Alan Millstein: Brady's chances of en banc hearing dramatically improved with latest amicus filings

[aluminum seats]

Hope is dead.

Buck up. Nobody knows anything. If this ridiculous spectacle has taught us anything, it's that.

 

[Ring 6]

Another possibility is that they decided to decline the petition and a judge is writing a dissenting opinion. Or maybe they are busy with other work. We simply don't know what they are doing. Usually petitions are declined immediately. So is that a good sign? A bad sign? People have filled the empty space with all sorts of scenarios, but these scenarios are more revealing about the writers' minds than about what CA2 is doing.

Are dissenting opinions written about accepting or rejected en banc?

 

[Mack Herron]

Are dissenting opinions written about accepting or rejected en banc?

I believe if petition is declined. Reasonable chance there is at least one dissenting opinion. Something for SCOTUS to chew on perhaps.

 

[SHOWTIME15]

I believe if petition is declined. Reasonable chance there is at least one dissenting opinion. Something for SCOTUS to chew on perhaps.

Don't count on it. SCOTUS has been turning down more important cases.

 

[sb1]

Don't count on it. SCOTUS has been turning down more important cases.

If the Second Circuit notes in their decision that it only applies to the NFL CBA because it is unique in some way... I think that reduces a SCOTUS possibility to zero.

 

[Ring 6]

I believe if petition is declined. Reasonable chance there is at least one dissenting opinion. Something for SCOTUS to chew on perhaps.

I was under the impression they either decide to hear or decide not to but do not write opinions in either case. I certainly could be wrong.
I don't think how long it takes really tells us anything. Courts move very, very slow. At this point we do not even know if they have read and begun to consider the request.

 

[Ring 6]

If the Second Circuit notes in their decision that it only applies to the NFL CBA because it is unique in some way... I think that reduces a SCOTUS possibility to zero.

Not really, because that may trigger the Supremes to take the case to rule on exactly whether it only applies to the NFL CBA.

 

[Mack Herron]

I was under the impression they either decide to hear or decide not to but do not write opinions in either case. I certainly could be wrong.
I don't think how long it takes really tells us anything. Courts move very, very slow. At this point we do not even know if they have read and begun to consider the request.

Yeah judges can do all sorts of things it turns out. They can even agree to a rehearing without asking the NFL for a response. As you said. nobody knows what they are doing.

 

[Ring 6]

Don't count on it. SCOTUS has been turning down more important cases.

More important in what way?
This one is potentially important in that it impacts arbitration across all arenas of labor.
This one is potentially important because it deals with the rights of all unionized workers in America.
This one is potentially important because it may determine whether arbitration law only applies to an impartial arbiter or whether it is acceptable for unions to be forced to allow management to also be the judge over their own decisions, tilting the fairness of union contract negotiations.
Just because from our perspective its about 4 football games doesn't mean legally that's all it is about.

 

[Ring 6]

Yeah judges can do all sorts of things it turns out. They can even agree to a rehearing without asking the NFL for a response. As you said. nobody knows what they are doing.

Even to the point where we are hinging on what some guy who admits he has no real idea, thinks it smells like.

 

[Mack Herron]

Even to the point where we are hinging on what some guy who admits he has no real idea, thinks it smells like.

Steph has always had a balanced perspective. Basically, let's wait and see.

The 1% number is good because it gives people the greater context. That is not to say that the rehearing chance for THIS CASE is 1%. I wouldn't put it at that because this case is weird. As I said, so much of this case is not like normal cases. The past of this case has not been normal so it would be not reasonable to handicap the future of the case to be like normal ones.

The NFL's position has been flawed from the outset. But that may not be enough. They push the limits of their power beyond rationality because they can and have done that until a court says they can't. And they know that the court, by the nature of arbitration and labor law legal standards is limited to what flawed things they are allowed to examine to overturn things. The fact pattern is tortured and unusual because it is so bizarre.

That is why the Second Circuit majority opinion is so troubling to the entire league. if you can use this freaking bizarre process to one of the best players in the history of the game, you can do this to any player for anything you feel like. As I've noted before, in the argument the NFL made to the Second Circuit panel, they said that theoretically, they could have given Brady a year long suspension. That nothing would have prevented them from doing that.

I wish I could give you a more certain answer but I can't. I don't think it is likely that they grant a rehearing but it would not surprise me because I think 1. It is the best thing to do given the facts and the law; 2. This is a weird case. As to first issue, that is my opinion, but I'm not the relevant decision maker in this.

FAQs: Deflategate Second Circuit Rehearing Request - Stradley Law Firm

 

[ThatllMoveTheChains!!!]

A little light reading while you are waiting:

Pissing on the fans until viewership takes a downturn worked so well for the NBA, so it makes sense the NFL would follow that model

 

[SHOWTIME15]

More important in what way?
This one is potentially important in that it impacts arbitration across all arenas of labor.
This one is potentially important because it deals with the rights of all unionized workers in America.
This one is potentially important because it may determine whether arbitration law only applies to an impartial arbiter or whether it is acceptable for unions to be forced to allow management to also be the judge over their own decisions, tilting the fairness of union contract negotiations.
Just because from our perspective its about 4 football games doesn't mean legally that's all it is about.

they just denied certiorari in a 2nd amendment case. this is just one example.

 

[bbobbo]

Pissing on the fans until viewership takes a downturn worked so well for the NBA, so it makes sense the NFL would follow that model

the only thing i really conclude from this chart is that there was a huge dropoff in viewership after Michael Jordan's second retirement from the Bulls (actually, after his first retirement as well). it basically mirrors my own experience--i paid a lot less attention to the NBA after Jordan retired.

this year's game 7 was the third most-watched NBA game since 1993:

LeBron, Cleveland’s Game 7 Triumph Tops 30 Million Viewers — Sports Media Watch

For the first time in 18 years, more than 30 million viewers tuned into an NBA game.

Game 7 of the Cavaliers/Warriors NBA Finals earned a 15.8 final rating and 31.0 million viewers on ABC Sunday night, up 3% in ratings and 18% in viewership from Spurs/Heat in 2013 (15.3, 26.3M) and up 1% and 10%, respectively, from Celtics/Lakers in 2010 (15.6, 28.2M). Figures do not include WatchESPN (598K) or ESPN Deportes.

The Cavaliers’ championship-clinching win, which peaked at a 22.5 and 44.5 million in the fast-nationals, ranks as the most-watched basketball game (college or pro) since Bulls/Jazz Game 6 in 1998 (22.3, 35.9M). It earned the second-highest rating over that span, behind last year’s Duke/Wisconsin NCAA Tournament national championship (16.0).

Going back further, Sunday’s game ranks as the third-most watched NBA game dating back to 1993 — behind only Bulls/Jazz Game 6 in ’98 and Bulls/Suns Game 6 in 1993 (32.1M). It also earned the top audience for Game 7 of the NBA Finals since at least Pistons/Lakers in 1988 (six telecasts over that span).

Outside of the NFL and the Olympic Games, Sunday’s game delivered the top audience for any sporting event this year, marking the first time since 2002 that an NBA game has outdrawn college football’s national championship (15.0, 26.2M). It was the most-watched television program of any kind since the Academy Awards in February (34.3M).

 

[sb1]

Not really, because that may trigger the Supremes to take the case to rule on exactly whether it only applies to the NFL CBA.

I don't see SCOTUS being interested enough to take it if they are looking at one CBA in one industry. SOmething that impacts all Americans is a different story.

If 2C says it's NFL only I think this is stopped dead in its tracks.

 

[TXPat]

So what does Sharks of Vegas think the court will do?

 

[XLIX]

If the Second Circuit notes in their decision that it only applies to the NFL CBA because it is unique in some way... I think that reduces a SCOTUS possibility to zero.

They made no such note in their decision and I do not believe they can throw such a thing into an en banc refusal, so the only way such a note can be added in would be if they *did* grant en banc.

 

[Ring 6]

they just denied certiorari in a 2nd amendment case. this is just one example.

Cases are denied on the merits of the case as well as importance. Regardless of how important an issue is if they see no flaw in the decision and no conflict with previous decisions they aren't taking it.

 

[Ring 6]

I don't see SCOTUS being interested enough to take it if they are looking at one CBA in one industry. SOmething that impacts all Americans is a different story.

If 2C says it's NFL only I think this is stopped dead in its tracks.

You are missing the point that they take cases to confirm or reverse the lower court. The fact that the lower court said it only affects the NFL ( which it didn't) could be the exact reason they do take it because it has further reaching impact than the narrow view CA2 gave it.
They don't take advice from CA2 they review their rulings and that would be one of the incorrect pieces of their ruling.

 

[PatsFanSince74]

I agree with those who say we really have no idea what might be going on. However, given Katzmann's emphasis on an "expeditious" hearing of the initial Appeal, it's hard to say that the time it is taking to make this decision is "good news."

On reflection, I don't read too much into their not asking the NFL for a response. Clement fully and clearly presented his side's arguments both in his initial Brief and in his comments to the Court. The Court could reasonably feel that it knows what the League would say if asked for a response. Olson, on the other hand, presented a much simpler, clearer and more cogent view of the NFLPA's position than was presented in the initial Appeal. They arguably have all that they need to make a decision.

As for the hope that the Supreme Court would take the case if the en banc hearing is refused, I have said all along that the only realistic chance of that happening would be if the Eighth Circuit finds against the NFL in the AP case. At that point, there would be two diverging rulings from two Appeals' courts. Those are the kind of cases that the SC might take. Otherwise, I think any appeal to the Supreme Court would just be a formality if the en banc hearing is refused.