Great article on legal X's and O's facing Judge Berman

neuronet · Aug 14, 2015

http://blog.masslive.com/patriots/2015/08/tom_brady_lawsuit_judge_richar.html

"I don't understand, as reported in the newspapers today, why the judge was asking the kind of questions he was asking yesterday — whether there was direct evidence," said Kurlantzick, an expert in sports law and arbitration and the author of books on legal issues in pro baseball and basketball. "That sounds more like an appellate court that's reviewing the whole thing. In an arbitration where you're asking to vacate, you're not reviewing the whole thing....The only question now is, 'Have any of these four grounds for vacatur occurred?'"

And they dig into the four grounds here, which is more useful than 3000 bloviating ESPN talking heads:

These are the four grounds on which Berman can vacate Goodell's decision to uphold Brady's four-game suspension, according to U.S. Code Title 9 Section 10:

1). where the award was procured by corruption, fraud, or undue means;
2). where there was evident partiality or corruption in the arbitrators, or either of them;
3). where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
4). where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

Great to see the legal x's and o's.

neuronet · Aug 14, 2015

I frankly think Brady has a case on all four grounds for vacatur.

eom · Aug 14, 2015

yeah, it kind of worries me a little.
maybe berman's already decided he has to rule for nfl and wants to get in a couple body blows on the way, or rattle nfl into settlement to take him out of the equation.

reflexblue · Aug 14, 2015

The NFL has lost its last FOUR cases using the same argument its using in this case. See Off the Grids thread posted this morning.

neuronet · Aug 14, 2015

eom said:
yeah, it kind of worries me a little.
maybe berman's already decided he has to rule for nfl and wants to get in a couple body blows on the way, or rattle nfl into settlement to take him out of the equation.

But all they needed to show was one of the four, and this one:

where there was evident partiality or corruption in the arbitrators,

Could that have been any more clear?

wrangler · Aug 14, 2015

If Berman sides with the NFL* there is something more than "Rotten in Denmark".

eom · Aug 14, 2015

neuronet said:
But all they needed to show was one of the four, and this one:

Could that have been any more clear?

it does SEEM clear, but some of this legal wrangling can be kind of twisted, and still doesn't help me reconcile odd line of questioning.
duffy is claiming that since the cba allows goodell as arbiter then he becomes an arbiter that has been mutually agreed to by both parties.

idk -- we'll all find out together fairly soon, although that doesn't preclude appeal.

eom · Aug 14, 2015

reflexblue said:
The NFL has lost its last FOUR cases using the same argument its using in this case. See Off the Grids thread posted this morning.

I gotta go get caffeinated, so I'll read that other thread later, but duffy claims the peterson case was lost on different grounds.

QuantumMechanic · Aug 14, 2015

eom said:
yeah, it kind of worries me a little.
maybe berman's already decided he has to rule for nfl and wants to get in a couple body blows on the way, or rattle nfl into settlement to take him out of the equation.

That's my theory as to what's going on.

TommyD4207 · Aug 14, 2015

I feel like Berman was just trying to clarify what he already suspected a) and b) really seriously still trying to force a settlement, so that if he does have to rule, the chances of his case being overturned on appeal are minimal.

Like, at this point (and it's still early), I'd be surprised if a court would even take the case for appeal.

QuantumMechanic · Aug 14, 2015

TommyD4207 said:
I feel like Berman was just trying to clarify what he already suspected a) and b) really seriously still trying to force a settlement, so that if he does have to rule, the chances of his case being overturned on appeal are minimal.

Like, at this point (and it's still early), I'd be surprised if a court would even take the case for appeal.

The court has no choice. Unlike with SCOTUS the federal circuit courts of appeal have to hear all cases appealed to them.

Rob0729 · Aug 14, 2015

reflexblue said:
The NFL has lost its last FOUR cases using the same argument its using in this case. See Off the Grids thread posted this morning.

The odds of the NFL losing 4 straight cases overturning Goodell's appeal decision as the rights given to him the CBA is astronomically against it happening based on the sucess rate of these types of cases even being heard by a judge. It just shows how much Goodell abuses his power as given to him in the CBA. The NFL losing one out of four suits filed should be considered a bad batting average.

varjao · Aug 14, 2015

There's too many wrongs in this case, judge Berman cannot bypass this, it will carry his name in the process, he can't say "I think Mr. Brady is innocent but there's this clause X here in the CBA so I'm gonna keep the suspension but listen I don't think deflation happened, I'm just siding with the NFL because the terms between the 2 parts don't allow me to make such decision". No way, he's the authority in this case, RG is a bum.

SVN · Aug 14, 2015

The fact that berman didnt ask a single question regarding CBA was a little disconcerting . Maybe he is just pushing the NFL to settle so that he doesnt have to rule for them or to make it clear to everyone that NFL is guilty regardless if he rules for them . Iam cautiously optimistic after wednesday but dont feel we are out of the woods here.

wilmingtonpatsfan · Aug 14, 2015

I am very concerned actually, how do we know there is no behind the door deal between NFL and judge berman? Maybe I just watched too many "God Father" movies.

VectorPrime · Aug 14, 2015

Or maybe Judge Berman can do whatever the fu.ck he wants because its literally entirely up to him if he wants to buy the NFL's story or not, and its clear he doesn't. Im sick and tired of the "but the CBA!" crowd. The CBA is not some otherworldly force compelling Berman to act a certain way, even if he doesn't want to. There are enough holes in it and the NFLs case that Berman can do whatever he wants. He's not beholden to the damn thing.

Fencer · Aug 14, 2015

QuantumMechanic said:
The court has no choice. Unlike with SCOTUS the federal circuit courts of appeal have to hear all cases appealed to them.

But surely there is some mechanism for summary judgment of the appeal?

QuantumMechanic · Aug 14, 2015

I tweeted this article to McCann and he replied:

Michael McCann ‏@McCannSportsLaw 2m2 minutes ago
@rlcarr The professor offers sensible reading of situation, but may be overlooking possibility judge views the evidence as part of process.

QuantumMechanic · Aug 14, 2015

And one more exchange:

RichC ‏@rlcarr 2m2 minutes ago
@McCannSportsLaw Theorymight be that if evidence of wrongdoing is sufficiently insufficient that could be evidence of unfairness/bias?

Michael McCann ‏@McCannSportsLaw 2m2 minutes ago
@rlcarr Yes or lack of evidence has led to changed theories (from Wells Report to Vincent Letter to appeal) of Brady's alleged wrongdoing.

woolster22 · Aug 14, 2015

Wouldn't the abhorrent "process" used by the nfl (independent investigator, fraudulent science) to secure the award fall within the first of the four possible reasons to vacate? I'm just a peon...but it seems reasonable to me. Plus it would be great to hear a judge claim the nfl acted corruptly and fraudulently during this saga.

Great article on legal X's and O's facing Judge Berman

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