New Order From Judge Berman (Friday 7/31 Afternoon)

[XLIX]

My take. Slight advantage to the good guys, but Brady's going to have to give something. "Settlement" doesn't mean "It has to be my way." And, Judge Berman clearly thinks this is something that can be settled without the intervention of the court.

What if, as some in the media have speculated, the main sticking point is an admission of guilt? If the NFL absolutely insists on an admission, and Brady absolutely insists on refusal, then which side is the one not acting in good faith?

 

[eom]

This is one no-nonsense, no drama guy. He either dictated that himself or a clerk who knows him very well wrote it for him after speaking to him (assume "kgo" is the assistant who signed it on his behalf, but it might be the clerk who drafted it).

Limits them to 15 double-spaced pages.
Tells Brady and Goodell they both better have nothing more important to do on the 12th and the 19th than be in his courtroom at 11am and 3pm.
Says he's not inclined to seal things
Mentions the word "settlement" three times in the text of his comments. Not so subtle, huh?

Seems to me it's designed to make both sides uncomfortable and remind them that he has the power to vacate or uphold the original findings in their entirety. Sounds to me like he won't be happy with the side the Magistrate tells him he doesn't think is operating in good faith.

Also seems to me that he finds the whole thing pretty trivial, which is not unexpected from a guy who has tried terrorists and been on the bench as long as he has and it's almost like he's saying, "You want 'expedited,' I can do 'expedited.' Here, 'Expedite this.'"

My take. Slight advantage to the good guys, but Brady's going to have to give something. "Settlement" doesn't mean "It has to be my way." And, Judge Berman clearly thinks this is something that can be settled without the intervention of the court.

yeah, and this is absolutely why they should be able to hire a binding arbitrater to keep this kind of trash from wasting court time.
unfortunastely..........

 

[RobertWeathers]

oh yeah, this is absolutely outrageously embarrassing for the sport, this country, and rational adults everywhere.
think of the time and money flushed on this nonsense vendetta

Yep.

I played golf with a buddy and his dad who his a NH State judge (also a Pats fan) and is embarrassed for Bermen for having to deal with this BS.

 

[Bobsyouruncle]

Comments from the robing room about Judge Berman who was given a rating of 6.0. That appears to be slightly below average in his district. Take them for what their worth.

Perfectly efficient demeanor, cordial and courteous. He seems fair and prepared. All a criminal lawyer could want.

What a bizarre judge this guy is. He spends the entire time on the bench looking in the gallery to see who's watching him, and doesn't pay attention to what the parties are saying. He comes out and chats with his "audience" before the proceedings. He thinks he's a game show host and not a judge. He seems very erratic and out of touch with reality.

Judge Berman is unfailingly polite and exceedingly self protective. His sentencing for relatively low level criminality seems harsh. His adherence to the guidelines seems slavish.

Judge Berman seems to know the right thing to do. He had no problem overruling an unfavorable R&R from a Magistrate in a recent case to do the right thing. He carefully considered all my objections and ruled on each one with discretion. Clearly not afraid to do the right thing and follow the law.

My last experience left me wondering why he even wants to be on the Bench. He displayed a complete lack of interest in managing or attempting to resolve the case. Also, his courtroom persona is oddly stiff and unnecessarily supercilious. There was animosity and disdain toward all counsel from the outset. I could not square this persona with the far more engaging (and potentially effective) persona displayed back in Chambers.

a decent,fair judge who pushes for settlements

It is close to impossible to get a decision out of him. He appears to be afraid to decide motions and hold trials.

 

[eom]

Comments from the robing room about Judge Berman who was given a rating of 6.0. That appears to be slightly below average in his district. Take them for what their worth.

robing room about as helpful as yelp

 

[PatsFanSince74]

Cooperation doesn't not require that one 'give something'. It just requires good faith participation.

From your lips to God's ears, "Deus."

But I think a guy like Berman will want to see a little give as part of his definition of "good faith participation."

In his order, he makes a point of saying, "I already have a good understanding of your positions from your submissions to date." I read that as "I've pretty much decided the degree to which I think each of you is full of ****, but I'm not yet at the point where I'm going to let on which one of you I think is more full of ****. Now, if you want to take a chance of showing me where I'm right, go ahead, but, if you're smart, you'll do something to show me where I'm wrong."

I also think he's already decided how he's inclined to rule, unless one side or the other gives him reason not to do so. I think he wants this out of his Courtroom by the end of August. So, each side runs the risk that he will vacate or affirm based on what he thinks of their "good faith participation." And, each side knows that it asked him to "expedite." So, that's exactly what he's doing.

He uses few words in his order, so every word counts. He says the "double spaced" memos should be "further supporting your positions" and in the form of a "reply brief," i.e., he's telling them not to break any new ground before the 12th. He then adds if they want to add anything else, they can do so by the 14th...but he's really not encouraging it (he doesn't want to be reversed on Appeal on the grounds that he stifled either side...this isn't his first rodeo).

He also makes it very clear that he wants to deal directly with the principals, "Mr. Goodell and Mr. Brady." I read this as he really doesn't want to listen to Kessler and Wells bloviate. He wants to ask Goodell and Brady the questions he wants answered and he wants them to answer those questions, looking him in the eye. I think he wants to confirm his view as to which one he thinks is more full of **** before he rules.

 

[PatsFanSince74]

robing room about as helpful as yelp

The correlation between favorable reviews vs. unfavorable reviews and desired vs. unwanted outcomes is probably nearly 100%.

 

[Ring 6]

I don't understand the thought of a suspension being reduced. Goodell either can give a suspension for equipment violations or he can't (spoiler:he can't). There's no "well he broke the CBA but hey take two games anyways." He also can't suspend someone for not handing over their phone, especially because he didn't even ask for it. The real settlement should be what happens to Goodell.

Correct. Aside from a settlement the options are:
1) Goodell did everything right, suspension stands
2) There was no basis for suspension, suspension void
3) The appeal was unfair, send to an unbiased arbitrator

There is not an option of Berman deciding what the punishment should be.

 

[jpat]

What if, as some in the media have speculated, the main sticking point is an admission of guilt? If the NFL absolutely insists on an admission, and Brady absolutely insists on refusal, then which side is the one not acting in good faith?

If I'm the judge, I'd have to think it's the nfl not acting in good faith. Here is one side, who hasn't been proven guilty of knowing about tampering that may or may not have happened, only "more probable than not", but is still willing to pay a fine. The other side, the nfl, is basically trying to force an admission of guilt. Especially if Kessler has correspondence from after the appeal where godell says something like if Brady doesn't admit it he's still getting 4 games plus I'll tell the public the destroyed phone crap. Almost sounds like blackmail...

 

[raduray]

oh yeah, this is absolutely outrageously embarrassing for the sport, this country, and rational adults everywhere.
think of the time and money flushed on this nonsense vendetta

Definitely a First World problem

 

[raduray]

What if, as some in the media have speculated, the main sticking point is an admission of guilt? If the NFL absolutely insists on an admission, and Brady absolutely insists on refusal, then which side is the one not acting in good faith?

I can turn that around. If Brady is willing to accept a neutral arbiter and the NFL is not, then who is the one not acting in good faith?

 

[VectorPrime]

What if this judge is determined to push for a settlement so much that he will rule against Brady if he were to reject any from the league? (say if they offer a 2 game suspension) That would be real f.ucked up.

 

[Hoodie]

Correct. Aside from a settlement the options are:
1) Goodell did everything right, suspension stands
2) There was no basis for suspension, suspension void
3) The appeal was unfair, send to an unbiased arbitrator

There is not an option of Berman deciding what the punishment should be.

I'd be happy with either 2 or 3.

 

[jpat]

I can turn that around. If Brady is willing to accept a neutral arbiter and the NFL is not, then who is the one not acting in good faith?

If I'm Brady's side, that's exactly how I play it. All I want is a neutral, non-nfl employee to be an arbitrator, that has to look like not a lot to ask, right?

A judge has to look at the nfl and ask, why aren't you willing to have someone else look at this?

It's an easy way out for the judge, order a new appeal with a neutral arbitrator, then even he doesn't have to decide. That was basically what happened with petersen, I think.

 

[Hoodie]

and the longer this goes the more likely it is that the owners (even if they hate the Patriots) get sick of it. It's already gone on too long and cost too much $. Now we're on the brink of the season and this is still hanging over them. You gotta thing the 31 want this over.

 

[eom]

http://sports-law.blogspot.com/2015/08/another-home-field-advantage-for-tom.html?m=1

Another "Home-Field" Advantage for Tom Brady in New York?

With each passing day, we are discovering that litigating in New York presents Tom Brady with advantages not available to him in Minnesota. As my estimable colleague, Alan Milstein, pointed out the other day, the "manifest disregard of the law" standard for overturning an arbitrator's decision is recognized in the Second Circuit U.S. Court of Appeals (which covers the New York federal courts), but is no longer recognized by the Eighth Circuit (which covers the District of Minnesota, where Tom Brady originally brought his lawsuit). This may or may not a big deal. Only time will tell. But what may ultimately prove to be a "game-changer" for Brady and the NFLPA is the Second Circuit's standard for setting aside an arbitrator's decision on the basis of "evident partiality," which differs markedly from the Eighth Circuit standard.

 

[JMC00]

http://sports-law.blogspot.com/2015/08/another-home-field-advantage-for-tom.html?m=1

Yep this is probably why the NFLPA wants an expedited ruling by Sept 4th and will be foregoing an injunction. If Berman rules against them they will take to the 2nd circuit which Brady will be able to play pending appeal.

 

[jpat]

http://sports-law.blogspot.com/2015/08/another-home-field-advantage-for-tom.html?m=1

Wow. This is huge. This part alone:

...the Second Circuit looks simply to whether a reasonable person would have to conclude that the arbitrator was predisposed to favoring one of the parties. But even more critically, evident partiality in the Second Circuit can be "inferred" from objective facts, whereas in the Eighth Circuit, it must be shown through "direct" proof. And so much of Brady's counterclaim on "evident partiality" depends on circumstantial proof: the delegation of decision-making authority to Troy Vincent, the public statements lauding the Wells Report, etc.

between the examples given, plus if the NFLPA has any documentation of roger telling brady he needs to admit and apologize, as was reported, then there is no way the NFL can claim roger wasnt "predisposed to favoring" the wells report and a guilty finding.

the NFL looks pretty silly for filing in NY now.

 

[eom]

Wow. This is huge. This part alone:


between the examples given, plus if the NFLPA has any documentation of roger telling brady he needs to admit and apologize, as was reported, then there is no way the NFL can claim roger wasnt "predisposed to favoring" the wells report and a guilty finding.

the NFL looks pretty silly for filing in NY now.

rog prob doesn't like to travel

 

[PatsFanSince74]

Correct. Aside from a settlement the options are:
1) Goodell did everything right, suspension stands
2) There was no basis for suspension, suspension void
3) The appeal was unfair, send to an unbiased arbitrator

There is not an option of Berman deciding what the punishment should be.

I think we're in agreement.

Berman is not being asked to decide who might or might not have deflated whose balls.

He's being asked to decide, at the behest of the N****ingL (and that is very important...Goodell took a chance by filing his motion in the Southern District and he ended up with a cranky senior judge, not some hot shot with political aspirations, who is trying to make a name for himself)...he's just being asked to decide whether the decision of the "Arbiter" Goodell should or should not be vacated based on the CBA.

If he vacates the "Arbiter's" decision, he will likely recommend (with prejudice because it was Goodell who wasted his time, NOT Brady or the NFLPA) that the case be submitted to a truly independent arbiter, acceptable to his Court, which, BTW, he no doubt feels is wasting its time on this when drug cartels, murderers and terrorists are the kind of vermin that usually walk into his courtroom.

His patience with a dispute between the privileged son of a US Senator and a hundred-millionaire athlete with a multi-hundred-millionaire wife is probably close to zero.

Please read some of my other posts. I know guys like this. I've lived among their ilk in NYC for 25 years. I have personal connections, not to Berman, but to the kind of folk that he is.

For the conspiracy theorists out there, please remember that this is a guy who probably wouldn't have recognized Tom Brady or Eli Manning on the street a week ago (though, he might know who "Gisele" is, but only because of his wife). He is a big fish in a world about which most folks on this board have no idea.

He wants this case out of his courtroom ASAP. My guess (and it's just a guess) is that he'll be a lot more sympathetic to Kessler than Wells, whom he probably regards as a weasel, but if either plays their cards wrong in his presence, he will find against them.