Poll: How will this stage of the lawsuit resolve?

Many legal types say the answer is coming Monday, and in any event Berman is on record as saying he'll try to have a ruling by next Friday at the latest.

So it's time to lay your chips down...

Even though things seem to be looking up, I can't avoid my Eeyore nature and all the lousy things that have happened, so I'm in the (likely) minority and have voted that Berman will (reluctantly) uphold the suspension.

If Berman upholds the suspension it won't be because he's "reluctant" about it. If he wanted to he could justifiably vacate on numerous grounds and if he chooses not to do so its because hes inexplicably against labor regulations.

Since the possibility of Brady being punished for this was mentioned, I have hoped it would get to this point so the NFL could be made a fool of again. I vote for vacated award.

I think we're headed to re-arbitration. I think it's clear that Berman doesn't want to rule for the NFL, so he only will if he feels compelled to (which is apparently a distinct possibility).

I think Berman vacates the suspension, and while I'd love him to argue that the notice issue can't be fixed and therefore there's no re-arbitration, I think that might be wishful thinking.

I'm a beyond hope as homer. I voted that Judge Berman vacates.

I think he vacates. As Daniel Wallach has pointed out, Berman has heaped so much scorn on the NFL's position that he'd look foolish upholding. Since I think he'll vacate, he'll also not want to hear another appeal, so he'll include the irreparable lack of notice, which goes to the essence of the agreement, as one of the reasons.

Questions for the learned: If Berman vacates on process (failure to present Nash) and on lack of notice, could the appeals court leave the vacatur for process stand while overturning the notice reason, thus sending it back for re-arbitration?

I think it's clear that Judge Berman has expressed that he has grounds to vacate the suspension. I also think it is clear to Judge Berman that Roger has abused his position. I am sure the Judge does not view Roger as truthful (he is on record for being untruthful twice) nor does he view him as fair. The NFL has not backed off one inch from their settlement claims and Brady has.

I personally think that Judge Berman vacates the suspension on multiple grounds including failure to give notice. This ends deflategate and stops anyone from wasting anymore Federal court time over 0.2 psi in a football. This also forces the NFL to renegotiate controls in the next CBA talks.

If this case is not vacated one way or another I will lose serious faith in our system.

raduray said:

Questions for the learned: If Berman vacates on process (failure to present Nash) and on lack of notice, could the appeals court leave the vacatur for process stand while overturning the notice reason, thus sending it back for re-arbitration?

Click to expand...

I'm pretty sure they can. Appeals courts "affirm in part, reverse in part" all the time.

Another lawyer's take:

But, it seems most likely after oral arguments that Judge Berman will rule in Brady’s favor. He could rule for Brady on fundamental fairness alone, at which point the case would likely be remanded to Goodell for a new hearing. Berman could rule for Brady on evident partiality, and the case would be remanded to be reheard by a neutral arbitrator. Berman could also rule for Brady on issue of fair and consistent policies, which was the least discussed argument at the hearing. He could also rule for Brady on the notice issue, which may have been Kessler’s strongest argument, though not the argument Berman seemed most interested in. Kessler argued that lack of notice cannot be cured in a new arbitration, so the case would essentially be over without any punishment for Brady.

The (deflated) ball is in the judge’s court. Judge Berman could also rule in favor of some combination of these arguments or in favor of all of them. They all appear to be possibilities because of Berman’s demeanor, questions, and statements during oral argument. There is no guarantee how he will rule, but after oral arguments, we have a pretty good indication because we got a look at a potentially winning argument that Berman seems to openly support.

Click to expand...

http://thesportsesquires.com/tom-bradys-winning-argument/

the safest thing for Berman to do is re-aribtration with a neutral third party.

If Goodell objects to this, hes basically saying that he knows the argument for why he punished Brady is ********. This also allows Berman to pass the buck a bit.

chasa said:

the safest thing for Berman to do is re-aribtration with a neutral third party.

If Goodell objects to this, hes basically saying that he knows the argument for why he punished Brady is ********. This also allows Berman to pass the buck a bit.

Click to expand...

If this fixes future neutral arbitration issues in the NFL then that would be fine but if re-arbitration only solves the issues for this case and leaves all the controls in Rogers hands to screw someone else then I would hope Berman rules in a way that forces NFL to renegotiate for controls in the next CBA.

QuantumMechanic said:

Another lawyer's take:



http://thesportsesquires.com/tom-bradys-winning-argument/

Click to expand...

"Berman could also rule for Brady on issue of fair and consistent policies, which was the least discussed argument at the hearing."

If Brady prevails on this ground, then what? Re-do by Goodell? By a neutral? Or the whole thing is vacated subject to appellate review?

Let's hope Brady prevails on all 4 grounds so Goodell is completely and totally humiliated.

I don't think there's any chance Brady misses a game this season

I think Berman is pissed off that the NFL is wasting his and all courts time with this matter and others like it simply because they can't adhere to some basic principals of fairness.

I think if the NFL isn't smart enough to completely back down (or whatever Brady is insisting upon) that Berman may have a LOT to say about the NFL in what I expect may be an order issued from the bench

I can see Berman ordering re-arbitration - effectively putting a stay on the 4 game suspension until the matter can be heard by an independent arbitrator in the offseason. If he does that I'd expect Berman would order that the Ted Wells notes be released to the Patriots if not the public - with Berman wanting to further illustrate just how unfair Goodell has beeen

His decision itself will be addressing the procedure issues - but the underlying issue of fairness IS relevant to the matter and Berman wasted no time in illustrating publicly how far away from "fair" Goodell and the NFL have been throughout this situation

Again, Berman's no Patsfan - or football fan for that matter - but the NFL has been rediculous with their dictatorship. Heck - they actually brought the case to Berman to have Berman affirm that he himself has no say over how the NFL interprets (or ignores) the CBA and principles of fairness

I find it tough to believe that Berman has been setting himself and the entire 3rd branch of government up to send the message of "we think Brady got screwed but we have no choice but to support Goodell's dictatorial powers" - that would make he and the entire judiciary seem like they KNOW injustice occurred but they can't do anything about it

I expect this to be a humiliating defeat for the NFL but I think Goodell dug his trench too deep to compromise on a settlement - and they'll continue to insist that they were out for justice against Brady, knowing that the fan bases of 31 other teams will agree

But the owners may have grown sick of Goodell's handling of this and it's heartening to see that many fans and commenters on national sites are putting the focus on the owners where it should be. If Berman comes down very hard on Goodell, telling them to initiatie a new and fair process for these matters, the owners may want to make him their sacrificial lamb.

chasa said:

the safest thing for Berman to do is re-aribtration with a neutral third party.

If Goodell objects to this, hes basically saying that he knows the argument for why he punished Brady is ********. This also allows Berman to pass the buck a bit.

Click to expand...

Ultimately(taking a long term view), the SAFEST thing for him to do is RESCIND Article 46 and send the nfl & nflpa to negotiations for a new clause. That way the nfl will stop having to run to the various 'circus' courts every three months as a new arbitration case has to be appealed. (Wishful thinking)

But, of course you are right the 'safest' personal choice is always to pass the buck and make no decision. Re-arbitrate.

But I would think judges like Berman would like to have a 'pretty' track record (good and new decisions that can't be appealed or are not taken by higher if they are appealed) and have cases that law schools use for teaching, so I am optimistic for a vacatur.

After much thought, here is what I am thinking.
It is clear that Berman has major questions about whether anything untoward even happened, and even moreso whether Brady had anything to do with it. That doesn't come into play in his ruling, but certainly impacts his demeanor and slant on the evidence in front of him.
There is no doubt he proved himself that he has reason for vacatur, and I believe he has shown that he thinks the process was a sham and Brady's rights were violated. I think he knew that from day 1.
So, the dilemma: Why is he pushing for settlement, and why is he saying both sides have strengths and weaknesses (remember Brady only needs to win on 1 point).
I think he sees Brady winning as not a complete win. It will be subject to appeal, and it MAY be subject to a new arbitration. I think he sees Brady's incentive in settlement as being that it is over, and if gets something he can live with, he doesn't have to deal with appeals, re-arbitration and everything that goes with it.

So, I think he rules for Brady. My instinct is that he rules in a way that creates a re-arbitration, but by an independent 3rd party because the arbitrator Goodell's view has been poisoned by these preceedings and the NFLPA is correct to say there is no way he could now be impartial.
Perhaps a retired judge, perhaps Tagliabue. I think he should also rule that since the NFL has agreed to implement a policy to measure psi in footballs and document them that Brady's appeal should be put off until after the SB, both to allow that information to be presented (since the league is negligent in never having done so) and that because this continuing during the season is detrimental to Brady. Thats a hope, and I don't even know if he has the authority on that one.

I'd ask a lawyer to chime in here but it seems reasonable to conclude that with Pash getting his grubby hands on the Wells Report, by default it becomes tampered with. I'll throw Goody a lifeline and say that he couldn't possibly have been objective b/c the Wells Report influenced his ability to reason the matter objectively.

With that line of reasoning, the assumption is that a neutral arbitrator would use that report as information to help them reach a conclusion on how to rule on the case.

So, if the information gathered has been manipulated (we don't know what Pash did) you really can't be confident that it is objective nor can you be confident that the independent arbitrator will also be objective.

With that said, in my opinion Berman has no choice but to vacate the ruling OR order a 100% independent investigation.

Gumby said:

Ultimately(taking a long term view), the SAFEST thing for him to do is RESCIND Article 46 and send the nfl & nflpa to negotiations for a new clause.

Click to expand...

He has no authority to do that. The most he can do is say that in this case the way Goodell operated under Article 46 was improper and therefore the award is vacated.

AndyJohnson said:

After much thought, here is what I am thinking.
It is clear that Berman has major questions about whether anything untoward even happened, and even moreso whether Brady had anything to do with it. That doesn't come into play in his ruling, but certainly impacts his demeanor and slant on the evidence in front of him.
There is no doubt he proved himself that he has reason for vacatur, and I believe he has shown that he thinks the process was a sham and Brady's rights were violated. I think he knew that from day 1.
So, the dilemma: Why is he pushing for settlement, and why is he saying both sides have strengths and weaknesses (remember Brady only needs to win on 1 point).
I think he sees Brady winning as not a complete win. It will be subject to appeal, and it MAY be subject to a new arbitration. I think he sees Brady's incentive in settlement as being that it is over, and if gets something he can live with, he doesn't have to deal with appeals, re-arbitration and everything that goes with it.

So, I think he rules for Brady. My instinct is that he rules in a way that creates a re-arbitration, but by an independent 3rd party because the arbitrator Goodell's view has been poisoned by these preceedings and the NFLPA is correct to say there is no way he could now be impartial.
Perhaps a retired judge, perhaps Tagliabue. I think he should also rule that since the NFL has agreed to implement a policy to measure psi in footballs and document them that Brady's appeal should be put off until after the SB, both to allow that information to be presented (since the league is negligent in never having done so) and that because this continuing during the season is detrimental to Brady. Thats a hope, and I don't even know if he has the authority on that one.

Click to expand...

I would love to see Tagliabue be the neutral arbiter, and even better if Tagliabue would be in charge of monitoring ball pressures and measurements for the year.

There is no way the current NFL* management can be allowed to be in charge of it.

The OP give us five choices:

The first two require a Settlement with a Fine or Suspension. Goodell can't go to the owners and tell them he spent $5+ million of their money to get a $50,000---$250,000 Fine from Tom Brady for not co-operating fully with his inquisition. Brady can't accept a Suspension for being complicit in the fantasized scheme because he's already testified under oath that he had nothing to do with it and because it's completely unreasonable for him to accept the salary hit of even a one day Suspension for not co-operating. So, no Settlement.

That leaves the three Berman-ruling-related choices.

I don't know how many of you saw it, but way back at the beginning of the Court process, there was an article, written by the AP and printed in the New York Times, that contained several quotes from Chief Judge Loretta Preska of the SDNY about Judge Richard Berman. In it, Chief Judge Preska made a point of saying that Berman preferred the "scalpel" of a Settlement but used the "Meat Clever" of a ruling when the parties failed to settle.

So, I don't think Judge Berman is going to be inclined to issue a ruling that keeps this silliness alive in further arbitration and possible further wasting of the Court's time.

I think he's going to use a Meat Clever and either uphold Goodell's ruling or vacate on the basis of Notice and kill the beast once and for all, taking his chances with the Second Circuit Court of Appeals.

Trying to guess how a Federal Judge is going to rule from the Bench is a fool's errand and one on which I am not inclined to venture.

He's a Federal Judge. He won't care if people think he was "inconsistent" by saying all the things he said in open Court against the NFL, before he ruled in the NFL's favor. He also won't care if people think he was "inconsistent" by not seeming to give much credence to Kessler's argument on Notice, before he vacated on the basis of Notice.

If Berman upholds Goodell's ruling, he'll be using his meat clever to tell the NFLPA how dumb it was to sign a CBA with Article 46. If he vacates based on notice, he'll be using the clever to tell the NFL that no organization can get away with fundamentally unfair behavior in the workplace, no matter how large and powerful it may be.