The 15-page briefs filed Friday night

The NFL's response to the law of the shop argument appears to be we can just call everything a unique violation. I think that's going to be a tough sell. They sat down and argued punishments for different violations in the CBA. The NFL is essentially saying they can take a pre agreed violation punishment and categorize instead as conduct detrimental where he has broad power.

IANAL, I'm also not a judge, but that sure seems like a weak argument. If it's true than the CBA is pointless, Goodell can define anything as conduct detrimental.

Question- would the judge have to believe that the NFLPA reasonably understood the CBA the way Goodell interpreted it? It sure seems like ad hoc redefining the agreement that no reasonable person would have predicted.

YOUGOTMOSSED said:

I hate to be a "negative Nancy" but the NFL argument of "hey, it doesn't matter how unfair we are/were, a deal's a deal and the NFLPA agreed to this" may be more effective than you might think.

As one of my old law school professors once advised me- they're courts of law, not courts of justice.

Click to expand...

Thing is Kessler points out how the NFL has violated the deal (CBA) in several ways.
If you haven't read the Motion to Vacate check it out:
https://timinhonolulu.files.wordpre...ion-to-vacate-arbitration-award-brady-nfl.pdf

Bobsyouruncle said:

The NFL's response to the law of the shop argument appears to be we can just call everything a unique violation. I think that's going to be a tough sell. They sat down and argued punishments for different violations in the CBA. The NFL is essentially saying they can take a pre agreed violation punishment and categorize instead as conduct detrimental where he has broad power.

IANAL, I'm also not a judge, but that sure seems like a weak argument. If it's true than the CBA is pointless, Goodell can define anything as conduct detrimental.

Question- would the judge have to believe that the NFLPA reasonably understood the CBA the way Goodell interpreted it? It sure seems like ad hoc redefining the agreement that no reasonable person would have predicted.

Click to expand...

I don't believe that is true. You need to back up the claim. If tomorrow a player is suspended for using drugs that is not a unique violation. Law of the shop is players are suspended for using drugs and players
aware of/ have notice that such an act can result in suspension.
Every award is NOT the result of a unique violation with regard to the Law of the Shop.

JR4 said:

Thing is Kessler points out how the NFL has violated the deal (CBA) in several ways.
If you haven't read the Motion to Vacate check it out:
https://timinhonolulu.files.wordpre...ion-to-vacate-arbitration-award-brady-nfl.pdf

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I have. I think it is logical and very persuasive. I hope that the judge sees it that way.

My concern is that it is not enough to overcome the knee jerk reaction of "don't bother me with this kind of stuff" the courts often have in these kind of disputes.

the problem is, this has been the NFL's argument in the other court cases they have lost. I have a hard time thinking the judge will say article 46 gives goodell unlimited power when other judges have already thrown out that NFL argument.

it also cant sit well with the judge that the NFL keeps moving the goal posts even during the court precedings! the NFL assured everyone that this was an independent investigation, and told brady they didnt want his phone.

now they are saying well we can suspend him for not giving his phone because we can do what we want. and wells wasnt independent so what we can do what we want and lie to anyone we want. then theres the whole did vincent or goodell give the punishmet flip flop and lieing about what brady explained in the hearing.

dont think that is going to hold up well

I think the NFLPA argument that notice must be given players even in conduct detrimental cases is extremely strong. They note that this argument has already been heard in a previous case between the NFL and NFLPA and it was ruled by the court that notice was required. The NFLPA claims that NFL should be estopped from (not allowed to) even argue this point. This is now decided law between the 2 sides and the only decision the judge needs to make is whether or not due notice was given (both sides agree it was not given).

Blackluck said:

This link is from /r Patriots.

https://timinhonolulu.files.wordpre...ion-to-vacate-arbitration-award-brady-nfl.pdf

Edit: During the lock out I was on the owners side.
No longer.
I want anti-trust removed from the League. Removal of arbitration from the Commissioner. All of it, gone.
This completely corrupt process can only be done with support from NFL owners.

They deserve every ounce of pain coming to them.

Click to expand...

During the lockout I was on the players side because the owners created the problem, I agree on going after the anti trust exemption, time for these @ssholes to pay the price

Asked before and will ask again, will Brady's legal team file "amicus" briefs on his behalf, or are they relying solely on what the NFLPA is arguing??

If not a separate brief, is it feasible to believe that they NFLPA collaborated with Brady's legal team in drafting their arguments??

DarrylS said:

Asked before and will ask again, will Brady's legal team file "amicus" briefs on his behalf, or are they relying solely on what the NFLPA is arguing??

If not a separate brief, is it feasible to believe that they NFLPA collaborated with Brady's legal team in drafting their arguments??

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Look at the list of signatories to Brady's brief. Brady's brief is Brady's brief. Period.

My specific impression is that Gibson, Dunn & Crutcher is Brady's firm, and everything else is the NFLPA's.

A few decades ago, when I thought I was something of a negotiation expert, one of my two proudest proof points of that was a 1 1/2-page, informally-worded letter that Gibson, Dunn & Crutcher couldn't figure out how to break.

Blackluck said:

This link is from /r Patriots.

https://timinhonolulu.files.wordpre...ion-to-vacate-arbitration-award-brady-nfl.pdf

Edit: During the lock out I was on the owners side.
No longer.
I want anti-trust removed from the League. Removal of arbitration from the Commissioner. All of it, gone.
This completely corrupt process can only be done with support from NFL owners.

They deserve every ounce of pain coming to them.

Click to expand...

WTF is wrong with these NFL people? A bunch of sociopaths, all of them. I too had supported the owner's side, but they can go F themselves and their NFL toadies. Not enough pain can befall them as far as I am concerned and I hope that the players themselves grow a pair and begin to push the NFLPA to stop the NFL' from sodomizing them at every contract negotiation. I fear that they will never do that as the NFLPA has no interest in anyone but themselves.

Fencer said:

Look at the list of signatories to Brady's brief. Brady's brief is Brady's brief. Period.

My specific impression is that Gibson, Dunn & Crutcher is Brady's firm, and everything else is the NFLPA's.

A few decades ago, when I thought I was something of a negotiation expert, one of my two proudest proof points of that was a 1 1/2-page, informally-worded letter that Gibson, Dunn & Crutcher couldn't figure out how to break.

Click to expand...

For the most part I have been away from legal systems since 2001, and have lost a lot of my edge... used to spend a lot of time in Courts and hanging around courts, and learned a lot from observation and listening..

I used to sit in on a lot of labor disputes as a union rep. and learned a lot there, unfortunately I forget more than I remember...

Blackluck said:

This link is from /r Patriots.

https://timinhonolulu.files.wordpre...ion-to-vacate-arbitration-award-brady-nfl.pdf

Edit: During the lock out I was on the owners side.
No longer.
I want anti-trust removed from the League. Removal of arbitration from the Commissioner. All of it, gone.
This completely corrupt process can only be done with support from NFL owners.

They deserve every ounce of pain coming to them.

Click to expand...

Same here but now I don't think I will ever be on the league's side again. Anytime there is a chance for the league to be slammed, I will join in the chorus slamming them. Fair or unfair, screw 'em.

DarrylS said:

For the most part I have been away from legal systems since 2001, and have lost a lot of my edge... used to spend a lot of time in Courts and hanging around courts, and learned a lot from observation and listening..

I used to sit in on a lot of labor disputes as a union rep. and learned a lot there, unfortunately I forget more than I remember...

Click to expand...

I know very little about labor law, at least the parts that have anything to do with collective bargaining or employee disciplinary procedures.

Fencer said:

I know very little about labor law, at least the parts that have anything to do with collective bargaining or employee disciplinary procedures.

Click to expand...

I was a union official in Corrections for many years, and as a supervisor sometimes sat on the other side of the table as well... fascinating field and quite different from "Courts"...

It can get very confusing... I learned a lot, but as I am away from it, forgot a lot.

Bobsyouruncle said:

The NFL's response to the law of the shop argument appears to be we can just call everything a unique violation. I think that's going to be a tough sell. They sat down and argued punishments for different violations in the CBA. The NFL is essentially saying they can take a pre agreed violation punishment and categorize instead as conduct detrimental where he has broad power.

IANAL, I'm also not a judge, but that sure seems like a weak argument. If it's true than the CBA is pointless, Goodell can define anything as conduct detrimental.

Question- would the judge have to believe that the NFLPA reasonably understood the CBA the way Goodell interpreted it? It sure seems like ad hoc redefining the agreement that no reasonable person would have predicted.

Click to expand...

I'm neither a lawyer nor a judge either. But the discretion that Goodell* accords himself seems insupportably broad.

There actually is a punishment in the rule-book for the infraction - which was never proven: a $25,000 fine, but with the proviso that it's "not limited to" a $25k fine.

So the "infraction" is proven by the allegation. The penalties -- to team and individual -- are what they are because... why? As in - suspensions and draft picks, not even mentioned in the rule book, and 40 times the penalty given as a general order of magnitude number? WTF is that?

The corrections above make sense: i.e., you know what to do with drugs, for example, so there is a "law of the shop." Drug cases might differ a little per case, but they have their little PED and "just bad drugs that don't E your P" lists, and I suppose you could say that some consistency could develop.

But from the layman's perspective, all of this just looks to me like Goodell thumbing his nose at the concept of equal justice on purpose. I half expect Goodell* to say Brady was bleeding from "his eyes or wherever" and saying "You're fired..." Then saying to the judge "Don't worry about it, okay? That's not your problem."

And to try to "win" by smearing the Pats in the press?

The tragic part is that the tide's turning, but too late. It's page A-1 when it breaks... it's a few nerds when the NFL* lies fall apart.

That's why I'd like to hear the ideal gas law chant in game 1, and make the play by play guys talk about it. Just not until we're up a few TDs.

Blackluck said:

This link is from /r Patriots.

https://timinhonolulu.files.wordpre...ion-to-vacate-arbitration-award-brady-nfl.pdf

Edit: During the lock out I was on the owners side.
No longer.
I want anti-trust removed from the League. Removal of arbitration from the Commissioner. All of it, gone.
This completely corrupt process can only be done with support from NFL owners.

They deserve every ounce of pain coming to them.

Click to expand...

I wonder if the NFLPA should start telling players to put some extra money in the bank in case they decide to strike. Not sure if they are able to legally strike or not but the threat of a strike would make some of the owners start to think a little tougher.

Fencer said:

I have NOT yet seen a link to the actual briefs, but I hope one will show up soon in this thread.

McCann, however, has seen and commented on them, in http://www.si.com/nfl/2015/08/07/nf...suspension-deflategate-patriots-roger-goodell . He characterizes them as, unsurprisingly, covering little new ground, instead mainly amplifying what was said before. However, he makes three points:

1. (I think this is covered in another thread too, but so be it.) The league in essence concedes that the Wells report was not independent, but claims it didn't have to be. McCann says that under ordinary circumstances the claim would have been correct, but since they told Brady and the world the report WOULD be independent, they may be legally obligated to live up to that now. (Presumably, McCann is saying that Brady was entitled to know what the process as under which he was investigated and disciplined.)

2. McCann thinks that Brady now has a clear case for defamation.



I think the third sentence of that quote is a bit confused. I'd say instead:

• Goodell lied about the contents of Brady's testimony relating to the Jastremski conversations.
• The lie was a big deal, central to both his case for the original suspension and for it being upheld.
  
• His lie about Brady's testimony at the appeal was cleared up in public about a month later, with the release of the transcripts, but damage had been done.

One complication: We don't yet know what Brady said before the appeal on the subject.

3. The NFL claims that its other losses are irrelevant, because they were about different kinds of player offenses. The NFLPA claims that it's all related, because it's all about procedural violations.

Frankly, I think the main difference is that in domestic violence cases the league changed its policies, while in Brady's case it made up a policy for the first time out of whole cloth. I don't see how the latter could be a better look for them than the former.

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Someone else posted in another thread that Brady should still file a defamation suit simply for the discovery process. We have seen only one transcript released and seemed to do some significant damage to the NFL's credibility. Can't imagine if they were forced to release all communications, emails, texts and cell phones (haha) related to this witch hunt.

Blackluck said:

This link is from /r Patriots.

https://timinhonolulu.files.wordpre...ion-to-vacate-arbitration-award-brady-nfl.pdf

Edit: During the lock out I was on the owners side.
No longer.
I want anti-trust removed from the League. Removal of arbitration from the Commissioner. All of it, gone.
This completely corrupt process can only be done with support from NFL owners.

They deserve every ounce of pain coming to them.

Click to expand...

That also means, among other things, that there would be no draft and no salary cap.

It would also have a significant chance of causing the Kraft family to sell the team. And given that we now know that it was naivete, not cowardice, behind Kraft's backing down,* I don't see that as a positive.

*When the Prisoner showed up at Gillette to work out, and everyone else was essentially running for the hills, he confronted Hernandez face to face. At the trial, he was a witness for the prosecution, because the story Hernandez told Kraft was apparently so messed up that it forced the defense to admit that Hernandez was at the scene of the crime.

The Boston Patriot said:

WTF is wrong with these NFL people? A bunch of sociopaths, all of them.

Click to expand...

In One word..........HUBRIS

I've read several of the legal commentators....Those on Brady's side list several reasons Brady might win. Those on the NFL's side list one: "The NFL can do whatever it wants without limitation and the court can't overrule it".

I would be surprised if the court ruled there are no limitations on the NFL's power. He'd have to rule either Goodell was not unbiased in his appeal ruling or the NFL is allowed to be biased. Essentially they can create the crime, charge, find guilt, punish and hear appeal and player has no recourse.