9/11 Victim Compensation Fund Special Master files pro-NFLPA/Brady Amicus

The Brandon Five said:

Obviously it was "the texts! what about the texts?!" ....derp, derp.

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Always ask the derpers, yes, what about them?

1. May 9th - McNally (4:39:40pm): Nice dude....jimmy needs some kicks....lets make a deal.....come on help the deflator

Six months later...

2. Oct 17th, 2014 - Jastremski (9:08:07am): I checked some of the balls this morn... The refs ****ed us...a few of then were at almost 16

If text #1 is "proof" of a scheme to deflate footballs because McNally referred to himself as "the deflator" then why in text #2 six months later is McNally complaining about the refs screwing them with footballs that were inflated too high?

It appears to my uneducated eye that the defense of "Deflate Gate" has been, possibly , set up to go SCOTUS, as it will affect millions of Blue Collar workers not just an isolated case (cases) in the NFL*.
I'm not saying from the beginning, but it has evolved so to speak. This is an enormous case.
BTW Chin and Parker have followed the money. jmo.

Always thought Brady's guys messed up appeal were completely caught off guard. Hope this isn't too much effort put in way too late.

IcyPatriot said:

Obvious to me their aids did all the work and they were Patriot haters ...

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I hadn't even considered that. The first plausible factor besides corrupt judges that's been brought up here. It's still a form of corruption, but not of the judges themselves.

Ivan said:

So now Brady has the nation's top constitutional lawyer, top scientists, and top arbitrator all weighing in on his side, and the nation's largest union asking for a new hearing because of the negative impact the ruling will have on their 12 million members.

Brady is going to win this when all is said and done.

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I would suggest it's very likely he still loses.

When I first commented on Olson's brief, I observed that it was noteworthy for the clarity of its language. Olson explains in plain, simple English what Brady and the NFLPA are arguing. Kessler was unable to do so at the hearing when pressed by Chin and Parker; in fact, he grew agitated and mumbled and then more or less insulted the judges.

This Amicus brief states the case again in eighth grade terms:

"The selection of a non-neutral arbitrator does not vitiate the requirement that the arbitrator act impartially and in a manner consistent with the collective desires of both parties. Notwithstanding that directive, the Commissioner impermissibly exceeded the scope of his authority, then created new substantive and procedural rights not contemplated by the CBA, to effectuate his “own brand of industrial 3 Case 15-2801, Document 287, 05/31/2016, 1783019, Page7 of 15 justice.” Stolt-Nielsen, 559 U.S. at 671 (citation omitted). He reshaped the parties’ bargain to favor the NFL. This violates the most basic tenet of arbitration: the arbitrator’s authority is derivative of and subordinate to the contract. See id. at 683- 84; Alexander v. Gardner-Denver Co., 415 U.S. 36, 53 (1974)."

That is so ****ing clear. It's like listening to Olson speak.

Regarding Chin and Parker at the original Appeal.

Parker is a political hack and was probably star struck having Clement in his courtroom.

Chin, on the other hand, has been a Labor Lawyer all his life and was mentored by one of the icons of Labor Law, the late Judith Vladeck. He was a very good lawyer and is a very good judge.

I am in a distinct minority out here who reads his questions to Kessler as aggressive (as is the wont of Appellate Judges) and provocative, even offensive, ("overwhelming evidence," etc), but he was actually giving Kessler an opening to say the things that Olson said in two paragraphs in his brief and that has been presented in this Amicus brief. Kessler could have turned the hearing on its ear at that moment, instead he lost his cool and arguably insulted the judges.

All Kessler had to say when Chin went down the "overwhelming evidence" road was something like:

"If it please the court, your Honor, you have hit the nail on the head. What Commissioner Goodell did was to repeatedly change the "evidence" that he was considering in his judgment of Brady. When one set of evidence didn't work out, he would root around and introduce another.

"[then, from the Feinberg brief] The Commissioner impermissibly ...created new substantive and procedural rights not contemplated by the CBA, to effectuate his “own brand of industrial justice... He reshaped the parties’ bargain to favor the NFL. This violates the most basic tenet of arbitration: the arbitrator’s authority is derivative of and subordinate to the contract. ...Thank you very much, your Honor, for the opportunity to address that point."

I don't expect people to agree with me and I don't want to get into another debate over this. 99% of you disagree with me. Fine. I accept that. No need to tell me that again.

But, if you expected Chin to ask a question like "Gee, Mr. Kessler, wasn't the commissioner making up new stuff as he went along," that's a pipe dream. Instead he suggested that there was "overwhelming evidence" against Brady and then sat back and waited to see what Kessler did with it. He threw up all over himself, when he could have made the Olson/Feinberg arguments.

74, I give Feinberg's brief significant weight in their attempt to get a new hearing, hope do you see it?

ViperGTS said:

Well as was discussed in a previous thread a while back the Italian Colors people thought they had a slam dunk at the SC level (which they did) only to find themselves smacked down in favor of big business. So I wouldn't be so confident.

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And yet I am.

Ivan said:

74, I give Feinberg's brief significant weight in their attempt to get a new hearing, hope do you see it?

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I don't know. Appellate Judges have "yuge" egos.

That said, I think the trio of Feinberg, Katzmann and Olson on Brady's side make it difficult for the judges to ignore them.

I'll feel a lot better if/when the Court asks the NFL for a response.

PatsFanSince74 said:

I don't know. Appellate Judges have "yuge" egos.

That said, I think the trio of Feinberg, Katzmann and Olson on Brady's side make it difficult for the judges to ignore them.

I'll feel a lot better if/when the Court asks the NFL for a response.

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I agree on the ego's but I think only Chin and Parker would be butthurt, and if you were right about Chin opening the door for Kessler, and I think you were, then Chin may be disposed to a new hearing. I was happy the AFL-CIO weighed in but Feinberg's brief was the one that I thought carried the most weight of all of them, because if he is saying their decision could seriously damage arbitration as a resolution process them I just don't see how they can ignore it. I also think the ground has shifted on this and they are no longer discussing Goodell's authority but are now focused upon the need for fairness in arbitration as the underpinning to the system, and that bodes well for Brady.

Ivan said:

I agree on the ego's but I think only Chin and Parker would be butthurt, and if you were right about Chin opening the door for Kessler, and I think you were, then Chin may be disposed to a new hearing. I was happy the AFL-CIO weighed in but Feinberg's brief was the one that I thought carried the most weight of all of them, because if he is saying their decision could seriously damage arbitration as a resolution process them I just don't see how they can ignore it. I also think the ground has shifted on this and they are no longer discussing Goodell's authority but are now focused upon the need for fairness in arbitration as the underpinning to the system, and that bodes well for Brady.

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Especially since Feinberg is arguing for a position that would limit his power as an arbitrator, not increase it. He is looking at the totality of arbitration , not just this case...and as someone (?Deus) posted two days ago, this (if ruling stands)will have a paradoxical effect by reducing arbitration as people would be more inclined to sue which is what arbitration was designed to minimize...

turkeyneck said:

Gotta think Chin's feeling a little uncomfortable at this point.

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Yea if this goes down and it's reversed, Chin and Parker are going to look real, real bad.. they obviously can't change their decision or they would look incompetent, but if en banc happens and most of the other judges side with NFLPA then they will still look incompetent.

The only outcome that saves face for them is an NFL victory

JarOfMayo51 said:

Yea if this goes down and it's reversed, Chin and Parker are going to look real, real bad.. they obviously can't change their decision or they would look incompetent, but if en banc happens and most of the other judges side with NFLPA then they will still look incompetent.

The only outcome that saves face for them is an NFL victory

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I'm not sure an NFL* victory is the only way for the judges to save face. As has been alluded to, Chin gave Kessler an opening and he fumbled it.

Why can't Chin ultimately make the point that Kessler failed to make his case, but Olson did?

Ivan said:

I don't see how the court can dismiss this case with the .........................

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Come on Ivan. Remember when you thought Wells and his "integrity" was going to exonerate the Pats and the report simply would show they were railroaded by the Colts and corrupt NFL?

Ivan said:

I agree on the ego's but I think only Chin and Parker would be butthurt, and if you were right about Chin opening the door for Kessler, and I think you were, then Chin may be disposed to a new hearing. I was happy the AFL-CIO weighed in but Feinberg's brief was the one that I thought carried the most weight of all of them, because if he is saying their decision could seriously damage arbitration as a resolution process them I just don't see how they can ignore it. I also think the ground has shifted on this and they are no longer discussing Goodell's authority but are now focused upon the need for fairness in arbitration as the underpinning to the system, and that bodes well for Brady.

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There is a parallel universe, which might or might not alter its course over the next few months and intersect with the universe in which we exist, in which Chin changes his vote. It was Parker who wrote the majority opinion, not Chin.

Raymond said:

Come on Ivan. Remember when you thought Wells and his "integrity" was going to exonerate the Pats and the report simply would show they were railroaded by the Colts and corrupt NFL?

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I haven't forgotten at all. I was of the view that Wells was actually working for all of the owners as they pay the bill for the league office to run. I thought all owners would have access to his work product so they wouldn't be able to hide the findings. I was dead wrong and quantum was right on the money, and I acknowledged that repeatedly. This is an entirely different situation and the landscape has changed radically in terms of what is being appealed. This has moved from an appeal of Brady's punishment and the scope of Goodells authority to what could become a landmark decision on labor law. It's no longer about Article 46 it's now about arbiters having to root their findings in the collectively bargained agreements and the fundamental requirement of arbiters to rule fairly, and to not dispense" their own brand of industrial justice." Which is the phrase Feinberg and Olson's petition keep invoking as it is the standard set by Supreme Court precedent.

Ultimately it appears from a layman's view that they are arguing about two precedents, one is Garvey, which gives wide latitude to arbitrator decisions, and the other is Stolt- Nielsen, which requires arbiters to root their decisions in the collectively bargained agreements, we will see who wins. I like Brady's chances because of the way Olson had constructed his argument ( that an arbiter cannot construct new grounds for sanctions within the appeal) and the support from Feinberg, who is considered the top arbiter in the country and who is telling the court their initial decision would completely undermine the arbitration system.

As for whether I'm right, who knows? I'm just saying what I think.

I was however right that Golden State would come backand win that series,

Yuk, yuk, yuk,.......

Raymond said:

Come on Ivan. Remember when you thought Wells and his "integrity" was going to exonerate the Pats and the report simply would show they were railroaded by the Colts and corrupt NFL?

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Well, you're right in that the history of this Court suggests that it's a very long shot that they will even hear it. Even with Katzmann in dissent and Olson on the brief, I have never given it better than a 50-50 chance out here.

Feinberg's brief was well done and to the point. But, by far, the most critical document with respect to the likelihood of a rehearing is Olson's brief.

In that brief, he laid out two grounds for rehearing. First, the appellate hearing was not an appeal before a neutral arbitrator, but the continuation of a biased investigation. I like this ground, and I think it is the one the Judges will consider. But it is not really different, in substance, from arguments that were made before and considered by the panel, although it is framed differently. On this point, Parker and Chin said:

We see nothing in the CBA that suggests that the Commissioner was barred from concluding, based on information generated during the hearing, that Brady’s conduct was more serious than was initially believed.

They also go on to say that there was enough in the Wells Report about memorabilia-for-deflation and noncooperation that, under the deferential Garvey standard, Goodell could have reached the more severe conclusions he reached in the ruling.

I think the bolded part above can be refuted fairly easily, but I would worry (a lot) about the other judges accepting the second rationale.

The second ground for rehearing is a technical contract interpretation point which I don't believe the judges will find compelling.

letekro said:

I think the bolded part above can be refuted fairly easily, but I would worry (a lot) about the other judges accepting the second rationale.

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That's the thing. It wouldn't shock me if, in en banc review, the judges give the NFLPA, Feinberg, etc. everything it's looking for on this but still uphold Brady's suspension by saying that there was enough in the Wells Report for a fair even if misguided arbitrator to suspend Brady for.