I disagree. And just so you know that I’m not some 14-year-old reacting emotionally to someone trying to spoil his perfect day, I’ve practiced law for many years and have specialized in labor law the entire time. So I’m an experienced labor lawyer reacting emotionally to someone trying to spoil his perfect day. But to get to the point: Going into this litigation before Judge Berman I thought that arbitrator bias—one of the grounds for vacating Goodell’s arbitration award that Judge Berman specifically reserved judgment on—was the strongest argument that the NFLPA had for overturning Goodell’s verdict. There is abundant direct and indirect evidence of Goodell’s bias—including the leak of false information to Mortenson, the NFL’s failure to correct Mortenson’s report despite the fact that Brady and the Patriots were getting hammered in the press in the run-up to the Super Bowl, the transmission of false PSI information to the Patriots, the insistence that the Patriots not release the correct PSI figures after they were given them, the league’s persistent refusal to divulge the correct PSI figures to the public despite repeated requests by the Patriots to do so, the refusal by the league to have the Wells firm investigate the NFL’s conduct, Goodell’s endorsement of the Wells Report prior to the arbitration, Goodell’s delay in issuing the arbitration award, and the leak of information to Steven A. Smith immediately before issuing his arbitration award that Brady had destroyed his cell phone.
The problem with proving arbitrator bias in the litigation that just concluded before Judge Berman is that the NFL and the NFLPA had agreed that Judge Berman could decide the case on the basis of the arbitration record alone. Although there were a number of good reasons for why Kessler might have agreed to this—including the fact that an evidentiary hearing in which discovery was had and witnesses were examined would have kept the suspension hanging over Brady’s head throughout the season—it handicapped the NFLPA’s ability to prove this claim, as most of the evidence of Goodell’s bias involved conduct that was never alluded to during the arbitration hearing. However, there is nothing to prevent Judge Berman from considering this evidence if the case is remanded to him by the Second Circuit. Although Judge Berman went along with the NFL and NFLPA’s agreement and decided the case on the basis of the arbitration record alone, I am not aware that Judge Berman bound himself to this agreement and, in any case, any agreement between the NFL, NFLPA, and Judge Berman would not apply to any subsequent hearings before him. With such evidence it seems to me that proving Goodell’s bias would be a slam dunk.
So, as Florio points out, by specifically making note that he was not addressing Brady’s claim that Goodell was biased, Berman was, in effect, issuing a warning to Goodell that things could get worse for him if the NFL appeals and succeeds in getting the case remanded to him, for it would be more embarrassing for Goodell to have his arbitration award vacated because he was biased than because of the contract and process issues that Judge Berman relied on in issuing yesterday’s ruling.
Thank you. I am quite impressed that there are around a half dozen or so Lawyers and Litigators like yourself, who have been commenting at a high level throughout this process. Seriously, it's really quite impressive when one cuts through the nonsense. I suspect, as Judge Berman is fond of saying, that a couple of them are "Harvard trained." And, BTW, it is important to remember that Berman went to NYU Law School, so there is a combination of respect and sarcasm in that remark.
But, I digress.
IANAL, but I am quite familiar with members of the legal and media community in New York City (I, too, for better or worse, am "Harvard trained," but not at "The Law School") and got a pretty good read on Judge Berman within a day or two of his appointment to this case from my friends.
I've written from Day One that Berman was the kind of guy who would have no time for weasels like Wells ("Harvard Trained"
), Nash and Pash...not to mention Goodell. I said that Berman would have much more affinity for Jeffrey Kessler ("Columbia Trained" but another New York guy with a lot more in common with Kessler
).
As soon as I read the banter between Kessler and Berman on August 12th when Berman chides Kessler for taking so much time to answer one of his questions that he says he's afraid to ask another...at that point, I had a feeling it was over, but Nash/Pash/Goodell/Wells were too dense to "get it."
So, what I'm trying to say is that the more I read about this, the more I think that Goodell
et al. managed to really piss Berman off. He sent them enough signals that he was going to rule against them and in favor of the NFLPA that it's like he was almost insulted that they didn't get the message. So, yeah, it doesn't surprise me that he planted what you Litigators describe as a "Poison Pill" in his ruling as a final **** you to the NFL for wasting his time.
Thanks again to you and the other Lawyers and Litigators who have elevated this dialogue over the last few difficult weeks!