AFL-CIO files amicus brief in support of Tom Brady

Looks compelling, if not overwhelming.

Tony2046 said:

Yes Sah!

Dan Werly‏@WerlySportsLaw
Dan Werly Retweeted Daniel Wallach

Next question: Will the Court order the NFL to respond to Brady's motion for rehearing? All signs point to yes.

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Yes, I can imagine Goodell's response.

I acted fairly and impartially because I said so.

I'm waiting for the Joker brief to be added , that'll be the cherry on top.

XLIX said:

IIRC, he later said he did it because having Vincent make that original decision would have given some ammo to the Brady camp since Vincent is not authorized by the CBA to decide such things.

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That's when Goodell went wishy washy because everyone was pointing out only the commissioner had the right to hand down a decision. Goodell claimed it was his decision and Vincent was just communicating the fact (which we know was a bunch of brontosaurus sized poop and the media was still in their pocket and didn't bother to challenge the fact).

QuantumMechanic said:

I thought this was another nice point by Feinberg:

"If the NFL sought to add a new violation for failure to report wrongdoing, increase the penalty for equipment violations, or being suspending players for obstruction, it would be within its rights to do so. But these changes must come through the bargaining process -- not the arbitration process. The arbitrator, whose authority is derivative of the contract, cannot modify the contract.". (emphasis mine)

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I thought that alone would uphold bermans decision, goody suspended TB for being generally aware then at arbitration he upped it to a scheme, Kessler should have hammered that home. If Ted Olsen gets before CA2, he won't be thrown off guard like Kessler was. If this goes en banc I really like TB'S chances.

DaBruinz said:

Quick question. I noticed this line at the end of the AFL-CIO Amicus Brief..

"The Court should grant the Association’s petition for panel rehearing
or, in the alternative, grant the petition for en banc review."

This raises the question for me. Can the 3 member panel rehear the case? Or does it have to be an en banc review?

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First, I'm pretty sure that CA2 rules state that if you want to potentially avail yourself of both a request for rehearing and a request for en banc review you must ask for both in the same petition. You don't get to ask for rehearing, see if that's accepted or not, then ask for en banc review.

Second, I believe there are thus four outcomes at this point:

1. Panel rehearing denied, en banc review denied
2. Panel rehearing granted, en banc review denied
3. Panel rehearing denied, en banc review granted
4. Panel rehearing granted, en banc review granted

I will bet that in practice (4) never actually happens -- if en banc is granted that supersedes anything the original panel decides to do with the case, so (3) and (4) are functionally identical from the point of view of the litigants.

QuantumMechanic said:

First, I'm pretty sure that CA2 rules state that if you want to potentially avail yourself of both a request for rehearing and a request for en banc review you must ask for both in the same petition. You don't get to ask for rehearing, see if that's accepted or not, then ask for en banc review.

Second, I believe there are thus four outcomes at this point:

1. Panel rehearing denied, en banc review denied
2. Panel rehearing granted, en banc review denied
3. Panel rehearing denied, en banc review granted
4. Panel rehearing granted, en banc review granted

I will bet that in practice (4) never actually happens -- if en banc is granted that supersedes anything the original panel decides to do with the case, so (3) and (4) are functionally identical from the point of view of the litigants.

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so did brady actually request a panel rehearing or just en banc review? i thought it was the latter...

Froob said:

I'm waiting for the Joker brief to be added , that'll be the cherry on top.

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forward to CA2, pronto.

DaBruinz said:

Quick question. I noticed this line at the end of the AFL-CIO Amicus Brief..

"The Court should grant the Association’s petition for panel rehearing
or, in the alternative, grant the petition for en banc review."

This raises the question for me. Can the 3 member panel rehear the case? Or does it have to be an en banc review?

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I believe it can be either, but I don't know how it's decided which it will be. Undate: I think Quantum explains it above.

I don't know how you could possibly ignore all of those briefs and not re-hear it.

I don't mean to be a downer, but didn't you guys hear? Goody isn't really paying attention to deflategate anymore.



Mwahahahhahahahhaaaaaaaaaa!!!!!!!!!!!!!!!!

This is the star power lawyers like Olson bring to bear Imo. They have the connections to bring in players like the AFL-CIO when the outcome bears upon them.

This is an interesting tack because it makes article 46 pale in comparison to the greater issue of the basic nature of the appeals process. If the ruling of CAII stands then any arbitrator can create new grounds for punishment during an appeal, which effectively negates the appeal. They aren't arguing over Goodell's power any more they are arguing about the appellate process itself. That's great news for Brady imo as it reduces Goodell's role to basic standards of fairness and not all powerful creator of life on earth.

TommyBrady12 said:

so did brady actually request a panel rehearing or just en banc review? i thought it was the latter...

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The NFLPA/Brady filing was titled "Petition for panel rehearing and rehearing en banc of appellees National Football League Players Association and Tom Brady".

That sounds like both to me.

Froob said:

I don't know how you could possibly ignore all of those briefs and not re-hear it.

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I don't know how any of us (well, the guys anyway) can possibly read all of those briefs and fail to get an erection lasting longer than 4 yours.

Powerful stuff!

Well it is dragging on for year two and the way it is going, no end in sight.

JPPT1974 said:

Well it is dragging on for year two and the way it is going, no end in sight.

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Good. Let it drag on and on and on. The only person who looks bad as this goes longer is Goodell. I sincerely hope the SCOTUS hears Goodell's appeal (after Brady wind this one) and give him a royal smackdown for everyone in the world to see.

Gumby said:

I think you put too much emphasis on pro-labor vs pro-business. At least 2 of those you thinkof as pro-business are really just literalists/constitutionalists who think you need to follow letter of the law and not try to derive 'intent' or determine inherent 'good' and pull that decision out like a rabbit out of a hat like all four liberals like to do (activist judging). They believe If the letter of the law causes an unjust action that should drive congress or 36 states plus congress to change the law. In this cause i think the letter of the law ALSO SUPPORTS BRADY, so i think your 4-4 theory would also be all wet, if it ever got that far.

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I believe constitutional law is far more complicated than you surmise. How do you "literally" apply letter of the law on issues like abortion, gay marriage, or a whole host of issues that were not around back then, especially after the industrial revolution, and the advances in science of the past 80 years? Intent would be needed to do it and obviously past court rulings. There can always be two sides to every argument.

I dunno what to think about this, I think I'll have to wait for Lester Munson to weigh in.

When an innocent ruling by an Arbitrator would put the Arbitrator's own job in jeopardy with his employers.. there is something inherently very wrong. CBA or no CBA.

This is why I find this amicus point so wonderful and compelling. It speaks directly to the unfairness of Goodell appointing himself Arbitrator in a case that he professionally couldn't afford to see blow up in his face.

The Supreme Court has made clear that "elementary requirements of impartiality taken for granted in every judicial proceeding" are not "suspended when parties agree to resolve a dispute through arbitration."

woolster22 said:

Olson will never pay for a meal or drink in Massachusetts again if he pegs that megalomaniac to his own damn cross.

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Ted Olson is one of those folks who seems like a good guy even when he's on the opposite side from you on important political issues. (I think Orren Hatch is another.)

Of course, Olson generally turned more sympathetic in a hurry when he lost his wife of 9/11 ...