Tom Brady, NFLPA Granted 14-Day Extension To File Motion For Rehearing By Second Circuit Court

XLIX · May 16, 2016

PatsFanSince74 said:
2) It will also be helpful, should this case ever get to SCOTUS, if the case is not heard until after HRC has a chance to appoint another liberal justice sympathetic to Labor to the Court.

Sympathies to management or labor do not apply here. The question, as you have pointed out, is one of arbitrator displaying a manifest disregard for the law and drawing a decision from the essence of the CBA.

This case could just as easily been from an industry where management was looking to overturn a arbitration ruling based on the same reasoning.

PatsFanSince74 · May 16, 2016

VectorPrime said:
Just thinking about this whole situation makes me want to scream into the void. Its just so goddamned stupid.

I remember being so optimistic last spring before the Wells Report came out that the "worst case scenario" was that the NFL would levy a fine on Brady for a lack of cooperation, and even that possibility pissed me off. And then we finally get vindication via Judge Berman seemingly putting this whole mess to bed but NOOOO the NFL cannot let this go and we got royally f.ucked by two judges, one who somehow believed that the NFL's made up evidence was actually convincing and another who has their anti-labor bias so ingrained that he got moist just thinking about Article 46 being shoved up his ass.

I'm honestly not sure which judge I think is worse, Chin who somehow believed that the NFL's evidence was conclusive enough that Goodell's use or misuse of his authority was irrelevant or Parker who didn't give a f.uck about the evidence and just firmly believes that an employer can have absolute say over literally anything involving their employees no matter how flimsy the argument. I guess Chin is more stupid and Parker is more immoral?

Chin opened the door to an argument on Brady's innocence by suggesting that it looked like he might be guilty, but Kessler didn't go down that road, as Sally Jenkins has pointed out. I have taken the view all along that Chin, whose background is in Labor Law, was opening the door for Kessler to argue that the League had misrepresented the facts and had been acting in a disingenuous manner all along. He's an Appellate Judge, so he's not going to come right out and ask the question in that way ("Gee, Mr. Kessler do you think the NFL has been making stuff up as it goes along?"), but he opened the door for Kessler to go down that road. Instead, Kessler threw up all over himself.

In the end, both Chin and Parker found along the lines of Garvey, viz., that the Arbiter has very broad authority under the CBA; specifically, they found that Notice is broadly defined in the CBA. Kessler did nothing to take the discussion in another direction by arguing that Goodell and the NFL had acted in a manner contrary to the "essence" of the CBA.

It's no accident that Ted Olson was brought in.

VectorPrime · May 16, 2016

No offense but I really hope you're wrong and that Chin was going to rule this way no matter what. Because the alternative makes me feel way worse. If I were Brady I'd never be able to forgive Kessler for f.ucking up so badly.

The Brandon Five · May 16, 2016

PatsFanSince74 said:
Chin opened the door to an argument on Brady's innocence by suggesting that it looked like he might be guilty, but Kessler didn't go down that road, as Sally Jenkins has pointed out. I have taken the view all along that Chin, whose background is in Labor Law, was opening the door for Kessler to argue that the League had misrepresented the facts and had been acting in a disingenuous manner all along. He's an Appellate Judge, so he's not going to come right out and ask the question in that way ("Gee, Mr. Kessler do you think the NFL has been making stuff up as it goes along?"), but he opened the door for Kessler to go down that road. Instead, Kessler threw up all over himself.

In the end, both Chin and Parker found along the lines of Garvey, viz., that the Arbiter has very broad authority under the CBA; specifically, they found that Notice is broadly defined in the CBA. Kessler did nothing to take the discussion in another direction by arguing that Goodell and the NFL had acted in a manner contrary to the "essence" of the CBA.

It's no accident that Ted Olson was brought in.

Kessler's ego might prove pretty costly to the NFLPA and (more importantly) the GOAT.

Rusty Griswold · May 16, 2016

parker and chin were clearly paid off. kessler never had a chance. he wasn't even allowed to speak.

goodell appealed on the basis of his absolute powers, but the narrative needs to get back to the idea he is ruling on a fraud report that was not independent.

it is just that simple.

goodell always wanted it to be about absolute powers, so he he can escape the criminal wells report.

it will be up to olson to shift it back to the wells report and bury goodell for good.

goodell somehow managed to escape lying about ray rice, but he will not escape this.

VectorPrime · May 16, 2016

No Parker and Chin were not paid off.

TheBostonStraggler · May 17, 2016

XLIX said:
Sympathies to management or labor do not apply here. The question, as you have pointed out, is one of arbitrator displaying a manifest disregard for the law and drawing a decision from the essence of the CBA.

This case could just as easily been from an industry where management was looking to overturn a arbitration ruling based on the same reasoning.

Well said. While many will see this in context of the political side they belong to, this is just as you described it. The question should absolutely include fairness of the process. Regardless if you love all unions or think unions are not good for business, outside of the rabid there are few that find fundamental unfairness by a powerful business or a powerful union to be acceptable.
Can a person provided the power of deciding guilt and punishment within private disputes just make up anything at all as they go? If so then to put it plainly the law surrounding the case sucks the big one.

Lastly and given law seems to sometimes have gray area I am a bit perplexed by Brady's high priced lawyer. If the mantra is to win it then I'd expect the kitchen sink to be thrown in(within reason). Either he was directed 'not to go there', was over confident in the appeal's case or maybe he is a bit too tunnel vision with law book edition 11 to remember there are other editions.

VectorPrime · May 17, 2016

Kessler clearly didn't expect the judges to be so hostile. He likely expected the whole appeal to be a rubber stamp of Berman's decision. Which, to be fair to him, it should have been. But the fact that he was completely unprepared to deal with anything unexpected speaks volumes.

BradyFTW! · May 17, 2016

VectorPrime said:
Kessler clearly didn't expect the judges to be so hostile. He likely expected the whole appeal to be a rubber stamp of Berman's decision. Which, to be fair to him, it should have been. But the fact that he was completely unprepared to deal with anything unexpected speaks volumes.

Yeah, he gets paid too much to be unprepared for any remotely foreseeable development.

Galeb · May 17, 2016

YOUGOTMOSSED said:
I'm still gobsmacked that two morons in CA2 bought the NFL's argument.

I think you have it backwards.. Whether through cash, influence, deals or favors, I believe the NFL got to the judges. This is why they wanted it in NY.

BTTA · May 17, 2016

Rusty Griswold said:
parker and chin were clearly paid off.

Galeb said:
I think you have it backwards.. Whether through cash, influence, deals or favors, I believe the NFL got to the judges. This is why they wanted it in NY.

I'm curious how many of us on this board share the underlying belief here, that it is common for judges in high level courts to be paid off or accept inappropriate influence. I don't, for one, and I'm interested how many do/don't.

RobertWeathers · May 17, 2016

betterthanthealternative said:
I'm curious how many of us on this board share the underlying belief here, that it is common for judges in high level courts to be paid off or accept inappropriate influence. I don't, for one, and I'm interested how many do/don't.

Federal judges have accepted bribes in the past but I don't think they have in this case.

I just think Chin and Parker are lazy and don't give a ****.

PatsFanSince74 · May 17, 2016

VectorPrime said:
Kessler clearly didn't expect the judges to be so hostile. He likely expected the whole appeal to be a rubber stamp of Berman's decision. Which, to be fair to him, it should have been. But the fact that he was completely unprepared to deal with anything unexpected speaks volumes.

They weren't "hostile," they were acting like Federal Appeals Court Judges. These people are one step below the Supreme Court. They are direct, confrontational and don't feel that they have to worry about being polite. That's why there is a whole class of lawyers, Appellate Lawyers, who only argue Federal Appeals cases. If Kessler was expecting anything else, he was wrong. If you want "hostile," read an old transcript of SCOTUS questioning when Roberts, Scalia, Ginsberg and Alito got going on some poor lawyer.

You can read Chin's questions in two ways. One, the prevailing view on this Board, was that he was saying he had prejudged Brady. The other, more likely, is that he was trying to tease out the whole question of fairness of process and giving Kessler an opportunity to address it. Remember, Chin was a Labor Lawyer. He was hired and mentored by an icon among Labor Lawyers, the late Judith Vladeck (Google her). As I said above, he wasn't going to throw Kessler a puff ball and ask something like "Gee, Mr. Kessler, do you really think the NFL was just making stuff up as they went along in order to get Brady?" No, instead he threw a high hard fastball...the kind the good Appellate Lawyers know how to hit out of the ballpark by turning it back on itself.

Parker is a political hack, mentored in his early days by a notorious hack. He was a lost cause from the beginning and just trying to impress Clement. He would not have dared to speak to Olson in the way he spoke to Kessler.

PatsFanSince74 · May 17, 2016

betterthanthealternative said:
I'm curious how many of us on this board share the underlying belief here, that it is common for judges in high level courts to be paid off or accept inappropriate influence. I don't, for one, and I'm interested how many do/don't.

I think it's not uncommon for judges to act irrationally and even crazy after years of deferential treatment in a lifetime job where everyone who comes before them is a supplicant who really, really, really wants them to agree with them.

But, I think that very few of them are corrupt in the sense of taking bribes. Not because they're saints, but because they all have to file financial disclosure forms under pain of perjury and there are too many watchdog groups that would be able to establish patterns of behavior that suggest corruption and because a lot of 15 year olds can hack bank records these days...even if they take cash, they'd have to stash it somewhere.

signbabybrady · May 17, 2016

betterthanthealternative said:
I'm curious how many of us on this board share the underlying belief here, that it is common for judges in high level courts to be paid off or accept inappropriate influence. I don't, for one, and I'm interested how many do/don't.

It's more probable than not that he was generally aware of its possibility.

ivanvamp · May 17, 2016

robertweathers said:
Federal judges have accepted bribes in the past but I don't think they have in this case.

I just think Chin and Parker are lazy and don't give a ****.

I am not a lawyer, and certainly don't know nearly as much as a federal appeals judge. But it seems to me that the issue at hand - whether Goodall acted in a way consistent with the CBA - is very much up in the air, and an argument can be made for both perspectives. As a Patriots fan, of course I'm outraged, but really I'm outraged at the entire thing, from the moment the Ravens told the Colts to look out for deflated footballs (because Harbaugh was butthurt at Brady's comments about knowing the rules) to the present.

I don't think you have to be lazy or not give a crap in order to think that article 46 of the CBA allows Goodell to do what he did.

Ivan · May 17, 2016

PatsFanSince74 said:
[Apologies for the length of this Post]

I begin by admitting that I am in way over my head here and ask someone with knowledge of Appellate Law and who is familiar with Supreme Court decisions to correct me where I need correction. If someone is just going to say that “the Garvey ruling sucks,” well, that’s not helpful since I already agree with that.

In the Case of the Major League Baseball Players Association vs. Garvey (532 US 504 2001), the Supreme Court of the US, regarding a Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit (No. 00-1201 Decided May 14, 2001), overturned CA9’s ruling that the District Court remand the Case to arbitration with instructions to enter an award for Garvey. SCOTUS held that “Judicial review of a laborarbitration decision pursuant to a collective-bargaining agreement is very limited. Courts are not authorized to review an arbitrator's decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement [my emphasis]… Only when the arbitrator effectively dispenses his own brand of industrial justice [my emphasis] may his decision be unenforceable. Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, 597.”

Three observations before I move on to the Steelworkers Case:

One. Yes, that means that Goodell, as Arbiter, can uphold a decision that is based on bad science because, in Garvey, the Supreme Court found that the facts are more or less irrelevant in “a laborarbitration decision pursuant to a collective bargaining agreement” as long as the Arbiter's ruling "draws its essence" from the relevant CBA (see Steelworkers below).

Two. Yes, it means that the debate over Notice could be construed as not definitive because the Arbiter’s decision is allowed to “[misinterpret] the parties agreement” and still be regarded as valid. That’s almost unfathomable to me and leaves me, as it did another poster, “gobsmacked,” but it is what SCOTUS held. CA2 found that the language of the CBA is so broad as to allow for multiple interpretations of what “notice” has been provided in the CBA.

Three. I’m amazed that more people haven’t pointed out that Judge Berman chose the key words in his finding based on these two cases; “his own brand of industrial justice” has roots that are over 50 years old for SCOTUS. I’m sure it’s been discussed by the experts, but I’m afraid I’ve missed it. Most people have treated it like a clever turn of phrase by Judge Richard M. Berman!

In the case to which Judge Berman was making reference and to which SCOTUS refers above (United Steelworkers of America v. Enterprise Wheel & Car Corp, 363 US 593, Certiorari to the United States Court of Appeals for the Fourth Circuit, Decided June 20, 1960) SCOTUS held (363 US 597) that “When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem.….Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice [my emphasis]…his award is legitimate only so long as it draws its essence from the collective bargaining agreement [my emphasis]. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award. [my emphasis]”

So, I imagine that Olson might argue that Goodell as Arbiter has relied on and indeed been complicit in a pattern of deception that “manifest an infidelity to…[his] obligation” and that therefore his ruling fails to “…[draw} its essence from the collective bargaining agreement.”

That’s a very serious charge to make and make stick in open Court, but the Ted Olson who took no prisoners in arguing Bush v. Gore is the kind of guy to do so.

So, if this should ever get to SCOTUS, will the Court find that Garvey is definitive and “factual errors or [misinterpretations]” should be effectively disregarded or will the Court find that Judge Berman was correct in determining that Commissioner Goodell had indeed dispensed “his own brand of industrial justice” by his actions and thus demonstrated “infidelity to [his] obligation?”

I have no idea how that will play out, but I do know two things:

1) It will be very helpful if CA8 finds for Peterson and there are two conflicting rulings from two different Circuits. That would increase the likelihood of SCOTUS taking the Case (yes, that means I don’t think that the NFLPA has much of a chance of winning an en banc proceeding in CA2).

2) It will also be helpful, should this case ever get to SCOTUS, if the case is not heard until after HRC has a chance to appoint another liberal justice sympathetic to Labor to the Court.

If your in " way over your head " them I'm drowning, and agree that Berman's language regarding Goodell " dispensing his own brand of industrial justice " is directly related to the Harvest decision, which, as you noted gives great deference to arbitrators decisions on collectively bargained agreements. I do think however that Goodell did just that I'm terms of dispensing his own kind of "industrial justice" as his actions in the Brady case were unprecedented and fundamentally dishonest. and would argue that he effectively ignored the CBA by not acting as a fair arbitor, distorting the facts of the case, handing down punishment inconistent with prior sanctions for the same violation, and ignoring rules of notice that are laws of shop in collectively bargained agreements.

I'm clearly not a lawyer so my apologies if this isn't written in the proper legalese but yes I do think Berman had it right and should have been upheld. Then again I do agree that the Garvey ruling is outrageous in and of itself and undermines what I see as the need need for any arbitration award to be based in fundamental fairness as dictated by the facts of the case.

RobertWeathers · May 17, 2016

ivanvamp said:
I am not a lawyer, and certainly don't know nearly as much as a federal appeals judge. But it seems to me that the issue at hand - whether Goodall acted in a way consistent with the CBA - is very much up in the air, and an argument can be made for both perspectives. As a Patriots fan, of course I'm outraged, but really I'm outraged at the entire thing, from the moment the Ravens told the Colts to look out for deflated footballs (because Harbaugh was butthurt at Brady's comments about knowing the rules) to the present.

I don't think you have to be lazy or not give a crap in order to think that article 46 of the CBA allows Goodell to do what he did.

All true but for Chin to say that the evidence was compelling was absurd. He was not informed enough to make a well-thought out rational decision. If he had left that remark out I would at least believe that their opinion was based on Article 46 and the stupidity of the NFLPA to allow such a thing to happen

Galeb · May 17, 2016

PatsFanSince74 said:
I think it's not uncommon for judges to act irrationally and even crazy after years of deferential treatment in a lifetime job where everyone who comes before them is a supplicant who really, really, really wants them to agree with them.

But, I think that very few of them are corrupt in the sense of taking bribes. Not because they're saints, but because they all have to file financial disclosure forms under pain of perjury and there are too many watchdog groups that would be able to establish patterns of behavior that suggest corruption and because a lot of 15 year olds can hack bank records these days...even if they take cash, they'd have to stash it somewhere.

I doubt it was cash in this particular case. The NFL wanted it in NY. I suspect influence, political favors or some other means was used instead of cash. If they were just gonna use cash, there would be much need to preemtively file in NY.

Jackson 2 · May 17, 2016

betterthanthealternative said:
I'm curious how many of us on this board share the underlying belief here, that it is common for judges in high level courts to be paid off or accept inappropriate influence. I don't, for one, and I'm interested how many do/don't.

I don't believe it is common. I also don't believe it has never happened, either. With that said, I don't believe that happened in this case. There wasn't much that stunned me during that hearing, except for Chin's observation, and I'm paraphrasing here, that the evidence that someone was responsible for the deflated the footballs (read:Brady and friends) was compelling. My immediate response was to think that Chin was either engaging in a judicial form of trolling or he was woefully ill-prepared in terms of reading the prior evidence. I still don't know which was the case. But, I do believe that these judges are human and, despite genuine attempts to be impartial and open-minded, they may be fans, and they watch TV and read newspapers and, yes, maybe even listen to sports talk radio. Despite every human effort, I think they're very likely influenced, at least subliminally, by those types of external factors. Obviously, I believe Chin and Parker got it wrong, but I'm just not sure precisely why.

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