It's real, people. We might think that it's a slam dunk for Brady and the NFLPA, but it's not.
Berman ruling for Brady/NFLPA
The evidence is that the NFL completely abused the CBA and the process. To wit:
- False information given to Mort who tweeted it and wrote a story that led to this thing going nuclear. The NFL could have stopped this in its tracks, and Florio requested FIVE TIMES that the NFL give him the real numbers to report during the Super Bowl pregame, and the NFL refused. Furthermore, the NFL sent a letter to the Patriots with the same misinformation that they KNEW was wrong. This drove the narrative and put the Pats on the defensive. Something the NFL *wanted* to happen.
- Leak after leak after leak by the NFL office, all designed to make the Patriots and Brady look bad.
- Goodell issuing an "independent" report by Wells, even though it wasn't independent at all - it was a prosecution not an investigation. And when it was learned that Pash, the NFL's counsel, edited the report and the whole veneer of "independent" was blown away, they simply said it doesn't matter, there's nothing in the rules that said it HAD to be independent.
- Goodell lying about Brady's testimony. Flat-out lying. And being caught in the lie by the release of the transcripts.
- Goodell being the investigator, the prosecutor, the judge, the jury, and the executioner, violating every basic element of fairness.
- The lack of notice given to Brady for pending punishments for actions.
- The "upgrade" from "general awareness" of wrongdoing, from his original decision based on the Wells report, to Brady orchestrating a scheme to tamper with footballs, as he declared in the appeal ruling, based on absolutely no new evidence.
- Goodell issuing penalties far, FAR beyond anything hinted at in the CBA or rulebook, or by precedent, for anything he found Brady "guilty" of.
So all that tells Berman that this entire thing is a charade, an abuse of power, a total violation of basic fundamental fairness. So he could use this to rule for Brady and sleep well at night doing so.
However, to rule for Brady is to do something that, while it has happened, it isn't done often. That is, the Garvey case years ago is legal precedent that a court ought not overrule decisions made by the people that the CBA authorizes to make, even if those decisions are horribly wrong. So Berman might feel bound by this legal precedent, even though it is a different case from many years ago dealing with a very different situation. Still. Article 46 is what the NFL is hanging its hat on, and frankly, it's a strong hook. He might feel that if he rules for Brady, an appellate court would, on the basis of Garvey and Article 46, reverse his decision. No judge wants that. He might feel that his hands are tied legally.
Berman ruling for the NFL
Now reverse these. He says that his hands are tied legally and sorry Tom, it sucks, you got railroaded, but...this is what you collectively bargained for. You guys agreed to give Goodell this power, and you can't complain legally if he uses this power in a way you don't like or that hurts you personally. Sorry, that's the deal.
However, let's say Berman DOES rule that way. What he is saying then is that the CBA gives Goodell literally unlimited power over players. On anything that even sniffs of suspicion, without any actual evidence, or even stuff HE MAKES UP, Goodell has the power to impose literally ANY discipline he wants, for any made-up infraction. All he has to do is say it threatens the "integrity of the game" (don't all violations do this? Berman actually asked Nash), and Goodell could punish a player for any length of time, at his whim, regardless of what the rulebook calls for and regardless of historical precedent. I am not sure that Berman wants to rule that any CBA actually grants the commissioner such omnipotence, because the assumption for the commissioner to have the power to impose punishments is that the commissioner is a reasonable and fair person who is acting within, at least, the spirit of the CBA, the rules, and precedent. Tagliabue basically said this in his Bountygate ruling. He agreed that the Saints' players were involved in wrongdoing, but that Goodell's punishment was just completely, utterly out of whack with anything remotely resembling fairness and precedent that he overturned the penalties Goodell laid out.
In other words, the commissioner has to act in good faith and fairness, but a ruling in this case - where the commissioner clearly (SO ABUNDANTLY CLEARLY) did not act in good faith and fairness - essentially grants the commissioner unlimited power to act NOT in good faith and fairness. I am not sure Berman wants to be the one responsible for affirming that Goodell can literally do whatever the hell he wants, rule book, fairness, reason, and historical precedent be damned.
So this is the dilemma facing Berman. It's not really an easy call as I see it. Of course I hope he rules for Brady but we shall see.
Berman ruling for Brady/NFLPA
The evidence is that the NFL completely abused the CBA and the process. To wit:
- False information given to Mort who tweeted it and wrote a story that led to this thing going nuclear. The NFL could have stopped this in its tracks, and Florio requested FIVE TIMES that the NFL give him the real numbers to report during the Super Bowl pregame, and the NFL refused. Furthermore, the NFL sent a letter to the Patriots with the same misinformation that they KNEW was wrong. This drove the narrative and put the Pats on the defensive. Something the NFL *wanted* to happen.
- Leak after leak after leak by the NFL office, all designed to make the Patriots and Brady look bad.
- Goodell issuing an "independent" report by Wells, even though it wasn't independent at all - it was a prosecution not an investigation. And when it was learned that Pash, the NFL's counsel, edited the report and the whole veneer of "independent" was blown away, they simply said it doesn't matter, there's nothing in the rules that said it HAD to be independent.
- Goodell lying about Brady's testimony. Flat-out lying. And being caught in the lie by the release of the transcripts.
- Goodell being the investigator, the prosecutor, the judge, the jury, and the executioner, violating every basic element of fairness.
- The lack of notice given to Brady for pending punishments for actions.
- The "upgrade" from "general awareness" of wrongdoing, from his original decision based on the Wells report, to Brady orchestrating a scheme to tamper with footballs, as he declared in the appeal ruling, based on absolutely no new evidence.
- Goodell issuing penalties far, FAR beyond anything hinted at in the CBA or rulebook, or by precedent, for anything he found Brady "guilty" of.
So all that tells Berman that this entire thing is a charade, an abuse of power, a total violation of basic fundamental fairness. So he could use this to rule for Brady and sleep well at night doing so.
However, to rule for Brady is to do something that, while it has happened, it isn't done often. That is, the Garvey case years ago is legal precedent that a court ought not overrule decisions made by the people that the CBA authorizes to make, even if those decisions are horribly wrong. So Berman might feel bound by this legal precedent, even though it is a different case from many years ago dealing with a very different situation. Still. Article 46 is what the NFL is hanging its hat on, and frankly, it's a strong hook. He might feel that if he rules for Brady, an appellate court would, on the basis of Garvey and Article 46, reverse his decision. No judge wants that. He might feel that his hands are tied legally.
Berman ruling for the NFL
Now reverse these. He says that his hands are tied legally and sorry Tom, it sucks, you got railroaded, but...this is what you collectively bargained for. You guys agreed to give Goodell this power, and you can't complain legally if he uses this power in a way you don't like or that hurts you personally. Sorry, that's the deal.
However, let's say Berman DOES rule that way. What he is saying then is that the CBA gives Goodell literally unlimited power over players. On anything that even sniffs of suspicion, without any actual evidence, or even stuff HE MAKES UP, Goodell has the power to impose literally ANY discipline he wants, for any made-up infraction. All he has to do is say it threatens the "integrity of the game" (don't all violations do this? Berman actually asked Nash), and Goodell could punish a player for any length of time, at his whim, regardless of what the rulebook calls for and regardless of historical precedent. I am not sure that Berman wants to rule that any CBA actually grants the commissioner such omnipotence, because the assumption for the commissioner to have the power to impose punishments is that the commissioner is a reasonable and fair person who is acting within, at least, the spirit of the CBA, the rules, and precedent. Tagliabue basically said this in his Bountygate ruling. He agreed that the Saints' players were involved in wrongdoing, but that Goodell's punishment was just completely, utterly out of whack with anything remotely resembling fairness and precedent that he overturned the penalties Goodell laid out.
In other words, the commissioner has to act in good faith and fairness, but a ruling in this case - where the commissioner clearly (SO ABUNDANTLY CLEARLY) did not act in good faith and fairness - essentially grants the commissioner unlimited power to act NOT in good faith and fairness. I am not sure Berman wants to be the one responsible for affirming that Goodell can literally do whatever the hell he wants, rule book, fairness, reason, and historical precedent be damned.
So this is the dilemma facing Berman. It's not really an easy call as I see it. Of course I hope he rules for Brady but we shall see.
