Kessler's response to NFL Filing

raduray said:

On further reflection, give him number 46

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Berman just needs to "do his job".

I hope that Berman rules in favor of Brady and does so on the basis of lack of notice.. Then the NFL CAN'T appeal. However, I also hope that in his decision, Berman lambastes the NFL for all the shoddy work of the Wells report, the horrendous miscarriage of justice called an arbitration hearing and the waste of the courts time by forcing the court to rule on this. The cherry on top would be Berman calling out Goodell and Company regarding the "Integrity of the Shield" and the fact that they've done more harm to it than Brady or the Patriots.

raduray said:

On further reflection, give him number 46

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And the name on the Jersey should be "Article"

raduray said:

On further reflection, give him number 46

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FreeTedWilliams said:

Kraft should make him an honorary Captain for the Opening Night Game versus Pittsburg. Give him a 12.5 jersey and send him out with TFB et al for the opening coin toss!

I couldn't think of a better FU to Goodell than that

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Chickens
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Don't

Brit patriot said:

If ever I get into any trouble, either real of fabricated, I want Mr Kessler as my lawyer!

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Me too!
Now, if I could only come up with the $1,000 an hour for his time, plus the cash for the multiple hours billed by junior Partners, aspiring Partners, Investigators, Paralegals and Administrative Staff...the heavily marked-up hours that make the lives of Kessler and his other Partners at the top of the pyramid so very nice.

DaBruinz said:

I hope that Berman rules in favor of Brady and does so on the basis of lack of notice.. Then the NFL CAN'T appeal.

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That's not true. The NFL can absolutely appeal Berman's decision to the 2nd Circuit Court of Appeals no matter what or now Berman rules.

The notice thing comes in thusly...

If Berman vacates the decision on some basis other than notice, the NFL can (in theory) re-do the punishment and the arbitration, fixing all the things they did wrong. So (presumably) they'd have to let Pash testify, etc., etc.)

However, if Berman vacates Goodell's decision on the basis of notice, the NFL cannot re-do the punishment because they can't give notice after the fact.

But that's all separate from appealing Berman's decision to the next higher federal court.

fnordcircle said:

Just get a fall guy.

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I want Kessler as my lawyer and Chris Carter as my fall guy!

I understand the notion of finding a way not to drag this out in court. With that said this is not going to be settled and it is approaching silly to suggest so. If Goodell settles this he is admitting he is weak and incompetent. His incredibly lofty position as head of the most exclusive club on the planet and one of the most powerful forces in media would be damaged. His position as the almighty ruler of players would be tangibly compromised to some degree.
Even if Goodell could get Brady to accept 1 game suspension, that kind of reduction will start a major discussion about the huge cost of this fiasco, the dragging through the mud of Brady, Goodell himself, Kraft, flagship franchise, the NFL itself, wasting the court's time, and surely lead to 'what exactly did Goodell do here' likely on a deeper basis.

I think it was the movie In The Name Of the Father where' the power' finds out Jerry is innocent (Jerry is in jail and has been for a long time). One of his cell mates says to him 'they know your innocent, they just can't afford to admit it'. Goodell has put too much into this, he simply cannot afford to admit he is wrong by action or by words.

DaBruinz said:

I hope that Berman rules in favor of Brady and does so on the basis of lack of notice.. Then the NFL CAN'T appeal. However, I also hope that in his decision, Berman lambastes the NFL for all the shoddy work of the Wells report, the horrendous miscarriage of justice called an arbitration hearing and the waste of the courts time by forcing the court to rule on this. The cherry on top would be Berman calling out Goodell and Company regarding the "Integrity of the Shield" and the fact that they've done more harm to it than Brady or the Patriots.

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Yup. That sums it up nicely.

QuantumMechanic said:

That's not true. The NFL can absolutely appeal Berman's decision to the 2nd Circuit Court of Appeals no matter what or now Berman rules.

The notice thing comes in thusly...

If Berman vacates the decision on some basis other than notice, the NFL can (in theory) re-do the punishment and the arbitration, fixing all the things they did wrong. So (presumably) they'd have to let Pash testify, etc., etc.)

However, if Berman vacates Goodell's decision on the basis of notice, the NFL cannot re-do the punishment because they can't give notice after the fact.

But that's all separate from appealing Berman's decision to the next higher federal court.

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So if Berman vacates based on notice the nfl can appeal but it just can't win unless they can show Brady was in fact given notice?

I've started to come to the conclusion here that Section 46 was not the real problem here. It's Goodell's MISUSE of this power. What he's done is wildly over react, as we have seen here, while at other times wildly under react and let things slide, as we see every time the Jets misbehave. In each case he's usually screwing it up.....and not just here. So even while Section 46 is heavily weighted to management, the problem is in the person who is wielding that power. Let us not forget that section 46 has been in force long before it was included in the latest CBA. We never heard of it because the power wasn't abused.

BTW- Kessler's reply to the NFL's "belated response" was both concise and directly on point. Face it, brothers, we AREN'T going to lose this fight. The only question left in doubt is just how much of a victory it will be.

On the lower end will be that Berman directs the case to he re-arbitrated by a true neutral party. I consider it a win for a couple of reasons. First, it will come with an injunction at will allow Brady to play this full season. Second, in the neutral appeal, all the real science will be allowed to be heard, and the basis of the punishment will be disappear. Not only that, a new appeal will expose more of the NFL's duplicity in this matter.

They will be asked to answer to why they never allowed the Pats to defend themselves from the Mort Report, or why they never rebutted it, even after they knew the true numbers, etc In other words, the case will be judged on the merits of the evidence and the actions of the parties involved, and not just based on the procedure and policies of the CBA like in the Federal court. Bottom line: I have no doubt that in front of a neutral arbiter, Brady's suspension would be lifted.

But on the negative side, this will drag on for several more months and during the time the MFL propaganda unit will continue to spew out their narrative with the support of ESPN and the NFLN. Justice will be served, but only after MORE time.

TWO - the Judge vacates the suspension and publicly excoriates the NFL for its unfair handling of this case. That's the win I expect.....BUT, as good as that's going to be, it will NOT be the end of it. The NFL is certain to appeal and although Brady will play the season, the victory will be even more tenuous because we won't know the 3 judges who hear the case until the day before it happens. Besides, during that time the NFL will continue it's narrative nonstop.

In the end the ONLY way this ends well is if Brady decides to play the defamation card, and bring the whole house down around Goodell. Anything less than that and the Brady's legacy will remain tainted. albeit less than at its worst. The Pats will be forever branded serial cheaters, and those draft picks won't be coming back.

Tuck said:

So if Berman vacates based on notice the nfl can appeal but it just can't win unless they can show Brady was in fact given notice?

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Not quite.

Regardless of what grounds Berman vacates on (assuming he does), the NFL can appeal to the 2nd Circuit and argue that Berman's decision to vacate was improper and should be nullified. If the 2nd Circuit agrees with the NFL then Berman's decision is wiped out, Goodell's arbitral award is confirmed, and Brady is suspended. If the 2nd Circuit does not agree with the NFL then whatever Berman decided likely stands (though 2nd Circuit could also affirm in part and reverse in part -- if Berman vacated on grounds A and B and because of A ordered remedies D & E and because of B ordered remedy F and if the 2nd Circuit only agreed with B they would overturn A which would also wipe out remedies D & E but would leave F standing).

Let's assume for a second that either the NFL does not appeal to the 2nd Circuit or the 2nd Circuit upholds Berman's decision to vacate.

Berman's decision to vacate wipes out Goodell-as-arbitrator's decision. Now, as I understand from what I've read the legal analysts as saying, as long as the vacatur isn't based on notice the NFL could re-suspend Brady and then Brady would again appeal (internal NFL process) to an arbitrator. Who that arbitrator is and the process the arbitration would follow would be affected/constrained by any conditions Berman puts in his decision.

But if the vacatur is based on notice then the NFL cannot do any of that because it can't unring the bell. If the court says the NFL can't punish Brady for something he had no notification of then he can't be punished. There's no way to give notice after the fact. Hence the "incurable" adjective used by Kessler.

Again, though, that is completely separate from any appeal the NFL makes in the federal courts. No matter what Berman says the NFL can appeal to the 2nd Circuit Court of Appeals and say "Berman's decision to vacate was wrong because of X, Y, and Z" for any X, Y, and Z the NFL thinks makes a persuasive argument. For example, if Berman vacates on notice the NFL would argue that notice was not needed or in the alternative that if it is needed, they gave it via standard player contract terms, etc.

QuantumMechanic said:

Not quite.

Regardless of what grounds Berman vacates on (assuming he does), the NFL can appeal to the 2nd Circuit and argue that Berman's decision to vacate was improper and should be nullified. If the 2nd Circuit agrees with the NFL then Berman's decision is wiped out, Goodell's arbitral award is confirmed, and Brady is suspended. If the 2nd Circuit does not agree with the NFL then whatever Berman decided likely stands (though 2nd Circuit could also affirm in part and reverse in part -- if Berman vacated on grounds A and B and because of A ordered remedies D & E and because of B ordered remedy F and if the 2nd Circuit only agreed with B they would overturn A which would also wipe out remedies D & E but would leave F standing).

Let's assume for a second that either the NFL does not appeal to the 2nd Circuit or the 2nd Circuit upholds Berman's decision to vacate.

Berman's decision to vacate wipes out Goodell-as-arbitrator's decision. Now, as I understand from what I've read the legal analysts as saying, as long as the vacatur isn't based on notice the NFL could re-suspend Brady and then Brady would again appeal (internal NFL process) to an arbitrator. Who that arbitrator is and the process the arbitration would follow would be affected/constrained by any conditions Berman puts in his decision.

But if the vacatur is based on notice then the NFL cannot do any of that because it can't unring the bell. If the court says the NFL can't punish Brady for something he had no notification of then he can't be punished. There's no way to give notice after the fact. Hence the "incurable" adjective used by Kessler.

Again, though, that is completely separate from any appeal the NFL makes in the federal courts. No matter what Berman says the NFL can appeal to the 2nd Circuit Court of Appeals and say "Berman's decision to vacate was wrong because of X, Y, and Z" for any X, Y, and Z the NFL thinks makes a persuasive argument. For example, if Berman vacates on notice the NFL would argue that notice was not needed or in the alternative that if it is needed, they gave it via standard player contract terms, etc.

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Insightful, clearly written, on point and helpful. As usual.

patfanken said:

I've started to come to the conclusion here that Section 46 was not the real problem here. It's Goodell's MISUSE of this power.

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I've been thinking very much along the same lines. If the Commissioner was truly a man of integrity and intelligence, Section 46 wouldn't be as much of a problem.

Instead we have a pompous moron with a personal vendetta and an axe to grind.

QuantumMechanic said:

Not quite.

Regardless of what grounds Berman vacates on (assuming he does), the NFL can appeal to the 2nd Circuit and argue that Berman's decision to vacate was improper and should be nullified. If the 2nd Circuit agrees with the NFL then Berman's decision is wiped out, Goodell's arbitral award is confirmed, and Brady is suspended. If the 2nd Circuit does not agree with the NFL then whatever Berman decided likely stands (though 2nd Circuit could also affirm in part and reverse in part -- if Berman vacated on grounds A and B and because of A ordered remedies D & E and because of B ordered remedy F and if the 2nd Circuit only agreed with B they would overturn A which would also wipe out remedies D & E but would leave F standing).

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So what is after the 2nd Circuit Court of Appeals? Supreme Court?

Everyone likes to talk about how the judge is upset to waste his time over such a stupid issue, but I think there is a very important principle at play here regarding just how unbiased and unfair arbitrators are allowed to be.

XLIX said:

So what is after the 2nd Circuit Court of Appeals? Supreme Court?

Everyone likes to talk about how the judge is upset to waste his time over such a stupid issue, but I think there is a very important principle at play here regarding just how unbiased and unfair arbitrators are allowed to be.

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Yep. And there are at least a couple of Harvard grads on that bench.

scott99 said:

Question to you ladies and gentlemen. IF Brady wins (and I'm thinking that's a big possibility) and the NFL appeals, would you consider it a win. Me personally, if Brady wins, I don't care if the NFL appeals, to me that's a win. The Summary of the ****ty Wells Report states they can't definitively prove the Pats and Brady did anything wrong, An NFL lawyer stated in court they have no proof, and if Judge Berman agrees with Brady, I consider this over, and proof the NFL tried to railroad the Pats and Brady. An appeal after that proves nothing to me, even if the NFL wins that appeal.

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Sure. The closest thing to a logical position the haters would have then is "Damn. The NFL F'ed up and didn't get enough evidence to nail the cheater." And they have access to something like that in any outcome.

DaBruinz said:

I hope that Berman rules in favor of Brady and does so on the basis of lack of notice.. Then the NFL CAN'T appeal. However, I also hope that in his decision, Berman lambastes the NFL for all the shoddy work of the Wells report, the horrendous miscarriage of justice called an arbitration hearing and the waste of the courts time by forcing the court to rule on this. The cherry on top would be Berman calling out Goodell and Company regarding the "Integrity of the Shield" and the fact that they've done more harm to it than Brady or the Patriots.

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Lack of notice doesn't necessarily mean they can't appeal. It does mean they can't re-arbitrate, since any arbitration decision would fail for the same reason the first one did.

IIRC think the only way they can't appeal is if Berman accepts Kessler's argument that the NFL is collaterally estopped from arguing the issue of notice, since that was already decided in the NFLPA's favor in the Peterson case. Not positive how that works, though.

XLIX said:

I've been thinking very much along the same lines. If the Commissioner was truly a man of integrity and intelligence, Section 46 wouldn't be as much of a problem.

Instead we have a pompous moron with a personal vendetta and an axe to grind.

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Or a number of humiliated owners reduced to playgrownd tactics, calling the Pats cheaters.