Great Article By Hurley On SCOTUS Cases

Glad someone isnt spewing mindless opinions to get attention and actually doing research and focused on informing people who need help like me

Like how he slams that smarmy Globe elitist Gasper.

Let’s take a closer look at some of the cases heard by the Supreme Court in recent years to get an answer.

2015 term: DIRECTV, Inc. v. Imburgia

Here, the Supreme Court voted to overturn a California state court’s decision regarding an arbitration agreement between satellite TV provider DirectTV and its customers. The ruling “serves notice that efforts by courts to circumvent arbitration agreements will not be tolerated.”

Hey, that sounds vaguely familiar, doesn’t it?

Justice Ruth Bader Ginsburg, who will be the one who decides whether Brady and the NFLPA’s case is worthy of Supreme Court consideration, dissented with the Court’s opinion, writing, “This Court has again expanded the scope of the FAA, further degrading the rights of consumers and further insulating already powerful economic entities from liability for unlawful acts.”

Hmm … “insulating already powerful economic entities from liability for unlawful acts.” Interesting.

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Supreme Court's History Shows Tom Brady's DeflateGate Fight Has A Chance

Thanks. That's a very well researched article...looks like it could have been researched by a Law Clerk.

Hurley is either a very conscientious reporter or he's made very good use of his summer Intern.

PatsFanSince74 said:

Thanks. That's a very well researched article...looks like it could have been researched by a Law Clerk.

Hurley is either a very conscientious reporter or he's made very good use of his summer Intern.

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Hes been on the radio a few times. Hes pretty thoughtful.

Good piece, thanks for posting. There's really a few things wrong with the viewpoint of the Gaspers, NFL Network, whatever. Do they all suppose that the lower courts are OK with trivial things? The Supreme Court is just that, a court.

But the bigger issue is where these people decide to draw the line: they're OK with the billion dollar corporation using the courts and pursuing this as far as it can. But when the persecuted individual exercises his rights to fight back, that's inappropriate? Then it should stop? Makes my damn blood boil.

Appreciate that. Very informative

aluminum seats said:

Good piece, thanks for posting. There's really a few things wrong with the viewpoint of the Gaspers, NFL Network, whatever. Do they all suppose that the lower courts are OK with trivial things? The Supreme Court is just that, a court.

But the bigger issue is where these people decide to draw the line: they're OK with the billion dollar corporation using the courts and pursuing this as far as it can. But when the persecuted individual exercises his rights to fight back, that's inappropriate? Then it should stop? Makes my damn blood boil.

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AS, just remember that all Gaspar and his ilk care about and more importantly can accomplish with their meager talent, knowledge, and work ethic, is how to spin this in a way that pisses off the local fans. They all want what Felger and Shank have; so much easier for these lazy turds than the honest approach of a Curren or Reiss. They don't deserve your attention, don't indulge them.

aluminum seats said:

Good piece, thanks for posting. There's really a few things wrong with the viewpoint of the Gaspers, NFL Network, whatever. Do they all suppose that the lower courts are OK with trivial things? The Supreme Court is just that, a court.

But the bigger issue is where these people decide to draw the line: they're OK with the billion dollar corporation using the courts and pursuing this as far as it can. But when the persecuted individual exercises his rights to fight back, that's inappropriate? Then it should stop? Makes my damn blood boil.

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You're right. In addition, Brady's case is essentially about the rights of Labor.

Unfortunately, against the advice of Jeffrey Kessler and others, the NFLPA agreed to a Contract that ceded to Management one of Labor's most valued rights, in this case, the right to have an independent and fair-minded Arbiter mediate substantial disputes.

Goodell's ruling flies in the face not only of the facts and fundamental fairness, but also in the face of the processes set down by the CBA itself.

However, courts grant arbiters leeway in breaking rules of process during arbitration, as long as they are not perceived as violating the essence of the CBA by dispensing their "own brand of industrial justice," the SC Standard that dates back to the 60's as grounds for voiding an arbiter's ruling. That is why Judge Berman chose those words in his ruling; he was saying that Goodell's lack of fundamental fairness violated the essence of the CBA and voided his ruling.

However the burden of proving that Goodell was indeed "dispensing his own brand of industrial justice," falls on the plaintiff. Berman and Katzmann clearly thought that the NFLPA and Brady had proven such; Parker and Chin did not. The majority of the active judges on CA2 did not think that the case warranted their hearing it en banc, suggesting that they did not see sufficient grounds to consider that Goodell had violated the essence of the CBA, even if he was wrong both in process (as Olson points out in his Brief) as well as on the facts (as Olson and the Amicus Briefs observe).

Now, it's going to be very tough for the US Supreme Court, which reviews hundreds of cases every year, to take on a case that the majority of the active judges on one of its two most prestigious Circuit Courts did not think warranted a hearing by the full Court.

If the court's Liberal Wing (Breyer, Ginsburg, Kagan and Sotomayor) thinks that there is enough at stake for Labor, then there is a chance. But, it's probably a long shot.

As I said in a post earlier this week, if I were Brady, I'd listen to Olson and only Olson as to what my next step should be.

Very good and informative article, thank you for posting.

That said, I find that first court case (DIRECTV, Inc. v. Imburgia) to be potential bad news here. Yes, each case is different and I certainly did not read up on the facts. But my concern is that it was an arbitration case, the ultimate ruling was not to disturb the arbitrator's decision, and it was a 6-3 ruling (with Ginsberg, Sotomayor, and *Clarence Thomas* dissenting while Breyer [who wrote the majority opinion] and Kagan joined the majority). The Court itself may still choose to review Brady's case, but one of the requirements for a stay is a "fair prospect" that a majority of the Court will conclude upon review that the decision below on the merits was erroneous. A benchmark using this case would be 3-5 against, which certainly isn't a fair prospect when he needs to go 5-3.

Another thorn from the article is that Justice Sotomayor recuses herself from many CA2 cases due to her past work there. That would be more bad news if that first case is a benchmark - Brady would now be down 2-5.

Sorry for my pessimism.

Would there be any logic in Brady not asking for a stay, taking the 4 games hence avoiding a scenario where a denial would push the suspension to a really bad time...and yet continuing to fight this in SCOTUS?

sb1 said:

Would there be any logic in Brady not asking for a stay, taking the 4 games hence avoiding a scenario where a denial would push the suspension to a really bad time...and yet continuing to fight this in SCOTUS?

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Absolutely. Brady would explain himself taking one for the team but still fighting for the greater good. In my opinion it wouldn't change SCOTUS' opinion on whether to take the case, but I could be wrong.

thanks for posting this. the Direct TV case doesn't help us, unfortunately. Ginsburg may have dissented, but it was a 6-3 ruling in favor of management. Breyer and Kagan voted with Alito, Roberts, Kennedy and Scalia. Thomas and sotomoyor dissented along with RBG.

Ginsburg has the power to issue a stay, but she may look at this and say "my colleagues aren't going to want to hear this in light of the Direct TV case" and simply deny the application.

aluminum seats said:

Good piece, thanks for posting. There's really a few things wrong with the viewpoint of the Gaspers, NFL Network, whatever. Do they all suppose that the lower courts are OK with trivial things? The Supreme Court is just that, a court.

But the bigger issue is where these people decide to draw the line: they're OK with the billion dollar corporation using the courts and pursuing this as far as it can. But when the persecuted individual exercises his rights to fight back, that's inappropriate? Then it should stop? Makes my damn blood boil.

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It's funny that they can argue that Brady shouldn't fight this because what he's accused of is trivial, but none of them ever thought to make that argument when the league was spending millions on their frame job and handing out one of the stiffest penalties in league history. It's backwards thinking.

The league needs to do right and get rid of the suspension. With all what's going on in the world Roger should think "is this really something I should be fighting right now?" There's people trying to make ends meet who work 60hrs a week and can't get anything better than a Pidgey and we're talking about PSI?

Hammer of Thor said:

Very good and informative article, thank you for posting.

That said, I find that first court case (DIRECTV, Inc. v. Imburgia) to be potential bad news here. Yes, each case is different and I certainly did not read up on the facts. But my concern is that it was an arbitration case, the ultimate ruling was not to disturb the arbitrator's decision, and it was a 6-3 ruling (with Ginsberg, Sotomayor, and *Clarence Thomas* dissenting while Breyer [who wrote the majority opinion] and Kagan joined the majority). The Court itself may still choose to review Brady's case, but one of the requirements for a stay is a "fair prospect" that a majority of the Court will conclude upon review that the decision below on the merits was erroneous. A benchmark using this case would be 3-5 against, which certainly isn't a fair prospect when he needs to go 5-3.

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That case was purely one of state law versus federal law. The USSC ruled in that case that the Federal Arbitration Law trumps State of California Arbitration Law. It had nothing to do with arbitrators being unfair or failing to honor the essence of the agreement or anything like that, so it really wouldn't apply here.

sb1 said:

Would there be any logic in Brady not asking for a stay, taking the 4 games hence avoiding a scenario where a denial would push the suspension to a really bad time...and yet continuing to fight this in SCOTUS?

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This came up in another thread yesterday.
My argument against it was that the Justices would probably be inclined to look at that scenario as Brady being unwilling to keep his skin in the game by risking a Suspension at a more inconvenient time; I doubt they'd be sympathetic to the view that "he was anticipating losing, so he took the suspension at a time when it would hurt his team the least." I'd imagine the Justices looking at a large pile of Cases where people had left all their skin in the game and being disinclined to vote to take a case where the major plaintiff could be perceived as trying to "game the system."

It is a good article because it strikes down something that has been a pet peeve of mine over the past few months when Brady-haters discuss the possibility of this going to the Supreme Court. Not every case is landmark and ground breaking.

Anna Nicole Smith was once heard by the US Supreme Court, so it isn't all Brown v. Board of Education up on high.

PatsFanSince74 said:

This came up in another thread yesterday.
My argument against it was that the Justices would probably be inclined to look at that scenario as Brady being unwilling to keep his skin in the game by risking a Suspension at a more inconvenient time; I doubt they'd be sympathetic to the view that "he was anticipating losing, so he took the suspension at a time when it would hurt his team the least." I'd imagine the Justices looking at a large pile of Cases where people had left all their skin in the game and being disinclined to vote to take a case where the major plaintiff could be perceived as trying to "game the system."

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This honestly depends on if you think Olson is legit or if he is full of it. Since Olson came on board, the overwhelming theme of this case is that the ramifications reach far and wide; this is about much more than a mere football suspension. He got the AFL-CIO on his side and Ken Feinberg as well.

If the Justices accept that this is about much more than football, then the Justices should indeed ignore the fact that Brady served his time (if that is the strategy that Brady takes).

Not getting the stay sounds ridiculous. That's not taking one for the team. Quite the opposite.

PatsFanSince74 said:

This came up in another thread yesterday.
My argument against it was that the Justices would probably be inclined to look at that scenario as Brady being unwilling to keep his skin in the game by risking a Suspension at a more inconvenient time; I doubt they'd be sympathetic to the view that "he was anticipating losing, so he took the suspension at a time when it would hurt his team the least." I'd imagine the Justices looking at a large pile of Cases where people had left all their skin in the game and being disinclined to vote to take a case where the major plaintiff could be perceived as trying to "game the system."

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Can an appellate court dismiss the case as moot because the aggrieved party is no longer injured? If so, that's exactly what clement will say in a motion if brady serves the suspension.

TommyBrady12 said:

Can an appellate court dismiss the case as moot because the aggrieved party is no longer injured?

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Brady suffers a lot more injury than the suspension - this whole affair has likely reduced his future earning power from endorsements and commercials by tens of millions of dollars. So it would not be moot.