Berman's Dilemma

Mike the Brit said:

I think Garvey is going to be VERY hard for Kessler to overcome.

Although Wallach is a lawyer and I'm not, I have read the SC decision and it is pretty stark.

The case of Garvey that led the appellate court to overturn was not just one where the arbitrator refused to credit the later testimony of the former owner of the baseball team when it contradicted earlier testimony. He refused to credit it after having chaired a panel that decided that the earlier testimony was not credible. It was that that the appellate court described as "inexplicable" and "bordering on the irrational" ('in the court’s view, the arbitrator’s refusal to credit Smith’s letter was “inexplicable” and “border[ed] on the irrational,” because a panel of arbitrators, chaired by the arbitrator involved here, had previously concluded that the owners’ prior testimony was false.')

The Supreme Court didn't take issue with that. What it wrote is:

Judicial review of a labor-arbitration decision pursuant to such an agreement is very limited. Courts are not authorized to review the arbitrator’s decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties’ agreement. Paperworkers v. Misco, Inc.,484 U.S. 29, 36 (1987). We recently reiterated that if an “ ‘arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,’ the fact that ‘a court is convinced he committed serious error does not suffice to overturn his decision.’ ” Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62 (2000) (quoting Misco, supra, at 38). It is only when the arbitrator strays from interpretation and application of the agreement and effectively “dispense his own brand of industrial justice” that his decision may be unenforceable. Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960). When an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator’s “improvident, even silly, factfinding” does not provide a basis for a reviewing court to refuse to enforce the award. Misco, 484 U.S., at 39.
​

That is amazingly -- outrageously -- restrictive.

You can say all you want about ****dell's flagrant unfairness and bias -- all the leaks, all the nonsense in the Wells report, the awfulness of not letting Brady see and challenge testimony, and so on -- but, so long as there is no evidence that he was pocketing money from one side to come up with a ruling in their interests ("dishonesty" doesn't just mean being a mendacious weasel) it looks like SCOTUS would uphold him.

Don't get me wrong. I hope that Berman finds a way round this. But my head says it will be very, very hard.

Click to expand...

Dishonesty has been alleged, however. Very clearly. Several times.

TommyD4207 said:

Dishonesty has been alleged, however. Very clearly. Several times.

Click to expand...

And the commish has the nerve to say that Tom was "not credible".

Mike the Brit said:

I think Garvey is going to be VERY hard for Kessler to overcome.

Although Wallach is a lawyer and I'm not, I have read the SC decision and it is pretty stark.

The case of Garvey that led the appellate court to overturn was not just one where the arbitrator refused to credit the later testimony of the former owner of the baseball team when it contradicted earlier testimony. He refused to credit it after having chaired a panel that decided that the earlier testimony was not credible. It was that that the appellate court described as "inexplicable" and "bordering on the irrational" ('in the court’s view, the arbitrator’s refusal to credit Smith’s letter was “inexplicable” and “border[ed] on the irrational,” because a panel of arbitrators, chaired by the arbitrator involved here, had previously concluded that the owners’ prior testimony was false.')

The Supreme Court didn't take issue with that. What it wrote is:

Judicial review of a labor-arbitration decision pursuant to such an agreement is very limited. Courts are not authorized to review the arbitrator’s decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties’ agreement. Paperworkers v. Misco, Inc.,484 U.S. 29, 36 (1987). We recently reiterated that if an “ ‘arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,’ the fact that ‘a court is convinced he committed serious error does not suffice to overturn his decision.’ ” Eastern Associated Coal Corp. v. Mine Workers, 531 U.S. 57, 62 (2000) (quoting Misco, supra, at 38). It is only when the arbitrator strays from interpretation and application of the agreement and effectively “dispense his own brand of industrial justice” that his decision may be unenforceable. Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960). When an arbitrator resolves disputes regarding the application of a contract, and no dishonesty is alleged, the arbitrator’s “improvident, even silly, factfinding” does not provide a basis for a reviewing court to refuse to enforce the award. Misco, 484 U.S., at 39.
​

That is amazingly -- outrageously -- restrictive.

You can say all you want about ****dell's flagrant unfairness and bias -- all the leaks, all the nonsense in the Wells report, the awfulness of not letting Brady see and challenge testimony, and so on -- but, so long as there is no evidence that he was pocketing money from one side to come up with a ruling in their interests ("dishonesty" doesn't just mean being a mendacious weasel) it looks like SCOTUS would uphold him.

Don't get me wrong. I hope that Berman finds a way round this. But my head says it will be very, very hard.

Click to expand...

Mike I appreciate the effort you and Ivanvamp put in to write your posts. No one likes a long post better than me. But you miss, IMHO, a few important points that have already been shown to you. But in the end the key one is this:

In all the cases the NFL provided including Garvey, the case was brought to a truly INDEPENDENT arbiter. Clearly this isn't the case,. And while in the Garvey case in particular, the decision was completely wrongheaded, the procedure was deemed fair. In no way would anyone think that what the NFL did in the Welles Report and the subsequent appeals hearing was even remotely "fair".

But like I said in another thread, I don't think the NFL really cares what Berman says, and I doubt they expect to prevail. The NFL's game at this point is to appeal and keep on appealing until the public will be so tired of it by the time it ends, they won't care about the results. In the meantime they will still be able to spew their fraudulent narrative (ie ESPN's First Take) with impunity, and literally out shout their critics until they simply give up. I know I'm pretty tired of fighting, and the REAL battle hasn't yet started.

In the end we will likely get our QB back for this season, but we will get no satisfaction as we've seen from ESPN. The ONLY way to actually win this thing is through a defamation suit, where the enormity of the NFL's duplicity can be revealed, and the perpetrators of this fraud can be punished, if only financially. Hopefully when Brady realizes that having the suspension vacated will NOT get his reputation back, he will do the right thing, the ONLY thing that will not only save his legacy, but the NFL itself.

We've all seen how berman has hammered the nfl on lack of evidence, improper procedure, and not providing the union with the ability to question pash. He seems like a very fair and honest judge, he has seen how the league has abused chapeter 46, and has witnessed their arrogance in his court. So i can see him doing this....
He finds for brady on something such as not providing pash for questioning, or failure of notice for example. The leauge wants the judge to rule on the basis that the union signed off on chapeter 46, but if the leauge doesn't follow its own rules or the law of the land or shop, than the suspension is invalid. He said as much a week or two ago when he said to the effect that just because something is legal in an agreement, it doesn't make it legal by the law.

Rob0729 said:

Brady is arguing process, not Goodell's decision. There are plenty of arguments that Kessler is making that have real shots at winning, Garvey or no Garvey:

Click to expand...

I agree that this is the issue.

I cheered when Berman said to the NFL counsel that there must be some fairness in the process. The question is: how much? So far as I can see, the Supreme Court allows two interpretations.

One is that it is saying: so long as the arbitrator is not dishonest or violates the process rights of one of the parties, his ruling must be upheld, even if the decision itself is fanciful or silly. That's the way you're reading it.

The other is that, so long as the arbitrator is not dishonest, his ruling must be upheld. Which is the pessimistic view.

(And "dishonest" -- though I'm not a lawyer -- is, I think, very narrowly defined in terms of selling his verdict for a material consideration).

If Berman takes the first view, then he will have to articulate what those process rights are. The fact that no one has cited cases where those rights have been spelled out previously (except negatively -- Brady does not have a right of "due process") makes me pessimistic.

I agree that lawyers who know what they are talking about take a different view, but no one has spelled out why Garvey isn't relevant (I don't count the tweets by Wallach). And, of course, Munson is a hack and a shill with zero credibility, but the Harvard guy, Carfagna, seems to know what he is talking about and to recognize that Brady has been railroaded.

patfanken said:

Mike I appreciate the effort you and Ivanvamp put in to write your posts. No one likes a long post better than me. But you miss, IMHO, a few important points that have already been shown to you. But in the end the key one is this:


But like I said in another thread, I don't think the NFL really cares what Berman says, and I doubt they expect to prevail. The NFL's game at this point is to appeal and keep on appealing until the public will be so tired of it by the time it ends, they won't care about the results. In the meantime they will still be able to spew their fraudulent narrative (ie ESPN's First Take) with impunity, and literally out shout their critics until they simply give up. I know I'm pretty tired of fighting, and the REAL battle hasn't yet started.

In the end we will likely get our QB back for this season, but we will get no satisfaction as we've seen from ESPN. The ONLY way to actually win this thing is through a defamation suit, where the enormity of the NFL's duplicity can be revealed, and the perpetrators of this fraud can be punished, if only financially. Hopefully when Brady realizes that having the suspension vacated will NOT get his reputation back, he will do the right thing, the ONLY thing that will not only save his legacy, but the NFL itself.

Click to expand...

Dragging this out will only hurt the reputation of the NFL, I don't think the majority of owners would want that. Its bad for business. And just because BSPN is a mouth piece for the NFL doesn't mean other entities like NBC or CBS will be frightened off. I'd like to see Brady file a defamation suit, but Goody and his cronies will screw up again, its in their DNA. Eventually they'll screw up to many times and the facade will crumble exposing the inner workings of goody, his crew, and the owners behind him. (They wouldn't want that embarrassment.) Once that happens Brady will be exonerated.

Mike the Brit said:

It is only when the arbitrator strays from interpretation and application of the agreement and effectively “dispense his own brand of industrial justice” that his decision may be unenforceable.

Click to expand...

These are some of the places where Goodell screwed the pooch.

1. The Wells Report and the Discipline was based on a portion of the CBA that does not apply to players but only too owners, managers and coaches. Because only owners, managers and coaches receive hand books that deal with integrity of the game rules.

2. Severity of the punishment, previous punishment for non cooperation was 50,000k fine for refusing to turn over phone and NFL has not issued any new updates to change this. Also never a suspension for noncooperation.

3. No notice of any punishment for being Generally Aware of someone else braking a rule.

4.No notice of any punishment for being Generally Aware of anything at any time ever.

5. CBA has specific punishment for equipment violations. But Goodell refused to punish based on those criteria and made up his own from integrity of the game manual which is only given to owners, managers and coaches BUT NOT TO PLAYERS.

6. I am sure i am missing some but you get the idea. THE ABOVE ARE ABOUT PROCESS AND FAIRNESS NOT ABOUT FACTS..... GARVEY DOES NOT APPLY.

Mike the Brit said:

I agree that this is the issue.

I cheered when Berman said to the NFL counsel that there must be some fairness in the process. The question is: how much? So far as I can see, the Supreme Court allows two interpretations.

One is that it is saying: so long as the arbitrator is not dishonest or violates the process rights of one of the parties, his ruling must be upheld, even if the decision itself is fanciful or silly. That's the way you're reading it.

The other is that, so long as the arbitrator is not dishonest, his ruling must be upheld. Which is the pessimistic view.

(And "dishonest" -- though I'm not a lawyer -- is, I think, very narrowly defined in terms of selling his verdict for a material consideration).

If Berman takes the first view, then he will have to articulate what those process rights are. The fact that no one has cited cases where those rights have been spelled out previously (except negatively -- Brady does not have a right of "due process") makes me pessimistic.

I agree that lawyers who know what they are talking about take a different view, but no one has spelled out why Garvey isn't relevant (I don't count the tweets by Wallach). And, of course, Munson is a hack and a shill with zero credibility, but the Harvard guy, Carfagna, seems to know what he is talking about and to recognize that Brady has been railroaded.

Click to expand...

Is the ability for other, more favored, teams to have a better chance of winning if the Pats are damaged, a material consideration?

Tues. or Wed. This feels a little like waiting for the call from pathology. (I hope you never have to do that)

Whatever happens I would personally like to thank Judge Berman. If nothing else he took the NFL to task on several occasions and at least muddied the waters of defamegate.

He had the unenviable chore of drawing this circus into his courtroom. He is used to dealing with matters of far greater importance and has dealt with this horseshit professionally. He has my respect no matter the outcome.

Mike the Brit said:

I agree that this is the issue.

I cheered when Berman said to the NFL counsel that there must be some fairness in the process. The question is: how much? So far as I can see, the Supreme Court allows two interpretations.

One is that it is saying: so long as the arbitrator is not dishonest or violates the process rights of one of the parties, his ruling must be upheld, even if the decision itself is fanciful or silly. That's the way you're reading it.

The other is that, so long as the arbitrator is not dishonest, his ruling must be upheld. Which is the pessimistic view.

(And "dishonest" -- though I'm not a lawyer -- is, I think, very narrowly defined in terms of selling his verdict for a material consideration).

If Berman takes the first view, then he will have to articulate what those process rights are. The fact that no one has cited cases where those rights have been spelled out previously (except negatively -- Brady does not have a right of "due process") makes me pessimistic.

I agree that lawyers who know what they are talking about take a different view, but no one has spelled out why Garvey isn't relevant (I don't count the tweets by Wallach). And, of course, Munson is a hack and a shill with zero credibility, but the Harvard guy, Carfagna, seems to know what he is talking about and to recognize that Brady has been railroaded.

Click to expand...

Stephanie Stradley‏@StephStradley
This http://www.stradleylaw.com/deflategate-legal-judge-berman-speaks/… MT @Bergy4Selke Hearing about Garvey as NFL basis why they will win v Brady...thoughts?

• When Judge Berman ordered all proceedings be made public record, he essentially gave the public an idea of how the NFL makes a sausage.
• His ridicule of the NFL arbitration process since the early part of August gave the public an idea of his leaning.
• His ruling in the next 48 hours will give the NFL Management Council an idea of how he views Article 46.

Brady wins easily, the NFL has a major rebuilding process to address!

So lot's of back and forth here and everywhere else about what will happen to Brady. Here's my prediction based on what I've read and my interpretation of the law (disclaimer - I'm not a lawyer):

Judge Berman will craft his decision on two counts:

1. Lack of notice - He will cite that the CBA has specific language regarding equipment violations and that trumps the vague language of Paragraph 46. That there was no notice in advance that Brady could be suspended for an equipment violation. He may also cite the cell phone issue as lack of notice, since Wells stated as such in the appeal hearing.

2. Massive procedural violations - He will cite Brady not getting a fair shake and fair access to information that the NFL had. I.E. being able to interview Pash, reviewing the Wells report notes, and Goodell moving the yardstick during the appeal.

Finally, I think he will offer up as his own personal thoughts a scathing rebuke about the NFL, wasting the courts time and their internal processes not being held to a particularly high standard of integrity.

That may be me just being a homer, but after looking over both court sessions, the documents submitted by the NFL and NFLPA and the specific reasons upon which an arbitration award can be vacated, I'm seeing 3 of the 4 reasons covered in the argument the NFLPA put forth to vacate.

Everyone who is citing this one case, Gavin or whatever, is missing the fact that procedure was followed, even though the arbitrator came to a ludicrous decision. Procedure was thrown out the door here. Think of it this way, the arbitration award still has to meet the standards of law. People saying Paragraph 46 gives Goodell free reign to do whatever he wants under integrity of the game are being somewhat ******ed. That's like saying Goodell can order Brady executed by firing squad for an integrity violation and, hey too bad, Brady agreed to it in the CBA.

I expect the worst. It's been that kind of offseason. NOTHING HAS GONE THE PAT'S WAY.

DefenseRules said:

I expect the worst. It's been that kind of offseason. NOTHING HAS GONE THE PAT'S WAY.

Click to expand...

I don't understand this thinking. There was no way it would in the NFL's court.

cscirpoli....good write up. It's hard not to hope for the best and have a similar conclusion as you have.

I'm hoping for best. But you scenario is definitely not the likeliest. Hope you're right

In the words of a wise man.... "hope for the best, but plan for the worst"

My prediction is there will be an enormous thread here and I'll be spending a lot of time reading it.

Hoodie said:

Tues. or Wed. This feels a little like waiting for the call from pathology. (I hope you never have to do that)

Click to expand...

It's not quite that bad, Hoodie--but yes, I'm ready for this process to wrap up.