NFL attorney says NFLPA's move to vacate Brady's Deflategate suspension is 'baseless'

[Bobsyouruncle]

There's been a lot of this over the last few years, hasn't there?

Goodell talking about the CBA and absolute power, and the courts slapping him around in the end? I think he's been convinced, either by himself or somebody (an owner or three) that the NFL can simply outspend the NFLPA if it comes down to it.

I've sort of noticed something a bit more nefarious in all this that I don't see being brought up.

Not only does Goodell think he has absolute power outside the law or judicial review to do whatever he wants - but this is now, what, four, five, six cases in a row where the NFL just keeps these going on as long as they can, knowing they've lost, just because...what?

I'm starting to see a real attempt to try to break the NFLPA union.

Brady might be the biggest profile to this point, but it's not going to be the last. Goodell inferred from his "close relationship" with Benedict Kraft that Brady wasn't a "union guy", and gleaned that he would roll pretty fast if even the slightest pressure was put on him, and that he sure wouldn't go to the NFLPA for help.

He was wrong, and pissed that he did, hence this complete sham. Because if he wins this, he really can do whatever he wants, and there's nothing the NFLPA can do, and really no reason for them to exist.

The fact that Brady's not the most beloved guy with the players in the NFLPA doesn't hurt matters in Goodell's eyes either.

Think about it, if the NFL succeeds. If there's no union, the NFL owners can pay whatever they want, suspend whoever they want, and make even more money than what they're making now. If the players are simply considered "At-Will" employees in a majority of "right-to-work" states, this is what would happen.

What you're saying doesn't really have to with right to work laws, which already apply to some players in the NFL. And right to work laws don't mean everyone becomes "at will" employees, it doesn't even mean there aren't unions, and doesn't mean there can't be employment contracts. The NFLPA will exist as long as the players want it, the way it should be.

 

[PatsFanSince74]

I would expect the NFL to be smug. That's who they are. I don't think anything they say or the NFLPA says now is an indicator either way.

Yes, that's reasonable. It's possible to look at what either side says at this point as posturing.

 

[PatsFanSince74]

Thats exactly my point. I think Kessler makes great arguments, however I'm a pats fan and biased. Ultimately it is up to the Judge and we've really no clue which way he's leaning. If he's all about fairness in the workplace, then he's leaning towards Brady. But if he's all about the letter of the law then Goodell is golden.

I think Kessler makes a strong argument that the "letter" of the CBA was not followed in this case.

 

[flasox27]

Except for the other two times players took it to court and won.

That had nothing to do with submissive Kraft.

 

[RobertWeathers]

Except for the other two times players took it to court and won.

Players- agreed.

Until Bob goes house on Goody, he really doesn't have much to worry about.

 

[TommyD4207]

What you're saying doesn't really have to with right to work laws, which already apply to some players in the NFL. And right to work laws don't mean everyone becomes "at will" employees, it doesn't even mean there aren't unions, and doesn't mean there can't be employment contracts. The NFLPA will exist as long as the players want it, the way it should be.

I understand that.

But it's on its way to functional impotency. Without the protection of a union, the players are subject to the whims of their employer (The NFL) with nothing at all to stop them, if the league office is going to do whatever it wants anyway.

You're going to end up with a union in name only, with zero employee protection - or the NFL will just have the union dissolved altogether, and there are a lot of dumb players in the NFL who would be more than willing to vote against their own interests.

Yes, there are players in "right to work" states, but they're protected by the CBA, which supercedes that. Also, NFL contracts are barely worth the paper they're printed on as it is, as the team can cut the player at any time regardless of contract length. That sounds an awful lot like an "at-will" employee to me already. The only reason they're not is because of the guarantees offered to them by the CBA.

If the CBA is simply "Whatever the Commissioner says it is", the need for a union is completely gone. And if you don't think this is exactly what the NFL wants, especially since losing their tax-exempt status, then you haven't been paying attention.

 

[JMC00]

That had nothing to do with submissive Kraft.

Players- agreed.

Until Bob goes house on Goody, he really doesn't have much to worry about.

Whoops on my part. When I read that I had for some reason thought Judge Sherman's name was Robert and you meant him not Kraft.

To be fair it was before I had my morning coffee

 

[PatsFanSince74]

Silly me, I falsely believed that Judge Berman told both sides to stop all the rhetoric... but the NFL plays by its own set of rules..

At this point, both sides have been exposed to Judge Berman's way of thinking and have had a chance to get a sense of where things are headed as a result of meeting with the Magistrate Judge this past week.

To me, then, these are the possible explanations for the NFL's behavior:

The League is incurably arrogant.

The League is incurably stupid.

After meeting with Magistrate Francis, the League is confident that Judge Berman is going to rule in its favor on the law and so doe not believe that it is the party that has to "settle."

After meeting with Magistrate Francis, the League is confident that Judge Berman is going to rule against it and this is a false bravado negotiating ploy.

After meeting with Magistrate Francis, the League is confident that Judge Berman is going to rule against it and has decided to go down with the ship.

 

[MagicMarker]

I understand that.

But it's on its way to functional impotency. Without the protection of a union, the players are subject to the whims of their employer (The NFL) with nothing at all to stop them, if the league office is going to do whatever it wants anyway.

You're going to end up with a union in name only, with zero employee protection - or the NFL will just have the union dissolved altogether, and there are a lot of dumb players in the NFL who would be more than willing to vote against their own interests.

Yes, there are players in "right to work" states, but they're protected by the CBA, which supercedes that. Also, NFL contracts are barely worth the paper they're printed on as it is, as the team can cut the player at any time regardless of contract length. That sounds an awful lot like an "at-will" employee to me already. The only reason they're not is because of the guarantees offered to them by the CBA.

If the CBA is simply "Whatever the Commissioner says it is", the need for a union is completely gone. And if you don't think this is exactly what the NFL wants, especially since losing their tax-exempt status, then you haven't been paying attention.

I'm not in a union and I'm not pro-union most of the time, but in this case, a union is absolutely vital because there is basically one employer. The league could do whatever it wants and a player does not have any way to quit and go work for someone else.

But, the union benefits the league also. Without the union, there is no draft. There is no salary cap. The NFL also has some defense in the concussion lawsuit (union agreed to equipment and safety issues). That's why decertifying was challenged by the NFL.

 

[patsfan13]

DanFlynn rips NFL ' kangaroo court'

http://www.breitbart.com/sports/2015/08/09/the-nfls-kangaroo-court-wont-stand-in-federal-court/


Focus on Well's claims of independence vs reality of client lawyer privilidge,

 

[TommyD4207]

I'm not in a union and I'm not pro-union most of the time, but in this case, a union is absolutely vital because there is basically one employer. The league could do whatever it wants and a player does not have any way to quit and go work for someone else.

But, the union benefits the league also. Without the union, there is no draft. There is no salary cap. The NFL also has some defense in the concussion lawsuit (union agreed to equipment and safety issues). That's why decertifying was challenged by the NFL.

The salary cap is a "parity" issue, that has nothing to do with the union. As a matter of fact, it was one of the NFL's major responses to the NFLPA winning player's right to Free Agency (Thanks to Kessler), because they knew if they didn't, player contracts would have skyrocketed the way baseball's has - which would have been antithetical to the idea of "parity".

The draft is so commonplace and such a ratings-grabber for the NFL, it would never go anywhere. Beyond that, I doubt the NFL would want Miami or Dallas to win the Super Bowl every year, if they went back to territorial rights.

Decertifying the union was challenged by the NFL, because without a collective bargaining agreement, they'd lose their anti-trust exemption.

 

[adam941]

It's not a defeatist attitude, it's we're getting tired of getting punched in the balls every few weeks. We went from "I want an apology when we are cleared" to "it's time to end the rhetoric we accept all fines and punishment". "I'm thinking there may be a small fine, they aren't finding anything" (Mike Reiss said that in April) to "Patriots and Brady are the biggest cheaters ever!!!!"

Every time something good happens in the press, something much worse follows it up. This transcripts getting released was good for everyone if us tired of seeing Brady's name get dragged through the mud. But I just think it's too little too late. A nutshot is on its way, and I think its this NY judge saying "Sorry Tom, this ain't Judge Doty's house... want a better CBA? Have some conviction next time this comes up and don't bargain it away for no more two-a-days." And honestly, he'd be right to say that...the NFLPA allowed this scumbag to keep this ridiculous power and now we are dealing with it.

Nothing defeatist here. Let's be honest - there's always a nutshell on its way, amiright?

 

[JMC00]

At this point, both sides have been exposed to Judge Berman's way of thinking and have had a chance to get a sense of where things are headed as a result of meeting with the Magistrate Judge this past week.

To me, then, these are the possible explanations for the NFL's behavior:

The League is incurably arrogant.

The League is incurably stupid.

After meeting with Magistrate Francis, the League is confident that Judge Berman is going to rule in its favor on the law and so doe not believe that it is the party that has to "settle."

After meeting with Magistrate Francis, the League is confident that Judge Berman is going to rule against it and this is a false bravado negotiating ploy.

After meeting with Magistrate Francis, the League is confident that Judge Berman is going to rule against it and has decided to go down with the ship.

On the flip-side of those

DeMaurie Smith asking to be added as co-counsel for the NFLPA.

 

[TommyD4207]

On the flip-side of those

DeMaurie Smith asking to be added as co-counsel for the NFLPA.

Heh.

He wants to make sure his name's on it.

 

[PatsFanSince74]

On the flip-side of those

DeMaurie Smith asking to be added as co-counsel for the NFLPA.

Yeah. When that was announced, I posted that I thought it was a good sign, even if it is just a matter of someone trying to "be in the presence of success" as the old Wall Street saying goes. One thing that really bothers me is that if not for the debacle in San Francisco, Kraft's presence in the front row of Courtroom 17B on Wednesday morning would have been a powerful signal as well...but now...no.

 

[Jlaff]

IIRC findings of fact cannot be challenged in this action. Would not the occurrence of wrongdoing be a finding of fact and thus outside the scope of judicial review in this case?

It would be a finding of fact yes, surprised that cannot be challenged...

 

[AzPatsFan]

A question for the attorneys here.

If Judge Berman issues a call for a redo with a neutral arbiter, is the only issue whether the NFL under the CBA 46 still only a procedural issue.

Or is the entire reasonableness of the investigation and issues of facts still subject to review?

 

[BigPeteG]

Well not a lawyer but my take on judges is that they find a way to make the outcome work most of time - especially the liberal ones. The issue for the NFL is if they tick off the Judge he will find a way for the law to come out against them.

A good recent example (and BTW it does not bother me at all) is the Supreme Court gay marriage thing. Basically the court decided hey this feels like it should be legal - now what kind of legal justification can I find. Roe V. Wade was the same kind of thing..

So I don't worry that say because of the CBA the judges hands are tied. If the Judge wants to he can usually find a way to stop the NFL. There are so many laws - many of them in conflict with each other. This means the judge does have some discretion.

 

[MassPats38]

Well not a lawyer but my take on judges is that they find a way to make the outcome work most of time - especially the liberal ones. The issue for the NFL is if they tick off the Judge he will find a way for the law to come out against them.

A good recent example (and BTW it does not bother me at all) is the Supreme Court gay marriage thing. Basically the court decided hey this feels like it should be legal - now what kind of legal justification can I find. Roe V. Wade was the same kind of thing..

So I don't worry that say because of the CBA the judges hands are tied. If the Judge wants to he can usually find a way to stop the NFL. There are so many laws - many of them in conflict with each other. This means the judge does have some discretion.

There are cases in which the law is so abundantly clear that the judge has no wiggle room to issue a decision he may like to issue. This is not that type of case. This judge has the room to issue a judgment favoring either side. The NFL wants a rubber stamp on the proceeding because that is what a properly conducted arbitration proceedings should get in general. Brady and the NFLPA want the judge to shred it based on the basic premise that the rubber stamp is appropriate only when the agreed procedures were followed consistent with the deal, and they were not followed.

The NFL says Brady's defense is weak because that is what $500+/hour legal teams do for their money. Brady's team will respond it is painfully clear that the arbitration award is unenforceable for many, many reasons because that is what $500+/hour legal defense teams are paid to do when asked to argue the other side.

Nothing here is particularly unusual. The conference this Wednesday should be interesting as uncertainty on the part of attorneys might be reflected by requests for additional procedures that reflect a change in what was originally requested in the letter to the Judge. I don't see that happening, which means both sides are viewing this litigation as on course and only needing the Judge's decision. The filing of an application for a preliminary injunction would suggest the NFLPA and Brady heard something from the Judge indicating a decision would not reasonably be available before the start of the season (the motions to expedite briefing schedules and preferences for a decision before September 4th have no hold on the judge and when he might act - they may have set 9/4 because that would give them about a week to file an emergency motion if the case is still undecided).

For those who like Steph Stradley, and there seem to be a few here, she had an e-mail exchange back in May on a reputable legal discussion site, Above the Law, back in May. If it sounds familiar, then just accept that it is largely predictable, with the exception of the Judge's direction in the end. And I don't believe all the saber rattling in the world by litigation teams will move him one bit. He hears that every day in New York.

 

[SVN]

From NFLPA rep
George Atallah ‏@GeorgeAtallah 7h7 hours ago
To put a fine point on this from last week: John Dowd was a partner at the same law firm as Dan Nash (NFL counsel): http://www.cnn.com/2015/08/07/opinions/dowd-nfl-brady-investigation/…

George Atallah ‏@GeorgeAtallah 7h7 hours ago
And here is the afforementioned Dan Nash in @USATODAYsports sounding like the NFL wants to settle:http://www.usatoday.com/story/sports/nfl/2015/08/07/nfl-attorney-says-nflpas-move-vacate-bradys-deflategate-suspension-baseless/31301467/… (or NOT)