NFL files response to NFLPA case list

The NFL has sent Berman a letter seeking to rebut the applicability of the list of 18 SDNY cases where arbitrator awards had been vacated:

https://twitter.com/WerlySportsLaw/status/635914471916109824

Dunno (1) how much it matters, (2) whether or not Berman will even consider it, since theoretically it came in after the filing deadline.

Will be interesting to see if Berman tells them that they missed the filling deadline or if he accepts it.

My amateur analysis: The NFL's position just moved from "you must confirm because that's how arbitration works" to "you must confirm because that's how arbitration usually works, except in these cases that are nothing like ours."

Obviously that last part has been heavily challenged and the judge has hinted that he does see weakness in the NFL's case.

Courts are extremely sensitive to dates and deadlines. I remember years ago the case in which we filed a motion of intent and the District Attorney's Office had 30 days to respond. They didn't but instead filed 45 days.The Superior Court threw out the case stating to the district attorney that he was outside of the deadline.

QuantumMechanic said:

(2) whether or not Berman will even consider it, since theoretically it came in after the filing deadline.

Click to expand...

You need to read the footnote that given this is based on Goodell's ruling, he can determine what timezone was meant for the deadline and they got this in with an hour to spare.

Wait, I thought the filing deadline was on Friday night?

Dan Werly ‏@WerlySportsLaw 14m14 minutes agoAugusta, GA
So the NFL is actually arguing that the cases don't apply b/c they involve a neutral arbitrator. Wow... #deflategate

Daniel Wallach ‏@WALLACHLEGAL 26m26 minutes ago
For those who ask whether NFL's new filing is too late, consider that NFLPA provided these case citations to J. Berman only a few days ago
Daniel Wallach ‏@WALLACHLEGAL 23m23 minutes ago
But NFL's letter attempts to differentiate the cases (like a brief), whereas Kessler simply gave Judge a list of case names (w/ no analysis)
Daniel Wallach ‏@WALLACHLEGAL 20m20 minutes ago
Of course, Kessler could have included these case citations in his latest filing (8/14), instead of springing them on J. Berman at hearing
Daniel Wallach ‏@WALLACHLEGAL 19m19 minutes ago
NFL obviously had to respond with something, but did they take it too far by including discussion of cases, whereas Kessler's list is benign

So the NFL is actually arguing that the cases don't apply b/c they involve a neutral arbitrator. Wow...

Click to expand...

https://twitter.com/WerlySportsLaw/status/635918999822405632

Stephanie Stradley ‏@StephStradley 40s40 seconds ago
Stephanie Stradley retweeted jimbo
Berman's view is important one. Precise case law hard to find bc 1 NFL CBA unique 2 Goodell pushing envelope of CBA
Stephanie Stradley added,
jimbo @jimmymcjimbo99
@StephStradley what are your thoughts on today's filing by NFL to Judge Berman, in response to cases NFLPA listed?

Stephanie Stradley ‏@StephStradley 30s30 seconds ago
Stephanie Stradley retweeted Stephen Gauvin
NFL CBA has a unique structure for allowing commish to arbitrate in certain circumstances. So that's what they mean
Stephanie Stradley added,
Stephen Gauvin @Gauv822
@StephStradley don't you find it odd the NFL would cite prior cases as irrelevant due to "neutral arbitrators"?

I suspect just like everything else the NFL tries to sell you, their rebuttal is filled with dishonesty, lies, and twisting facts. That is consistent with their entire MO.

I thought the whole point of requiring both sides to file at the same deadline was so this sort of case-by-case rebuttal where one side gets the last word wouldn't happen.

“Similarly, unlike here, each case the Union provided to support its claim that the Commissioner exceeded his authority involved extreme circumstances, such as where the remedy contradicted the CBA or the arbitrator’s own factual findings.”

Actually, sounds like that's exactly what happened here.

“All of the cases cited by the NFLPA in support of its evident partiality argument involve neutral arbitrators who, for instance, failed to disclose conflicts of interest.”

The common-sense absurdity of this argument aside, it's pretty clear that the NFL failed to disclose his own conflicts of interest. You know, considering that Goodell spent months declaring that an independent investigation was underway, only to later decide that it wasn't independent at all, and in fact he had attorney-client privilege with the investigator.

Or, if that isn't good enough, how about the inherent conflict of interest in serving as arbitrator in a case relating to your own conduct.

BradyFTW! said:

“All of the cases cited by the NFLPA in support of its evident partiality argument involve neutral arbitrators who, for instance, failed to disclose conflicts of interest.”

The common-sense absurdity of this argument aside, it's pretty clear that the NFL failed to disclose his own conflicts of interest. You know, considering that Goodell spent months declaring that an independent investigation was underway, only to later decide that it wasn't independent at all, and in fact he had attorney-client privilege with the investigator.

Or, if that isn't good enough, how about the inherent conflict of interest in serving as arbitrator in a case relating to your own conduct.

Click to expand...

Non-neutral arbitrators with a clear conflict of interest apparently don't have to defend themselves.

BradyFTW! said:

“All of the cases cited by the NFLPA in support of its evident partiality argument involve neutral arbitrators who, for instance, failed to disclose conflicts of interest.”

The common-sense absurdity of this argument aside, it's pretty clear that the NFL failed to disclose his own conflicts of interest. You know, considering that Goodell spent months declaring that an independent investigation was underway, only to later decide that it wasn't independent at all, and in fact he had attorney-client privilege with the investigator.

Or, if that isn't good enough, how about the inherent conflict of interest in serving as arbitrator in a case relating to your own conduct.

Click to expand...

As Steph Stradley says, NFL banking on the uniqueness of the CBA where goodell can be arbitrator as well as punisher being the difference ,however convuluting and fd up it sounds.. Dont know how the judge see this.

Daniel Wallach ‏@WALLACHLEGAL 1m1 minute ago
NFL “asks permission” to “respond” to list of authorities provided by NFLPA, and then proceeds to “respond” anyway

Deus Irae said:

Non-neutral arbitrators with a clear conflict of interest apparently don't have to defend themselves.

Click to expand...

Because Article 46.

JMC00 said:

Will be interesting to see if Berman tells them that they missed the filling deadline or if he accepts it.

Click to expand...

I'm not a Lawyer, but in reading the Submission, its wording suggests to me that they have decided to go "all in" on the unique nature of Goodell's authority under the CBA (thus the comparison to a "neutral arbiter").

That further suggests that someone (Goodell? Nash? Pash? Wells? All of the above?) may have panicked over the weekend and decided that they had to make this point very clearly, even at the risk of annoying a Federal Judge when they know full well that Federal Judges are very prickly about deadlines that they have set for their Court.