(Not) Judge writes sample opinion in favor of NFL

Zeus said:

To what extent will appeals (initiated by either NFL or NFLPA) lead to further discovery?

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Zero. Any appeal (from either side) to the 2nd Circuit will be only about matters of law (that's not unique to this as appeals virtually never consider any new evidence or facts -- they are about determining whether or not the judge made mistakes in the law or in interpreting the law).

patfanken said:

The guy's opinion DOES make me a bit worried. I felt better when I found out he was just another lawyer looking for some "air time", but not much better. But in the end, I don't give a ****. Maybe losing the Federal case on such narrow and technical grounds, is JUST the thing to push Brady into taking on the defamation case, which would be judged on the merits of the evidence and actions of the parties.

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I know that we've had a difference of opinion on some recent issues, so apologies for that. I know you well enough to know that you likely don't take it personally, but I figured that I'd throw it out there for whatever it may be worth to you. We often agree on many issues, but have seen a few through different lenses lately.

I think that in the unlikelihood that Brady were going to file a defamation suit, he'd have followed the same path as Vilma by filing it upfront, right off the bat. After all, he could've potentially used it as leverage in these negotiations. If the scenario you're suggestion comes true and Brady loses, it will basically be for the 3rd time, even though we all know that the first two were ruled by Goodell. Either way, I would find it unlikely that the case wouldn't be thrown out, just as Vilma's was (and he won his court case).

If anything, the possibility may be much higher that he'd consider filing a suit if he is victorious in court, rather than seeing the arbitration process played through appeal and then upheld in federal court. Although you may be right in the end, my concern would be that it may be difficult to meet the higher standard that is used to judge celebrities.

patfanken said:

I'm getting to the point where I'd rather start 0-4 and get to tear down the corrupt and pustulent entity that the league office has become in open court, than to win the case and let it die.

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How specifically, would you envision that occurring, Ken? Do you mean via the discovery process that would occur if the defamation case was actually heard? How else would we tear down the corrupt league office? Either way, we've got to keep football as the main focus and starting 0-4 would be horrible in terms of aiding any playoff aspirations.

ViperGTS said:

Possibly. I'm tired of the BS people stating the NFL will win. Goodell and the NFL lied and violated the CBA multiple times. If Berman rules in their favor, he is not ruling based on law. Period. There is no more discussion needed.

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Perhaps this atty (Melkonian) pens an article/hypothetical scenario from the other side tomorrow, showing an example of how the union can win? We've seen this happen plenty of times before from attorneys and sportswriters.

Froob said:

Without clicking the link just curious, is this a parallel universe where Roger is smart and everyone else is an idiot?

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In that universe, the Jets have a dynasty

Berman would have to basically explain why Berman was wrong in his earlier statements. Nothing's impossible, but I just don't think it's likely.

I'm a federalist as well, as are many people. Makes no difference here, if anything I would say the NFL arguing article 46 renders the rest of the contract void makes about as much sense as those that claim that the health and welfare clause essentially renders the rest of the constitution's enumerated powers void (a decidedly not-federalist position).

So is this guy just some nobody?

supafly said:

I know that we've had a difference of opinion on some recent issues, so apologies for that. I know you well enough to know that you likely don't take it personally, but I figured that I'd throw it out there for whatever it may be worth to you. We often agree on many issues, but have seen a few through different lenses lately.

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I appreciate the thought, Sup, thanks. Things like legal issues are like politics, even though my opinions are the correct ones, I recognize that others may have legitimate and logical reasons to be wrong. So no, I never take issues like this personal.

I think that in the unlikelihood that Brady were going to file a defamation suit, he'd have followed the same path as Vilma by filing it upfront, right off the bat. After all, he could've potentially used it as leverage in these negotiations. If the scenario you're suggestion comes true and Brady loses, it will basically be for the 3rd time, even though we all know that the first two were ruled by Goodell. Either way, I would find it unlikely that the case wouldn't be thrown out, just as Vilma's was (and he won his court case).

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You make a reasonable point, but once again I disagree. As a strategy, I think Vilma putting everything on the table up front is one of the reasons WHY his defamation case was dismissed. He didn't build a good enough case before filing. Besides who knows the NFL might have been smarter then, and not so blatant.

By holding out using the defamation case as a cudgel, Brady increases his leverage on the NFL, especially as it becomes clearer that these delusional sons of *****es will never do the smart thing and will play hard ball whether they win or lose on Monday.

Even if Berman rules against Brady, it will be on the narrowest of technical grounds (like the OP lawyer states, the Judge will probably do so under the duress of his directive. I would be very surprised if he doesn't excoriate the NFL for its gross unfairness and malicious behavior.......and THAT will be in the public record. It won't help Brady for the first 4 games, but it WILL help in if he takes the next step.

In any defamation case the the plaintiff has to prove not only that damage has been done, but it was done maliciously and with foreknowledge that their accusations were wrong. He can do all that and more. He can finally even make the case that nothing was done in the first place and that the NFL had to know it. In this case, that critical part of the story couldn't be discussed. Finally the discovery process will expose the league office for the cesspool its become. Christ, it would be worth it if they lose, just to see the look of Goodell's face when they come asking for HIS cell phone.

I think in an open court, with a jury (especially in NE), defamation would be a slam dunk. Not only does the preponderance of the evidence support Brady's innocence, on just what little we know now can make a strong case that this was a sting operation gone out of control and the cover up that followed.damaged Tom. Imagine what smoking guns would turn up in discovery that we DON'T know about. But its late and I'm rambling, so I hope you can make sense of this.

But like I alluded to, even more important than winning, a suit opens the NFL offices to discovery and depositions, and those pukes HAVE fear that more than anything. I figure there has to be SOMEONE among them smart enough to tell them the minefield they are stepping into. A defamation suit threat could be just the thing that forces the League NOT to appeal the case if they lose on Monday. And then it TRULY may end on Monday;

If anything, the possibility may be much higher that he'd consider filing a suit if he is victorious in court, rather than seeing the arbitration process played through appeal and then upheld in federal court. Although you may be right in the end, my concern would be that it may be difficult to meet the higher standard that is used to judge celebrities.

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I might love it if Brady wins and then kicks them while they are down with a huge defamation suit. It would be a dream come true in fact. However I fear that if he wins, Brady will shut it down and forget it. There has been enough positive media lately that he might feel he's restored enough of his reputation to want to put it all behind him and concentrate on his season. And as I alluded above, the "threat" of a defamation suit might be just the ticket to convince the NFL to quit while they're behind and move on before it gets worse. (not that I think they are smart enough to do that)

How specifically, would you envision that occurring, Ken? Do you mean via the discovery process that would occur if the defamation case was actually heard? How else would we tear down the corrupt league office? Either way, we've got to keep football as the main focus and starting 0-4 would be horrible in terms of aiding any playoff aspirations.

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Win or lose with Berman, I think Brady has a very strong case against the NFL for malicious defamation of character. Someone in a previous thread listed the items you have to prove to win such a case. With JUST the information we got from the appeals transcripts a solid case could be made. Imagine what we'd learn in discovery and depositions. I'd make Goodell, Kensil, Giardi, Welles etc have to sit on the OTHER side of the table and answer the questions instead of asking them. I'd depose some of the key owners. I'd depose ESPN executive and reporter, like Mort and Peter King. (I'd also name ESPN, the NFLN, and various conduits of the League's propaganda testify under oath and defend the crap they've written.

As far as the season goes, while its possible, I doubt the 4 games with JG at the helm would all be loses. We'd likely win one or two. But Sup, I'd bear up under a playoffless season to tear that house down. We all should realize that we are fighting for a lot more than Tom Brady's legacy, or the Pats reputation. It gets clearer every day and with every revelation, that we are literally fighting for heart and soul of the league we love and the game we all cherish. Goodell and his cadre of sycophants have dragged the league down for several years now with bad decision after bad decision. It has to stop and this is the way.

......and I have ranted far too long and far too incomprehensibly. Forgive me. Hopefully you'll see through all this and see my point, and tomorrow I'll be more precise.

patfanken said:

I appreciate the thought, Sup, thanks. Things like legal issues are like politics, even though my opinions are the correct ones, I recognize that others may have legitimate and logical reasons to be wrong. So no, I never take issues like this personal.

You make a reasonable point, but once again I disagree. As a strategy, I think Vilma putting everything on the table up front is one of the reasons WHY his defamation case was dismissed. He didn't build a good enough case before filing. Besides who knows the NFL might have been smarter then, and not so blatant.

By holding out using the defamation case as a cudgel, Brady increases his leverage on the NFL, especially as it becomes clearer that these delusional sons of *****es will never do the smart thing and will play hard ball whether they win or lose on Monday.

Even if Berman rules against Brady, it will be on the narrowest of technical grounds (like the OP lawyer states, the Judge will probably do so under the duress of his directive. I would be very surprised if he doesn't excoriate the NFL for its gross unfairness and malicious behavior.......and THAT will be in the public record. It won't help Brady for the first 4 games, but it WILL help in if he takes the next step.

In any defamation case the the plaintiff has to prove not only that damage has been done, but it was done maliciously and with foreknowledge that their accusations were wrong. He can do all that and more. He can finally even make the case that nothing was done in the first place and that the NFL had to know it. In this case, that critical part of the story couldn't be discussed. Finally the discovery process will expose the league office for the cesspool its become. Christ, it would be worth it if they lose, just to see the look of Goodell's face when they come asking for HIS cell phone.

I think in an open court, with a jury (especially in NE), defamation would be a slam dunk. Not only does the preponderance of the evidence support Brady's innocence, on just what little we know now can make a strong case that this was a sting operation gone out of control and the cover up that followed.damaged Tom. Imagine what smoking guns would turn up in discovery that we DON'T know about. But its late and I'm rambling, so I hope you can make sense of this.

But like I alluded to, even more important than winning, a suit opens the NFL offices to discovery and depositions, and those pukes HAVE fear that more than anything. I figure there has to be SOMEONE among them smart enough to tell them the minefield they are stepping into. A defamation suit threat could be just the thing that forces the League NOT to appeal the case if they lose on Monday. And then it TRULY may end on Monday;

I might love it if Brady wins and then kicks them while they are down with a huge defamation suit. It would be a dream come true in fact. However I fear that if he wins, Brady will shut it down and forget it. There has been enough positive media lately that he might feel he's restored enough of his reputation to want to put it all behind him and concentrate on his season. And as I alluded above, the "threat" of a defamation suit might be just the ticket to convince the NFL to quit while they're behind and move on before it gets worse. (not that I think they are smart enough to do that)



Win or lose with Berman, I think Brady has a very strong case against the NFL for malicious defamation of character. Someone in a previous thread listed the items you have to prove to win such a case. With JUST the information we got from the appeals transcripts a solid case could be made. Imagine what we'd learn in discovery and depositions. I'd make Goodell, Kensil, Giardi, Welles etc have to sit on the OTHER side of the table and answer the questions instead of asking them. I'd depose some of the key owners. I'd depose ESPN executive and reporter, like Mort and Peter King. (I'd also name ESPN, the NFLN, and various conduits of the League's propaganda testify under oath and defend the crap they've written.

As far as the season goes, while its possible, I doubt the 4 games with JG at the helm would all be loses. We'd likely win one or two. But Sup, I'd bear up under a playoffless season to tear that house down. We all should realize that we are fighting for a lot more than Tom Brady's legacy, or the Pats reputation. It gets clearer every day and with every revelation, that we are literally fighting for heart and soul of the league we love and the game we all cherish. Goodell and his cadre of sycophants have dragged the league down for several years now with bad decision after bad decision. It has to stop and this is the way.

......and I have ranted far too long and far too incomprehensibly. Forgive me. Hopefully you'll see through all this and see my point, and tomorrow I'll be more precise.

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Thank you for the breakdown. I appreciate your stance and feel as though you make several good points. In the end, I hope that you are right and we can all sit back and relax (finally....) !!

If this guy is in fact reading Wallach and Stradley then he must also be reading espn.com because he is using the same false premise as the idiot Munson. He's saying that Brady's defense is that "Brady was never told that monkeying around with the game balls could result in a suspenion." This makes it sound like Brady admits to participating in the supposed ball-deflating "scheme" when in fact his true (and truthful) stance is that he refutes it entirely. They are basically taking Brady's defense regarding destruction of his cell phone and applying it to the charge the NFL would like to hang on him, thereby muddying the waters for consumption by the ignorant and the Patriot haters (not that the two are mutually exclusive).

So Roger Goodell can suspend players because he doesn't like them?

According to the NFL interpretation of article 46 that would be case, as they are claiming he can do whatever he wants and guilt or innocence, unfair process or arbitrator bias make no difference. He's Joe Stalin.

Although I don't believe it would happen my recommendation to the NFLPA would be to go on strike on September 10th and not return until Article 46 and those running the league office are gone

RunAmok said:

His view is that Article 46 lets Goodell do whatever we wants to do and if the NFLPA doesn't like they should fix it in the next CBA. Well then why do we need courts and lawyers?

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Or the rest of the CBA? The document is meaningless if Goodell can act in any manner he wants regardless. Just appoint him as emperor and move on.

supafly said:

Perhaps this atty (Melkonian) pens an article/hypothetical scenario from the other side tomorrow, showing an example of how the union can win? We've seen this happen plenty of times before from attorneys and sportswriters.

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A couple people asked him to do it on twitter. His response was that Kessler's brief does a much better job of wording how Berman could vacate Goodell's award than he could ever do himself. I get the sense that he has a lot of respect for Kessler and his argument, but is a lot more skeptical of Brady's chances and puts a lot greater weight into the deferential standard the law gives to arbitration awards than Stradley/Wallach/McCann. I trust the latter three when they say Brady has an outlier case that is far stronger than a typical arbitration review, but at the end of the day it all comes down to the judge, and the judge would be within his rights to write a decision like the one this lawyer did, as much as we are all hoping otherwise.

QuantumMechanic said:

Zero. Any appeal (from either side) to the 2nd Circuit will be only about matters of law (that's not unique to this as appeals virtually never consider any new evidence or facts -- they are about determining whether or not the judge made mistakes in the law or in interpreting the law).

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Didn't people say that about this court?

There is a general principal in the law that all contracts are infused with a duty of good faith and fair dealing on both sides; that even if one party has certain rights under a contract, he or she must exercise those rights in good faith. Based on the judges questions that I have read second hand in the media, if he is going to go Brady's way but feels limited by the CBA, he might hang his hat on this exception - that Roger Goodell has certain rights under the CBA, but he failed to exercise those rights in good faith, and therefore they are unenforceable. I hope the judge goes this route.

Elijah said:

Didn't people say that about this court?

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Don't recall anything new since it got to court that came out because of discovery. Only thing is the transcript, but that wasn't discovery, that was Berman unsealing the filings.

Elijah said:

Didn't people say that about this court?

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There hasn't really been any discovery or new evidence in front of this court either. The only reason we saw new information become available to the public during the current proceedings is that Berman refused to seal evidence so the appeal transcript and Brady's emails became public record, but none of that evidence was previously unavailable to the NFL or NFLPA, only to the public. No new evidence has turned up through discovery.

That said, my understanding is that discovery actually would have been allowed at the beginning of the current proceedings, but both the NFL and NFLPA agreed to waive discovery in the interest of obtaining a decision from Berman before the season starts.

I read the faux opinion. The author's style is intentionally colloquial to such a degree that he clearly wants to be sure we know it wasn't written by a "Real Federal Judge." However, he obviously spends a lot of time around them and reads a lot of their opinions. The piece is far more intelligent and well-reasoned than something an idiot like Munson would produce.

The simple logic of the piece is my worst nightmare and gets to the heart of what has concerned me since Goodell issued his ruling and appealed immediately to the SDNY to have it upheld.

In Berman, I thought and posted often out here that Brady and the NFLPA got their best possible shot at a fair hearing; Berman has not disappointed, bending over backwards to go after the NFL and demolish its pretenses of fairness, all the while acknowledging the Elephant in the Room, Article 46, and related language in the CBA.

My concern all along is that Judge Berman has been trying to "shame" the NFL into settling, while more gently prodding Brady to settle by reminding everyone that he said he would try to rule by the 4th, but couldn't promise to do so, and, I am sure, by saying other things to him and Kessler in private.

I'm now in way over my head.

Kessler's arguments are compelling to me, but, as someone who stood outside the Moynihan Courthouse on the 12th for several hours so I could see and shout encouragement to Tom Brady as he exited the building, I am hardly an unbiased observer. I still think he should prevail.

In any event, I agree with the poster who observed above that Berman might well be prepared to rule on the 31st, if the two sides haven't settled. Whatever happens on Monday, I doubt we will have to wait until next Friday for his ruling. I'm pretty sure he wants this out of his court by Labor Day.

As an aside, for all these people who are authoring these arguments that Goodell is well within his rights to use arbitrary process and punishments as long as Goodell-as-arbitrator reviews the process and punishments and rubber stamps them and there's no proof that he maliciously misinterpreted the CBA and evidentiary record as arbitrator, I wish they would explain exactly where they think that power is limited. Would Goodell have had the authority to issue a lifetime banishment from the league to Brady for a minor equipment violation at his discretion, per Nash's own assertion? How about a fine exceeding Brady's yearly salary? Or how about corporal punishment? Sure there's no clause specifically in the CBA saying Goodell can choose to punish Brady with a spanking, but if as the appeal hearing officer he interprets that it is within the essence of the CBA that the commissioner is given broad authority to choose punishments and that corporal punishment is not specifically forbidden, is that a valid legal argument because there is no hard proof that he is willfully misinterpreting the CBA? There's a certain point on the slippery slope where it becomes obviously crazy. I personally feel we are already well past the point of crazy with this four game suspension, but anyone who doesn't think a four game suspension is insane should be grappling with where exactly it does become insane, because it is plainly obvious that the NFL can't have unlimited power to commit arbitrary and unbounded acts of malice against players.

I think that there is a very real possibility that the NFL wins this case. Sure, the evidence and arguments appear to all fall into Brady's favor, but that doesn't mean he will win.

O.J was found innocent.

To state that the NFL will win this case is not in the realm of crazy and if people take that position, you have to kind of respect it, even though it doesn't make sense based on what we recognize as the facts of the case. It is a CBA and they do have their own rules, the union agreed to them.

My friend is a lawyer and he would be surprised if Brady won the case.