Great Brian Holland Deflategate Article

The NFL’s lawyers were clearly thrown off their game. Where was this coming from? After all, certainly Berman must have realized that he had little to no role to play. Certainly he must have understood that the rights of the players had been bargained away. Certainly he must have understood that, in essence, the facts did not matter.

Rather, all that mattered was that Roger Goodell had found Tom Brady guilty. Case closed.

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http://theconversation.com/deflateg...tballs-so-what-exactly-is-the-nfl-up-to-46119

If Judge Berman rules that Brady simply lacked the required notice of his penalty, this really isn’t much of a loss for the NFL at all. As a matter of procedure, it can be corrected going forward, and as a matter of public relations, it looks like Brady is getting off on a technicality.

If, on the other hand, Judge Berman rules that the policies and procedures utilized by the NFL were neither fair nor consistent, but in fact arbitrary and capricious, then the loss could be devastating.

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It would be nice if Berman's ruling includes both these points. As AndyJohnson posted, the lack of notice is an irreparable defect and would thus preclude any futher arbitration, and a ruling of evident partiality would expose this for the witch hunt this has been.

The masses will jump for joy if Brady prevails. Here is the sobering reason I will not:

Of course, were Brady and the NFLPA to prevail, it would likely be on narrow grounds that correct a particular injustice but preserve the status quo.

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Mack Herron said:

The masses will jump for joy if Brady prevails. Here is the sobering reason I will not:

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Even if Brady wins on narrow grounds, it will still establish more precedent showing that Brady can't do whatever he wants and is, in fact, bound by the law. That's a victory as far as I'm concerned.

If a judge rules that Goodell acted as arbitrator in a way that violated federal law, then that's pretty damning for the league. There no "technicality" to that. It's already well established that it was a farce of an investigation; the judge's ruling would just make it clear that in addition all of that, he still managed to bungle having near-unlimited authority so badly that he violated federal law.

Mack Herron said:

The masses will jump for joy if Brady prevails. Here is the sobering reason I will not:

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Until the next CBA negotiation, or the owners force his hand.

To be fair to the NFLPA, the system had worked at least tolerably well for a long time. Sadly, Goodell the toady has demonstrated why the NFL can't have this nice thing anymore.

"Imagine standing before a federal judge, essentially telling him that you have no need to answer his question because your client’s opinion is the only one that matters. Imagine standing before a federal judge who is clearly telegraphing his concerns about the basic fairness of the underlying process and conclusions, and telling that judge that he has no business asking those questions. Imagine standing in front of a federal judge, telling him that he has no role to play here."

This is a point I've wondered about. The NFL is taking this position, but yet they were the ones in such a rush to file this case in Federal court. Idiots.

Good article except for the point about the CBA and the players "making" Goodell the judge, jury, executioner, investigator, arbiter, etc.. As was pointed out by another member, Article 46 has been a part of the standard CBA since the 1960s. And even then, the is the issue of NOTICE. An issue the league has gotten slapped down on several times already..

smg93 said:

"Imagine standing before a federal judge, essentially telling him that you have no need to answer his question because your client’s opinion is the only one that matters. Imagine standing before a federal judge who is clearly telegraphing his concerns about the basic fairness of the underlying process and conclusions, and telling that judge that he has no business asking those questions. Imagine standing in front of a federal judge, telling him that he has no role to play here."

This is a point I've wondered about. The NFL is taking this position, but yet they were the ones in such a rush to file this case in Federal court. Idiots.

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They only filed first because they knew the NFLPA would file, and the NFL wanted to avoid this being heard in Minnesota (which is where the NFLPA would, and in fact did, file). Minnesota is Judge Doty's territory, and the NFL doesn't do well there. So all this was was a piece of legal maneuvering on the NFL's part to try to get this issue heard in a more favorable (to the NFL) site.

Man I hope Berman destroys them. It would be so sweet for the NFL to have this come back and bite them in the behind.

DaBruinz said:

Good article except for the point about the CBA and the players "making" Goodell the judge, jury, executioner, investigator, arbiter, etc.. As was pointed out by another member, Article 46 has been a part of the standard CBA since the 1960s. And even then, the is the issue of NOTICE. An issue the league has gotten slapped down on several times already..

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I didn't know that article 46 had been around since the 60's. This fact invalidates the argument reported this week that Bob Kraft bargained for it in the last CBA negotiations therefore he has no right complaining about article 46 now.

I would argue the power granted to the commishoner in article 46 has not been a problem until recently therefore their was no reason for the player's union or the league to revisit it in negotiations.

This has only become a problem recently because this commissioner has abused the power that has been granted to him and he or his office has shown incompetence in dealing with player discipline.

Tuck said:

I didn't know that article 46 had been around since the 60's. This fact invalidates the argument reported this week that Bob Kraft bargained for it in the last CBA negotiations therefore he has no right complaining about article 46 now. I would argue the power granted to the commishoner in article 46 has not been a problem until recently therefore ther was no reason for the players union or the league to revisit it in negotiations. This has only become a problem recently because this commishoner has abused the power that has been granted to him and he or his office has shown incompetence in dealing with player discipline.

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Article 46 has never really been a problem before because previous commissioners were reasonable and rational people, and the players generally could count on fair treatment from them. Not the case with Goodell, obviously.

Any player rooting for Goodell in this case (and there do appear to be some, probably out of jealousy of Brady) has to have his head examined, because if the NFL wins, this is what it will mean:

Roger Goodell can do literally whatever the hell he wants. Period. He will be able to literally make stuff up. To fabricate evidence. To demand personal, private information from players and if they don't give it to him, he can penalize them for that. He can issue witch hunts and fishing expeditions. He can draw nefarious conclusions from the flimsiest of "evidence". He can deny fairness to any player he wants. He can be the prosecutor, the judge, the jury, the executioner, and also the appellate judge. He can issue any penalty he wants for any violation he wants, so long as he couches it as a matter of the "integrity of the game". If he can do it to Brady, he can do it to anyone, for whatever reason he wants.

That's what is at stake here for the players.

smg93 said:

"Imagine standing before a federal judge, essentially telling him that you have no need to answer his question because your client’s opinion is the only one that matters. Imagine standing before a federal judge who is clearly telegraphing his concerns about the basic fairness of the underlying process and conclusions, and telling that judge that he has no business asking those questions. Imagine standing in front of a federal judge, telling him that he has no role to play here."

This is a point I've wondered about. The NFL is taking this position, but yet they were the ones in such a rush to file this case in Federal court. Idiots.

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Those who follow this logic, like Munson at ESPN, keep harping on Garvey v. MLB and the Supreme Court's decision concerning arbitrator decisions. My thinking is that no real arbitration ever occurred. If the judge has the stones to look at the legal requirements of an arbitration, he could rule that a valid arbitration never took place, negating the Garvey argument.

Tuck said:

I didn't know that article 46 had been around since the 60's. This fact invalidates the argument reported this week that Bob Kraft bargained for it in the last CBA negotiations therefore he has no right complaining about article 46 now.

I would argue the power granted to the commishoner in article 46 has not been a problem until recently therefore their was no reason for the player's union or the league to revisit it in negotiations.

This has only become a problem recently because this commissioner has abused the power that has been granted to him and he or his office has shown incompetence in dealing with player discipline.

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Also wrong in the article was saying the NFLPA accepted this for a larger percent of the revenues. Besides the points above that this had been in the CBA since 1968, the players were forced to take a lower percentage of revenues in 2011.

I normally try not to go all pet-peevish on the internet, but I'm shocked that Holland misuses the phrase "beg the question".


To beg the question does not mean to "invite the question" but "to proceed on the basis of a challengeable assumption". Someone who's paid as a law professor ought to know that (and be teaching it to his students).

http://begthequestion.info/

This has been a really good thread with lots of insightful thoughts and information. The most important thing to come out this far is the notion that Section 46 is this nefarious clause that is inherently evil. It isn't. What's been evil is the ABUSE of this clause as being interpreted by Roger Goodell and his cronies. THAT is what Judge Berman has been trying to get across to the NFL attorneys his entire case.

The bad news, as many have pointed out,l is that whatever Berman rules can only be based on the very narrow issues of procedure as dictated by the CBA and US labor laws. So while not allowing Pash to examined doesn't prove Brady's innocence, OR the NFL's perfidy; it IS reason enough for Berman to vacate the suspension. Fortunately that's not the only issue the case rests on, but it alone is enough reason for Berman to make a favorable decision.

The GOOD news is that Berman has seen through the ever thinning smoke screen of the NFL's smear campaign, and although his ruling is going to be based on legal technicalities, I believe that he will be compelled to make public a very damaging and public excoriation of Roger Goodell and his abuse of power, justice and fairness.

That being said, while I feel September 5th, (or whatever day this comes down) will be a very happy one for us; it should NOT be and ending, but merely a first step of the fight to expose Goodell and reclaim the NFL back from those who would continue to corrupt it and ruin it.

The power of the commisioner is not so much of a problem when we have a commissioner who is not a deceitful lying corrupt manipulative scumbag.

patfanken said:

That being said, while I feel September 5th, (or whatever day this comes down) will be a very happy one for us; it should NOT be and ending, but merely a first step of the fight to expose Goodell and reclaim the NFL back from those who would continue to corrupt it and ruin it.

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If Berman does (and he should) rule in Brady's favor, I imagine he is going to have some rather serious things to say to the NFL/Goodell about using the courts time and his ability as an arbitrator. He's had to "try" to maintain a neutral stance at this point, but I imagine the repeated "you have no authority" to do anything but confirm Goodells suspension is going to get blown apart. You'll see Nash probably visibly flinch and Goodell will sit there with that stupid smile on his face and just say he's disappointed that the Judge didn't see reason in this case and then its "on the the appeal".

Palm Beach Pats Fan said:

The power of the commisioner is a not so much of a problem when we have a commissioner who is not a deceitful lying corrupt manipulative scumbag.

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Absolutely. You might have added "who is not very limited intellectually and has not surrounded himself with people with a vendetta to pursue against one of the franchises". But the principle of being able to give swift justice on all the various things that come up in competitive sports is, I think, a really good one.

Palm Beach Pats Fan said:

The power of the commisioner is not so much of a problem when we have a commissioner who is not a deceitful lying corrupt manipulative scumbag.

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A benevolent, wise dictator is probably the best, most efficient form of government. Alas, power corrupts, as the saying goes....

ivanvamp said:

if the NFL wins, this is what it will mean:

Roger Goodell can do literally whatever the hell he wants. Period. He will be able to literally make stuff up. To fabricate evidence. To demand personal, private information from players and if they don't give it to him, he can penalize them for that. He can issue witch hunts and fishing expeditions. He can draw nefarious conclusions from the flimsiest of "evidence". He can deny fairness to any player he wants. He can be the prosecutor, the judge, the jury, the executioner, and also the appellate judge. He can issue any penalty he wants for any violation he wants, so long as he couches it as a matter of the "integrity of the game". If he can do it to Brady, he can do it to anyone, for whatever reason he wants.

That's what is at stake here for the players.

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That's exactly right. The NFL is arguing that the commissioner has the right to suspend any player for any reason or in effect, no reason at all because there is no requirement for the commissioner to give a valid reason for the suspension since he has no one to answer to.

One argument the PA has not made directly, at least not that I'm aware of, is that when they agreed to article 46 it was under the assumption the Commisioner would be honorable, honest and fair in his judgement. It says after all in the NFL constitution the commish should be held to a standard of the highest level of integrity and what we've seen in the Brady case he clearly has not lived up to the implied conditions of the contract.

Mike the Brit said:

I normally try not to go all pet-peevish on the internet, but I'm shocked that Holland misuses the phrase "beg the question".

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Blame it on the pre-Internet version of Google (mis)Translate

http://languagelog.ldc.upenn.edu/nll/?p=2290