NFL Appeal oral arguments thread

sb1 said:

On the cell phone issue:

Judge Parker: "An adjudicator could simply not believe all of that."
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Kessler: "But in any event, let me go back to the law, because I think that's important. That's really what we're arguing. I'm not arguing the facts if it had not been raised..."


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After reading that, it seems Kessler didn't really lose his cool after all as the twitter-bites suggested he did.

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Is the rest of the transcript available? That gives a whole different context to some of the tweets from yesterday....

Patsfanin Philly said:

Is the rest of the transcript available? That gives a whole different context to some of the tweets from yesterday....

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I'd be interested too. I think in the Second Circuit only the audio transcript is available by CD and someone with a CD will have to transcribe...obviously that has already started. I'm sure it will be out there soon.

sb1 said:

I'd be interested too. I think in the Second Circuit only the audio transcript is available by CD and someone with a CD will have to transcribe...obviously that has already started. I'm sure it will be out there soon.

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Based on the snippet you posted, it appears not that they ignored the IDL but that it was agreed that it wouldn't be discussed (procedure not merits) and Kessler raised it only because it serves to disprove faulty assumptions which it appeared the judges were accepting as facts. When Kessler raised it, Katzmann stepped in to stop it but Kessler deftly explained why he brought it up...

letekro said:

Maybe not, but this is an aggressive tone for an appellate lawyer. The judges probably are not used to it and didn't appreciate it too much. Obviously, they have their own views on the law, which will become clear in their opinion(s); this hearing was about informing themselves of some of the background facts that might color their analysis.

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Parker won't decide against Brady based on Kessler offending him in court. He will, along with chin and katzmann, decide the case on the law as presented in the briefs primarily. It's not Brady's fault that Kessler snapped (or appeared to).

TommyBrady12 said:

Parker won't decide against Brady based on Kessler offending him in court. He will, along with chin and katzmann, decide the case on the law as presented in the briefs primarily. It's not Brady's fault that Kessler snapped (or appeared to).

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Judges are human, they are influenced by the presentation as much as the law and facts. This is why people like Clement and Boies and Olson make tens of millions of dollars per year. I'm not saying it will be a deciding factor, it is just generally a bad thing for an appellate lawyer to be aggressive with the panel.

It seems like the judge gave Kessler a perfect opportunity to remind the judges that they don't know why Goodell/NFL did what they did because they were not allowed to testify at the arbitration. Instead, Kessler goes down a road that he knew was off limits. I am sure he knows better than I, but as soon as I read the judge's question my reaction was "How the hell can Kessler know the answer to that question, Goodell never testified".

TomPatriot said:

I am a baffled at the direction the Court has taken here. Sometimes the Court just asks questions to ask them and they have nothing to do with the decision. Sometimes a hot bench means you are going to lose but not always.

Are they really going to reverse on the cell phone issue? There's nothing in the CBA or anywhere else requiring a union member to turn over his private cell phone to his employer. It seems to me that would set an extraordinary labor law precedent - with no basis. Wow.

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Berman was something of a pleasant surprise. He seemed genuinely interested in getting this right.

Frankly, Parker and Chin sound like the goofs I was expecting (and what the NFL was probably expecting) when I heard the case was venued in NY.

My initial reaction to the NY venue was "we're boned." Then we get the Berman decision and I felt happy to be wrong. Based on what I heard about yesterday, I may have been right after all.

OK. If you hear the recording the point about "'compelling if not overwhelming' evidence of ball tampering" comes out very different that it seems when written. Based on his speech and voice he is saying there is compelling evidence but there is NOT overwhelming evidence. This is something you have to hear to understand what he meant.

Secondly, the judges brought up the issue of how the NFL can punish based on something that happened after the initial punishment when going after the NFL . They may have given Brady's side a hard time on the phone but based on the discussions with the NFL, this is a moot point.

I am still not worried about this. I would have preferred that they stop after the NFL went and blasted them for wasting the taxpayers $ with this crap but that was not going to happen.

I didn't think the judges would care about the phone... When the NFL suspended Brady, they knew he had refused to turn over his phone and didn't consider this obstruction. Only AFTER the science of the Wells Report fell apart did the phone become the "smoking gun." The destruction of the phone did not impede the investigation at all. At most the refusal to hand it over was the obstruction. But that argument fails too because Brady was under no contractual or legal obligation to turn it over, and the investigator concluded that Brady was "cooperative" in spite of his refusal.

I can understand why the action of destroying your cellphone might scream guilt to some, but as far as evidence goes it's a red herring and these judges should know that.

I wonder if there are any Jets flags/banners in any of their chambers...

Patsfanin Philly said:

I thought about NOT posting it but my post was pretty benign compared to those pro and con re specific candidate) and my intent was to be more informative than political...
That being said, you can't really discuss Federal judges while ignoring that politics does play a role.
They are almost always nominated by a President who shares their political views ( and same party likely) unless there is some horsetrading ( we'll take two of this party if you accept 2 of this party to get them confirmed) and sometimes nominations are held up in the Senate for personal reasons...as a Senator wants a separate issue addressed....

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I understand the process of how Supreme Court Justice's are appointed and confirmed. I was responding to seiglo in post #503.

That being said we are some time away from a decision and if Berman is reversed an even longer time before this would reach the SCOTUS. Although I agree politics can't really be ignored, we're still discussing hypothetical situations.

letekro said:

Judges are human, they are influenced by the presentation as much as the law and facts. This is why people like Clement and Boies and Olson make tens of millions of dollars per year. I'm not saying it will be a deciding factor, it is just generally a bad thing for an appellate lawyer to be aggressive with the panel.

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Agreed - it's not a good thing, but Parker has been an appeals judge for years. He knows not to make a decision based on his feelings.

OhExaulted1 said:

I understand the process of how Supreme Court Justice's are appointed and confirmed. I was responding to seiglo in post #503.

That being said we are some time away from a decision and if Berman is reversed an even longer time before this would reach the SCOTUS. Although I agree politics can't really be ignored, we're still discussing hypothetical situations.

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Sorry if this is a super dumb question (I know nothing about law): So Brady can appeal the appeal?

Don yee is the one at major fault here. He was the one who told Brady that it was ok to destroy the phone. He should have known.

dannydyn said:

Sorry if this is a super dumb question (I know nothing about law): So Brady can appeal the appeal?

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Yes, he can appeal before all 20 2d circuit judges (unlikely they would accept the case) or he could appeal to the Supreme Court (also unlikely to take it).

TommyBrady12 said:

Yes, he can appeal before all 20 2d circuit judges (unlikely they would accept the case) or he could appeal to the Supreme Court (also unlikely to take it).

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Thank you

I thought Daniel Wallach said he would make the transcript available some time today, I'm swamped with work but if someone finds it can you link it?

I read the exchange again between Kessler and the judges and I just noticed this:

"I think he was out to protect the record of what he did in paying that $3 million study without ever collecting the data so we don't know as we're sitting here if the balls were deflated by anyone or they were deflated by weather."

Is Kessler talking about the PSI measurements? If so did he just accuse the NFL in a federal appeals court of not collecting the data at all?

Does he have some "inside" information on this? Hmm....

dannydyn said:

Thank you

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I didn't know he could appeal to all 20 2nd district judges as an option myself. This case has gotten so big the media needed to get OJ back in the news. Next up some Lindbergh baby DNA testing. After that we'll find out Pontius Pilate wasn't properly vetted and Jesus' case should have been declared a mistrial.

Fascinating point from Doug Kyed.
He notes that the NFL explicitly mis-characterized Brady's response during the appeal.

When asked during the investigation, as noted in the Wells report, why he spoke with Jastremski for 11 minutes the day after the Deflategate issue, Brady said: we were talking about the deflated balls. What happened?

In the Berman appeal documents, and in appellate court yesterday, the NFL claimed Brady was covering up the issue, because he denied talking about deflated balls. Brady must have been lying - of course he would have been discussing deflated balls.

Kyed references those portions of the documents.
So the NFL simply changed the content of Brady's testimony, and then claimed the changed testimony must be lies, hence Brady is lying.
NFL Lawyer Reportedly Lied To Judges About Tom Brady’s Honesty In Appeal

Pretty brazen stuff.
We will see if this works.