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

BigPeteG · Aug 15, 2015

Could be wrong - but my feeling is the judge has already decided for Brady and is not putting together his legal reasoning. Those questions are likely related to his ruling on partiality. He will write something like Goodell for whatever reason did not act like an impartial arbitrator - therefore his ruling is void according to contract law.

Then he simply cites the evidence where he ignored any and all exculpatory evidence.. Like you know the science, other explanations for the texts a so on and so forth. Judges like to ground their work in legal precedent. But they still get to decide the case ultimately.

If he thought that Brady really did it and deserved the penalty - he would just cite the strength of the CBA or whatever.. That's how the law really works IMHO.

DarrylS · Aug 15, 2015

Will stay in the Camp of cautious optimism, as much as it seems that Berman is leaning towards Brady, will wait for the final outcome.. he is putting pressure to settle, and anything more than nothing is too much for the Brady Camp(rightfully so)... so if the Brady legal team refuses to bend are they "faithfully negotiating"???

This whole process is fraught with slippery slopes.. and the NFL might be able to turn it around by demonstrating how, despite their efforts to change their penalties, the Brady legal team is refusing to change #12 accepting any penalty at all...

What is the least penalty, if any at all, can Brady walk away with and still be considered to "faithfully negotiating?? Or is it reasonable to expect that Berman will just throw the whole thing out as the whole process is flawed and there is no reason for any sanctions??

It is obvious to me: the award was procured by corruption, fraud, or undue means and the arbitrators exceeded their powers based on the evidence..

neuronet · Aug 15, 2015

If NFL had shown one jot of compromise earlier they would have a much better case right now.

neuronet · Aug 15, 2015

DarrylS said:
Will stay in the Camp of cautious optimism, as much as it seems that Berman is leaning towards Brady, will wait for the final outcome.. he is putting pressure to settle, and anything more than nothing is too much for the Brady Camp(rightfully so)... so if the Brady legal team refuses to bend are they "faithfully negotiating"???

This whole process is fraught with slippery slopes.. and the NFL might be able to turn it around by demonstrating how, despite their efforts to change their penalties, the Brady legal team is refusing to change #12 accepting any penalty at all...

What is the least penalty, if any at all, can Brady walk away with and still be considered to "faithfully negotiating?? Or is it reasonable to expect that Berman will just throw the whole thing out as the whole process is flawed and there is no reason for any sanctions??

It is obvious to me: the award was procured by corruption, fraud, or undue means and the arbitrators exceeded their powers based on the evidence..

He has two option only..vacate or uphold.

RayClay · Aug 15, 2015

Fencer said:
Oh, come on. Why would you for a moment think that the court cases were independent events, in the relevant sense of "independent"?

That's even apart from any considerations of direct causality, via deference to precedent and so on.

I did not say that. I quoted someone who said the odds were astronomical that the NFL could lose four in a row. they have lost three in a row.

I mentioned later, that the precedents set in those three case actually improve the chances of Brady, because they set precedents.

I also mentioned somewhere that these cases and Goodell's behavior are hardly typical in labor relations.

Nevertheless, the proposition that, having won three cases, odds are against them winning a fourth, is a basic statistical fallacy and that's what I was referring to. If the odds are against them, it would be for other reasons, as you noted.

TommyD4207 · Aug 15, 2015

DarrylS said:
Will stay in the Camp of cautious optimism, as much as it seems that Berman is leaning towards Brady, will wait for the final outcome.. he is putting pressure to settle, and anything more than nothing is too much for the Brady Camp(rightfully so)... so if the Brady legal team refuses to bend are they "faithfully negotiating"???

One thing a lot of people are forgetting, is that there were HOURS of negotiations in the judge's chambers after the hearing on Wednesday, and more on Thursday. Kessler would not have written that brief the way he did if "good faith" negotiation had gone "well".

If anything, I think he was emboldened by his reading of the judge during the negotiations to write things exactly like he did.

Kessler's no dummy. He knows exactly what he's doing. Anyone complaining about his tone needs to realize that he's been litigating in front of judges as a partner since 1984, tried untold cases in the CA2 - since he's based in New York. For all we know, he's had cases in front of Berman a half-dozen times. At the very least, he knows the guy.

The NFL? Sure, their office is down the street, but their latest cases have been in Minnesota. I would be surprised if they actually know Berman as well as Kessler does.

neuronet said:
He has two option only..vacate or uphold.

Three. Vacate Completely, Vacate with an order to re-arbitrate the matter with a mutually agreed upon (or otherwise judge-appointed) arbitrator, or affirm the award.

Were I betting, I'd say the second option is the most likely, and moreover, the best for Brady of the three. With a simple vacate order, the NFL would be free to re-suspend, unless there were some other orders in place.

Rob0729 · Aug 15, 2015

RayClay said:
Actually, the fact that the NFL lost three times in a row improves the chances for the union, because a lot of this will be based on precedent. That is not a statistical argument.

You are proposing that this is exactly like other labor cases and...

If you are not making the fallacious statistical argument that the 4th decision is "due" to be one way because 3 previous decisions went the other way, then I misunderstand you.

First, I think that the NFL has already lost four in a row (Ray Rice, Adrian Peterson, Saints, and I think Starcap). That is what I was originally responded to. I wasn't including this case as the fourth.

Second, Brady's odds may have improved based on those losses (but only if Judge Berman attaches collateral estoppel from previous cases), but even with that if the NFL didn't screw up this whole thing so bad Brady should have no shot at winning in court.

Third, I wasn't predicting a win or a loss for Brady. I was pointing out that the CBA and the Federal Law stacks the decks so much in the NFL's favor they should be 4-0 or 3-1 in these cases. And the fact that that they are 0-4 and soon could be 0-5 just shows how much Goodell grossly abuses his power that he can go 0-for in a string of what should be slam dunk cases for him. The odds of him losing all of those previous cases is astronomical against them losing them all.

Fencer · Aug 15, 2015

RayClay said:
I did not say that. I quoted someone who said the odds were astronomical that the NFL could lose four in a row. they

BigPeteG said:

Could be wrong - but my feeling is the judge has already decided for Brady and is not putting together his legal reasoning. Those questions are likely related to his ruling on partiality. He will write something like Goodell for whatever reason did not act like an impartial arbitrator - therefore his ruling is void according to contract law.

Then he simply cites the evidence where he ignored any and all exculpatory evidence.. Like you know the science, other explanations for the texts a so on and so forth. Judges like to ground their work in legal precedent. But they still get to decide the case ultimately.

If he thought that Brady really did it and deserved the penalty - he would just cite the strength of the CBA or whatever.. That's how the law really works IMHO.

Click to expand...

I suspect the NFL of trying a bit of a rope-a-dope here. They're hoping Berman will rule against them on the grounds that no reasonable person could have decided as Goodell did. That's a decision that could well be overturned on appeal.

By way of contrast, if Berman takes Kessler's approach of stressing lack of notice and so on, then the appeals court can say "We uphold that part, so we're already saying Brady wins, so we don't have to rule on the rest".

Nevertheless, the proposition that, having won three cases, odds are against them winning a fourth, is a basic statistical fallacy and that's what I was referring to. If the odds are against them, it would be for other reasons, as you noted.

MagicMarker · Aug 15, 2015

What if Berman rules he must give deference to Goodell and uphold the ruling, even though the NFL on multiple occasions released or failed to correct knowingly false and prejudicial information.

Goodell would "win" and keep the suspension, but that would open the NFL up to a defamation suit unless the league appealed the judges ruling. Talk about bad PR.

TommyD4207 · Aug 15, 2015

MagicMarker said:
What if Berman rules he must give deference to Goodell and uphold the ruling, even though the NFL on multiple occasions released or failed to correct knowingly false and prejudicial information.

Goodell would "win" and keep the suspension, but that would open the NFL up to a defamation suit unless the league appealed the judges ruling. Talk about bad PR.

It's a lot tougher to win a defamation suit when you don't have a court ruling in your favor. In fact, the opposite.

TheBostonStraggler · Aug 15, 2015

BigPeteG said:
Could be wrong - but my feeling is the judge has already decided for Brady and is not putting together his legal reasoning. Those questions are likely related to his ruling on partiality. He will write something like Goodell for whatever reason did not act like an impartial arbitrator - therefore his ruling is void according to contract law.

Then he simply cites the evidence where he ignored any and all exculpatory evidence.. Like you know the science, other explanations for the texts a so on and so forth. Judges like to ground their work in legal precedent. But they still get to decide the case ultimately.

If he thought that Brady really did it and deserved the penalty - he would just cite the strength of the CBA or whatever.. That's how the law really works IMHO.

Based on the NFLPA's and the NFL's most recent submissions I believe your guess is correct. Put another way, if this was still primarily a yes or no legal question about the abject power of Goodell to decide player guilt and punishment any way he wants, why did both sides provide submissions that are heavy on the "he is guilty" or "he is not guilty"?? Makes no sense to me they would both be arguing something that has no bearing on the primary question unless the primary question has been answered and their is now a new primary question to be answered.
We shall see.....

PYPER · Aug 15, 2015

If defamation is too difficult to prove, what about malicious prosecution?

TommyD4207 · Aug 15, 2015

PYPER said:
If defamation is too difficult to prove, what about malicious prosecution?

Prosecution for what?

PatriotsReign · Aug 15, 2015

One thing we can all agree is FACT is that no comment or opinion can be "bad luck/jinx" because we all know there's no such things!

So chill everyone! Brady and his team have this one in the bag and his suspension will be thrown out....

GUARANTEED!!!

RayClay · Aug 15, 2015

Rob0729 said:
First, I think that the NFL has already lost four in a row (Ray Rice, Adrian Peterson, Saints, and I think Starcap). That is what I was originally responded to. I wasn't including this case as the fourth.

Second, Brady's odds may have improved based on those losses (but only if Judge Berman attaches collateral estoppel from previous cases), but even with that if the NFL didn't screw up this whole thing so bad Brady should have no shot at winning in court.

Third, I wasn't predicting a win or a loss for Brady. I was pointing out that the CBA and the Federal Law stacks the decks so much in the NFL's favor they should be 4-0 or 3-1 in these cases. And the fact that that they are 0-4 and soon could be 0-5 just shows how much Goodell grossly abuses his power that he can go 0-for in a string of what should be slam dunk cases for him. The odds of him losing all of those previous cases is astronomical against them losing them all.

I was making a very small point and maybe that wasn't your point. consider it dropped.

Goodell wouldn't have had to do much right to guarantee a win, because he has most of the power. He, in fact has fcked this up royally at every turn.

JoeSixPat · Aug 15, 2015

I've known some Judges in my days... the good ones - and there are good ones, are very much focused on deciding the legal matters at hand, but also in enacting justice... and I submit that the best hold their duty to uphold justice as paramount

Berman seems like a smart judge - even if he doesn't understand football (I believe he states he is not a fan and clearly doesn't understand some nuances of the game in terms of the feel, rather than PSI of the ball)

He's clearly illustrated an injustice to the public - and clearly wanted to with the release of the transcripts of the appeal hearing.

My money is on the notion that Berman will find a way to rule in such a way that his decision will hold up under appeal (by the NFL in my opinion) but ensure that justice is served by vacating Goodell's penalty

Judges HATE to be over-turned so those who think he will rule to the letter of the law, aren't fully mistaken

But Berman also knows the Justice system is in the spotlight. And I have a tough time imagining him illustrating an injustice, only to say to the nation if not the world "sorry folks - Brady got hosed but I have to rule in favor of the NFL because they followed procedure"

Kessler has given him ample ways to justify vacating the decision - and I suspect Berman will take one or more, modifying it with his own legal interpretation.

In my eyes it's really only a question of how publicly he slaps Goodell and the NFL for creating such a abomination of a "fair, independent, open and transparent" decision with the Commissioner serving as judge, jury, executioner - and most of all PR guru to slander a man who the Judge at least will accept MAY be innocent.

I also can't help but wonder if Judge Berman is cognizant of Goodell's track record lying undr oath to another District Court Judge

http://proplayerinsiders.com/nfl-pl...ony-ray-rice-hearing-highlighted-transcripts/

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

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