Please correct me if I'm wrong, but:
- At the appellate level there's no binding precedent except what comes from the SCOTUS, correct?
- Also, appellate courts don't feel the same self-imposed pressure for stare decisis as the SCOTUS, correct?
- The main SCOTUS case anybody worries about is Garvey.
- Thus, the appellate court can do whatever it thinks is correct and just, with the only major limitation being Garvey.
In an environment where the rules and bias leans STRONGLY in favor of the League, they were so inept and corrupt that they not only blew that huge advantage they were given, they got CRUSHED, ***** slapped, ass hurt, etc. That is how badly the NFL screwed up their OWN procedures and policies by the time it got to Berman's court. I would still like to know how Pash and Welles aren't having to go before their local Bar Association for malpractice and ethical issues.
There have been several people who have more knowledge than most who have made good cases for the NFL to likely lose their appeal. Also it seems those "experts" who still are preaching the league line, are using the same tired reasons they counted on with Berman. (Garvey, "republican judges", section 46) Not gonna happen. Berman crafted his decision specifically to be bulletproof to appeal.
Now it is likely that one or more of the judges selected to be on the appeals panel will be more conservative than Berman, but they aren't going to be brain dead ideologues who will ignore the solid precedents and "black letter law" outlined in Berman's decision. It's like these so called legal experts seem to think that if a republican president nominated a judge, the guy is an automaton who will vote as an extreme conservative on every issue and simply ignore facts and the law. IDIOTS who get paid to speak stupidly. And it pisses me off that if I had their job, and worked REALLY hard at it, I could make myself sound just as stupid.
I was going to start a separate thread about pash and Wells, but I'm too lazy to do it. Ken, in reference to your comment above, since I have read (and enjoyed)plenty of your posts about football Xs and Os, allow me to return the favor a bit on the legal side.
The only way they can face a malpractice case is if the NFL Sues them, and since pash is an employee, And not an independent contractor, so to speak like Wells, I'm not sure they can even do that to him. In either event, that is not going to happen. In terms of an ethics violation, someone would have to file a complaint. That could either be the NFL or some other individual, including the union, Who has knowledge that an ethical violation occurred. However, the ethics violation has to be spelled out in the states's Professional conduct rules and not just based on shoddy work. again, not likely to happen.
However, I really think pash and to a somewhat lesser extent, Wells, are really the ones to blame for this whole mess. Sometimes a lawyer has to put his foot down and just tell his client, cut it out and stop it. That never happened here.
The judges decision dropped a lot of footnotes featuring pash and Wells. In doing so Berman really unloaded on those two.You rarely see that in a judicial opinion because judges tend to let attorneys down easy out of professional courtesy.
I thought the footnote about Wells claiming the attorney-client privilege was especially telling. Berman seemed almost to be mocking them. It is mind-boggling that Wells would claim the attorney-client privilege in my opinion. Once you do that, you have acknowledged the relationship is one of attorney and client, and not independent. Sounds pretty obvious, right? Well it is, and that's why Berman dropped the footnote ... A literal translation would be: Can you believe this ****?
A few other points. When Berman said the other day he had not yet decided, I knew he was BSing. 40 page decisions do not write themselves in a day or two. I guarantee you that he had that decision pretty much all teed up at that point. Yes, he was hoping the parties would settle, but every judge wants every civil case to settle (not talking about criminal cases. ) The efforts that Berman made in this case to get the parties to settle is not unusual by any stretch, and to the contrary, happens all the time.
People are talking about the Brady case setting precedent. It really doesn't. Rather, it simply continues the line of precedent that the Second Circuit and Indeed all other Federal Circuit courts follow, regarding the notice issue. Those long string citations in Burmans decision are undoubtedly on his computer or more likely his law clerks computer and they simply cut and pasted. That is why the NFL has no chance on appeal. There's no way the Second Circuit is going to retreat from that issue. As one other poster mentioned a couple of weeks ago, The precedents dealing with notice not only apply to superstars like Brady, but also the rank-and-file union members on the factory floor. The real value of that decision, if the NFL wasn't so dense, would be to instruct the NFL what it needs to do in order to get its house in order on the labor discipline front. It really lays out a roadmap for the NFL to follow in terms of what you can and should do going forward to discipline players.However, no one from the NFL seems to be listening. And That gets back to my point about pash not doing his job.
