NFLPA/Brady reply brief to NFL/Goodell deflategate appeal

[Deus Irae]

what scary about our legal system, you read all this legal analysis, all these sports law people mocking the NFL arguments, then they end with "well it really will depend on the judge and if they favor management".

Wow. That scares me that a judge can have their personal preferences dictate something like this when all law people say it seems like a slam dunk for brady.

That crap goes on at all levels of the judiciary, too.

 

[stealthdog]

From what I've read, the NFL has a 10% chance of winning. If by some weird happenstance they do win, you know Brady will appeal that. This could go on for years, he may retire before this gets resolved. If Brady wins (most likely), it's finally over.

I think it is closer to < 1%. Even if a judge leans pro management, agreeing with the NFL's position that Goodell can toss a narrowed, specified agreed upon issue that is directly applicable (equipment) and instead use a blanket, coverall provision is highly unlikely. The NFL is saying they can ignore everything in the CBA and Goodell can do whatever he wants because one clause says he can. That position is beyond absurd. How long is the CBA? By the NFL's interpretation it only needs to be 2 lines long - the rest of hundreds (thousands) of pages are fluff and irrelevant.

 

[TommyD4207]

http://www.iardc.org/ldetail.asp?id=856975936

Munson's been disciplined and not practiced in 20+ years.

That's the joke...

 

[JoeSixPat]

Was there much doubt this was going to go Brady's way 10 minutes after Berman's ruling? Correct me if I'm wrong but the appeal judges will have to reverse quite a lot of items to reverse the Berman decision. What are the chances of that?

I think the bigger question is, will the NFL(ESPN) pull out any more dirty 'integrity' tricks to defame Brady in lieu of a case where they are actually right?

McCann outlines why this isn't a slam dunk - especially depending on which judges are selected. Bear in mind this is a de novo case - meaning starting from new. I assume this means that if they find that the NFL, in their many and varied argument, is deemed to have correctly applied labor law in really just one instance - that doesn't mean the numerous ways in which they didn't trump where it did

Brady's team files new brief in Deflategate case

But in general, I happen to agree with you. I thinking looking to Berman's statistical average of being overturned 8% of the time is likely the best guess of Brady "losing" in this case - and then we also have the option of going back to Berman to address the other issues that he declined to address at the time, just in case the case IS overturned

The only way we lose is if the clerk and chief judge purposefully assign a few right wing anti-labor or worse yet, anti-Patsfans to the case

There's such a huge volume of instances where Goodell failed to act as an arbitrator should - in a ruling from a judge who was clearly disgusted with Goodell's disregard for basic fairness - that I find it difficult to imagine judges overturning such a solid decision of one of their own

But stranger things have happened

 

[TommyD4207]

McCann outlines why this isn't a slam dunk - especially depending on which judges are selected. Bear in mind this is a de novo case - meaning starting from new. I assume this means that if they find that the NFL, in their many and varied argument, is deemed to have correctly applied labor law in really just one instance - that doesn't mean the numerous ways in which they didn't trump where it did

Brady's team files new brief in Deflategate case

But in general, I happen to agree with you. I thinking looking to Berman's statistical average of being overturned 8% of the time is likely the best guess of Brady "losing" in this case - and then we also have the option of going back to Berman to address the other issues that he declined to address at the time, just in case the case IS overturned

The only way we lose is if the clerk and chief judge purposefully assign a few right wing anti-labor or worse yet, anti-Patsfans to the case

There's such a huge volume of instances where Goodell failed to act as an arbitrator should - in a ruling from a judge who was clearly disgusted with Goodell's disregard for basic fairness - that I find it difficult to imagine judges overturning such a solid decision of one of their own

But stranger things have happened

This, and this is a good post.

The percentages are what they are - but at the end of the day, the NFL can't break the law, just because they say they can. Regardless of who the judge is, or where it is, or any other variable.

Berman could have really hammered the NFL in his decision, and he really didn't. He played it down the middle and left himself several outs, knowing the decision was going to be appealed. There is no inherent bias or "star-struck" mentality in the decision, and truthfully, if anything, judges on the panel will be sort of annoyed that it was even alluded to.

 

[QuantumMechanic]

The only way we lose is if the clerk and chief judge purposefully assign a few right wing anti-labor or worse yet, anti-Patsfans to the case

Second Circuit practice appears to be the following (according to Google, anyways):

• The chief judge sets the panels by week, a year in advance.
• Once the panel schedule is set (but still long before any specific case is assigned to the panels), the judges can "trade" sittings.
• If a judge has to back out at the last minute (personal issues, recusal, etc.), the judge backing out has to arrange for his replacement.
• The judges on a panel are only made public during the week before the panel sits.

 

[TheBostonStraggler]

McCann outlines why this isn't a slam dunk - especially depending on which judges are selected. Bear in mind this is a de novo case - meaning starting from new. I assume this means that if they find that the NFL, in their many and varied argument, is deemed to have correctly applied labor law in really just one instance - that doesn't mean the numerous ways in which they didn't trump where it did

Brady's team files new brief in Deflategate case

But in general, I happen to agree with you. I thinking looking to Berman's statistical average of being overturned 8% of the time is likely the best guess of Brady "losing" in this case - and then we also have the option of going back to Berman to address the other issues that he declined to address at the time, just in case the case IS overturned

The only way we lose is if the clerk and chief judge purposefully assign a few right wing anti-labor or worse yet, anti-Patsfans to the case

There's such a huge volume of instances where Goodell failed to act as an arbitrator should - in a ruling from a judge who was clearly disgusted with Goodell's disregard for basic fairness - that I find it difficult to imagine judges overturning such a solid decision of one of their own

But stranger things have happened

Guess I should have worded it 'I think it noticeably unlikely the court will rule against Brady' so I am more waiting to see how the ministry of propaganda gets another shot in on Brady via PR'. They still understand they need to show the dog does wag the tail one way or another.

While not an excuse I am ignorant of the law here. Yet the one thing that has struck me from the beginning is the chilling effect a ruling for the NFL would cause. "Detrimental" evoking broad and almost unlimited power for the Fuhrer to rule capriciously would be chilling. He now just wets his finger and sticks up int he air to determine which way the wind blows, then he claims "detrimental" every time he takes some PR heat in order to lower the boom on a player (detrimental can easily become the old switcheroo). Regardless of the judges political slant -- too bad the politics are so deep on all sides when it comes to 'law' -- they have got to see this! They have got to see the effect this will have even far outside football. I'd like to think they will.

For betting purposes I predict the judges will not only rule in favor of Brady but just like Berman they will include a few zingers in there pointed at the NFL.

 

[goheels22002]

After they hand down the ruling in this appeal, I am going to take the bar exam. Who's with me?

 

[YOUGOTMOSSED]

Agreee with most of what you said but I think the corruption actually starts and ends with the owners, not Goodell.

Goodell is simply simply the messenger in my mind.

If you think he is actually making any of the meaningful decisions in all this you are giving him way too much credit.

That's what everyone says, but since he has a $150M termination clause in his contract, I figure that Goodell pretty much gets to do whatever the f*ck he wants.

 

[JoeSixPat]

For betting purposes I predict the judges will not only rule in favor of Brady but just like Berman they will include a few zingers in there pointed at the NFL.

McCann would say "that depends" as there's more than a few out of the 22 possible judges that are very pro management

I still have to think that even if you're the most anti-union judge ever you're not going to hitch a pro-management decision to that mess of a case

Effectively the NFL says that Goodell doesn't need to be fair, impartial or even follow established basic labor/management/arbitration principles asserting the CBA grants that to them

The NFLPA says that's BS - that the CBA in fact clearly defines what should be done but that Goodell believies the CBA means nothing outside of his view that it grants him God-like powers to discipline as he sees fit

Berman made absoutely clear that regardless of what the CBA says, Goodell, or any aribitrator, has an obligation to be fair - and they were not - and as you point out he does get some legal zingers in there

I'd be shocked if even a panel of 3 conservative judges effectively rules that being fair and impartial is optional for Goodell or other arbitrators in similar situations

 

[YOUGOTMOSSED]

McCann outlines why this isn't a slam dunk - especially depending on which judges are selected. Bear in mind this is a de novo case - meaning starting from new. I assume this means that if they find that the NFL, in their many and varied argument, is deemed to have correctly applied labor law in really just one instance - that doesn't mean the numerous ways in which they didn't trump where it did

Brady's team files new brief in Deflategate case

But in general, I happen to agree with you. I thinking looking to Berman's statistical average of being overturned 8% of the time is likely the best guess of Brady "losing" in this case - and then we also have the option of going back to Berman to address the other issues that he declined to address at the time, just in case the case IS overturned

The only way we lose is if the clerk and chief judge purposefully assign a few right wing anti-labor or worse yet, anti-Patsfans to the case

There's such a huge volume of instances where Goodell failed to act as an arbitrator should - in a ruling from a judge who was clearly disgusted with Goodell's disregard for basic fairness - that I find it difficult to imagine judges overturning such a solid decision of one of their own

But stranger things have happened

With the whole world watching, I don't think they're going to reverse Judge Berman's decision unless they have pretty solid grounds. Based on what I've read, the NFL has jack-squat. Kessler is beating them like a rented mule's red-headed stepchild.

 

[Ivan]

I think it is closer to < 1%. Even if a judge leans pro management, agreeing with the NFL's position that Goodell can toss a narrowed, specified agreed upon issue that is directly applicable (equipment) and instead use a blanket, coverall provision is highly unlikely. The NFL is saying they can ignore everything in the CBA and Goodell can do whatever he wants because one clause says he can. That position is beyond absurd. How long is the CBA? By the NFL's interpretation it only needs to be 2 lines long - the rest of hundreds (thousands) of pages are fluff and irrelevant.

Great post. I'm not sure I agree on your odds because 2 anti union judges could easily find ground to reject it but your interpretation of the NFL's reading of the CBA is dead on, they believe it is simply Roger can do what he wants.

 

[Ivan]

With the whole world watching, I don't think they're going to reverse Judge Berman's decision unless they have pretty solid grounds. Based on what I've read, the NFL has jack-squat. Kessler is beating them like a rented mule's red-headed stepchild.

Still comes down to the panel they draw. If it's anti Labor they could easily reject Bermans intervention, even though it was the NFL who asked for the intervention. I like Bradys chances because he's right and Berman is really good and rarely overturned but I still realize a bad panel could screw them.

 

[Fencer]

That's what everyone says, but since he has a $150M termination clause in his contract, I figure that Goodell pretty much gets to do whatever the f*ck he wants.

If he is terminated and has a contract dispute as a result, I hope it goes to arbitration.

 

[memento]

I think the pro-labor anti-labor angle is overstated. The judges still have to follow the law, even through their own lens of personal interpretation. Kessler has the better legal arguments despite Clement polishing up the NFL's turd of a legal brief.

Maybe a couple strong management judges could perceive the conduct detrimental clause as adequate notice for any objectionable action by an NFL player, which would be a huge blow to labor --ushering in companies everywhere locking-out until their own CBAs had conduct detrimental clauses. Reasonable minds would refer to the more specific enumerated subsections that actually deal with the conduct negotiated, which is well established in not only labor law but legal contracts themselves.

Then there's the arbitration issues of calling testimony and equal access to documents. This is more than labor vs management -- either party could be screwed over by a bad arbiter (except when the arbiter is management). These issues are about how much the official courts will let arbitration courts get away with until they can't reasonably pretend to be exercises in justice anymore. Back in 2001 the Supreme Court ruled courts cannot try the merits of an arbitration case, even when it relies on facts that are egregiously wrong. The NFL's legal team is taking an extremely large scope of "facts" here... Claiming the redundancy of Pash's testimony and the Wells interview notes as "facts"... Claiming Goodell himself as fair, impartial, and qualified to rule over the appeal of his own punishment as "facts"... And of course the Exponent ball deflation report, which although egregiously flawed is ironically enough the closest thing to "facts" for the arbiter to rule on in this case which I imagine is why Kessler hadn't pursued for fraud.

 

[TheBostonStraggler]

McCann would say "that depends" as there's more than a few out of the 22 possible judges that are very pro management

I still have to think that even if you're the most anti-union judge ever you're not going to hitch a pro-management decision to that mess of a case

Effectively the NFL says that Goodell doesn't need to be fair, impartial or even follow established basic labor/management/arbitration principles asserting the CBA grants that to them

The NFLPA says that's BS - that the CBA in fact clearly defines what should be done but that Goodell believies the CBA means nothing outside of his view that it grants him God-like powers to discipline as he sees fit

Berman made absoutely clear that regardless of what the CBA says, Goodell, or any aribitrator, has an obligation to be fair - and they were not - and as you point out he does get some legal zingers in there

I'd be shocked if even a panel of 3 conservative judges effectively rules that being fair and impartial is optional for Goodell or other arbitrators in similar situations

I understand 'different lawyers different interpretations' (Lincoln) and it well may be that this is not as likely a NFLPA win as it seems. But as you expounded on the chill of seeing this ruling overturned, I have to believe regardless of political slant these judges will see the ramifications too. From my view as a lawyer who coincidentally masquerades as a Cisco routing&switching specialist I;d like to believe most judges despite ideological leanings will strongly consider the seemingly big ramifications of a ruling/reversal, and ultimately will only do so if the law is abundantly clear on the point.

The NFL investigation and process was a sham on multiple fronts. I assume Berman saw this and is why he threw out a lot of jabs and zingers mostly aimed at the NFL. Hard for me to believe the new court, despite not there to rule on the validity of the NFL's deflategate finding, is going to be any less perceptive about what went on here. For them to then reverse a lower court with the silent knowledge of a sham and the knowledge that 'okaying' it will likely have a chilling effect, I am sticking with the prediction that they will rule in favor of the NFLPA with a few subtle jabs thrown at the NFL too.
We shall see what we see some months after the Patriots hoist the Lombardi in Santa Clara...

 

[DaBruinz]

I think powerful owners like Mara and Rooney will step in and tell him it's over, they will realize just how absurd it will make the league look.

I would have thought that this would have happened by now, honestly. The fact that they are allowing Goodell to appeal to the 2nd Circuit when he didn't appeal the Rice or Peterson cases says that there is more going on here, imho. I honestly think that some of the owners are doing this to send a message to Brady that they didn't appreciate his name on the lawsuit during the last CBA talks..

 

[DaBruinz]

I would sooner expect McNally and Jastremski to file defamation suits (ESPN//NFL?)as the standard for them is a lower one than for Brady as a public figure. For Brady, it is the NY Times v Sullivan standard of actual malice which is that it was knowledge of the falsity or reckless indifference as to the truth of the matter. For those guys as non-public figures, it is a much lower standard.
It would also be interested if they did file and went through discovery and depositions to see what shook out which would help Brady decide what action to take.......
Just my humble opinion, not legal advice.............
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But the NFL falsified the claims about the footballs that were leaked. They made false statements in the documents sent to the Patriots about the Footballs. And then they prevented the Patriots from telling the truth about the footballs.. You tie that in with Goodell's Statement about Brady, essentially, being the mastermind behind it and it's a rather compelling case in Brady's favor, imho..

 

[DaBruinz]

More importantly, the language of the CBA is so awful that, while Goodell may have failed the test of the law in his ruling, that language gives him such broad discretion that it would be difficult for TB to prevail. Most importantly, his legacy is sealed. 15 years from now, he will be remembered as the GOAT and the rest of this nonsense will be seen for the petty vindictiveness of the other Owners, executed by their Commissioner. The downside of such a suit is just too great.

What I think Brady should do, is become the face of the NFLPA during the next CBA....or even earlier. The only way the travesty that was visited on Brady will never happen to another player will be if the players are prepared to go on a lengthy strike to redraft the CBA and restate the powers of the Commissioner. I think Brady should run for Executive Director of the NFLPA and then hire a group of very smart lawyers, of Kessler quality, to surround him and get this done.

In short, Brady's best possible revenge on the NFL and the owners is to focus his energies on tearing down their houses and not waste his energy on a Quixotic defamation suit.

Just as a reminder. Kessler was a part of the NFLPA's negotiation team the last time around. He was vilified by many people on this site..

The NFLPA pick and chose it's battles. They chose not to touch the long standing Article 46 because they'd never had a Commissioner be a big of an meglomaniac previously. Neither Rozell nor Tagliabue were as crass enough to tell the NFLPA to GFY when asked to name an impartial arbitrator in a disciplinary case. I'm sure that they will address this going forward, if the Owners don't address it first. And recent rumblings make it sound like the NFL might do just that because of Goodell's gaffs..

 

[DaBruinz]

McCann outlines why this isn't a slam dunk - especially depending on which judges are selected. Bear in mind this is a de novo case - meaning starting from new. I assume this means that if they find that the NFL, in their many and varied argument, is deemed to have correctly applied labor law in really just one instance - that doesn't mean the numerous ways in which they didn't trump where it did

Brady's team files new brief in Deflategate case

But in general, I happen to agree with you. I thinking looking to Berman's statistical average of being overturned 8% of the time is likely the best guess of Brady "losing" in this case - and then we also have the option of going back to Berman to address the other issues that he declined to address at the time, just in case the case IS overturned

The only way we lose is if the clerk and chief judge purposefully assign a few right wing anti-labor or worse yet, anti-Patsfans to the case

There's such a huge volume of instances where Goodell failed to act as an arbitrator should - in a ruling from a judge who was clearly disgusted with Goodell's disregard for basic fairness - that I find it difficult to imagine judges overturning such a solid decision of one of their own

But stranger things have happened

JSP - It is not a "de novo" case yet. The NFL, in it's brief, has asked the 2nd Circuit to consider it such. However, the 2nd Circuit does not have to grant that motion.