Opinion: The NFL thinks Berman is bluffing

Berman's questions yesterday were aimed to make the NFL feel two feet tall. He brought up issues like Brady's better performance in the second half, although we know that doesn't really have much to do with the law or process.

The NFL's "bad faith", absurd offer that Brady must admit guilt and accept the Wells Report makes me believe they think they are going to win the case. In other words, they think that Berman is trying to soften them up because they (this is what they believe) have the stronger case and would need more public scrutiny in order to come up with better settlement terms. It seemed clear by their answers yesterday that the NFL didn't think they needed to do a whole lot of arguing and that this is an open-and-shut case, and that Berman also knows it but is trying to get them to settle since the law is in the favor even if justice is not.

Again, that is the perspective I think the NFL adopts based on their clear unwillingness to budge on a settlement.

Now, what to make of this...I do think the NFL could be right. Someone pointed out that only about 2 out of 66 arbitration awards have been overturned in that district. It could very well be that Berman thinks the NFL is unjust and abusing their power but within their legal rights, so he is in fact trying to soften them up and cast doubts on their case in the hopes that they will lose confidence or at least acknowledge their many flaws and compromise on the punishment. Of course, the NFL won't do that, which they have proven time and again during this witch hunt, and they are betting on Berman playing a game of chicken with them before ruling in their favor.

However, Mike Florio's take on it is something different, which is that Berman truly has not made up his mind and may in fact use the lack of evidence against Brady to formulate an argument against the NFL. Florio basically believes the judge could do what the NFL did, which is come to a conclusion first and then let all of the facts (in this case, legal precedents) support the argument. Maybe, maybe not, this is something that is by the letter of the law, but at some point, the law is subjective and a judge's opinion. There is precedent, however rare, for a judge to overturn something like this. Then, of course, the legal arguments by Kessler were also very persuasive, so there is the possibility of the arbitration award being overturned on the process itself without consideration of Brady's guilt or innocence.

I hope the NFL continues to display arrogance in refusing to even discuss the merits of Brady's suspension and deferring instead to "what the Commissioner thinks" as the catch-all argument as to why they are justified in anything they've done, citing Article 46. I think if they adopt this approach we could get a judge who is willing to see the NFL's arrogance and twisted sense of justice first-hand and let that become the basis of his opinion.

I wonder if Judge Berman is simply incredulous that this has gotten to the point of seeing the inside of a courtroom. If he understands the IGL and other variants he may think this whole thing is much ado about nothing.

Also, IIRC the same discussion that pointed out only 2 of 66 arbitration appeals succeeded in that district also pointed out that four out of four NFL decisions that have been appealed were overturned (albeit in other districts, but no way to know if those districts were equally inhospitable to arbitration appeals).

in my opinion, Goodell might feel like he has no choice but to stay firm. anything other than a victory for the NFL and he will look absolutely awful. may lose his job unless he gets an outright win

Judges do not bluff. Lawyers know this

Nunchucks said:

Judges do not bluff. Lawyers know this

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i dont think bluff is correct word by op. i think his/her point may be the judge is putting on the appearance he sides with the NFLPA, while in reality, hes just asking the NFL tough questions to try to get them to settle. which makes sense, since it seems from all reports the NFL has been less willing to budge on their offer

NFL: Stupid is as stupid does.

Who knows what he's thinking or doing. So far, there are five different answers in this thread responding to the OP and any one of them could be true. My favorite is "stupid is as stupid does," but the others all have equal merit.

Nunchucks said:

Judges do not bluff. Lawyers know this

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Agreed. What the judge did is what many judges do - point out the weaknesses of their case to both sides and suggest they settle before they get stuck with an order they don't like. It's a good tactic, particularly when the non-lawyer clients are in the room (it often scares entrenched parties to the middle of the table, or at least closer to the middle). From what I've read (which admittedly isn't much) the judge said a lot more about the weaknesses of the NFL's case than Brady's.

The funny part is, the NFL is being SO stupid, and the Judge will know this too and it will piss him off. They should be in there offering a two game suspension, no admissions attached. Then the judge might get mad at Brady for not moving to the middle. God, I hope they get their asses handed to them, but you just never know.

Once you've quadrupled down on stupid, there's no reason not to quintiple down on it.

billdog3484 said:

i dont think bluff is correct word by op. i think his/her point may be the judge is putting on the appearance he sides with the NFLPA, while in reality, hes just asking the NFL tough questions to try to get them to settle. which makes sense, since it seems from all reports the NFL has been less willing to budge on their offer

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And you are correct...thanks for clarifying my poor wording.

Its an interesting take. My thought is that Berman was hammering away at the NFL because the penalties are based on the NFL's position that the Wells Report determined that there was cheating and TB12 derived a competitive advantage. The Wells Report and gaining a competitive advantage is the very foundation of the NFL's punishment. Berman saw that as the weakest part of the NFL's argument. If you crumble the evidence, you crumble everything predicated on it.

I know that many times judges will be hard on the side that they expect to rule for in order to make sure that no one question their bias for the appeal process of his/her ruling, but at every move Judge Berman has been pro-Brady/anti-League. He has fast tracked the whole process to accomodate Brady. He has made the appeal unsealed which clearly Brady wanted and the NFL doesn't. He has destroyed the Wells Report publicly. This doesn't look to be a misdirection.

NFL would rather lose in court than compromise in any meaningful way. Their insistence that Brady accept the Wells report as a condition is a tactic to lessen the many parties individual risk of a suit from Brady. Brady can sue the NFL and the individual parties. If he accepts the Wells report this would be very difficult.

It also hurts McNally and Jastremski's legal options against the NFL, and the parties individually.

Rob0729 said:

I know that many times judges will be hard on the side that they expect to rule for in order to make sure that no one question their bias for the appeal process of his/her ruling, but at every move Judge Berman has been pro-Brady/anti-League. He has fast tracked the whole process to accomodate Brady. He has made the appeal unsealed which clearly Brady wanted and the NFL doesn't. He has destroyed the Wells Report publicly. This doesn't look to be a misdirection.

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true.but the hurdle to overcome an arbitration decision is exceedingly high and not often done.

seems like judge wants a settlement though, so it makes sense the judge would put pressure on the side who has not been willing to budge much in negotiations.

so just because it seems like hes favoring the NFLPA, that doesnt mean that if it came to it he would rule in their favor.

It is impossible to read a judges intent from their questions, don't read too much into it. I remember Obamacare was dead in the water because the judges asked very tough questions about it during orals.

RelocatedPatFan said:

NFL: Stupid is as stupid does.

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And Stupid isn't done yet.

billdog3484 said:

true.but the hurdle to overcome an arbitration decision is exceedingly high and not often done.

seems like judge wants a settlement though, so it makes sense the judge would put pressure on the side who has not been willing to budge much in negotiations.

so just because it seems like hes favoring the NFLPA, that doesnt mean that if it came to it he would rule in their favor.

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The hurdle isn't that high if a judge is willing to hear the case. The biggest hurdle is getting a judge to hear the case. The fact that Judge Berman is hearing the case is a huge win for Brady. When people say it is really hard to win a arbitration case, it is usually because most of them never get this far.

And it is not uncommon for a Judge wanting a settlement. Most judges would rather force a settlement than hear the case in matters liek this.

Nothing is a guarantee, but Michael McCann did say that his lawyer friend who has appeared in front of Judge Berman many times said from his experience, Berman is definitely going to overturn the suspension if it goes to judgement.

neuronet said:

It is impossible to read a judges intent from their questions, don't read too much into it. I remember Obamacare was dead in the water because the judges asked very tough questions about it during orals.

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That is different though. You are talking 9 judges each asking questions in the Obamacare case. I wasn't following that case. But if say it was Scalia who was slamming the President's lawyers with questions, it was a clear indication on which way he voted. Every judge on the Supreme Court in the Obamacare case voted exactly how people expected them to vote except for one.

In fact, many people felt that Justice Kennedy tipped his hand on which way he ended up voting in his questions to the plantiffs.

Dr Pain said:

NFL would rather lose in court than compromise in any meaningful way. Their insistence that Brady accept the Wells report as a condition is a tactic to lessen the many parties individual risk of a suit from Brady. Brady can sue the NFL and the individual parties. If he accepts the Wells report this would be very difficult.

It also hurts McNally and Jastremski's legal options against the NFL, and the parties individually.

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Believe me, I do understand being stubborn and obstinate, but there has to be a limit. Are these people really that dense? I'm wondering if anyone has offered the 1 season delay to arbitration, taking into consideration the results of their data collection. This could be a win for the league - if data shows probable deflation, they have solid evidence. If not - then oops, my bad. No harm, no foul. But there is absolutely no questioning of their authority, article 46 remains in place as they see fit (until they screw over the next player), Goodell can sit as arbiter the next time as well, and this is something they can show other owners that they did their job with the right outcome. Granted, they might end up letting both Brady and the Patriots off the hook, but if this wasn't a sting and the whole purpose of this debacle was not to get the Pats, then what's the big deal? I can't see Brady refusing this - it's not ideal but it certainly takes away any ambiguity about the outcome (assuming innocence) and incorporates Patriots penalties as well. I hope that Kessler has offered this. If the NFL refuses, it lays bare their intentions for all to see.

billdog3484 said:

Goodell might feel like he has no choice but to stay firm. anything other than a victory for the NFL and he will look absolutely awful.

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Pretty sure he already does, even beyond new england.