Why I think Brady is a lock for Game 1

letekro said:

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%.

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I think the money quote from Berman was the one where he said that there must be some fairness in the process. But it's really unclear how much he can require (and how likely that would be to be upheld on appeal).

I'm with you about the questioning, though.

And I'm also really concerned by the emphasis on settlement coming from the judge. He's a smart guy and he must know that for Brady to accept *anything* is going to be interpreted as some kind of an admission of guilt and that that would be devastating for his reputation among unprejudiced people (if there are any still to be found). So I read it as very likely that the judge is trying to scare the NFL into offering something, so that he isn't forced to rule in a way that upholds an injustice. Hence the aggressive questioning.

Maybe this piece should have its own thread (if it doesn't already).

http://news.harvard.edu/gazette/story/2015/08/airing-it-out/

It's the best legal explanation that goes counter to McCann and Stradley that I've seen.

I think all of it is impressive (and extremely concerning for our side). His argument is that, even if it's clear to everyone that Brady is getting screwed, he may still lose in court -- either with Berman or on appeal.

The thing is, that "outrageous" process was very different from this one. IIRC in Garvey the arbitrator followed all the rules but made a truly ridiculous error of fact (it was something akin to looking up the wrong number in a table).

Mike the Brit said:

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.

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Why are you assuming he could have gotten that? Given that the facts can't be relitigated it seems far from obvious to me that Berman would have allowed such discovery.

QuantumMechanic said:

Why are you assuming he could have gotten that? Given that the facts can't be relitigated it seems far from obvious to me that Berman would have allowed such discovery.

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It's possible. But he could have gone flat-out and say that he was challenging the impartiality of the arbitrator and wanted to call into question the way in which the case was prejudiced by assumptions of guilt on the part of the league office from the start ... Of course, Berman could have said 'no', but, if you're going down, why not go down with guns blazing?

Well, if it was a slam dunk obvious thing that the judge wouldn't allow it (I'm not saying it would be -- I don't know) you'd look like a putz for asking.

Mike the Brit said:

Maybe this piece should have its own thread (if it doesn't already).

http://news.harvard.edu/gazette/story/2015/08/airing-it-out/

It's the best legal explanation that goes counter to McCann and Stradley that I've seen.

I think all of it is impressive (and extremely concerning for our side). His argument is that, even if it's clear to everyone that Brady is getting screwed, he may still lose in court -- either with Berman or on appeal.

GAZETTE: The NFLPA claims the fact-finding in this case was prejudicial against Brady. Even if the judge feels the case lacks merit, can he act on those grounds, or must he rule only on whether the process the NFL followed was conducted properly?

CARFAGNA: Each circuit has standards, and the Supreme Court has standards for vacating an arbitration award. “Evident partiality” is one of the bases. It’s very rare. There’s a lot of Supreme Court precedents: the Steelworkers Trilogy, Steve Garvey …. Despite the process in his arbitration being outrageous, the court wouldn’t touch the arbitration award. The NFL cites this in its papers. The courts generally say, “We’ll defer because the union has agreed to final arbitration. We are not going to retry the case unless there’s egregious abuse of discretion.” [The NFLPA] may well prevail. They’re doing all the right things. But the NFL, if it goes to final order and they don’t get upheld, they will further appeal it. No doubt about it.​

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All he's saying is what the NFL says - that they agreed to Section 46. But he doesn't even address, for example, the "generally aware" standard with anything other than Section 46. In other words, he doesn't express any legal opinion as to why this entirely new standard that never before existed (generally aware) should now be an acceptable standard for discipline. It's as if the rest of the CBA doesn't exist.

Until you address the specifics, it really gets you nowhere. Does Section 46 imply that the rest of the CBA is essentially useless? That's the implication here. And yet, we know that this is not true because of previous court cases.

I'll give weight to an opinion that supports the NFL position when they address each of the NFLPA's arguments with reasoned logic that shows why it's wrong or incorrect to apply here. I just haven't seen anything from commentators supporting the NFL position other than "Section 46". The NFLPA has a very strong, reasoned case against Section 46 being determinative based on the legal criteria for overturning arbitration awards. Once you realize Section 46 explicitly CAN'T (and doesn't) override these pre-existing legal standards, what is left for the NFL to fall back on? That's the question - and no commentators are providing any good answers. IANAL and my feel is that this is still a slam dunk (although I realize judges can rule differently than I feel).

TruthSeeker said:

The NFLPA has a very strong, reasoned case against Section 46 being determinative based on the legal criteria for overturning arbitration awards. Once you realize Section 46 explicitly CAN'T (and doesn't) override these pre-existing legal standards, what is left for the NFL to fall back on? That's the question - and no commentators are providing any good answers. IANAL and my feel is that this is still a slam dunk (although I realize judges can rule differently than I feel).

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Well, nor am I a lawyer (or an American) and I'm not on the NFL's side (let's hope that's obvious!)

But I think that the reasons he gives for why this doesn't fall within the pre-defined "law of the shop" are not easily dismissed (this isn't your common-or-garden 'equipment violation') and, once you concede that it falls within Section 46, the scope for review of the arbitrator is (it seems) very small.

Steph Stradley has a great line: if there is no scope for holding the arbitrator to account, then all the NFL would need is a single sentence: Roger Goodell is the honey-badger and he can do whatever he damn well pleases.

Still, the cases Carfagna cites have had arbitrators upheld despite doing some pretty lousy stuff. So "slam dunk" (or 15 yard field goal ) it's not.

Fencer said:

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.

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Okay, but you left out the even stronger argument - that the NFLPA was not even given a chance to challenge this by presenting a case. In the legal system, the right to present a case is considered important and the CBA gives this right to the NFLPA. Goodell denied them this right - this basic due process right - without sufficient cause and made this ruling as a biased arbitrator since the ruling concerned himself. This is a total distortion of a fair and balanced process. Now it's true that the judge may rule that the point under consideration was not significant enough, but I don't think a judge could reasonably rule that the process was fair or reasonable.

Fencer said:

... IF one agrees with the NFL that Arbitrator Goodell has full discretion in defining the Law of the Shop.

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We already know that Goodell doesn't have this discretion. No arbitrator or person responsible for appeal does.

One of the few truly dumb arguments on either side is the one that Peterson isn't relevant because it's about another kind of offense. Bzzzt. Kessler is citing Peterson to say:

• Notice is required.
• Goodell isn't the final arbiter as to what is or isn't adequate notice. Law of the Shop/essence of the CBA has been determined on that point, and he is not permitted to set it aside.

That's not specific to the kind of offense.

You think it's worth taking the chance to buy tickets for the opener?

TBR said:

You think it's worth taking the chance to buy tickets for the opener?

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If you were the guy who is traveling that I saw in another thread, no--not yet. Just my opinion. I'm in the same boat. If it all works out, I'm willing to pay the additional 50-75 dollar increase per ticket. That's how I'm looking at it anyway. You may feel differently, of course.