I got an arbitrator disqualified in federal court in 10 minutes! Seriously

[Brandon_Cox]

Look, it’s not nearly as impressive as it sounds, but it makes a great headline. And, bear with me, because it does relate to Tom’s case (sort of). And no, I’m not some super-lawyer; any first year lawyer could have handled this case.

So, I’m representing an executive with an employment contract who was “terminated for cause.” It was a BS case; they just wanted to fire him and not pay him. His employment contract had a standard, completely enforceable arbitration clause, meaning instead of filing suit the case had to be resolved through binding arbitration with a particular arbitration firm.

Instead, I filed for equitable relief in District Court (based on diversity of the parties). The Judge assigned my request for injunctive relief to one of the Magistrates, who hadn’t read the pleadings when we were summoned before him before he called his morning calendar. He asked why we were taking up his valuable time; I told him I wanted an injunction to stop the arbitration process from going forward. He read the offending paragraph and was royally pissed at me. “Mr. Cox, this is a standard binding arbitration clause. You better have a good reason for wasting this Court’s valuable time.” This was no time to bury the lede; I had 15 seconds before I was going to have my ass handed to me. I replied, “Your Honor, the arbitration firm is comprised of retired lawyers from the Defendant.”

You see, this sleezeball company created an arbitration firm and then made all of its employees sign employment contracts agreeing to use it in legal disputes. The Judge, who was ready to decapitate me a few seconds earlier, turned his anger on the assistant General Counsel for the Defendant. She had this flowery argument prepared about how these were respected lawyers and were in no way biased as arbitrators. He shut her down before she could get started and told us there was no way in hell that this biased-as-hell arbitration firm was going to be involved in the case. He still required arbitration – there was a severability clause - and told us to pick a neutral firm and not to show our faces back in his courtroom. The whole hearing took 10 minutes. We never did pick an arbitrator because once it became apparent that we were going to get a fair hearing the case settled.

The reason I bored you with a forgettable case that occurred well over 10 years ago and required no legal acumen on my part was to illustrate what happens when you get a fair judge who is actually interested in due process. There was no way he was letting a sham arbitration go forward, no matter what was agreed to by the parties. Another Judge might have said, “…too bad for your client Mr. Cox, he signed the employment contract and he’s stuck with it.”

So, is Judge Berman a fair Judge? Is he going to give Tom due process? If he does, Tom starts opening night against Pittsburgh.

 

[Tony2046]

Thanks for sharing that. Very interesting.

When I read Brady's case it seems clear to me but I am just a layman and do not understand the insights of Lawyer s interpretation of it.

So what do think about Brady's case? Is it a strong argument?

 

[PatsWSB47]

Congratulations. I hope it goes that way for Brady obviously......but I just heard a legal expert on Fox radio say that this is a very simple case...that the CBA gives Goodell the right to be the judge and arbitor and nothing the Brady team has argued will change the judge's mind...that Brady will miss all 4 games. I know other legal experts give Brady a chance but I guess on just preparing for the worst. having said that I just booked a room in Foxboro for September 10. Hope I won't want to cancel.

 

[Froob]

CBA doesn't give Goodell the power to break the CBA and give out whatever punishment he sees fit.

 

[Bobs My Uncle]

Frankly, I'd be tempted to just tell the judge that "no evidence exists that Brady cheated and so nothing else matters here. Let's all go home so that you can work on some real cases instead of wasting your time on this schitt."

 

[Fencer]

That sounds like the argument Brady could have made before his hearing with Goodell.

Does it hurt him that he waited until after the hearing and decision before he sued?

Look, it’s not nearly as impressive as it sounds, but it makes a great headline. And, bear with me, because it does relate to Tom’s case (sort of). And no, I’m not some super-lawyer; any first year lawyer could have handled this case.

So, I’m representing an executive with an employment contract who was “terminated for cause.” It was a BS case; they just wanted to fire him and not pay him. His employment contract had a standard, completely enforceable arbitration clause, meaning instead of filing suit the case had to be resolved through binding arbitration with a particular arbitration firm.

Instead, I filed for equitable relief in District Court (based on diversity of the parties). The Judge assigned my request for injunctive relief to one of the Magistrates, who hadn’t read the pleadings when we were summoned before him before he called his morning calendar. He asked why we were taking up his valuable time; I told him I wanted an injunction to stop the arbitration process from going forward. He read the offending paragraph and was royally pissed at me. “Mr. Cox, this is a standard binding arbitration clause. You better have a good reason for wasting this Court’s valuable time.” This was no time to bury the lede; I had 15 seconds before I was going to have my ass handed to me. I replied, “Your Honor, the arbitration firm is comprised of retired lawyers from the Defendant.”

You see, this sleezeball company created an arbitration firm and then made all of its employees sign employment contracts agreeing to use it in legal disputes. The Judge, who was ready to decapitate me a few seconds earlier, turned his anger on the assistant General Counsel for the Defendant. She had this flowery argument prepared about how these were respected lawyers and were in no way biased as arbitrators. He shut her down before she could get started and told us there was no way in hell that this biased-as-hell arbitration firm was going to be involved in the case. He still required arbitration – there was a severability clause - and told us to pick a neutral firm and not to show our faces back in his courtroom. The whole hearing took 10 minutes. We never did pick an arbitrator because once it became apparent that we were going to get a fair hearing the case settled.

The reason I bored you with a forgettable case that occurred well over 10 years ago and required no legal acumen on my part was to illustrate what happens when you get a fair judge who is actually interested in due process. There was no way he was letting a sham arbitration go forward, no matter what was agreed to by the parties. Another Judge might have said, “…too bad for your client Mr. Cox, he signed the employment contract and he’s stuck with it.”

So, is Judge Berman a fair Judge? Is he going to give Tom due process? If he does, Tom starts opening night against Pittsburgh.

 

[Jared]

Frankly, I'd be tempted to just tell the judge that "no evidence exists that Brady cheated and so nothing else matters here. Let's all go home so that you can work on some real cases instead of wasting your time on this schitt."

And you would lose. This case is about whether the league is following the CBA correctly, not about deflated footballs.

 

[PatsFanSince74]

Look, it’s not nearly as impressive as it sounds, but it makes a great headline. And, bear with me, because it does relate to Tom’s case (sort of). And no, I’m not some super-lawyer; any first year lawyer could have handled this case.

So, I’m representing an executive with an employment contract who was “terminated for cause.” It was a BS case; they just wanted to fire him and not pay him. His employment contract had a standard, completely enforceable arbitration clause, meaning instead of filing suit the case had to be resolved through binding arbitration with a particular arbitration firm.

Instead, I filed for equitable relief in District Court (based on diversity of the parties). The Judge assigned my request for injunctive relief to one of the Magistrates, who hadn’t read the pleadings when we were summoned before him before he called his morning calendar. He asked why we were taking up his valuable time; I told him I wanted an injunction to stop the arbitration process from going forward. He read the offending paragraph and was royally pissed at me. “Mr. Cox, this is a standard binding arbitration clause. You better have a good reason for wasting this Court’s valuable time.” This was no time to bury the lede; I had 15 seconds before I was going to have my ass handed to me. I replied, “Your Honor, the arbitration firm is comprised of retired lawyers from the Defendant.”

You see, this sleezeball company created an arbitration firm and then made all of its employees sign employment contracts agreeing to use it in legal disputes. The Judge, who was ready to decapitate me a few seconds earlier, turned his anger on the assistant General Counsel for the Defendant. She had this flowery argument prepared about how these were respected lawyers and were in no way biased as arbitrators. He shut her down before she could get started and told us there was no way in hell that this biased-as-hell arbitration firm was going to be involved in the case. He still required arbitration – there was a severability clause - and told us to pick a neutral firm and not to show our faces back in his courtroom. The whole hearing took 10 minutes. We never did pick an arbitrator because once it became apparent that we were going to get a fair hearing the case settled.

The reason I bored you with a forgettable case that occurred well over 10 years ago and required no legal acumen on my part was to illustrate what happens when you get a fair judge who is actually interested in due process. There was no way he was letting a sham arbitration go forward, no matter what was agreed to by the parties. Another Judge might have said, “…too bad for your client Mr. Cox, he signed the employment contract and he’s stuck with it.”

So, is Judge Berman a fair Judge? Is he going to give Tom due process? If he does, Tom starts opening night against Pittsburgh.

Thanks. And congratulations for thinking so quickly on your feet that day! I can think of many instances in my career where I wish I had had the presence of mind to do something similar!

The problem here, though, is that the NFLPA agreed that the League Office could play the role of prosecutor, jury and Appeals judge.

It's like your client had agreed, as a condition of his original employment that, upon termination, any complaint he might ever bring about the fairness of that termination could be evaluated by an "arbitration firm...comprised of retired lawyers from the Defendant." That is effectively the power that the absurd CBA, to which the idiots in the NFLPA agreed, gives to Goodell.

Kessler's well-written Motion to Vacate argues five narrow points in which the CBA, which ceded those ridiculous powers in the first place, could be construed as having been violated. That's what Berman is being asked to determine.

 

[Tony2046]

And you would lose. This case is about whether the league is following the CBA correctly, not about deflated footballs.

Well then I would suggest this:

 

[PatsFanSince74]

Frankly, I'd be tempted to just tell the judge that "no evidence exists that Brady cheated and so nothing else matters here. Let's all go home so that you can work on some real cases instead of wasting your time on this schitt."

Well, that would make for a short day, since Berman isn't being asked to judge the facts of the case but whether the "Arbiter's" ruling should be upheld or vacated based on its compliance with the CBA.

 

[Tony2046]

Thanks. And congratulations for thinking so quickly on your feet that day! I can think of many instances in my career where I wish I had had the presence of mind to do something similar!

The problem here, though, is that the NFLPA agreed that the League Office could play the role of prosecutor, jury and Appeals judge.

It's like your client had agreed, as a condition of his original employment that, upon termination, any complaint he might ever bring about the fairness of that termination could be evaluated by an "arbitration firm...comprised of retired lawyers from the Defendant." That is effectively the power that the absurd CBA, to which the idiots in the NFLPA agreed, gives to Goodell.

Kessler's well-written Motion to Vacate argues five narrow points in which the CBA, which ceded those ridiculous powers in the first place, could be construed as having been violated. That's what Berman is being asked to determine.

So the "Law of the shop" arguments wouldn't come into play?

 

[PatsFanSince74]

So the "Law of the shop" arguments wouldn't come into play?

Sections 3 through 6 of Kessler's Motion to Vacate detail that. The five narrow points to which I refer, with reference to "Law of the Shop," are articulated there. Beyond that, refer to MassPats38, a Litigator, whose postings on this have been far more informed than mine.

 

[Bobs My Uncle]

Well, that would make for a short day, since Berman isn't being asked to judge the facts of the case but whether the "Arbiter's" ruling should be upheld or vacated based on its compliance with the CBA.

And you would lose. This case is about whether the league is following the CBA correctly, not about deflated footballs.

Which, I think is rather unfortunate then. Even if Brady gets off on a procedure technicality, many people will still view him as guilty.

With such dubious science in play, why not also focus on the argument that if science showed no wrongdoing was committed in the first place, then why worry about the relevance of everything else? If one wanted to also pursue procedural issues also, then have at er as well. At least this way, Brady can actually say he did no wrong. Unless, he did do wrong, and to attack procedure is the only way for them to get an out?

I also wonder if they have no intention of pursuing the science component then why is it even mentioned in the petition to vacate, citing no fair basis to base any punishment on? Or, did that part get deleted in the new NY petition?

 

[PatsFanSince74]

Which, I think is rather unfortunate then. Even if Brady gets off on a procedure technicality, many people will still view him as guilty.

With such dubious science in play, why not also focus on the argument that if science showed no wrongdoing was committed in the first place, then why worry about the relevance of everything else? If one wanted to also pursue procedural issues also, then have at er as well. At least this way, Brady can actually say he did no wrong. Unless, he did do wrong, and to attack procedure is the only way for them to get an out?

I also wonder if they have no intention of pursuing the science component then why is it even mentioned in the petition to vacate, citing no fair basis to base any punishment on? Or, did that part get deleted in the new NY petition?

No. If the Motion to Vacate succeeds, it won't be a "procedural technicality," but rather it will give Brady a chance to have the nonsense in the Wells report reviewed by a truly independent arbiter, likely appointed by Judge Berman.

The Motion to Vacate stands completely on process and is very well crafted, IMO. However, the argument is Section 6 of the original Motion to Vacate was about the lack of the availability of "reliable information" because of the lack of "protocols for collecting" the information, not the science itself. The "unfair process" to which reference is made in the next sentence concerns Goodell's standing as a "penal arbiter," not the science or the testing.

Kessler is trying to get the Ruling Vacated and the entire matter referred to a (truly) independent arbiter, before whom the science could be debunked.

 

[neuronet]

That sounds like the argument Brady could have made before his hearing with Goodell.

Does it hurt him that he waited until after the hearing and decision before he sued?

Brady's team explicitly requested that Goodell recuse himself from Brady's hearing, and Goodell didn't. I'd say Goodell is screwed.

 

[Bobs My Uncle]

No. If the Motion to Vacate succeeds, it won't be a "procedural technicality," but rather it will give Brady a chance to have the nonsense in the Wells report reviewed by a truly independent arbiter, likely appointed by Judge Berman.

The Motion to Vacate stands completely on process and is very well crafted, IMO. However, the argument is Section 6 of the original Motion to Vacate was about the lack of the availability of "reliable information" because of the lack of "protocols for collecting" the information, not the science itself. The "unfair process" to which reference is made in the next sentence concerns Goodell's standing as a "penal arbiter," not the science or the testing.

Ah, I stand corrected. Thanks.

Kessler is trying to get the Ruling Vacated and the entire matter referred to a (truly) independent arbiter, before whom the science could be debunked.

Yeah, I get that but, if the parties are steadfast and don't agree to neutral arbitration, Berman can pass judgement either way , no? If so, I guess that is a risk Brady and the NFLPA are willing to take.

It is clear to me, given the availability of info presented, the entire scientific process is seriously flawed and would seem to be grounds for dismissal on its own. But, that's me as a scientist speaking.

 

[Fencer]

Brady's team explicitly requested that Goodell recuse himself from Brady's hearing, and Goodell didn't. I'd say Goodell is screwed.

That doesn't really address my point, which was to hypothesize -- in what I hope is an INCORRECT hypothesis -- that Brady blew his chance by waiting until AFTER the appeal to challenge it in court.

 

[QuantumMechanic]

Yeah, I get that but, if the parties are steadfast and don't agree to neutral arbitration, Berman can pass judgement either way , no? If so, I guess that is a risk Brady and the NFLPA are willing to take.

If no settlement is reached and Berman has to render a decision he only has two choices (one with subchoices):

• Uphold the arbitrator's award (i.e. uphold Goodell's final ruling)
• Vacate the arbitrator's award. If he does that, I believe he could then do one of two things:
  • Leave it vacated and do nothing else
  • Order re-arbitration by someone he picks under ground rules he sets.

I would be interested in hearing from someone with experience in this realm as to whether Berman indeed has the power to order a re-arb or if all he can do given the specific claim and counterclaim is either uphold the arbitrator's decision in full or vacate it in full? For that matter, does the FAA require federal courts to order re-arbs if the court vacates an arbitrator's award?

 

[neuronet]

That doesn't really address my point, which was to hypothesize -- in what I hope is an INCORRECT hypothesis -- that Brady blew his chance by waiting until AFTER the appeal to challenge it in court.

Does it matter?

 

[PatsFanSince74]

Ah, I stand corrected. Thanks.



Yeah, I get that but, if the parties are steadfast and don't agree to neutral arbitration, Berman can pass judgement either way , no? If so, I guess that is a risk Brady and the NFLPA are willing to take.

It is clear to me, given the availability of info presented, the entire scientific process is seriously flawed and would seem to be grounds for dismissal on its own. But, that's me as a scientist speaking.

Yes. IMO, as others have observed, it could end up as a big game of "chicken" between Brady and the League. Since Goodell has more to lose by a vacated ruling than Brady by an upheld ruling, I think Brady has a slight advantage in that game.