Why I think Brady is a lock for Game 1

Baboon said:

You are incorrect, and I hope you are not counsel for any large employer.

Edit: The constitution applies to employers whether government or private.

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Haha. Whatever you want to believe is fine, Mr. Baboon.

Baboon said:

You are incorrect, and I hope you are not counsel for any large employer.

Edit: The constitution applies to employers whether government or private.

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No, no it doesn't. letekro is quite right. Your boss can walk in tomorrow and fire you for no reason at all or, in fact, for any reason and it is completely constitutional.

Now, if he fired you for your race, gender, age, religion, national origin, (and in some states) sexual orientation he could get in trouble. But that's because there are laws prohibiting discrimination on those grounds. But the constitution is not part of it. (And of course if you have an employment contract you have cause of action against him if he violated it.)

Now, Congress's authority to enact anti-discrimination laws that apply to private entities is hung on the hook of Congress's power to regulate interstate commerce. (Of course, any law Congress enacts must derive from some constitutional grant of power to Congress that gives Congress the authority to enact the law, so that's not particularly special). But the actual anti-discrimination provisions in the constitution only apply to governments.

This is also why governmental employers and government run schools are less able to censor workers/students than private employers and private schools -- the first amendment applies to the former but not the latter.

QuantumMechanic said:

No, no it doesn't. letekro is quite right. Your boss can walk in tomorrow and fire you for no reason at all or, in fact, for any reason and it is completely constitutional.

Now, if he fired you for your race, gender, age, religion, national origin, (and in some states) sexual orientation he could get in trouble. But that's because there are laws prohibiting discrimination on those grounds. But the constitution is not part of it. (And of course if you have an employment contract you have cause of action against him if he violated it.)

Now, Congress's authority to enact anti-discrimination laws that apply to private entities is hung on the hook of Congress's power to regulate interstate commerce. (Of course, any law Congress enacts must derive from some constitutional grant of power to Congress that gives Congress the authority to enact the law, so that's not particularly special). But the actual anti-discrimination provisions in the constitution only apply to governments.

This is also why governmental employers and government run schools are less able to censor workers/students than private employers and private schools -- the first amendment applies to the former but not the latter.

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I honestly appreciate your contribution to this thread.

I am offering that the constitution applies to arbitration. There must be some form of fairness. You are allowed due process in any court of appeals of the united states of america regardless of the case origin as long as it is within jurisdiction.

Congress, alone, can not pass a law that supercedes the constitution.

You will see in Berman's decision exactly why.

Like you, I have been to law school. I know that the courts can go any way with a case, but to argue the constitution does not apply to private employment arbitration is silly.

QuantumMechanic said:

Now, if he fired you for your race, gender, age, religion, national origin, (and in some states) sexual orientation he could get in trouble. But that's because there are laws prohibiting discrimination on those grounds. But the constitution is not part of it. (And of course if you have an employment contract you have cause of action against him if he violated it.)

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There are LAWS prohibiting such discrimination, but more importantly, it is supported by the supreme court and other case law.

There is a difference between lawyer bold face type laws, and laws affirmed by the supreme court.

Fencer said:

1. If Brady ever was really willing to take a 1-game suspension, I think things have gotten too far from him to settle for that now. The core reason is not so much that he's very likely to win the case in the end; missing a regular-season game isn't the end of the world, in terms of football and money alike.

Rather, the core reason is that the league seems desperately committed to continuing to paint him as a villain, and I don't think he'll give them the ammunition of any settlement beyond MAYBE a small fine.

2. Whether or not Berman decides for Brady in the end, he's made it very clear he thinks Brady has a strong case. Thus, should a decision or simply a delay go against Brady, the likelihood-of-winning test for an injunction will presumably be met.

3. The irreparable-harm test for an injunction is overwhelmingly met. And Berman doesn't happen to be so sports-ignorant as to not realize that.

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ISSUE ONE
If missing one game "isn't the end of the world", a judge may decide that a delay in payment for four games does not represent irreparable harm to Brady.

ISSUE TWO
If the ruling is a one or two game suspension, I suspect that Brady would appeal. However, I don't see why he would see an injunction. If he were to lose the appeal, the 1 or 2 games could near the end of the season or in the playoffs.

I suppose that with a 4 game suspension, Brady might roll the dice and request file an injunction, ready to serve 0 or 4 games whenever the appeals judge ruled.

Iam not as fully optimistic. This case has been weird from the start and only recently something +Ve wrt to brady has begun. I dont want to read too much into it even though I cant help it. I fear the judge will shame the NFL for its process and sham but will rule for them bound by law.

SVN said:

Iam not as fully optimistic. This case has been weird from the start and only recently something +Ve wrt to brady has begun. I dont want to read too much into it even though I cant help it. I fear the judge will shame the NFL for its process and sham but will rule for them bound by law.

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I think the significance of the Judge's questioning of the NFL has been way overblown here at Patsfans. In fact, I think it is consistent with the way a judge will act where he feels like the law and the equities of the case do not favor the same party. While he ultimately knows he will rule in the way the law requires, he can try to do a kind of rough justice by scaring the "unequitable" party with the better legal position into a settlement. It is also possible that he is grandstanding a bit. In the end, as from the beginning, I feel the chances of the discipline being thrown out by the court are no greater than 25%.

mgteich said:

ISSUE TWO
If the ruling is a one or two game suspension, I suspect that Brady would appeal. However, I don't see why he would see an injunction. If he were to lose the appeal, the 1 or 2 games could near the end of the season or in the playoffs.

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Not a plausible scenario. Berman can't order that, so it could only happen if Berman vacates the suspension, and if he also allows the NFL to do whatever it wants on the rehearing, and if they get it done before Brady gets his request in for an injunction. That sequence of events makes no sense to me.

letekro said:

In fact, I think it is consistent with the way a judge will act where he feels like the law and the equities of the case do not favor the same party. While he ultimately knows he will rule in the way the law requires, he can try to do a kind of rough justice by scaring the "unequitable" party with the better legal position into a settlement.

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Bingo. . That's how I am strongly leaning as well.

mgteich said:

ISSUE TWO
If the ruling is a one or two game suspension, I suspect that Brady would appeal. However, I don't see why he would see an injunction. If he were to lose the appeal, the 1 or 2 games could near the end of the season or in the playoffs.

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Fencer said:

Not a plausible scenario. Berman can't order that, so it could only happen if Berman vacates the suspension, and if he also allows the NFL to do whatever it wants on the rehearing, and if they get it done before Brady gets his request in for an injunction. That sequence of events makes no sense to me.

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Not to mention that it's almost a certainty that the appeals process would take longer than a few months to resolve, which would mean that Brady would likely play the entire 2015 season.

AndyJohnson said:

I don't understand why someone bring suspended for a game for doing absolutely nothing would be considered a win.

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1) Because there's no way possible for Brady to prove his innocence, and that this has been a sham since day one. While it's nice that Berman has applied pressure to the NFL's procedures, it's still about a labor contract, and the media will be sure to point that out. Barring a re-hearing in front of a third party arbitrator (something that Kessler has lobbied against), there's no way for Brady to prove that "he did absolutely nothing." This is now about taking a ****ty situation and trying to make the best of it.

2) Because it's a major reduction from 4 games all the way down to 1--which STILL doesn't include an admission of any guilt. At least now there is still some gray area as it pertains to the unknown. By having the penalty much closer to Brady's side than Goodell's side, it would seem pretty clear that Brady got the better of them in court.

3) Because it guarantees that there's no gamble of a loss in Berman's court room, which would be way worse for Brady's reputation as it would confirm what everyone outside of N.England already believes.

4) Because it means that there is no re-filing of suspension under different terms, or another year of hearing about this in the news throughout the appeals process. It finally puts it to rest once and for all, so that everyone can get on with the 2015 season.

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Look, I'd rather see Brady win in Berman's court room like you, which also means having that ruling upheld during the appeals process. Unfortunately, that possibility comes with quite a gamble just as well. I suppose it all depends on how much you'd be willing to gamble.

QuantumMechanic said:

Bingo. . That's how I am strongly leaning as well.

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That's definitely one fairly compelling reading of how Berman's acting. I think an equally plausible reading is that he's determined to get a settlement, so he's applying pressure to the side that's demonstrated a complete unwillingness to budge from its position. We can all agree that he wants the NFL to become more amenable to settlement. There are a lot of reasons for why that could be, though, and "because he knows he'll have to rule for the NFL" is just one of them (and the worst case scenario, at that).

Baboon said:

You are incorrect, and I hope you are not counsel for any large employer.

Edit: The constitution applies to employers whether government or private.

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The above is incorrect or, rather, incomplete. What it should read is something more like:

Some of the constitution applies to employers, whether government or private. Still today, however, even though the USSC has erased many of the lines between "public" and "private", and has continually rewritten the Constitution via judicial fiat, there are times when the private nature of private corporations/individuals shields them from Constitutional requirements.

supafly said:

I trust McCann's opinion throughout this matter, and I believe that he's been very fair and impartial. I think he gives clear reasoning as to why a settlement (one game, no admitting wrongdoing aside from non cooperation...yawn) should still be a strong consideration for Brady and the union. This would be the safest choice and would end this tragedy once and for all.

Every time we start to listen to the mediots, who shape the public's opinion and continue to change with the wind, we are let down. Even the most experienced legal minds in the media and on this forum still believe that it's nothing more than a toss up. Those are the people whom I trust and believe, at least as it pertains to this matter.

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After reading your first paragraph, I couldn't help but be irate. I just can't fathom why Brady would give the NFL virtually a full win, when, A. you haven't done anything, B. there is no evidence that you DID do something, C. even under the narrow basis of the CBA, you have at least 3 major area that the Judge has already given some sense of agreement, and D. the judge hearing your case has shredded the other side at every turn.

Acceptance of even a fine for "non-cooperation would be a fraud, since it's been revealed that Brady has been more than open in this investigation. It would also seal his legacy. Never again would his name be mentioned without Deflategate being in the same sentence. Accepting a one game suspension or fine would be interpreted as an admission of guilt no matter what language they use.

This isn't about the money. Remember if Brady accepts ANY punishment, Goodell wins, no matter how you spin it. If he takes it to a judges ruling, in the WORST case, the Judge will excoriate the NFL for their unfairness, their manipulation of evidence, and their unjust punishment, and then on technical grounds not vacate the suspension. But even under that worst case scenario, the truth of this injustice will be laid bare to everyone who has even the smallest sense of justice.

Not only that, if will give Brady the impetus he needs to sue the NFL for defamation, and in that courtroom the case won't be judged on a narrow CBA clause, but on the merits of the evidence against Brady and the already evident maliciousness of the NFL's actions. It will also force the League offices to open up THEIR emails and cell phones to public revue, and further open them up to the public scrutiny that will bring them down.

Sup, Brady can't give in at this point. There is too much at stake now than just 4 games of a football season. I don't mean to be overly dramatic here, but Brady is the focal point in a fight for the hearts and minds of the future integrity of the NFL itself Do we want the NFL to be the ultimate competitive physical contest and the finest example of combining brains and brawn, or do we want it turned into a perverse overly produced version of the WWE. . (how's that for not being overly dramatic. )

I see articles like Sally Jenkins as being more important in the long run, and those types of articles are become more common. Articles without qualifications that expose what Goodell is doing as the corrupt actions of a delusional egomaniac who thinks he's above ANY oversight. No Sup, now isn't the time to "settle". Now is the time to take advantage of a strong position and take back the game we love. (.....he said undramatically )

patfanken said:

After reading your first paragraph, I couldn't help but be irate. I just can't fathom why Brady would give the NFL virtually a full win, when, A. you haven't done anything, B. there is no evidence that you DID do something, C. even under the narrow basis of the CBA, you have at least 3 major area that the Judge has already given some sense of agreement, and D. the judge hearing your case has shredded the other side at every turn.

Acceptance of even a fine for "non-cooperation would be a fraud, since it's been revealed that Brady has been more than open in this investigation. It would also seal his legacy. Never again would his name be mentioned without Deflategate being in the same sentence. Accepting a one game suspension or fine would be interpreted as an admission of guilt no matter what language they use.

This isn't about the money. Remember if Brady accepts ANY punishment, Goodell wins, no matter how you spin it. If he takes it to a judges ruling, in the WORST case, the Judge will excoriate the NFL for their unfairness, their manipulation of evidence, and their unjust punishment, and then on technical grounds not vacate the suspension. But even under that worst case scenario, the truth of this injustice will be laid bare to everyone who has even the smallest sense of justice.

Not only that, if will give Brady the impetus he needs to sue the NFL for defamation, and in that courtroom the case won't be judged on a narrow CBA clause, but on the merits of the evidence against Brady and the already evident maliciousness of the NFL's actions. It will also force the League offices to open up THEIR emails and cell phones to public revue, and further open them up to the public scrutiny that will bring them down.

Sup, Brady can't give in at this point. There is too much at stake now than just 4 games of a football season. I don't mean to be overly dramatic here, but Brady is the focal point in a fight for the hearts and minds of the future integrity of the NFL itself Do we want the NFL to be the ultimate competitive physical contest and the finest example of combining brains and brawn, or do we want it turned into a perverse overly produced version of the WWE. . (how's that for not being overly dramatic. )

I see articles like Sally Jenkins as being more important in the long run, and those types of articles are become more common. Articles without qualifications that expose what Goodell is doing as the corrupt actions of a delusional egomaniac who thinks he's above ANY oversight. No Sup, now isn't the time to "settle". Now is the time to take advantage of a strong position and take back the game we love. (.....he said undramatically )

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We know what the best case scenario is (winning in court--twice), and we know what the worst case scenario is (having the public's perception of "cheating" confirmed by losing in court). I suppose it will all depend on Brady's personal preference as to whether or not he wishes to consider anything towards the happier end of the spectrum that would put this to rest once and for all.

For the record, I'm not sure what I would personally do, but I do believe that I'd have to consider the one game penalty for various reasons. I don't know if I'd be willing to roll the dice like that, and if the rumors of this taking a heavy toll on Brady are true, (and why wouldn't they be?) then he may want to get ready for Sept. 20th and move the hell on already. Ultimately, it seems as though you are more optimistic than I am about this going our way. In my opinion, it may be more about taking a lousy situation and trying to make the best of it.

well...all you very intelligent and moral members can continue to attempt to make rational sense out of all this complete bull but I am out. This is and has been a complete WWNFLE production since the owners tapped Goodell as their tool to make themselves rich beyond their wildest expectations.

There is NO human being in modern history so blatantly obvious as Roger Goodell. These day after day, weekly, monthly preposterous stories, leaks,false science displays,ridiculous "experts" and Hannah Storm idiocies prove that Goodell is fully aware that his bosses are 100% on board with whatever keeps the cash cow excrementing golden cow pies.

"The Rule 49 makes us invulnerable!!!"...c'mon, wake up...rule 49, rule 890billion-c,the whole sham is a gigantic carnival sideshow. You are looking for JUSTICE here? Justice has ZERO to do with this farce.

I've always been convinced the 07 Bowl was fixed. Today, I'm convinced it has ALL been fixed since Goodell took over. Once again, NOT THIS IDIOTIC MAFIA NOTION OF A FIX. A fix that makes the Gang of 32 far wealthier than they could have ever dreamed of being in a truly honest and competitive league. The revenue streams are all exponentially increasing and the pigs in the sports media(ESPN et al), the pigs in advertising, the pigs in television rights and the fat pig owners are bathing in a waterfall of lucre the likes of which has never been seen in American sports history. The model they are using is straight Vince McMahon WWE 101. Take Brady and make him a villain...WOW!!..original...sorta like take Hulk Hogan and make HIM the villain. Naw...couldn't be...this is America...you can't really do something like this and get away with it, right???

I'm done with it. I'll just sit back and wait for the Goodells of the world to reap what they've sown. Hope I live long enough to.

I'm going to disagree with the 1 game suspension is a win crowd. Goodell's plan from the beginning was to set arbitrarily high penalties so that any middle ground settlement on them would still be a win. If Goodell suspended Brady for life, would we be hoping it gets reduced to just a one season ban? Don't fall for the tactics. To me any suspension is not acceptable. I'd rather Brady lose the decision and the appeal and serve 4 games than to settle for 1.

QuantumMechanic said:

Bingo. . That's how I am strongly leaning as well.

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I wish there was a 'good post and I hate it' button.

letekro said:

I think the significance of the Judge's questioning of the NFL has been way overblown here at Patsfans.

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Stradley, McCann et al. are reading it similarly, although they caution that one should never be sure in how one reads a judge.

I currently think Berman will decide:

• The "Who handed down the discipline, Goodell or Vincent?" distinction is unimportant.
• The process used to make the determination that there was ball deflation at the AFCC was terrible ...
• ... but that is legally unimportant, since Arbitrator Goodell has spoken, and Kessler didn't make it an issue in the case anyway.
• Arbitrator Goodell did not have the power to change the basis of discipline from what Commissioner Goodell's lieutenant Vincent previously said it was.
• For that and other reasons, there was no basis for Arbitrator Goodell to punish Brady for deflation. He could only uphold a punishment for general awareness of deflation.
  
• Most or all of Kessler's complaints about notice are correct.
• Not having Pash testify was a serious failure of process.
• Arbitrator Goodell was remarkably biased.
  
• All of the above taken together, while eyebrow-raising, are not quite enough reason to vacate ...
• ... IF one agrees with the NFL that Arbitrator Goodell has full discretion in defining the Law of the Shop.
• Arbitrator Goodell does NOT have full discretion in defining the Law of the Shop. So all the notice violations blow the discipline out of the water.

Joker said:

I'm done with it. I'll just sit back and wait for the Goodells of the world to reap what they've sown. Hope I live long enough to.

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Joe, Ken. That's the way to go. This is an excellent thread if you're trying to follow the legal ins-and-outs, but, if you want justice and fairness, then you should prepare yourself that maybe it won't work out that way.

Me, I'm OK if the judge says "I'd like to help you, son. It breaks my heart for you, but my hands are tied" and the Pats go 0-4 without Brady but then reel off 12 on the bounce and go all the way to take another Lombardi ...

EDIT: But if that's the way that things are going to go, then I'm PO'd at Kessler for not initiating discovery about the Wells Report and its background. If you're not going to win in court, then publicly exposing that sham and the witch-hunt behind it would make life for Brady and everyone who backs him much better.