(Not) Judge writes sample opinion in favor of NFL

Smurf raises a point that has interested me. If the infamous article allows Goodell to do what he wants, how he wants, then is there ANY limitation on his powers? Obviously there must be. How is this to be addressed? I don't see a court ruling for the NFL without addressing the boundaries.

PatsWickedPissah said:

Smurf raises a point that has interested me. If the infamous article allows Goodell to do what he wants, how he wants, then is there ANY limitation on his powers? Obviously there must be. How is this to be addressed? I don't see a court ruling for the NFL without addressing the boundaries.

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IANAL, and certainly "NALitigator," but I think you're right if there is a legal principle that governs the underlying assumptions of a CBA of any type, related to fundamental equity. If that principle exists, then clearly the NFL has violated it, as the process has been used by the NFL as nothing short of a witch-hunt.

If the case comes down to internal technicalities around Article 46 and the definition of "Notice," then there might be a problem. I am encouraged that Berman seems to have seized on the Pash matter as a possible reason to vacate, but the ruling would be far more damaging to the NFL if he can base it on Notice.

Nunchucks said:

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

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So? There are numerous other lawyers and legal experts that said the judge would rule in favor of Brady. Unless your friend is Richard Berman his opinion is just a guess.

JMC00 said:

So? There are numerous other lawyers and legal experts that said the judge would rule in favor of Brady. Unless your friend is Richard Berman his opinion is just a guess.

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Agreed. But, in a sense, we're all just guessing at this point...and hoping...

PatsFanSince74 said:

Agreed. But, in a sense, we're all just guessing at this point...and hoping...

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I don't think I've made a definitive guess on this thing at all. I just have no clue how it will go. But the amount of lawyers and legal experts that say this thing is leaning in Brady's favor definitely outnumber the ones that say the nfl will get the judgement. Which most of them just lazily cite Article 46 and act like a Federal Judge is powerless to stop it.

Why does Berman even have to consider the CBA unless a rules violation has been
shown to exist? His questioning of the NFL early on seemed to be saying
" how did you directly link the football deflation to Tom Brady?"
If Berman feels the NFL did not establish a rules violation occurred by Tom Brady
why does he have to rule on CBA procedure violations?

Judge jury and executioner

smurfalarm said:

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.

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Exactly. I want Kessler or Berman to ask Nash to specifically say what if any limit they believe there is on Goodell's power. If Nash is forced to admit that the NFL's position is that in theory Goodell could ban someone for life for using stickum or taking half a PSI out of a ball or something as similarly minor or being "generally being aware" of someone doing those things, I can't imagine that'll sit well with the legal system as it's pretty much the definition of completely and totally arbitrary.

The best way to know the strength of your position is to know the oppositions. This is a devil's advocate mock up. Not for nothing, the study linked in another thread shows <3% of labor arbitration proceedings in the 2nd circuit results in vacatur.

Also, Raffi has said he thinks vacatur is better than 50% after Kessler's arguments last wednesday.

PatsFanSince74 said:

IANAL, and certainly "NALitigator," but I think you're right if there is a legal principle that governs the underlying assumptions of a CBA of any type, related to fundamental equity. If that principle exists, then clearly the NFL has violated it, as the process has been used by the NFL as nothing short of a witch-hunt.

If the case comes down to internal technicalities around Article 46 and the definition of "Notice," then there might be a problem. I am encouraged that Berman seems to have seized on the Pash matter as a possible reason to vacate, but the ruling would be far more damaging to the NFL if he can base it on Notice.

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Notice is interesting and since a finding of failure of notice voids the suspension, critical as well.

The league says there is notice that conduct detrimental can result in a suspension, and that the CBA says it is solely up to the Commissioner to determine conduct detrimental. Legally as odd as that is (the commissioner could conclude that swearing on TV is conduct detrimental to the NFL and suspend all of the players on Hard knocks for life, for example) it seems to favor the league.
However the fact that the CBA says Goodell will issue the punishment is a notice issue, and the fact that the discipline letter specifically stated that the punishment is based on the Wells report, and the Wells report specifically cites it is about a different policy, seems to favor Brady on notice.
Perhaps most importantly with respect to notice are the Peterson ruling, and precedent, meaning that regardless of what is in the CBA, the court ruling, and previous cases are the defining message to Brady of notice for what he could face as punishment.

Raffi Melkonian ‏@RMFifthCircuit 12h12 hours ago
Raffi Melkonian retweeted Daniel Wallach
Just thought I would put the other side out there. Tear me up!
Raffi Melkonian added,
Daniel Wallach @WALLACHLEGAL
@RMFifthCircuit @StephStradley Raffi, enjoyable read and thanks for the citation to my Haley's comment. Much appreciated.

Raffi Melkonian ‏@RMFifthCircuit 12h12 hours ago
Raffi Melkonian retweeted Lynne Andrews
Kessler did that!
Raffi Melkonian added,
Lynne Andrews @LynneTB12
@RMFifthCircuit @WALLACHLEGAL @StephStradley Ok. Fine. Now can you write one for the other side? Lol.
Raffi Melkonian ‏@RMFifthCircuit 12h12 hours ago
Raffi Melkonian retweeted Lynne Andrews
Not as well. He's excellent
Raffi Melkonian added,
Lynne Andrews @LynneTB12
@RMFifthCircuit @WALLACHLEGAL @StephStradley would you write it the same as Kessler?


I have followed his twitter feed sometimes because he does makes some points about the case. not like munson. Even Steph Stradely and Wallach follow him. Its just his take and as absurd as it sounds, scarily it may happen that way

AndyJohnson said:

Notice is interesting and since a finding of failure of notice voids the suspension, critical as well.

The league says there is notice that conduct detrimental can result in a suspension, and that the CBA says it is solely up to the Commissioner to determine conduct detrimental. Legally as odd as that is (the commissioner could conclude that swearing on TV is conduct detrimental to the NFL and suspend all of the players on Hard knocks for life, for example) it seems to favor the league.
However the fact that the CBA says Goodell will issue the punishment is a notice issue, and the fact that the discipline letter specifically stated that the punishment is based on the Wells report, and the Wells report specifically cites it is about a different policy, seems to favor Brady on notice.
Perhaps most importantly with respect to notice are the Peterson ruling, and precedent, meaning that regardless of what is in the CBA, the court ruling, and previous cases are the defining message to Brady of notice for what he could face as punishment.

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I dont know anything about all this stuff but I think the Notice argument from the PA will land in the area of disputed facts with NFL saying they did and integrity of game blah bhal and PA saying they didnt.
The biggest wild card is the Jeff Pash exclusion. Depends on how strongly the judge feels about could tilt the decision.

JR4 said:

Why does Berman even have to consider the CBA unless a rules violation has been
shown to exist? His questioning of the NFL early on seemed to be saying
" how did you directly link the football deflation to Tom Brady?"
If Berman feels the NFL did not establish a rules violation occurred by Tom Brady
why does he have to rule on CBA procedure violations?

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Because by law the Jude can only overturn the suspension based off a process issue not because he disagrees with Goodell's factual findings (that a rules violation occured). If he bases the ruling on the latter it will be overturned on appeal due to precedent.

SVN said:

I dont know anything about all this stuff but I think the Notice argument from the PA will land in the area of disputed facts with NFL saying they did and integrity of game blah bhal and PA saying they didnt.
The biggest wild card is the Jeff Pash exclusion. Depends on how strongly the judge feels about could tilt the decision.

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But this is not a preponderance of evidence ruling. The judge is going to decide there is or is not notice. If not, its over, and nothing else matters. If he feels there was, but the Pash not being allowed to testify made the process unfair, then the NFL also loses, but in that case it likely goes to a new arbitrator.
Brady only needs to win 1 point, not have a better overall case on the items they disagree upon.

JMC00 said:

I don't think I've made a definitive guess on this thing at all. I just have no clue how it will go. But the amount of lawyers and legal experts that say this thing is leaning in Brady's favor definitely outnumber the ones that say the nfl will get the judgement. Which most of them just lazily cite Article 46 and act like a Federal Judge is powerless to stop it.

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I don't have a clue either, but I don't think everyone who is citing Article 46 is doing so "lazily." I think many are seriously trying to understand its full scope and limitations. Others, like Munson, are being, to put it kindly, "lazy" in their references to it.

Another poster observed out here yesterday that if Article 46 is what the NFL is claiming it to be, then there's really no need for the entire rest of the CBA as it would, on the NFL's apparent interpretation, trump everything else.

This is rubbish! I really don't buy the argument that article 46 allows the commish to simply do whatever he feels like as long as he puts on some dog and pony show of a hearing.

Berman pretty much established in oral argument that he has a legal basis to vacate the suspension. By the tone of his questions, it doesn't sound like he thinks very much of the NFL's case against Brady.

I think Kessler's point that the CBA contains "bargained for" conditions to Goodell's authority to discipline is valid.

I just hope Berman rules in Brady's favor on the notice issue to kill this thing once and for all subject to appellate review.

Judge Judy's mock opinion notwithstanding, can the judge who wrote "The great deference [that is accorded to an arbitrator's decision] is not the equivalent to a grant of limitless power" in overturning the arbitrator in the Leeds case rule to grant that same limitless power to the commish? This, in a court where a not inconsiderable 15% of arbitrator opinions have been overturned?

I think Nash argued about the notice for equipment violation last week saying "it says a minimum of a fine and can be more" .Something like that. Kessler honed in on the point that "first offense is fine". Too many conflicting theories which Nash attributes to discovery dispute. Sure its BS but if there is any dispute then its possible judge favors the nfl. Excluding Pash testimony and its significance for berman is going to decide the case IMO.

Nunchucks said:

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.

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OJ was never found innocent. He was found not guilty beyond a reasonable doubt in the criminal case. In the civil case, the one more applicable here, he was indeed found guilty based on a preponderance of the evidence.

SVN said:

I think Nash argued about the notice for equipment violation last week saying "it says a minimum of a fine and can be more" .Something like that. Kessler honed in on the point that "first offense is fine". Too many conflicting theories which Nash attributes to discovery dispute. Sure its BS but if there is any dispute then its possible judge favors the nfl. Excluding Pash testimony and its significance for berman is going to decide the case IMO.

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It's not really a matter of theories.
Notice requires that the player be aware of the consequences of his actions in order to be disciplined.
The league is arguing he was, the NFLPA is saying he wasn't. Precedent is big here, since no player has even been suspended for being generally aware. Also very similar actions have resulted in lesser discipline (Jets, Panthers, Vikings, Chargers). Then on top of that Brady was officially disciplined based on the Game Operations rules, which do not apply to players.
It seems blatantly obvious that there are notice issues (meaning there no way you can say it is clear to Brady that if he knew--or even ordered,but thats another issue altogether--Dorito Dink and Deflator were sneaking around deflating balls that he would be subject to a suspension). In other words, if a union welder brings an Ipad to work and gets fired (or suspended, its all the same in this parallel) for having it, but there is no policy that references having electronics at work but one that says you can be docked an hours pay if caught not focussing on your work, yuo have notice issues. To stretch the analogy into this case, the welder appeals it is heard by the same person, who then says you do have notice because we can fire you for causing potential injury by acting wrecklessly and we conclude you were not alert enough to prevent a potential accident.

The fact that the NFL puts up a counter argument only makes this a court case. It doesn't mean the argument is good.

And again, Brady needs to only win on ONE POINT, it is not a matter of 'who has the better case' or 'who is more right'.
If notice was defective.
If Goodell was evidently impartial.
If Goodell abused his power.
If Bradys right to put on a case in his appeal was not given.

In any of those cases, the judge must rule for Brady. He doesn't need 2 out of 4 or 3 out of 4. Only 1.
It's hard to imagine to me that he doesn't have one, and if you look again at that list, the NFLs claim that Goodell has the right to make the decision and the court must hold it in deference is meaningless, because that is not what the NFLPA is arguing against.