3. Settle everything right away.

"It's up to you."

The other arbitrator is Barbara Jones. She was a judge in the same court as Judge Berman.

TomPatriot said:

The other arbitrator is Barbara Jones. She was a judge in the same court as Judge Berman.

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Good info.

So she could be potentially designated by Bermen to play referee and make a ruling?

TomPatriot said:

The other arbitrator is Barbara Jones. She was a judge in the same court as Judge Berman.

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Thanks. I recalled her as being female, a judge, and having a common-sounding name, but that left a lot of scope for missing details.

robertweathers said:

Good info.

So she could be potentially designated by Bermen to play referee and make a ruling?

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Berman already named some other judge to be standing by to help with settlement discussions. I forget the details.

Fencer said:

Berman already named some other judge to be standing by to help with settlement discussions. I forget the details.

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I really don't get the settlement discussions. Brady is in court now because he wants 0 games..not sure how there can be any settlement now. Doesn't Berman understand this?

Fencer said:

Berman already named some other judge to be standing by to help with settlement discussions. I forget the details.

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Yea that was the magistrate judge.

I'm just wonderinf if the Barbara Jones mentioned by the other poster is the same that slapped around Goodell over the Ray Rice case.

sambam94 said:

I really don't get the settlement discussions. Brady is in court now because he wants 0 games..not sure how there can be any settlement now. Doesn't Berman understand this?

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It's all a process and all about who blinks first.