This maneuver seems a bit juvenile, if you ask me (and no one did but I'm throwing my 2 cents in anyway
). The way they are trying to maneuver around the filing deadline by sending a letter instead of an official filing. I almost feel like Berman's reaction would be just to roll his eyes at how childish it is.
I heard speculation on WEEI that now Kessler and the NFLPA will have to file
their response to
this response.... I think that maybe the smart thing to do is just let the immature children have the last word (for now) and hopefully the Judge views this letter for the silliness it is.
I also think it might have been a strategic mistake by the NFL. By filing that response, they've implicitly acknowledged that their entire original argument is blown up. Originally, their argument was essentially "an appeal happened, the arbitrator made his decision, the end. Nothing else matters, and it's never the court's place to interfere with the results of a collectively bargained appeal process".
That has been the entirety of their argument since day one. Basic standards of fairness don't matter. Due process doesn't matter. Fundamental fairness doesn't matter. Law of the shop doesn't matter. Reasonable interpretation of intent doesn't matter. Lying and willfully misrepresenting evidence doesn't matter. The NFL claimed that it didn't even have to defend itself against these various charges, because the argument couldn't even get to that point. All that mattered was appeal happened, and the arbitrator decided what he decided.
In yesterday's response, the NFL felt the need to clarify that
this case is different from all those other cases where awards were vacated. In those cases, there were problems with the arbitrator. Maybe he had a conflict of interest. Maybe he went beyond the scope of his authority. Maybe his award was contrary to his own findings.
But even in making this distinction, the NFL validated the whole point that Kessler was trying to make in the first place. When Kessler cited these 15 cases, the only point he was making is that the arbitrator's authority is not infallible. Misconduct by the arbitrator is grounds for vacating an award- that's all Kessler was trying to say. And clearly it was a point well-made, because now the NFL felt the need to go back and essentially agree with him. All the NFL has done here is seek to explain why Goodell's rampant misconduct is somehow different and more okay than other arbitrators' rampant misconduct that led to their awards being vacated. But just by participating in this debate, the NFL has acknowledged that the core point that Kessler was trying to make is the correct one. Goodell's word isn't infallible just because they want it to be.
The argument has now shifted from "it doesn't matter if Goodell engaged in rampant misconduct" to "sure, some forms of misconduct are sufficient to vacate an award, but we feel like the misconduct that he engaged in is better than those other forms of misconduct." Seems like a pretty clear win for Brady.
I dunno if it would've been better for the NFL to ignore those 18 cases and continue to assert its original position--I'm no lawyer and frankly I have no idea what I'm talking about--but it seems like their case just got a lot weaker simply by virtue of having to respond.
