NFL vs. Brady Federal Court Hearing (8/19) LIVE UPDATES AND TWEETS

SVN said:

Iam sure the owners are going to ask goodell to clean this up before 31st. We have to see what terms. I think this gets settled which may or may not be favorable entirely to brady.

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A settlement implies both sides agree. If it's not favorable to Brady, he could take his chances with the judge and it seems that would likely be the NFLPA's position to weaken Goodell. Whether it is in Brady's interest to risk Berman siding with the league is another matter... He could say "F it, " I am not settling if it means admitting to anything or taking a suspension...

Zeus said:

Berman seems concerned that the process did not allow the facts to come to light.

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I thought Goodell was quoted as, "Facts, FACTS, we doan need no stinkin' facts." or was it, "The facts are whatever I say they are."

SVN said:

Michael McCann ‏@McCannSportsLaw 10m10 minutes ago
Remember that the winner in Brady v. NFL must win twice: before Judge Berman and before US Court of Appeals for 2nd Circuit. Long way to go.

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The thing is it is harder to win once if you lose the first round than lose twice. Judges hate to be overruled and usually word their decisions to make it hard for an appeals court to overturn. In this case, the NFL should have a big advantage because the law is on their side. If they lose in front of Judge Berman, the advantage goes to Brady in the appeal.

Sure it doesn't guarantee a win, but it will be far easier for Brady to win the appeal if he wins this case. And if the NFL goes into the appeal with the same arguments they have now and they lose on them, I don't see them winning the appeal.

Michael McCann ‏@McCannSportsLaw 11m11 minutes ago
Why would NFL appeal a loss before Judge Berman? Because its won before in 2nd Cir. (ask @amilst44) and Brady could later serve suspension.

AndyJohnson said:

I think clearing his name is what Brady feels is best, but of course I am speculating.
Interesting thought. Would Brady prefer:

4 games screaming he is innocent?
1 games admitting he is guilty?

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But admitting you obstructed a bogus investigation is not admitting to the scheme of deflating footballs. I never thought he should settle and accept 1 game and the conclusions of the Wells Report. I think 1 game and no admission of guilt re ball deflation is better than 4 games while kicking and screaming. his innocence. I guess that's just my personal opinion though. We can agree to disagree.

It's also all conjecture. This is just trying to analyze what has been put out there.

AndyJohnson said:

I think clearing his name is what Brady feels is best, but of course I am speculating.
Interesting thought. Would Brady prefer:

4 games screaming he is innocent?
1 games admitting he is guilty?

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I'm sure he's finding this a distraction now but, why not let the judge rule in his favor? NFL appeals but case essentially goes away for Brady for at least two years until the court is ready to hear the appeal. Let's go for it. We're all in now.

karguy85 said:

But admitting you obstructed a bogus investigation is not admitting to the scheme of deflating footballs. I never thought he should settle and accept 1 game and the conclusions of the Wells Report. I think 1 game and no admission of guilt re ball deflation is better than 4 games while kicking and screaming. his innocence. I guess that's just my personal opinion though. We can agree to disagree.

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Doesn't matter what we think, only what Brady does, and of course what the NFL would agree to.

BradyFTW! said:

I do wonder if it's at least possible that, if Berman rules against the NFL, the contingent of owners who just want this to be over might win out. I really doubt it, though. Losing this case is essentially a CBA concession, and I don't see the owners wanting any kind of concession made without exhausting all avenues to avoid it.

OTOH, if they realize that they have a losing hand, they may wish to avoid appealing up to the circuit court and losing there, creating a binding precedent across the second circuit (all of NY, CT, and VT) re: Goodell's authority as commissioner.

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Yeah, they might want to live to fight another day. Maybe try to press the issue with a player who actually committed something against the rules?

Deus Irae said:

Just a reminder:

While the questioning leads one to think the NFL is in 'trouble', you can't be sure what the judge is really thinking until he rules.

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Agreed judge has final say, but wouldn't that be cruel to give one side the impression they have a stronger argument?

I really don't see a settlement. I think the league has accepted losing this round and is probably turning their attention to the appeal.

Gabe Feldman ‏@SportsLawGuy 4m4 minutes ago
Kessler argued that NFL can't "cure" alleged notice deficiencies, so if suspension vacated on those grounds, no new arb hearing.

AndyJohnson said:

Doesn't matter what we think, only what Brady does, and of course what the NFL would agree to.

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Of course it doesn't matter. I am just trying to talk the people on this forum screaming that accepting 1 game is an admission of guilt and will change public perception. Public perception is already pretty set, and accepting a game (for the reason of putting this behind them and having certainty that it won't be 4 games) is not an admission of guilt. Obviously we don't know what is in Brady or his lawyers' heads. But I think it's unfair to look to that type of settlement as an admission of guilt.

SVN said:

Doesnt mean he doesnt deserve a punch

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Maybe Brady could negotiate a punch as part of the settlement.

juny said:

Agreed judge has final say, but wouldn't that be cruel to give one side the impression they have a stronger argument?

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That's a matter of perspective. One could also say that he's signalling the stronger side that it does have a chance of losing.

That's probably the way the NFL is framing it, when they talk to the owners.

Berman's line of questioning seems to loosely imply the following principles:

1. Players are entitled to fair and impartial fact-finding prior to discipline, whether or not the fact-finding is independent. Players are entitled to discover details of the fact-finding process and results. Players are entitled to know what charges the NFL is bringing against them and defend against those charges. The arbitrator must impartially hear and consider legitimate challenges that the player makes to the process and results of fact-finding during the proceedings.
2. The NFL is obligated to create policies that make punishments consistent and non-arbitrary, and the commissioner must explicitly link discipline to specific actions by the player (eg, "Brady was generally aware of equipment tampering in the AFC Championship Game -> X games suspension, Brady did not turn over text messages and in the process obstructed an investigation into his potential involvement -> Y games suspension and Z fine"). It is insufficient for the commissioner to allow all discipline to fall broadly under "integrity of the game" violations and arbitrarily punish players without prior notice and without reference to any specific incident of rules violation by that player.
3. Any change in the specific accusations against the player between fact-finding, disciplinary decisions, and appeal decisions must be explicitly justified with reference to the evidence explaining the change.
4. A fair and impartial disciplinary proceeding must provide accused players with access to information and witnesses relevant to the case, even when the NFL claims such information and persons did not directly factor into the result of the fact-finding and disciplinary decision. An arbitrator is not allowed to refuse to allow the player access to potentially important information during disciplinary proceedings.

Fully speculating and without any legal knowledge to guide me on this, but I would figure that if there is a ruling to vacate Goodell's ruling based on those principles, the resolution would be something along the lines of requiring Goodell to re-issue a disciplinary decision applying punishments for specific actions Brady has taken and with reference to specific accusations of specific rule-breaking incidents and with reference to exact evidence against Brady for those specific incidents (eg, separate out "general awareness", "equipment tampering", and "obstructing an investigation" into three separate punishments with justifications for the the penalty for each of those punishments), the NFL and NFLPA to re-arbitrate the new disciplinary decision under the new decision (possibly but not necessarily under a new arbitrator, depending on whether or not Berman decides Goodell is an irrevocably partial arbitrator), and to require that the arbitrator must rule specifically on the decision and the evidence in that decision and that the arbitrator must allow access to witnesses and notes relevant to the fact-finding investigation to allow Brady a chance to defend himself.

karguy85 said:

Of course it doesn't matter. I am just trying to talk the people on this forum screaming that accepting 1 game is an admission of guilt and will change public perception. Public perception is already pretty set, and accepting a game (for the reason of putting this behind them and having certainty that it won't be 4 games) is not an admission of guilt. Obviously we don't know what is in Brady or his lawyers' heads. But I think it's unfair to look to that type of settlement as an admission of guilt.

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Unless the Brady team is convinced that the judge is just beating on the NFL in order to make Goodell & Co. more reasonable, but would definitely side with the NFL if it came to a ruling, it would be incredibly stupid of Brady to take even a game.

JackBauer said:

I still cannot believe that this raging boner gets paid 44 MILLION dollars a year. Hopefully this ends soon.

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Not fair - there are some decent applications of a raging boner. I have not identified any utility associated with a Roger Goodell.

SVN said:

Gabe Feldman ‏@SportsLawGuy 4m4 minutes ago
Kessler argued that NFL can't "cure" alleged notice deficiencies, so if suspension vacated on those grounds, no new arb hearing.

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FWIW, Stradley characterizes that as a "NFLPA hail mary".

SVN said:

Michael McCann ‏@McCannSportsLaw 11m11 minutes ago
Why would NFL appeal a loss before Judge Berman? Because its won before in 2nd Cir. (ask @amilst44) and Brady could later serve suspension.

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Then we'll see if the owners actually live up to the crap they are saying about "how we just want it to end". If they do then they'll pressure Goodell to let it go. If they don't then it just further goes to show how pathetic the league is.

AndyJohnson said:

But in this case, given the NFLPA must only win on any one point, his comments indicating they have one are telling. Its hard to rule that the award stands after you say it was unfair to not all Pash to be questioned and say that awards have been overturned for that. Otherwise, why say it?

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While sometimes Judges do telegraph what they intend to do, Judges do and say stuff like this all the time and then rule for the other side. In this case, he may feel that the very high standard to overturn the award is not met here, yet he feels the equities are in Brady's favor. In such a case, he would much prefer to scare the NFL into a settlement than to rule in favor of them.