NFL Appeal oral arguments thread

[sb1]

I think this case is being reviewed "de novo" right? Doesn't that mean that Berman's opinion would basically be ignored?

 

[PatsFanSince74]

question: are the participants of this kind of hearing under oath? is there perjury?

the other thing is that the NFL uses a different lawyer at every point in the process.......it would appear to me that if you can, you'd want to have someone proficient at filling the troika with ********.....something that may not be as effective with someone like Kessler who is better at destroying people with facts

You just described an Appellate Attorney. Clement is the best.

From the little I've read of yesterday's proceedings, your take on Kessler is spot on. His answers are muddled and he seems at times confused. I'm sure he's handled Appeals before, but I don't know whether he's ever taken an Appeal before the Second Circuit, which is right behind the DC court in gravity.

 

[Ivan]

It looks to me like the NFL and Paul Clement actually lied to the court about Brady's testimony and that his actual testimony proves that. If that's the case they should file a claim with the ABA to have Clement disbarred and demonstrate to the appeals court they were lied to. Brady clearly testified that he discussed the game balls with Jastremski and the NFL said he didn't in their filling and Clement reiterated that to the court yesterday. While I'm not sure about the process they would undertake there is no way they should be allowed to get away with this.

 

[SHOWTIME15]

You just described an Appellate Attorney. Clement is the best.

From the little I've read of yesterday's proceedings, your take on Kessler is spot on. His answers are muddled and he seems at times confused. I'm sure he's handled Appeals before, but I don't know whether he's ever taken an Appeal before the Second Circuit, which is right behind the DC court in gravity.

I wonder if Kessler told Steffen Johnson that he will handle the oral argument, and Johnson backed down

 

[Patsfanin Philly]

I wonder if Kessler told Steffen Johnson that he will handle the oral argument, and Johnson backed down

That goes into one of those "we'll never know" category. Had Johnson been lead yesterday and gotten ripped like Kessler did, we would all be writing that they should have let Kessler be the lead......
Maybe the feeling was that since Kessler had such success before and had such a great handle on the facts ( unlike one of the judges as it appears we have gone from "Wells- 'generally aware' to Goodell- 'mastermind' to Chin- 'compelling/overwhelming'... a lie told often enough becomes believed)he should be lead attorney....

 

[PatsFanSince74]

I wonder if Kessler told Steffen Johnson that he will handle the oral argument, and Johnson backed down

we'll never know. i was surprised that Johnson didn't take the lead. his name appears to the left, in the first seat, on the brief and i had assumed that he was going to handle the oral argument.

 

[ctpatsfan77]

I think this case is being reviewed "de novo" right? Doesn't that mean that Berman's opinion would basically be ignored?

Not ignored so much as not given deference.

 

[sb1]

On the cell phone issue:

Judge Parker: "An adjudicator could simply not believe all of that."

Kessler: "I would say here this adjudicator was motivated to create this issue and wanted to justify the fact that generally aware could not support discipline. And that's what happened here. This was an issue that was seized upon, and this goes back...I'm only arguing this because you seem interested in merits issues which are not really for you to decide. That we both agreed to. What I'm arguing is the problem is they never should have imposed discipline based on generally aware."

Judge Chin: "You said the commissioner seized on this issue. What's his motivation here? I mean, do you think that there's some improper motivation?"

Kessler: "Yes, he spent $3 million on a report that after all of that work and evidence and all that publicity generated a result that at best they could say the player was generally aware of this. The science was disavowed by Mr. Wells because he said it was based on assumptions so I can't rely on the science...."

Judge Parker: "Are you suggesting that he was just out to get Mr. Brady?"

Kessler: "I think he was out to protect the record of what he did in paying that $3 million study without ever collecting the data so we don't know as we're sitting here if the balls were deflated by anyone or they were deflated by weather. Mr. Wells himself testified — and this is embarrassing, quite frankly, for the league — that rather than doing this meticulous testing because it was so important, they never measured temperature, timing or wetness because they had no procedures in place and they didn't know that there was a law called the Ideal Gas Law that meant that balls are going to naturally deflate. So the whole thing started..."

Judge Katzmann: "That's not part of..."

Kessler: "It is not, and I'm reacting only, your honor, and I'll be very honest, because I sense that you all are influenced by your view of the facts. And I just want you to know we can test those facts."

Judge Parker: "We're influenced by the briefs you gentlemen wrote."

Kessler: "But in any event, let me go back to the law, because I think that's important. That's really what we're arguing. I'm not arguing the facts if it had not been raised..."


-----
After reading that, it seems Kessler didn't really lose his cool after all as the twitter-bites suggested he did.

 

[YOUGOTMOSSED]

You just described an Appellate Attorney. Clement is the best.

From the little I've read of yesterday's proceedings, your take on Kessler is spot on. His answers are muddled and he seems at times confused. I'm sure he's handled Appeals before, but I don't know whether he's ever taken an Appeal before the Second Circuit, which is right behind the DC court in gravity.

I honestly don't think there's that much of a difference between arguing a motion before a single judge and arguing an appeal before a number of judges.

As I previously posted, even an experienced attorney is going to struggle when you have a less than brilliant judge making off the wall statements like "the evidence of tampering is compelling if not overwhelming." Coming up with a diplomatic way to explain to this judge why he's an idiot without pissing him off (not to mention with the entire world watching you) is a pretty big challenge even for the most skilled attorney.

 

[letekro]

Deferring to arbitrators or biased arbitrators?

On the cell phone issue:

Judge Parker: "An adjudicator could simply not believe all of that."

Kessler: "I would say here this adjudicator was motivated to create this issue and wanted to justify the fact that generally aware could not support discipline. And that's what happened here. This was an issue that was seized upon, and this goes back...I'm only arguing this because you seem interested in merits issues which are not really for you to decide. That we both agreed to. What I'm arguing is the problem is they never should have imposed discipline based on generally aware."

Judge Chin: "You said the commissioner seized on this issue. What's his motivation here? I mean, do you think that there's some improper motivation?"

Kessler: "Yes, he spent $3 million on a report that after all of that work and evidence and all that publicity generated a result that at best they could say the player was generally aware of this. The science was disavowed by Mr. Wells because he said it was based on assumptions so I can't rely on the science...."

Judge Parker: "Are you suggesting that he was just out to get Mr. Brady?"

Kessler: "I think he was out to protect the record of what he did in paying that $3 million study without ever collecting the data so we don't know as we're sitting here if the balls were deflated by anyone or they were deflated by weather. Mr. Wells himself testified — and this is embarrassing, quite frankly, for the league — that rather than doing this meticulous testing because it was so important, they never measured temperature, timing or wetness because they had no procedures in place and they didn't know that there was a law called the Ideal Gas Law that meant that balls are going to naturally deflate. So the whole thing started..."

Judge Katzmann: "That's not part of..."

Kessler: "It is not, and I'm reacting only, your honor, and I'll be very honest, because I sense that you all are influenced by your view of the facts. And I just want you to know we can test those facts."

Judge Parker: "We're influenced by the briefs you gentlemen wrote."

Kessler: "But in any event, let me go back to the law, because I think that's important. That's really what we're arguing. I'm not arguing the facts if it had not been raised..."


-----
After reading that, it seems Kessler didn't really lose his cool after all as the twitter-bites suggested he did.

Maybe not, but this is an aggressive tone for an appellate lawyer. The judges probably are not used to it and didn't appreciate it too much. Obviously, they have their own views on the law, which will become clear in their opinion(s); this hearing was about informing themselves of some of the background facts that might color their analysis.

 

[IllegalContact]

I honestly don't think there's that much of a difference between arguing a motion before a single judge and arguing an appeal before a number of judges.

As I previously posted, even an experienced attorney is going to struggle when you have a less than brilliant judge making off the wall statements like "the evidence of tampering is compelling if not overwhelming." Coming up with a diplomatic way to explain to this judge why he's an idiot without pissing him off (not to mention with the entire world watching you) is a pretty big challenge even for the most skilled attorney.

but there is a huge difference between arguing under oath and not.........yesterday's hearing seems to be more about what **** you can make stick to the walls and not factual truths

 

[YOUGOTMOSSED]

On the cell phone issue:

Judge Parker: "An adjudicator could simply not believe all of that."

Kessler: "I would say here this adjudicator was motivated to create this issue and wanted to justify the fact that generally aware could not support discipline. And that's what happened here. This was an issue that was seized upon, and this goes back...I'm only arguing this because you seem interested in merits issues which are not really for you to decide. That we both agreed to. What I'm arguing is the problem is they never should have imposed discipline based on generally aware."

Judge Chin: "You said the commissioner seized on this issue. What's his motivation here? I mean, do you think that there's some improper motivation?"

Kessler: "Yes, he spent $3 million on a report that after all of that work and evidence and all that publicity generated a result that at best they could say the player was generally aware of this. The science was disavowed by Mr. Wells because he said it was based on assumptions so I can't rely on the science...."

Judge Parker: "Are you suggesting that he was just out to get Mr. Brady?"

Kessler: "I think he was out to protect the record of what he did in paying that $3 million study without ever collecting the data so we don't know as we're sitting here if the balls were deflated by anyone or they were deflated by weather. Mr. Wells himself testified — and this is embarrassing, quite frankly, for the league — that rather than doing this meticulous testing because it was so important, they never measured temperature, timing or wetness because they had no procedures in place and they didn't know that there was a law called the Ideal Gas Law that meant that balls are going to naturally deflate. So the whole thing started..."

Judge Katzmann: "That's not part of..."

Kessler: "It is not, and I'm reacting only, your honor, and I'll be very honest, because I sense that you all are influenced by your view of the facts. And I just want you to know we can test those facts."

Judge Parker: "We're influenced by the briefs you gentlemen wrote."

Kessler: "But in any event, let me go back to the law, because I think that's important. That's really what we're arguing. I'm not arguing the facts if it had not been raised..."


-----
After reading that, it seems Kessler didn't really lose his cool after all as the twitter-bites suggested he did.

Again, these are simply bad questions from less than brilliant judges who seem be more interested in grandstanding than engaging in substantive legal argument.

What possible motivations does Goodell have for trying to get Brady? You'd have to ask Goodell or at the very least let me depose him and Pash so I can find answers! It's all just so goddamn stupid it's stroke inducing!

 

[YOUGOTMOSSED]

but there is a huge difference between arguing under oath and not.........yesterday's hearing seems to be more about what **** you can make stick to the walls and not factual truths

lawyers don't argument "under oath." They're not testifying; they're just arguing. If they make a factual contention, they should have a record that supports it.

 

[Gronkowski123]

On the cell phone issue:

Judge Parker: "An adjudicator could simply not believe all of that."

Kessler: "I would say here this adjudicator was motivated to create this issue and wanted to justify the fact that generally aware could not support discipline. And that's what happened here. This was an issue that was seized upon, and this goes back...I'm only arguing this because you seem interested in merits issues which are not really for you to decide. That we both agreed to. What I'm arguing is the problem is they never should have imposed discipline based on generally aware."

Judge Chin: "You said the commissioner seized on this issue. What's his motivation here? I mean, do you think that there's some improper motivation?"

Kessler: "Yes, he spent $3 million on a report that after all of that work and evidence and all that publicity generated a result that at best they could say the player was generally aware of this. The science was disavowed by Mr. Wells because he said it was based on assumptions so I can't rely on the science...."

Judge Parker: "Are you suggesting that he was just out to get Mr. Brady?"

Kessler: "I think he was out to protect the record of what he did in paying that $3 million study without ever collecting the data so we don't know as we're sitting here if the balls were deflated by anyone or they were deflated by weather. Mr. Wells himself testified — and this is embarrassing, quite frankly, for the league — that rather than doing this meticulous testing because it was so important, they never measured temperature, timing or wetness because they had no procedures in place and they didn't know that there was a law called the Ideal Gas Law that meant that balls are going to naturally deflate. So the whole thing started..."

Judge Katzmann: "That's not part of..."

Kessler: "It is not, and I'm reacting only, your honor, and I'll be very honest, because I sense that you all are influenced by your view of the facts. And I just want you to know we can test those facts."

Judge Parker: "We're influenced by the briefs you gentlemen wrote."

Kessler: "But in any event, let me go back to the law, because I think that's important. That's really what we're arguing. I'm not arguing the facts if it had not been raised..."


-----
After reading that, it seems Kessler didn't really lose his cool after all as the twitter-bites suggested he did.

mccann and wallach disagree.

 

[Ross12]

I'm just wondering if they wanted to get more info about the phone because they are trying to decide whether Goodell should be considered partial or impartial and the facts of the phone go a long way towards it. Why did the NFL need it? Why did Brady destroy it? Basically asking both sides questions about it and getting their takes.

It doesn't really help the NFL's case that their responses were to lie repeatedly.

 

[Hammer of Thor]

What possible motivations does Goodell have for trying to get Brady? You'd have to ask Goodell or at the very least let me depose him and Pash so I can find answers! It's all just so goddamn stupid it's stroke inducing!

I'll disagree here. Remember that one of Kessler's arguments was impartiality and bias on the part of Goodell. It's a very legitimate question for the judge to ask Kessler what Goodell's motivation would be -- why would he be out to get Brady? Becasue Kessler is the one who has to prove bias. This question is very fair game in my opinion.

 

[YOUGOTMOSSED]

I'll disagree here. Remember that one of Kessler's arguments was impartiality and bias on the part of Goodell. It's a very legitimate question for the judge to ask Kessler what Goodell's motivation would be -- why would he be out to get Brady? Becasue Kessler is the one who has to prove bias. This question is very fair game in my opinion.

The point is that Goodell shouldn't be judging his own case. He has a history of disparate treatment of the Patriots and their players vs. other teams which shows bias.

Why is Goodell bias? That's speculative and not really a fair question especially in these proceeding.

 

[Koma]

I'm just wondering if they wanted to get more info about the phone because they are trying to decide whether Goodell should be considered partial or impartial and the facts of the phone go a long way towards it. Why did the NFL need it? Why did Brady destroy it? Basically asking both sides questions about it and getting their takes.

It doesn't really help the NFL's case that their responses were to lie repeatedly.

This is true, but you have to cut the league some slack. If the NFL wasn't able to lie, then there would be no deflategate. If they started to tell the truth, their whole case would fall apart.

I'd normally throw in a "winky" or "eye roll" emoticon here, but, really, the NFL's handling of this situation has been dishonest from the very beginning.

 

[TomPatriot]

I am a baffled at the direction the Court has taken here. Sometimes the Court just asks questions to ask them and they have nothing to do with the decision. Sometimes a hot bench means you are going to lose but not always.

Are they really going to reverse on the cell phone issue? There's nothing in the CBA or anywhere else requiring a union member to turn over his private cell phone to his employer. It seems to me that would set an extraordinary labor law precedent - with no basis. Wow.

 

[Charlotte Pats Fan]

Im thinking the judges already knew how they were going to rule and we're just screwing with the lawyers. My gut says Brady wins.