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

Ivan said:

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.

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From one person in over his head to another, I agree with you FWIW.

The "own brand of industrial justice" finding seems to rely on demonstrating that the Arbiter did not act in accord with "the essence" of the bargaining agreement. To my non-Lawyer way of thinking that means the Arbiter has to act honestly, since the CBA relies on mutual truthfulness at its core.

Unfortunately, Garvey sets the precedent that the facts can be wrong and the Arbiter can even be misinterpreting the Agreement (in this case the "Notice" provision), but that the Arbiter's decision will still stand. That's what Chin and Parker found.

So, it seems to me, that Olson would need to show that Goodell and the League were acting disingenuously and therefore in violation of the essence of the agreement. I know we all believe that they were, but making that stick in open Court will not be easy. But, if anyone can do it, it's Ted Olson.

robertweathers said:

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

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I agree that that comment was insanely stupid. But given what they were ruling on, it was also irrelevant. He could have said, "The moon is made of cheese" and it would have had the same relevance. That was one thing that was so frustrating about this - that the actual facts of the case were not up for debate. The 2COA basically said that Goodell could totally make stuff up and issue a crazy, insane penalty, but as long as he was following the CBA, it's all cool.

PatsFanSince74 said:

From one person in over his head to another, I agree with you FWIW.

The "own brand of industrial justice" finding seems to rely on demonstrating that the Arbiter did not act in accord with "the essence" of the bargaining agreement. To my non-Lawyer way of thinking that means the Arbiter has to act honestly, since the CBA relies on mutual truthfulness at its core.

Unfortunately, Garvey sets the precedent that the facts can be wrong and the Arbiter can even be misinterpreting the Agreement (in this case the "Notice" provision), but that the Arbiter's decision will still stand. That's what Chin and Parker found.

So, it seems to me, that Olson would need to show that Goodell and the League were acting disingenuously and therefore in violation of the essence of the agreement. I know we all believe that they were, but making that stick in open Court will not be easy. But, if anyone can do it, it's Ted Olson.

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If Olson is allowed to do that, then I think it won't be very difficult at all. The question is whether he's allowed to make that argument. The evidence is pretty compelling that Goodell and the league were acting disingenuously.

Galeb said:

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.

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What sort of "political favors" could the NFL possibly provide to sitting Federal Appeals Judges?

How could the NFL enhance their "influence" in any way?

They are already lifetime tenured judges, appointed by the President of the United States and confirmed by the US Senate to a Court one level below the Supreme Court, with the direct support of their home state Senators. CA2 is the second most prestigious Appeals Court in the US, second only to CA1 (DC).

Anybody in the legal or political power structure will return their calls promptly and listen to what they have to say.

These guys don't need favors or influence. Anybody dumb enough to even hint to one of them concerning a quid pro quo of any sort in return for a favorable Decision would get a visit from a Federal Prosecutor within a few hours.

Parker is too old to be considered for the Supreme Court and Chin has appeared on nobody's short list for a seat on the Court in either this or the prior administration. He's not viewed as SCOTUS material.

ivanvamp said:

...The 2COA basically said that Goodell could totally make stuff up and issue a crazy, insane penalty, but as long as he was following the CBA, it's all cool.

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Basically, yes. Garvey says that Goodell could have been given the wrong data and issue "a crazy, insane penalty" based not only on that data but a misinterpretation of the CBA (in this case the Notice provision)...as long as he was acting in accord with the "essence of" the CBA.

But, Goodell could not "make up" the data or be part of a pattern of deception or lies that led to his ruling since that would not be consistent with "the essence" of the CBA, which relies on mutuality and truthfulness.

That's why Berman used the language from the SCOTUS ruling in Garvey and the Steelworkers case: "his own brand of industrial justice," which suggests that the Arbiter was not acting in accord with the essence of the CBA. Kessler never touched on that argument, though it was there to be made once Chin opened the door with his question.

ivanvamp said:

If Olson is allowed to do that, then I think it won't be very difficult at all. The question is whether he's allowed to make that argument. The evidence is pretty compelling that Goodell and the league were acting disingenuously.

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Well, the evidence is compelling to you and to me, but convincing others might not be as easy.

PatsFanSince74 said:

Well, the evidence is compelling to you and to me, but convincing others might not be as easy.

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Compelling, if not overwhelming.

PatsFanSince74 said:

Well, the evidence is compelling to you and to me, but convincing others might not be as easy.

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Of course. But Olson could lay out a very, very strong case, if given the chance.

It would be a hell of a lot easier if, say, this were really on trial and Goodell and the NFL's records were subpoenaed. I'd love to know the conversations Goodell had with Wells, for example.

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.

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I've been saying that since day 1. They should have fought tooth and nail to keep this out of NY. Jets/Giants country with a long, proud tradition of government corruption that's second to none (outside of Chicago or DC, perhaps).

PatsFanSince74 said:

What sort of "political favors" could the NFL possibly provide to sitting Federal Appeals Judges?

How could the NFL enhance their "influence" in any way?

They are already lifetime tenured judges, appointed by the President of the United States and confirmed by the US Senate to a Court one level below the Supreme Court, with the direct support of their home state Senators. CA2 is the second most prestigious Appeals Court in the US, second only to CA1 (DC).

Anybody in the legal or political power structure will return their calls promptly and listen to what they have to say.

These guys don't need favors or influence. Anybody dumb enough to even hint to one of them concerning a quid pro quo of any sort in return for a favorable Decision would get a visit from a Federal Prosecutor within a few hours.

Parker is too old to be considered for the Supreme Court and Chin has appeared on nobody's short list for a seat on the Court in either this or the prior administration. He's not viewed as SCOTUS material.

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I think you're being a bit of an idealist. I've witnessed first hand in NY practice how the lawyers who play golf with the judge can achieve "interesting" results.

PatsFanSince74 said:

From one person in over his head to another, I agree with you FWIW.

The "own brand of industrial justice" finding seems to rely on demonstrating that the Arbiter did not act in accord with "the essence" of the bargaining agreement. To my non-Lawyer way of thinking that means the Arbiter has to act honestly, since the CBA relies on mutual truthfulness at its core.

Unfortunately, Garvey sets the precedent that the facts can be wrong and the Arbiter can even be misinterpreting the Agreement (in this case the "Notice" provision), but that the Arbiter's decision will still stand. That's what Chin and Parker found.

So, it seems to me, that Olson would need to show that Goodell and the League were acting disingenuously and therefore in violation of the essence of the agreement. I know we all believe that they were, but making that stick in open Court will not be easy. But, if anyone can do it, it's Ted Olson.

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I agree, however in this case I think proving they acted disingenuously will be pretty easy to prove as they have the transcripts of the Goodell hearing and those prove that Goodell lied about Brady's testimony. Additionally the findings of the Wells Report differ substantially from the claims made by the league to the courts in subsequent filings. I agree completely however that Brady has a big hurdle to get over if the court sees Garvey the way Chin and Parker did.

Question I've raised before about Brady's potential suspension:
Is it already stayed until the appeals process is exhausted or does the NFLPA have to formally request a stay?
Just academically curious. Does anyone know?

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.

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They wanted it in NY because otherwise the NFLPA would have filed in CA8 where the NFL gets their asses handed to them on a regular basis.

As much as I hate the NFL, I do not believe they engaged in the federal crime of bribing a judge, nor do I believe that *2* federal judges engaged in the federal crime of taking a bribe.

YOUGOTMOSSED said:

I've been saying that since day 1. They should have fought tooth and nail to keep this out of NY. Jets/Giants country with a long, proud tradition of government corruption that's second to none (outside of Chicago or DC, perhaps).

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What exactly should they have done? They filed in CA8, and the judge over there said they had to go to CA2 since CA2 was filed first.

XLIX said:

What exactly should they have done? They filed in CA8, and the judge over there said they had to go to CA2 since CA2 was filed first.

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I keep asking the question: why not MA federal court?

I haven't researched the "first to file rule" but it was my understanding that if each side filed in different venues on the same day, then a balancing test would apply. MA has much more connection to the suit then Minnesota. Brady lives there. The events giving rise to the action took place in MA. Minnesota has nothing but a friendly judge in Doty making its choice flagrant forum shopping. NY is simply where the NFL corporate offices are located. I think MA wins if the issue was pressed.

Am I wrong?

YOUGOTMOSSED said:

I think you're being a bit of an idealist. I've witnessed first hand in NY practice how the lawyers who play golf with the judge can achieve "interesting" results.

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At what level? In what context?

The Federal Appeals Court is the very top of the Judicial food chain, one notch below the Supreme Court of the US and one notch above the US District Court for the Southern District of New York, where Berman sits.

But in NYC alone, there is a wide range of many, many courts from the Supreme Court (Civil and Criminal) through Civil Courts (Housing and Small Claims) through Criminal, Family and Surrogates courts. There are also multiple Claims, Commercial and other courts.

In the NYC metropolitan area there are multiple District, Family, Surrogate and City Courts, among others.

So, it's possible and even likely that "relationships matter" in some of those areas, further down the food chain.

But if you are charging that what you are describing happens at the Federal Appeals Court level, with a circumscribed universe of just 22 Judges, all appointed by the President and confirmed by the Senate, well, that's a very, very serious charge that you should be able to substantiate before you make it. In other words, if you really do know about ex parte contact between an attorney and one of those 22 judges regarding a matter before his/her court, then, if you are an Officer of the Court, you have an obligation to report it.

So, I repeat my question: In what context? At what level?

YOUGOTMOSSED said:

I think you're being a bit of an idealist. I've witnessed first hand in NY practice how the lawyers who play golf with the judge can achieve "interesting" results.

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Couldn't disagree more, PF74 and Quantum Mechanic have been more accurate and educational than pretty much any other posters in this forum throughout this matter.*

* with apologies to a number of posters, especially the ones who did exceptional work on the physics.

YOUGOTMOSSED said:

I keep asking the question: why not MA federal court?

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Massachusetts federal court was just as much of an unknown as NY. There would have be no gain by filing in Massachusetts. There may be a "home field advantage" for a jury trial, but not one with a federal judge.

YOUGOTMOSSED said:

I haven't researched the "first to file rule" but it was my understanding that if each side filed in different venues on the same day, then a balancing test would apply. MA has much more connection to the suit then Minnesota. Brady lives there. The events giving rise to the action took place in MA. Minnesota has nothing but a friendly judge in Doty making its choice flagrant forum shopping. NY is simply where the NFL corporate offices are located. I think MA wins if the issue was pressed.

Am I wrong?

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I really have no idea how a MA federal judge would have ruled regarding "first to file."

XLIX said:

They wanted it in NY because otherwise the NFLPA would have filed in CA8 where the NFL gets their asses handed to them on a regular basis.

As much as I hate the NFL, I do not believe they engaged in the federal crime of bribing a judge, nor do I believe that *2* federal judges engaged in the federal crime of taking a bribe.

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Lied to them repeatedly, yes, bribed them, no.

Ivan said:

Lied to them repeatedly, yes, bribed them, no.

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Agreed.