8/14: NFLPA's latest submission is in

[SVN]

http://www.csnne.com/new-england-patriots/kessler-comes-out-swinging-against-goodell-filing

Kessler’s tone in the 15-page submissionfrom Friday ranges from outraged to disgusted to bemused. That Berman could view the tone of the summation as counterproductive to settlement talks (Berman spoke Wednesday of not wanting anyone to “poison the well” in court with harsh statements) is certainly possible. To be honest, I don’t know if strident wording like this is standard practice which Berman will merely shrug off.

“The NFL tries to obscure the Commissioner’s disregard for the Player Policies by citing his finding that Brady “[had] ample reason to expect that a violation of that rule ... would be deemed conduct detrimental,” he writes. “But even accepting this premise, Brady having notice that an infraction “would be deemed conduct detrimental” does not give notice about the potential penalty of a four-game suspension when the Player Policies expressly provide that for equipment violations affecting the “integrity of the competition,” “First offenses will result in fines.”

 

[Deus Irae]

"God is dead." - Nietsche, 1883
"Nietsche is dead." - God, 1900

"Screw both of them. I'm in charge" - Goodell, 2015

 

[ctpatsfan77]

Pretty sure the Fifth Amendment protects individuals from being forced to incriminate themselves. Then add in the fact that the nfl* doesn't have warrant/subpoena power.

The question is whether or not an investigation of this sort rises to that level (since neither police nor a court were involved at that point).

 

[Hoodie]

http://www.csnne.com/new-england-patriots/kessler-comes-out-swinging-against-goodell-filing

Hoping Judge Berman feels the same way.

 

[BradyFTW!]

Pretty sure the Fifth Amendment protects individuals from being forced to incriminate themselves. Then add in the fact that the nfl* doesn't have warrant/subpoena power.

Doesn't the bill of rights only apply to protections against government action? If the fifth amendment allowed you to dodge self-incrimination in civil matters, I don't think the concept of spoliation of evidence would even need to exist.

In much the same way that the first amendment doesn't mean you can say whatever you want and never be fired, I don't think the fifth amendment means you can destroy whatever evidence you want in a civil case. Could be miles off, though, I'm nothing even vaguely resembling a lawyer.

And I don't mean for any of the above to suggest that Brady's guilty. Still pretty sure he's innocent, and that the NFL's argument will fail for various other reasons.

 

[goheels22002]

Owners are supposedly already pissed off that this is still going on and completely overshadowing the preseason . You really think they would let Goodell appeal the ruling of a federal judge on this right as the regular season starts and cause this to get even crazier?

It's possible. The probable loss of authority by the Commissioner to penalize players for whatever he wants, whenever he wants, gives rise to a revised CBA that swings back in the direction of players' rights to due process, and greater claims to benefits and compensation. This is a a seminal case for what lies ahead.

 

[Hoodie]

More from McCann.

http://www.si.com/nfl/2015/08/14/tom-brady-filing-roger-goodell-deflategate-federal-case-analysis

In a seething memorandum filed to U.S. District Judge Richard Berman Friday night, attorneys for Brady ridiculed Goodell as incompetent and dishonest. They also expanded earlier arguments that the NFL’s procedure for reviewing Brady’s alleged involvement in a purported ball deflation scheme in the 2015 AFC Championship Game between the New England Patriots and the IndianapolisColts violated federal law.

 

[JMC00]

The question is whether or not an investigation of this sort rises to that level (since neither police nor a court were involved at that point).

Doesn't the bill of rights only apply to protections against government action? If the fifth amendment allowed you to dodge self-incrimination in civil matters, I don't think the concept of spoliation of evidence would even need to exist.

In much the same way that the first amendment doesn't mean you can say whatever you want and never be fired, I don't think the fifth amendment means you can destroy whatever evidence you want in a civil case. Could be miles off, though, I'm nothing even vaguely resembling a lawyer.

And I don't mean for any of the above to suggest that Brady's guilty. Still pretty sure he's innocent, and that the NFL's argument will fail for various other reasons.

The Fifth Amendment privilege can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory. The protection extends equally to civil proceedings because the nature of the protection goes to the questions asked, not the proceeding itself.

 

[TheBostonStraggler]

Doesn't the bill of rights only apply to protections against government action? If the fifth amendment allowed you to dodge self-incrimination in civil matters, I don't think the concept of spoliation of evidence would even need to exist.

In much the same way that the first amendment doesn't mean you can say whatever you want and never be fired, I don't think the fifth amendment means you can destroy whatever evidence you want in a civil case. Could be miles off, though, I'm nothing even vaguely resembling a lawyer.

And I don't mean for any of the above to suggest that Brady's guilty. Still pretty sure he's innocent, and that the NFL's argument will fail for various other reasons.

I heard a lawyer talking about that very item regarding another subject (unrelated to football or the NFL - it was a college campus matter). This lawyer said the amendment applies to even to authoritative proceedings but to a lesser degree. And if the matter then ends up in court, most judges apply the amendment to a certain degree whenever possible.

How correct this lawyer was/is?? I don't know....

 

[BradyFTW!]

I heard a lawyer talking about that very item regarding another subject (unrelated to football or the NFL - it was a college campus matter). This lawyer said the amendment applies to even to authoritative proceedings but to a lesser degree. And if the matter then ends up in court, most judges apply the amendment to a certain degree whenever possible.

How correct this lawyer was/is?? I don't know....

Well damn, today I learned something.

 

[fnordcircle]

Gotta be honest, I'm beginning to think that Goodell isn't the best commissioner.

 

[Joker]

heh...what gave him away??? was it "Domo Arigato, Mr. Roboto" blasting away in the background of Goody's press conference?

 

[Fencer]

The NFL response is clearly laying the groundwork to appeal Judge Berman's ruling. Whether the owners wish to continue this case is going to be the main event. My guess is that they will. The last thing they want is for the union to diminish the power of the Commissioner and for Bob Kraft to have the opportunity to appeal, in court, the fine and loss of draft picks. You may very well be correct.

It could be even simpler than that.

As long as there's a threat of an appeal, Brady has an incentive to settle, even if he's already won in Berman's court.

Even if he settles just for a bit of money paid, the NFL saves some face.

 

[VectorPrime]

Except its clear that the NFL doesn't want to settle since they are demanding Brady capitulate entirely to the Wells Report before they'll even consider it.

 

[pherein]

More Simmons (again, from the bottom up):

Bill Simmons ‏@BillSimmons 1h1 hour ago
This Bountygate piece from 3 years ago by @stephstradley is a fascinating re-read. http://www.stradleylaw.com/saints-bountygate-litigation-the-death-reason/…

Bill Simmons ‏@BillSimmons 2h2 hours ago
If it was raining on me right now, and the NFL told me it was raining on me... part of me would wonder if it was raining.

Bill Simmons ‏@BillSimmons 2h2 hours ago
Last point - after the last few years of Goodell, it's amazing to me that anyone believes the NFL on anything. Literally, on anything.

If only the fans listened then, there were some here, we were alone, treated like ........ in every forum, we couldnt change a thing and no one listened, and its to late, our team was wasted. Its to late for us. but we learned alot being a naive.... its been so bad for our team. What they said never happend.
We dont wish that on anyone especially a good man like Brady, BB and the fans NE.
Its simple Goodell is a narcissistic corperatate nothinging loser with a small pr...k, excuse my language, but hes just a jerk and worked for them many times. Same loser CEO's that believe their smart and destroy good companies. Hes a loser and the owners dont see it because hes so busy sucking their ... for acceptance. I only wish that we could be hit again by Goodell instead of NE, and that NE fans could enjoy their SB win as fans, you deserve that, not this nonsence.

 

[TommyD4207]

The NFL response is clearly laying the groundwork to appeal Judge Berman's ruling. Whether the owners wish to continue this case is going to be the main event. My guess is that they will. The last thing they want is for the union to diminish the power of the Commissioner and for Bob Kraft to have the opportunity to appeal, in court, the fine and loss of draft picks. You may very well be correct.

I wouldn't be so sure. 0-for-5 in court (and soon to be 0-for-6 when he loses the Peterson appeal), doesn't engender much confidence with the owners.

These guys might not do much more than count their money, but nor do they typically lose court cases, and they're usually not embarrassed by the judges when they do so.

Considering this court case is the highest-profile of the five? Rooney and Mara will be at 345 Park Ave the next day saying, "That's enough, Roger".

Not only that, the longer this goes on, the better chance for a defamation suit coming at the NFL from Brady. I think that's still a remote possibility, but it's a possibility that becomes a little more likely every day. There are some things in the NFL's most recent filings that could be classified as straight-up libel.

 

[TommyD4207]

Pretty sure the Fifth Amendment protects individuals from being forced to incriminate themselves. Then add in the fact that the nfl* doesn't have warrant/subpoena power.

The 5th Amendment protects individuals from actually incriminating themselves. There were never any criminal charges at stake here (At least we don't think so. Considering the NFL's filing tonight, I suppose that's a possibility too).

Just like the 4th Amendment doesn't apply, because it's protection against illegal search and seizure from the government or its agents.

Although the spirit of them are the same in civil cases too, I imagine. Brady was obligated to testify and answer questions, but he's certainly not obligated to do Jeff Pash's job for him. That's something that's sadly gotten lost in all this.

 

[TommyD4207]

It could be even simpler than that.

As long as there's a threat of an appeal, Brady has an incentive to settle, even if he's already won in Berman's court.

Even if he settles just for a bit of money paid, the NFL saves some face.

The downside for the NFL there, is that if Brady wins and the appeal is vacated, there's not a court in the country that won't give him an injunction to continue playing while that appeal is heard. And THAT puppy could go on for years. Especially in the 2nd circuit.

Brady could legit be retired by then. And there would be no incentive for Brady to settle even previous to that.

 

[RelocatedPatFan]

The NFL position distilled:

Are you sure that's it and not (it's got that feeling of a watershed moment):

 

[DarrylS]

McCann's take on all of this is interesting, he labels it as an "incendiery" response..

http://www.si.com/nfl/2015/08/14/tom-brady-filing-roger-goodell-deflategate-federal-case-analysis

There comes a point in any litigation when there is no turning back, when no settlement can be reached. It’s the moment when both sides are resigned to taking their chances with the judge or jury. Until then, they often wage all-out war. If Tom Brady and Roger Goodell fail to reach a settlement in their case, Friday will probably be remembered as the day when the point of no return was crossed and when the gloves truly came off.

In a seething memorandum filed to U.S. District Judge Richard Berman Friday night, attorneys for Brady ridiculed Goodell as incompetent and dishonest.