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

Fencer · Aug 3, 2015

supafly said:
PFS74---what an awesome post! Thanks for sharing. I think that you provide excellent reasoning for your "gut" feeling(s) on this matter. The one and only point that I'd respectfully disagree with, would be your very first point.

From many conversations with my wife's father (my FIL) who is a 35-40 year labor attorney and one of so and so's "top 500" lawyers in the country for this subject matter, the court rarely wishes to get involved in these matters, and often tosses them right back at the two parties telling them to work out their differences. In the case of Judge Berman, I'm not quite as sure as you may be that he's necessarily showing his hand at there being "something to settle," as you suggest. I think he'd likely do the same exact thing to 9/10 cases involving labor disputes under contract. Just my humble opinion, as I don't know anything more than you on the subject. Here's hoping that you're correct!

For what it's worth, I brought up the suggestion during Father's Day dinner way back in June in regards to the possibility of the injunction due to the timeframe involved, and the fact that I personally did not expect an appeal ruling from Goodell for another 7-10 days. I knew that sonofa***** would drag it out as long as possible. My FIL did not agree with the idea of the injunction and stated that "they'll likely ask for an expedited decision, instead." On the way home in the car, I told my wife how much I disagreed.....and here we are. LOL.

I'm influenced by the lawyers on Twitter who are saying that Berman's exhortations to settle go way beyond even the norm you're describing.

That said, I'm not sure those are specifically LABOR lawyers who are tweeting that.

n6249c · Aug 3, 2015

Question for the lawyers....

When they talk settlement, does that open the door to consider all the issues, like did Wells blow the science? Or, since we've heard that the court case is tightly scoped to the questions of whether the CBA was violated, do the settlement talks focus more narrowly on just those questions?

In other words, would an offer from Brady along the lines of "throw out the Wells report, do a proper scientific study of the natural pressure changes in footballs during game conditions and then re-consider the question of whether any wrong-doing occurred" be a good faith settlement offer? Or would that be going too far beyond the issues under litigation?

turkeyneck · Aug 3, 2015

Is there any room for amicus briefs in this current process?

TommyD4207 · Aug 3, 2015

RelocatedPatFan said:
A little short of where I want this to be, but if Brady is ok with it...who am I to argue.

Well, the picks are gone. You can thank the owner for that. Deus has it right on the money. Why should Brady accept a fine for non-cooperation when he fully cooperated with the investigation? That smacks of the Boston Sports Media's "make it go away" crap.

PatsFanSince74 · Aug 3, 2015

Hoodie said:
One quick question -- "without limitation" means clear your calendar, you'll be here for the whole day?

Once again, I bow to someone who actually does this stuff for his/her day job, but I think it means that "you will both be here and you will be here for as long as I want you here."

PatsFanSince74 · Aug 3, 2015

Fencer said:
Berman's tone makes the most sense if he's planning to vacate and order a re-hearing with a neutral arbitrator. If he's planning instead to give one side a near-complete victory, then what we are told is the unusual vehemence in his attempt to induce settlement seems odder.

Also, the simpler he thinks the case is, the more sense it makes that he doesn't mind revealing that he's already pretty much judged it already. And the simplest view I can imagine is "Goodell wasn't a neutral arbitrator; hence the whole process needs to be redone; hence none of the other specifics matter."

That's pretty much my "hopeful reading" of the few words in his Order, but I've been wrong so often in the last six months that I wouldn't bet more than a beer on it.

Fencer · Aug 3, 2015

TommyD4207 said:
Well, the picks are gone. You can thank the owner for that.

Probably.

But here's one slim chance -- the Pats sue for defamation, in line with the recently posted emails. Some of the damages sought are compensation for the lost picks and the fine. And those picks are worth a lot, because salary cap dollars -- which is what picks save -- are worth a lot more than ordinary dollars.

So part of a settlement could be to cancel the discipline ...

Ring 6 · Aug 3, 2015

Fencer said:
Probably.

But here's one slim chance -- the Pats sue for defamation, in line with the recently posted emails. Some of the damages sought are compensation for the lost picks and the fine. And those picks are worth a lot, because salary cap dollars -- which is what picks save -- are worth a lot more than ordinary dollars.

So part of a settlement could be to cancel the discipline ...

There is another chance.
Goodell loses in court, and is publicly embarrassed by the judge, OR that and ALSO it goes to Tagliabue who rips Goodell again for having no clue.
Mort gives the leak, someone (Outside the Lines?) investigates and blows open the Kensil, Pash, Vincent witch hunt.
Goodell is fired.
New commissioner, fresh off reviewing 2015 actual game PSI data, revokes the Patriots punishments.

PatsFanSince74 · Aug 3, 2015

supafly said:
PFS74---what an awesome post! Thanks for sharing. I think that you provide excellent reasoning for your "gut" feeling(s) on this matter. The one and only point that I'd respectfully disagree with, would be your very first point.

From many conversations with my wife's father (my FIL) who is a 35-40 year labor attorney and one of so and so's "top 500" lawyers in the country for this subject matter, the court rarely wishes to get involved in these matters, and often tosses them right back at the two parties telling them to work out their differences. In the case of Judge Berman, I'm not quite as sure as you may be that he's necessarily showing his hand at there being "something to settle," as you suggest. I think he'd likely do the same exact thing to 9/10 cases involving labor disputes under contract. Just my humble opinion, as I don't know anything more than you on the subject. Here's hoping that you're correct!

For what it's worth, I brought up the suggestion during Father's Day dinner way back in June in regards to the possibility of the injunction due to the timeframe involved, and the fact that I personally did not expect an appeal ruling from Goodell for another 7-10 days taking us not only past July, but into August. I knew that sonofa***** would drag it out as long as possible. My FIL did not agree with the idea of the injunction and stated that "they'll likely ask for an expedited decision, instead." On the way home in the car, I told my wife how much I disagreed.....and here we are. LOL.

Thoughtful post. Thanks. The good news is we won't have to wait very long.

PatsFanSince74 · Aug 3, 2015

turkeyneck said:
Is there any room for amicus briefs in this current process?

Good question. I'm sure that someone who does this for a living could answer that question, but my instinct is that a Judge who has instructed the parties to limit their submissions prior to the Settlement meeting to 15 "double spaced" pages that don't break any new ground beyond the Motions before him probably isn't in much of a mood to read them.

PatsFanSince74 · Aug 3, 2015

deleted because of some error that crossed out everything i wrote

patriot1136 · Aug 3, 2015

supafly said:
PFS74---what an awesome post! Thanks for sharing. I think that you provide excellent reasoning for your "gut" feeling(s) on this matter. The one and only point that I'd respectfully disagree with, would be your very first point.

From many conversations with my wife's father (my FIL) who is a 35-40 year labor attorney and one of so and so's "top 500" lawyers in the country for this subject matter, the court rarely wishes to get involved in these matters, and often tosses them right back at the two parties telling them to work out their differences. In the case of Judge Berman, I'm not quite as sure as you may be that he's necessarily showing his hand at there being "something to settle," as you suggest. I think he'd likely do the same exact thing to 9/10 cases involving labor disputes under contract. Just my humble opinion, as I don't know anything more than you on the subject. Here's hoping that you're correct!

For what it's worth, I brought up the suggestion during Father's Day dinner way back in June in regards to the possibility of the injunction due to the timeframe involved, and the fact that I personally did not expect an appeal ruling from Goodell for another 7-10 days taking us not only past July, but into August. I knew that sonofa***** would drag it out as long as possible. My FIL did not agree with the idea of the injunction and stated that "they'll likely ask for an expedited decision, instead." On the way home in the car, I told my wife how much I disagreed.....and here we are. LOL.

I gotta ask, because I'm damn curious. It sounds like your father in law is a big shot lawyer. Is he at least a cool guy overall? Like do you guys get along and whatnot?

PatsFanSince74 · Aug 3, 2015

Deus Irae said:
Brady should "cooperate" to the extent of promising not to sue for defamation, as long as

League admits no proof Brady did anything wrong

League acknowledges error in fining team and taking draft picks

League hires a truly independent investigator to find out who the league office leakers were

League agrees to fire said leakers

League reverses all suspensions and fines for Brady

At this point, there's really no reason for anything beyond that, unless the NFLPA lawyers get an ominous vibe from the judge.

Deus, we're all on the same side here and I'm not trying to be argumentative, but just trying to understand your position.

The "vibe" from Berman is clear: "I request that you all engage in comprehensive, good-faith settlement discussions prior to the conference on August 12,2015. Magistrate Judge James C. Francis, IV is available to assist you if you wish." He then describes the conferences on August 12th and 19th as "Settlement Conferences" and demands that Brady and Goodell be present at each "without limitation." He also tells both parties that they can submit another written brief to him, in the form of a "15 page double spaced memo (further supporting your positions)." He's not interested in hearing any new arguments or any new suggestions.

That's not a "vibe," but pretty clear. It's also better news for Brady and the NFLPA than it is for the NFL, since, in filing its Motion to Uphold, the NFL didn't think there was anything to settle.

So, what happens if the NFL reads the handwriting on the wall and offers to reduce the suspension to two games but Kessler comes in with your five points and Berman decides he has no choice but to Uphold and not Vacate? How does Brady proceed with a Defamation suit if the finding of the "Arbiter" has already been upheld by a Federal Court? How will he even get a court to hear that suit?

I think Brady can succeed in getting this vacated, but not taking the position you propose. Once it's vacated, then the court will refer the matter to a truly independent Arbiter and a whole range of options would be open to Brady

MassPats38 · Aug 3, 2015

PatsFanSince74 said:
Good question. I'm sure that someone who does this for a living could answer that question, but my instinct is that a Judge who has instructed the parties to limit their submissions prior to the Settlement meeting to 15 "double spaced" pages that don't break any new ground beyond the Motions before him probably isn't in much of a mood to read them.

Trial level cases are typically limited to parties with direct interests in the proceedings. Amicus involvement typically is a matter of appellate law.

While district court judges could allow briefs of that nature, they likely wouldn't because they simply wouldn't have the time to dig through the added briefs on the docket. Appellate courts have many more judges (3 per case at a minimum) and even more law clerks to help those judges.

PatsFanSince74 · Aug 3, 2015

MassPats38 said:
Trial level cases are typically limited to parties with direct interests in the proceedings. Amicus involvement typically is a matter of appellate law.

While district court judges could allow briefs of that nature, they likely wouldn't because they simply wouldn't have the time to dig through the added briefs on the docket. Appellate courts have many more judges (3 per case at a minimum) and even more law clerks to help those judges.

thanks

The Gr8est · Aug 3, 2015

PatsFanSince74 said:
Deus, we're all on the same side here and I'm not trying to be argumentative, but just trying to understand your position.

The "vibe" from Berman is clear: "I request that you all engage in comprehensive, good-faith settlement discussions prior to the conference on August 12,2015. Magistrate Judge James C. Francis, IV is available to assist you if you wish." He then describes the conferences on August 12th and 19th as "Settlement Conferences" and demands that Brady and Goodell be present at each "without limitation." He also tells both parties that they can submit another written brief to him, in the form of a "15 page double spaced memo (further supporting your positions)." He's not interested in hearing any new arguments or any new suggestions.

That's not a "vibe," but pretty clear. It's also better news for Brady and the NFLPA than it is for the NFL, since, in filing its Motion to Uphold, the NFL didn't think there was anything to settle.

So, what happens if the NFL reads the handwriting on the wall and offers to reduce the suspension to two games but Kessler comes in with your five points and Berman decides he has no choice but to Uphold and not Vacate? How does Brady proceed with a Defamation suit if the finding of the "Arbiter" has already been upheld by a Federal Court? How will he even get a court to hear that suit?

I think Brady can succeed in getting this vacated, but not taking the position you propose. Once it's vacated, then the court will refer the matter to a truly independent Arbiter and a whole range of options would be open to Brady

I find it difficult to see what sort of punishment an innocent man, who was railroaded, should offer to accept.

Would an offer to accept the findings of an independent arbiter be considered a good faith offer?

If this gets sent back to someone like Paul Tagliabue I can see the Pats and Brady getting total vindication with the vacating of Brady's suspension, the return of the draft picks, and Goodell and the NFL* being humiliated and slapped down hard.

Deus Irae · Aug 3, 2015

PatsFanSince74 said:
Deus, we're all on the same side here and I'm not trying to be argumentative, but just trying to understand your position.

The "vibe" from Berman is clear: "I request that you all engage in comprehensive, good-faith settlement discussions prior to the conference on August 12,2015. Magistrate Judge James C. Francis, IV is available to assist you if you wish." He then describes the conferences on August 12th and 19th as "Settlement Conferences" and demands that Brady and Goodell be present at each "without limitation." He also tells both parties that they can submit another written brief to him, in the form of a "15 page double spaced memo (further supporting your positions)." He's not interested in hearing any new arguments or any new suggestions.

The vibe to which I was referring was the lawyers getting a sense of which direction the judge will rule, and that is not clear from the settlement letter, at all.

PatsFanSince74 said:
That's not a "vibe," but pretty clear. It's also better news for Brady and the NFLPA than it is for the NFL, since, in filing its Motion to Uphold, the NFL didn't think there was anything to settle.

So, what happens if the NFL reads the handwriting on the wall and offers to reduce the suspension to two games but Kessler comes in with your five points and Berman decides he has no choice but to Uphold and not Vacate? How does Brady proceed with a Defamation suit if the finding of the "Arbiter" has already been upheld by a Federal Court? How will he even get a court to hear that suit?

The judge, assuming he's functioning in proper capacity and with proper ethics, is not going to take the winning case and turn it into the losing case just because he's pissed that the 'right' side didn't take half a beating when it didn't deserve any beating at all.

PatsFanSince74 said:
I think Brady can succeed in getting this vacated, but not taking the position you propose. Once it's vacated, then the court will refer the matter to a truly independent Arbiter and a whole range of options would be open to Brady

It doesn't work that way with an honest and ethical judge. There's a difference between taking a had line and being uncooperative.

PatsFanSince74 · Aug 3, 2015

Deus Irae said:
The vibe to which I was referring was the lawyers getting a sense of which direction the judge will rule, and that is not clear from the settlement letter, at all.

The judge, assuming he's functioning in proper capacity and with proper ethics, is not going to take the winning case and turn it into the losing case just because he's pissed that the 'right' side didn't take half a beating when it didn't deserve any beating at all.

It doesn't work that way with an honest and ethical judge. There's a difference between taking a had line and being uncooperative.

Thanks, that clarifies your position.

PatsFanSince74 · Aug 3, 2015

The Gr8est said:
I find it difficult to see what sort of punishment an innocent man, who was railroaded, should offer to accept.

Would an offer to accept the findings of an independent arbiter be considered a good faith offer?

If this gets sent back to someone like Paul Tagliabue I can see the Pats and Brady getting total vindication with the vacating of Brady's suspension, the return of the draft picks, and Goodell and the NFL* being humiliated and slapped down hard.

We're just debating tactics, not the outcome we all want to see, but the only way this "gets sent back to someone like Paul Tagliabue" is if Berman vacates Goodell's ruling.

The Gr8est · Aug 3, 2015

PatsFanSince74 said:
We're just debating tactics, not the outcome we all want to see, but the only way this "gets sent back to someone like Paul Tagliabue" is if Berman vacates Goodell's ruling.

But would offering to accept the ruling of an independent arbiter be considered a good faith attempt to settle? Could the judge accept that and send the case to an independent arbitrator.

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

Pro Bowl Player

PatsFans.com Supporter

In the Starting Line-Up

Experienced Starter w/First Big Contract

PatsFans.com Supporter

PatsFans.com Supporter

Pro Bowl Player

PatsFans.com Supporter

PatsFans.com Supporter

PatsFans.com Supporter

PatsFans.com Supporter

2nd Team Getting Their First Start

PatsFans.com Supporter

PatsFans.com Supporter

PatsFans.com Supporter

Veteran Starter w/Big Long Term Deal

PatsFans.com Retired Jersey Club

PatsFans.com Supporter

PatsFans.com Supporter

Veteran Starter w/Big Long Term Deal