8/14: NFLPA's latest submission is in

Oswlek said:

It's flabbergasting that the NFL continues to think this is a viable argument. Under what circumstances are two people accused of a crime not going to increase their communication? Assuming innocence there are none; the only potential outlier is they are guilty and worried about perception. The NFL's evidence literally points in the opposite direction, and that's before factoring in that the team was headed to the super bowl!

I'll be gracious and concede this point to them, though, with only one condition; that they admit that the increased post AFCCG communication between Wells and NFLHQ is evidence of a conspiracy to take down the Patriots. I mean, what other explanation could there possibly be?

Question for those in the know. Is it possible that Kessler's timing and bombastic writing style was designed to shake something loose in the expected NFL response? If so, what?

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Thought experiment. Think up a coworker who you've only spoken to occasionally over the years. Probably haven't had more than a passing exchange that you can readily recall. Now imagine that this coworker is accused of having committed some egregious, fireable offense that you're implicated as being a party to. What do you do?

If your answer is "sit on my hands and do nothing, there's no reason to reach out and ask what the hell happened and if there's anything to this", then you're a ****ing liar.

Deus Irae said:

I need to sleep on it, but think I can already see how Kessler's going to hit both the CA and the SC cases. I wish I could be in the courtroom to hear those arguments. Kessler's got a real chance to make national law here.

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I don't think he will be that challenged by this. Thought I would throw some thoughts out on this response.

SC Garvey (509):

"It is only when the arbitrator strays from interpretation and application of the agreement and effectively “dispense
his own brand of industrial justice” that his decision may be unenforceable. Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). When an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator's “improvident, even silly, factfinding” does not provide a basis for a reviewing court to refuse to enforce the award."

WR Grace (765):

"Unless the arbitral decision does not “dra[w] its essence from the collective bargaining agreement,” id., at 597, 80 S.Ct., at 1361, a court is bound to enforce the award and is not entitled to review the merits of the contract dispute."

Local Union No. 135 of United Rubber, Cork, Linoleum and Plastic Workers of America, AFL (2d Circuit)

Arbitration clause defined grievance as involving "question concerning the meaning, interpretation, scope, or application of this Agreement" and imposed limits on arbitrator overiding express provisions of Agreement.

SBC Advanced Solutions (*8 - *9):

"In Trailways, we commented on our 'grave concerns' when an arbitrator did not give precedential effect to a prior arbitration award. . . . . On the issue of performing higher-classified work, Arbitrator McKee did not apply the Trailways standard by at least explaining his reasons for departing from the Heinsz Award. While Arbitrator McKee did not have to follow the Heinsz Award, he at least should have explained his departure—as he did for the temporariness issue outlined above—under Trailways."

Interesting sidenote on SBC. On 11 August, 2 weeks after decision issued, NFL filed a 28(j) letter (letter explaining important precedent on appeal) in Peterson's case explaining why it unquestionably must be reversed. Think it was related to this case?

Fencer said:

The counterargument is that the CBA allows the partiality of having the Commissioner arbitrate the Commissioner's decisions.

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They explicitly fought against this, and now we see why. Next CBA I guarantee they won't make the same mistake.

ViperGTS said:

Stradley vs MCI. Lol.
Ben Volin ‏@BenVolin
Lol at #Patriots fans who think I’m being negative. Quite the opposite. It’s good lawyering by Kessler. But he’s clearly hamming it up

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Danger Zone @Danger_Zones
@BenVolin Hey, tell us again why we should distrust the AEI rebuttal because Kraft Macaroni and Cheese once gave them money?

RE: rumor of witnesses on Wednesday.

I know its a pipe dream, but how awesome would it be if Berman had "real" scientists (not that bill nye 'hey kids did u know water is wet' guy) bring in a wet football and force the NFL to watch what happens to the football in a fridge over two hours.

MassPats38 said:

SC Garvey (509):

"It is only when the arbitrator strays from interpretation and application of the agreement and effectively “dispense his own brand of industrial justice” that his decision may be unenforceable. Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). When an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator's “improvident, even silly, factfinding” does not provide a basis for a reviewing court to refuse to enforce the award."

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And that's why Kessler is careful to say that the basis for his views is not Goodell's factfinding errors, grave though they may be.

raduray said:

That's your biggest frustration?

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Regarding kelvins, yes.

TommyD4207 said:

Ok, so I just read the NFL's filing (in like 3 minutes, wow that was short. They had 2 days to write that).

- Article 46
- Judge can't a) re-litigate the appeal (which is true, he can't), b) disturb the findings of the Commissioner (which he already disturbed).
-Brady's refusal to turn over his cellphone was worse than murder and dog-killing rolled into one.
-McNally is apparently a gangster who was able to threaten Brady over sneakers.
-The fact that Brady's communication with Jastremski went up AFTER the AFC Championship Game was apparently proof of a scheme to tamper with footballs...BEFORE the AFC Championship Game.
-Article 46
-Judge should rule on the Peterson appeal currently in Minnesota court, and ignore the actual findings.
-Judge should ignore any precedent on-point, be it binding from the 2nd Circuit, or from anywhere else.

Also, another fun fact. The judge shouldn't re-litigate the appeal, but Goodell totally can, and after he's certified the decision as well.

Please get his sorry ass in the witness chair. Please.

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So, in summary, the punishment is justified because

1) Brady acted like any normal person would after being accused of something.
2) Brady didn't provide a device that he was told wasn't needed.
3) The misrepresented testimony was shockingly not believable.
4) It could have been even worse.
5) I said so.

Sounds legit.

Volin's take:

https://twitter.com/BenVolin/status/632403814356787202

I think Volin is lame as hell, but I is right to highlight a point that will have to be addressed.

I think it should be pretty addressable though. Couldn't the NFLPA pretty easily make the case that, even if you could claim that the NFL is entitled to his communications with the alleged participants in the alleged deflation scheme, they absolutely are not entitled to private communications with random people who could not possibly have anything to do with a scheme, even if it did exist?

ctpatsfan77 said:

Regarding kelvins, yes.

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Sorry, couldn't resist that setup

BradyFTW! said:

Volin's take:

https://twitter.com/BenVolin/status/632403814356787202

I think Volin is lame as hell, but I is right to highlight a point that will have to be addressed.

I think it should be pretty addressable though. Couldn't the NFLPA pretty easily make the case that, even if you could claim that the NFL is entitled to his communications with the alleged participants in the alleged deflation scheme, they absolutely are not entitled to private communications with random people who could not possibly have anything to do with a scheme, even if it did exist?

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If there were no other communications, then he did turn over all relevant communications, as required. Sheesh. Volin needs to think this stuff through better.

BradyFTW! said:

Volin's take:

https://twitter.com/BenVolin/status/632403814356787202

I think Volin is lame as hell, but I is right to highlight a point that will have to be addressed.

I think it should be pretty addressable though. Couldn't the NFLPA pretty easily make the case that, even if you could claim that the NFL is entitled to his communications with the alleged participants in the alleged deflation scheme, they absolutely are not entitled to private communications with random people who could not possibly have anything to do with a scheme, even if it did exist?

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Those claims are actually very weak.

Deus Irae said:

I need to sleep on it, but think I can already see how Kessler's going to hit both the CA and the SC cases. I wish I could be in the courtroom to hear those arguments. Kessler's got a real chance to make national law here.

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The NFL response is clearly laying the groundwork to appeal Judge Berman's ruling. Whether the owners wish to continue this case is going to be the main event. My guess is that they will. The last thing they want is for the union to diminish the power of the Commissioner and for Bob Kraft to have the opportunity to appeal, in court, the fine and loss of draft picks. You may very well be correct.

neuronet said:

If there were no other communications, then he did turn over all relevant communications, as required. Sheesh. Volin needs to think this stuff through better.

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You are making the unwarranted assumption that Volin can actually think.

BradyFTW! said:

I think Volin is lame as hell, but I is right to highlight a point that will have to be addressed.

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One problem with MCI's take, how can you turn over something that didn't exist.

Also he may want to do a little research on the Fifth Amendment.

goheels22002 said:

The NFL response is clearly laying the groundwork to appeal Judge Berman's ruling. Whether the owners wish to continue this case is going to be the main event. My guess is that they will. The last thing they want is for the union to diminish the power of the Commissioner and for Bob Kraft to have the opportunity to appeal, in court, the fine and loss of draft picks. You may very well be correct.

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Owners are supposedly already pissed off that this is still going on and completely overshadowing the preseason . You really think they would let Goodell appeal the ruling of a federal judge on this right as the regular season starts and cause this to get even crazier?

JMC00 said:

One problem with MCI's take, how can you turn over something that didn't exist.

Also he may want to do a little research on the Fifth Amendment.

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I'm not sure that the Fifth Amendment strictly speaking applies here.

VectorPrime said:

Owners are supposedly already pissed off that this is still going on and completely overshadowing the preseason . You really think they would let Goodell appeal the ruling of a federal judge on this right as the regular season starts and cause this to get even crazier?

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I think the owners would, as a group, be willing to let this play out for as long as it takes, as long as there's a carrot at the end of this in the form of "if we win, we'll have the NFLPA bent over a barrel for good".

That's what all of the owners--including Kraft--really want. Goodell is their appointee, power afforded to him is power afforded to them. And they want more of it, by any means necessary. A few years ago, they stated--how credibly is anyone's guess--that they were willing to sacrifice multiple seasons if necessary to get their way in CBA negotiations. Compared to that, Brady vs. Goodell overshadowing some games is nothing more than a nuisance.

Hopefully Rice + Peterson + Bountygate + Brady = a snowball effect of "holy ****, this commissioner is maliciously incompetent" media narrative that spirals out of the league's control. Some days, it seems like we're headed in that direction.

ctpatsfan77 said:

I'm not sure that the Fifth Amendment strictly speaking applies here.

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Pretty sure the Fifth Amendment protects individuals from being forced to incriminate themselves. Then add in the fact that the nfl* doesn't have warrant/subpoena power.

ViperGTS said:

It's the same drivel that has been disproved numerous times. It uses examples from the Wells report that the Judge already said is useless. The NFL screwed themselves by listening to loser organizations and this is what they are left with. A steaming pile of crap. To use a report that has already been crapped on by the judge is all we need to know.

They have nothing, and this is final proof.

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Part III of their brief is where they posit the unlimited powers of the NFL Commissioner. My reading is that they believe Goodell's "scope of authority" is pretty much unlimited.

I have a simple quotation to share with the NFL that has been scrawled in the men's room of every philosophy department of every college in the world:

"God is dead." - Nietsche, 1883
"Nietsche is dead." - God, 1900