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

[Mack Herron]

 

[Jackson 2]

In stark contrast to Smerlas's picture from yesterday with Goodell. What a phony and hypocrite. Oh, I'm referring to both Goodell and Smerlas...

 

[Galeb]

That's fricking awesome! I wanna buy that guy a beer or 12!

 

[cmasspatsfan]

Still, kessler could have said no and turned the case over to steffen johnson. No one forced kessler to do anything.

Also don yee could have spoken up.

Since Kessler had won previously and was doing a good job everyone's monday morning quarterbacking. Oh yeah, and the NFL lied.

 

[Jackson 2]

Since Kessler had won previously and was doing a good job everyone's monday morning quarterbacking. Oh yeah, and the NFL lied.

That's a really good point, in my opinion. I didn't hear or see ANYONE calling for Kessler to be replaced prior to the March appeal.

 

[Ivan]

Since Kessler had won previously and was doing a good job everyone's monday morning quarterbacking. Oh yeah, and the NFL lied.

You must not have been paying attention as most who followed it closely were happy they had retrained Steffen Johnson, who is considered to be one of the top appellate attorneys in the country. Most were very surprised that Kessler went before CAII when Johnson was available to handle the appeal.

If you go back to the thread before the appeal you will see what I'm talking about.

 

[Ivan]

That's a really good point, in my opinion. I didn't hear or see ANYONE calling for Kessler to be replaced prior to the March appeal.

74 and I went back and forth about hiring Johnson for the appeal well before it took place, and it was a long thread with many aware of that hiring.

 

[Jackson 2]

74 and I went back and forth about hiring Johnson for the appeal well before it took place, and it was a long thread with many aware of that hiring.

Then I missed it. Kudos to you both for your prescience, and I write that without sarcasm.

 

[PatsFanSince74]

It was Dee Smith's call on Kessler. He blew it not Brady.

I don't know who made the mistake, but I do tend to believe that Brady is too smart to think he is in a position to make the decision about the best attorney to argue before an Appellate Court.

None of us were in the room so none of us know, but I can visualize a scenario in which Kessler's ego pushed Smith by reminding him of successful CBA negotiations and that it was he (Kessler) who recommended that the players strike rather than accept Paragraph 46.

I don't get the impression that Smith is all that bright and I can see him deciding, "Sure, Kessler can hold his own under questioning by obnoxious Appellate Judges against a former Solicitor General who has fielded thousands of obnoxious questions from Appellate Judges and Supreme Court Justices."

 

[Ivan]

Then I missed it. Kudos to you both for your prescience, and I write that without sarcasm.

It wasn't prescience it was public knowledge they hired Johnson, if I had prescience I would not have been shocked that Kessler argued the appeal. I still don't understand why the NFLPA didn't instruct Kessler to let Johnson argue the appeal, that's why he was brought in.

 

[patsfan13]

As I said in a previous thread when the NFL hired Clement, THAT was when Olson should have been brought in.

Hopefully Millstein is correct.

 

[Tony2046]

In stark contrast to Smerlas's picture from yesterday with Goodell. What a phony and hypocrite. Oh, I'm referring to both Goodell and Smerlas...

Speaking of comments..... Fred got hammered.

Fred Smerlas ‏@FredSmerlas 21h21 hours ago
Sharing cigars with Roger Goodell at the 30th Annual @JimKelly1212 Golf Tourney @nflcommish @KFKFoundation

 

[PatsFanSince74]

74 and I went back and forth about hiring Johnson for the appeal well before it took place, and it was a long thread with many aware of that hiring.

Thanks for remembering that. I recall multiple posts leading up to the Appeal Hearing in which I said that I assumed that Steffen Johnson (Winston & Strawn's lead Appellate Attorney) would argue the Appeal from the fact that his name was on the right hand side of the first page of the Brief and Kessler's on the left. I wrongly assumed that that meant that Johnson was in the first chair.

I also recall saying out here, after the Hearing and before we saw the full transcript of the disaster that unfolded when Kessler lost his cool, that I was stunned that Kessler had argued the Appeal.

In 20-20 hindsight, once they saw that Clement was in the first chair for they NFL, they should have brought Olson on right away, since Andrew Tulumello of Gibson Dunn had been party to every Brief filed by Brady and the NFLPA since the SDNY Appeal last spring.

My guess was and remains that one or more big egos trumped doing the right thing.

 

[Ivan]

Thanks for remembering that. I recall multiple posts leading up to the Appeal Hearing in which I said that I assumed that Steffen Johnson (Winston & Strawn's lead Appellate Attorney) would argue the Appeal from the fact that his name was on the right hand side of the first page of the Brief and Kessler's on the left. I wrongly assumed that that meant that Johnson was in the first chair.

I also recall saying out here, after the Hearing and before we saw the full transcript of the disaster that unfolded when Kessler lost his cool, that I was stunned that Kessler had argued the Appeal.

In 20-20 hindsight, once they saw that Clement was in the first chair for they NFL, they should have brought Olson on right away, since Andrew Tulumello of Gibson Dunn had been party to every Brief filed by Brady and the NFLPA since the SDNY Appeal last spring.

My guess was and remains that one or more big egos trumped doing the right thing.

Agree completely. They still have a good shot at getting this overturned but now I believe either side will ask the Supremes to hear it.

 

[Galeb]

Agree completely. They still have a good shot at getting this overturned but now I believe either side will ask the Supremes to hear it.

If Roger had his way, he'd go to the Supreme court if his appeal is overturned. I'm not sure the owners would go for that. I wouldn't be shocked if Roger was canned if the appeal is overturned.

 

[PatsFanSince74]

Agree completely. They still have a good shot at getting this overturned but now I believe either side will ask the Supremes to hear it.

I honestly just don't know whether the League will take this to the Supreme Court should they lose an (as yet not even granted or scheduled ) en banc Appeal.

On the one hand, everything we have seen of the Owners' obtuse stubbornness suggests that they would do so.

On the other hand, the Owners might actually decide that this has gone on long enough and is becoming a source of embarrassment to them, as it is even in media that are usually hostile to the Patriots.

I just don't know. Also, the death of Justice Scalia and the likelihood of his replacement by a hyper-liberal, "in your face for not taking Garland" Justice after HRC is elected and control of the Senate swings to the Democrats definitely changes the equation. Now, instead of a divided court with Kennedy as the swing vote, you'll have five labor friendly Justices: Breyer, Ginsburg, Kagan, Sotomayor and the aforementioned "hyper liberal in your face" Justice.

 

[RobertWeathers]

I don't know who made the mistake, but I do tend to believe that Brady is too smart to think he is in a position to make the decision about the best attorney to argue before an Appellate Court.

None of us were in the room so none of us know, but I can visualize a scenario in which Kessler's ego pushed Smith by reminding him of successful CBA negotiations and that it was he (Kessler) who recommended that the players strike rather than accept Paragraph 46.

I don't get the impression that Smith is all that bright and I can see him deciding, "Sure, Kessler can hold his own under questioning by obnoxious Appellate Judges against a former Solicitor General who has fielded thousands of obnoxious questions from Appellate Judges and Supreme Court Justices."

You may be easily right. As I said in another thread Dee Smith is a fmr USDA who should know the ins and outs of this process. I think instinctually he put Johnson is as the bench coach for Kessler and potential council for the appeal but I think Kessler convinced Dee that the same argument for Berman would be ok for the appeal. I'm assuming Johnson went along and Smith was satisfied with the strategy.

 

[cmasspatsfan]

If Roger had his way, he'd go to the Supreme court if his appeal is overturned. I'm not sure the owners would go for that. I wouldn't be shocked if Roger was canned if the appeal is overturned.

Wouldn't that be a day to celebrate, a double win.

 

[QuantumMechanic]

I had a conversation with my lawprof friend (who has been a CA7 clerk for Easterbrook) about timelines re: going to SCOTUS.

Good news and bad news.

On the good side, he said that the party asking SCOTUS to hear the case has 90 days to submit their certiorari petition and that "extensions are common and readily available". And then if the other side wants to submit a brief saying why SCOTUS shouldn't hear the case even more time will go by before SCOTUS even begins to decide to hear it or not. And then once SCOTUS finally has the petition and opposition in hand it takes an average of 6 weeks to decide whether or not to hear it.

So what that means is if en banc happens and Brady loses and if Brady can get a stay out of CA2 or SCOTUS pending SCOTUS's decision on whether or not to hear the case then we might get through the entire 2016-2017 season before SCOTUS even decides whether or not to hear the case (say en banc loss at beginning of September, then 90 days takes you to beginning of December, then throw in an extension and the NFL's reply time, and you're past the Superbowl).

On the bad side, he thinks that if en banc review is not granted (and perhaps even if it is) that NFLPA/Brady will have a tough time getting a stay from anyone pending SCOTUS decision on hearing the case or not because SCOTUS won't view missing the games as enough "irreparable harm" to the NFLPA/Brady because he doubts "they give a **** enough about football" and because they'll view Brady as being able to "repair" the harm by getting his game checks back if he ultimately wins (i.e. that SCOTUS would view the lost paychecks as the thing that matters, not the act of missing the games, and lost paychecks can always be restored after the fact, hence no "irreparable harm").

 

[PatsFanSince74]

You may be easily right. As I said in another thread Dee Smith is a fmr USDA who should know the ins and outs of this process. I think instinctually he put Johnson is as the bench coach for Kessler and potential council for the appeal but I think Kessler convinced Dee that the same argument for Berman would be ok for the appeal. I'm assuming Johnson went along and Smith was satisfied with the strategy.

Well, since neither of us have any way of knowing what actually happened, your guess is as good as mine.