NFLPA files motion to vacate

[SVN]

Kinda a wishy/washy article though. No talking about the NFL moving the goal post on what Brady is punished for. No mention of the NFL basically admitting that Wells was never independent. Definitely not the hit out of the park that I was expected.

He usually writes few pieces each time to get more clicks or if and when he thinks its worth writing . So maybe he will write a few more on the same.

 

[SVN]

Daniel Wallach retweeted
Adam Kilgore ‏@AdamKilgoreWP 16h16 hours ago
Talked to a lawyer who read tonight's Brady/NFL court filings: "I will be shocked if (Brady) doesn't win."

 

[DaBruinz]

OK. So, the NFL claims that the Commissioner has unlimited power under Article 46 of the CBA and that investigators don't have to be independent..

So I opened up my copy of the CBA to Article 46. One of the first things it states is :

Section 1. League Discipline: Notwithstanding anything stated in Article 43:
(a) All disputes involving a fine or suspension imposed upon a player for conduct on the playing field (other than as described in Subsection (b) below) or involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly send written notice of his action to the player, with a copy to the NFLPA. Within three (3) business days following such written notification, the player affected thereby, or the NFLPA with the player’s approv-al, may appeal in writing to the Commissioner.

(c)The Commissioner (under Subsection (a)), or the person appointed by the Commissioner under Subsection (b), shall consult with the Executive Director of the NFLPA prior to issuing, for on-field conduct, any suspension or fine in excess of $50,000.

Article 43 deals directly with Non-Injury Grievances.

Also found this:

"Section 2. Hearings:
(a) Hearing Officers. For appeals under Section 1(a) above, the Commissioner shall, after consultation with the Executive Director of the NFLPA, appoint one or more designees to serve as hearing officers. ...Notwithstanding the foregoing, the Commissioner may serve as hearing officer in any appeal under Section 1(a) of this Article at his discretion.

(f) Additional Procedures for Appeals Under Section 1(a).
(i) Scheduling. Appeal hearings under Section 1(a) will be scheduled to commence within ten (10) days following receipt of the notice of appeal, except that hearings on suspensions issued during the playing season

(ii) Discovery. In appeals under Section 1(a), the parties shall exchange copies of any exhibits upon which they intend to rely no later than three (3) calendar days prior to the hearing. Failure to timely provide any intended exhibit shall preclude its introduction at the hearing.

I underlined the section under Discovery. Why? Because it goes directly to the NFL refusing to provide to Brady's lawyers the documentation used to complete the Wells report. By their own Article, the Wells report, the entire basis for the initial Brady punishment and appeal, should have been thrown out and deemed invalid. At least from the way I read it.. I'd appreciate any of our lawyers chiming in on this..

Now, I'm no law genius, but I'm fairly certain Smith wasn't consulted regarding the punishment or the appeal. Both of which are requirements under Article 46.

The other thing of interest is that Article 46 makes no statement one way or the other regarding the neutrality of a league appointed investigator..

 

[MagicMarker]

Based on NFL's filing, it now appears Brady could not have had a fair appeal, because the NFL says he was suspended for something different than what the letter sent to him said. How can you defend yourself if you don't know what you're defending yourself against?

 

[DaBruinz]

Article 46 "is" the problem. The NFLPA was just plain stupid to allow this in the CBA. I would have rather seen a shortened season by lockout than this be allowed. At this point I couldn't guess how this ruling might end up, all I think we can hope for is that Berman believes Goodell could not have been neutral arbitrator. Which clearly in my eyes he was not.

You should actually read Article 46..

 

[n6249c]

Based on NFL's filing, it now appears Brady could not have had a fair appeal, because the NFL says he was suspended for something different than what the letter sent to him said. How can you defend yourself if you don't know what you're defending yourself against?

It doesn't matter. Dean Wormer has put you on Double Secret Probation, so you are so screwed...

 

[Peachhead]

I couldn't even make it halfway through as it just enraged me what the NFL* is trying to foist on is.

Really, at this point, IMO considering the unwarranted suspension and theft of vital draft choices, the NFL* is systematically trying to damage the Pats ability to compete.

The NFL itself is violating the "Competitive Integrity Policy" that it's trying to say Brady violated!

 

[TheBostonStraggler]

I've read both filings and my summary is

Brady: goodell made numerous mistakes and ignored CBA, fairness and precedent

Goodell: because I said so

Yep, that's it. That is unambiguously factually the NFL's argument. He can make it up as he goes. He can railroad and mistreat anyone he wants, and it is perfectly ok and perfectly fair because he deems it to be perfectly ok and fair. As mentioned before this no longer has anything to do with deflating a football counter to the rules. The level of appalling that is contained within the NFL's argument is a slimy entity of itself.

I actually saw someone on TV say (can't remember who/where) (not verbatim) 'the commissioner has this power, he was given the power to make any decision he wants. So Brady should stop this, stop whining and take his medicine and let's play football'. Imagine what kind of person you must be to see such glaring dishonesty and unfairness/unjust actions, and say it's perfectly ok because somewhere it is written that maybe the commissioner(or anyone) can act as unjust and unfair as you want. What kind of person thinks this much less says this? If you lack a sense of fair play within your thought process you have no business speaking on TV unless to be told the many ways you are wrong and a sucky person (and certainly not in charge of "punishing" people and their names/livelihoods).

This filing with the commissioner saying he can do anything he wants and anything he does is fair because he'll decide what is fair is an outrage to decency. I don't give a rat's ass if there is actual language that may suggest he can act unfairly and unjust. That one would actually act this way says a TON about who/what you are. Again, if the owners let this stand and let this be what the NFL stands for it is on them just as much as scumbag Goodell.

 

[SVN]

Raffi Melkonian ‏@RMFifthCircuit 15h15 hours ago
Raffi Melkonian retweeted Michael C. Horowitz

If, say, Goodell decided the case by reading tea leaves or witchcraft, the court would reverse. A. 46 wouldn't help.

Raffi Melkonian added,

Michael C. Horowitz @mchorowitz
@StephStradley @RMFifthCircuit he can't. That's the issue. NFL says players bargained that right away


Raffi Melkonian ‏@RMFifthCircuit 15h15 hours ago
Raffi Melkonian retweeted Michael C. Horowitz

Yes, but that can't be right. Or at least the court wouldn't so hold unless it was pretty explicit,.

Raffi Melkonian added,

Michael C. Horowitz @mchorowitz
@RMFifthCircuit @StephStradley Isn't the NFL answer that Article 46 = it's impossible for something to be unfair enough to overturn, right?

Raffi Melkonian ‏@RMFifthCircuit 15h15 hours ago
Raffi Melkonian retweeted Matt

The internal legal team is probably more focused on contracts/labor issues than litigation.+Kessler is very v. good.

Raffi Melkonian added,

Matt @GusFringTho
@RMFifthCircuit Why does the PA need to hire Kessler to rep Brady when they already have an in-house legal team?

Raffi Melkonian ‏@RMFifthCircuit 15h15 hours ago
Hmm. I'm reading the PA's brief again. They ask the Judge to vacate *Goodell's* affirmance of discipline. Nothing re: Vincent.

Raffi Melkonian ‏@RMFifthCircuit 15h15 hours ago
And indeed, when I have successfully gotten arbitrations reversed, a second arbitration happened. The case didn't end.

Raffi Melkonian ‏@RMFifthCircuit 15h15 hours ago
Answered my own question: if Brady wins the case technically goes back for a "fairer" arbitration. See last page http://a.espncdn.com/pdf/2015/0226/DotyPetersonruling.pdf…

Raffi Melkonian ‏@RMFifthCircuit 15h15 hours ago
I guess the question I'd want the NFL to answer is "if this wasn't an unfair arbitration, what is? How bad does it need to be?"

Raffi Melkonian ‏@RMFifthCircuit 16h16 hours ago
Raffi Melkonian retweeted Eric Greenberg
Oh, I don't know. I'm envisioning a public yelling at to begin, and then parties go to chambers for private talk.
Raffi Melkonian added,
Eric Greenberg @EricGreenbergRE
@RMFifthCircuit So what is general structure of the Wednesday hearing?

Raffi Melkonian ‏@RMFifthCircuit 16h16 hours ago
Raffi Melkonian retweeted Stephanie Stradley
Now *that* I completely agree with. He is not happy.
Raffi Melkonian added,
Stephanie Stradley @StephStradley
@RMFifthCircuit Don't feel comfortable predicting bc very judge specific, what he values. Get sense Fed Ct judge unamused w/dumb controversy

Raffi Melkonian ‏@RMFifthCircuit 16h16 hours ago
So - I'm less pro-Brady than others. But, Kessler's work has convinced me there's more fire here than I thought. Let's say 50/50 for Brady.

Raffi Melkonian ‏@RMFifthCircuit 16h16 hours ago
For the lawyers out there, I am highly puzzled why this cite" ("failure to follow arbitral precedent is not a reason to vacate an award" 1/2
Raffi Melkonian ‏@RMFifthCircuit 16h16 hours ago
is the last in along string cite. That seems dispositive. Which makes me think it does not say what NFL says it says. 2/2

I didnt understand the last part ..

 

[Rob0729]

Talked to a lawyer who read tonight's Brady/NFL court filings: "I will be shocked if (Brady) doesn't win."

https://twitter.com/AdamKilgoreWP/status/629821132644990976

 

[Oswlek]

Considering that

* Goodell lied about Brady's testimony.
* Either Wells or Vincent lied about how the investigation started.
* The NFL lied that Wells was independent.
* Goodell couldn't even be bothered to address the obvious flaws in the
* The NFL gave Brady an unnecessarily constraining 4hr time limit and then lied when they were called on it.
* The NFL completely changed the reason for the sanctions either just before the appeal, or after it had already completed.
* And Pash edited the Wells report.

There is more reason to overturn simply on appeal fairness than there is due to faulty evidence. Unless "only we decide what is fair!" is a compelling legal argument, then this should be the easiest decision Judge Berman makes all year.

 

[1960Pats]

goodell has all the power. he can basically do whatever he wants.
demaurice smith has some nerve to want to sit next to brady during this. if tom loses, he should blame the **** players association.

Do you have any proof that Goodell can do whatever he wants? I have yet to see anything from the CBA which confirms that he does.

In the real world, Fraudger and the Jesters have a level of fairness that they're obligated to provide.

The only way this whole scam doesn't blow up in their Jest Green faces will be if they pay off the judge.

 

[Gronkowski123]

Do you have any proof that Goodell can do whatever he wants? I have yet to see anything from the CBA which confirms that he does.

In the real world, Fraudger and the Jesters have a level of fairness that they're obligated to provide.

The only way this whole scam doesn't blow up in their Jest Green faces will be if they pay off the judge.

article 46

 

[1960Pats]

This thread was pretty interesting in spite of it's length. Thanks fumb.

Is it really possible that Brady will lead the Pats to one of the biggest victories off the field after leading them to one of the biggest on it?

If Brady's hate for the Jets had died down any, I bet it gets a little bit of a spike after this.

 

[1960Pats]

article 46

What about article 46?

 

[SVN]

from reddit

http://www.reddit.com/r/nfl/comments/3g747h/the_full_15page_documents_filed_by_the_nfl_and/

Guhonda 7 points 6 hours ago

Attorney here.

Out of everything I read, the most compelling issue, and the one that I've run into in practice the most, is the overwhelming amount of precedent (including the United States Supreme Court) in favor the the NFL that specifically tells courts not to mess with an arbitrator's decision.

In other words, the United States Supreme Court is telling the judge not to undo the arbitrator's award. because doing that undermines the point of arbitration. Our judicial systems LOVES arbitration. It takes cases off the court docket and resolves them without a judge.

So, as of right now, for the non-legal people here, the NFL is objectively winning. The NFLPA has to argue that the discipline and procedural aspects were so egregious that the judge is allowed to reverse an arbitration award, which is a tall task indeed given that every jurisdiction in America gives extraordinarily wide latitude to arbitration decisions.

In the end, I imagine the judge simply rules that the NFL was within its right to suspend Brady. The players negotiated the CBA. If they didn't want an outcome like this, they had the opportunity to bargain for something different.

Just my two cents.


SenatorIncitatus 5 points 5 hours ago

Except courts have overturned the arbitrator's decision multiple times before when it comes to the NFL (Bountygate, Peterson, Rice, Hardy).

I'm not a lawyer though, I just play one on the internet.

Guhonda 0 points 4 hours ago

The precedent being relied upon by the NFLPA (Peterson, Rice) comes from the NFLPA favored Judge Doty in Minnesota. Judge Doty is not hearing this appeal. So it begs the question of the strength of the NFLPA's arguments before a less biased judge with less history of siding with the NFLPA.


Seahawksqlube 2 points 4 hours ago*

Why is it "laughable"? Those decisions were from a different district court (District of Minnesota) and have no binding effect on a court in New York.

Also, it's quite inaccurate to say the NFL only cites one case repeatedly, or that it is "facially inapplicable." First, they cite it four times, but also cite to plenty of other Second Circuit decisions (which are binding on SDNY) and SDNY decisions (which are going to be more binding than a D. Minn. decision). Second, it's a Supreme Court case, so it's going to have a lot more influence than a case from a sister court. Third, it is in fact applicable, since the case heldthat "Judicial review of a labor arbitration decision pursuant to a collective-bargaining agreement is very limited. Courts are not authorized to review an arbitrator's decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties' agreement." It actually means the NFLPA is not permitted to argue any of the factual findings underlying the suspension, including whether or not there was a scheme to deflate, whether or not Brady knew about it, and whether or not Brady failed to cooperate

Not sure what he means that the supreme court is telling not to overturn the arbitration.

 

[ANGR89]

from reddit

http://www.reddit.com/r/nfl/comments/3g747h/the_full_15page_documents_filed_by_the_nfl_and/



Not sure what he means that the supreme court is telling not to overturn the arbitration.

Don't like the sounds of that

 

[SVN]

and some more legal stuff from reddit
http://www.reddit.com/r/nfl/comments/3g6vgu/nfl_files_motion_to_confirm_arbitration_and_nflpa/
http://www.reddit.com/r/nfl/comments/3g747h/the_full_15page_documents_filed_by_the_nfl_and/ctw71mt
rockxwl 4 points 12 hours ago

"Contrary to the Union’s request, a court is “not authorized to review the arbitrator’s decision on the merits despite allegations that the decision rests on factual errors or misinterprets the parties’ agreement.” MLBPA v. Garvey, 532 U.S. 504, 509 (2001) (per curiam). The Court must confirm the award if it “draws its essence” from the CBA. Saint Mary Home, Inc. v. Serv. Emps. Int’l Union, Dist. 1199, 116 F.3d 41, 44 (2d Cir. 1997). In other words, even if the Court were “convinced” that the arbitrator “committed serious error,” the Award could not be vacated so long as the arbitrator was “even arguably construing or applying the [CBA] and acting within the scope of his authority.”

This sentence on page 2 of the NFL's brief both outrages and terrifies me.

craig80 3 points 9 hours ago

It's not about the facts anymore. It's about the process. The court would prefer to to interject in a labor dispute.
Standard_deviance 1 point 2 hours ago

MLBPA v Garvey basically says that if an arbitrator is honest/impartial and confines themselves within the scope of the agreement, the arbitrator can decide the interpretation of the evidence and a judge cannot reverse that even if their interpretation is flawed.

However, this does not apply to Kessler's arguments because Kessler argues:

1. Goodell is not impartial nor honest.
2. Goodell violated the CBA by failing to give notice.
3. Goodell violated the CBA by awarding excessive punishment
4. The arbitration was fundamentally unfair.

None of these points questions Goodell's fact finding.

TLDR This case does not apply to the arguments being brought forth.

 

[VectorPrime]

And when the arbitrator can be definitively proven to be objectively lying about the facts of the case in order to render the judgement he wants, does that really make no difference? Forget about the Wells report. Forget about the punishment. Goodell was caught, on record, lying about the events in the appeal he arbitrated so that he could rule in favor of himself. How does that not immediately compromise his supposed impartiality?

 

[SVN]

Recent opinions from judge berman on arb rulings via reddit poster

Edit

Went through some recent Berman opinions on arb awards.

Mason Tenders Dist. Council of Greater New York & Long Island v. Circle Interior Demolition, Inc., No. 07 CIV 11227 RMB THK, 2009 WL 5061744, at *1 (S.D.N.Y. Dec. 22, 2009) (Berman upholds arb award)

United States v. Dist. Council of New York City, No. 90 CIV. 5722 RMB, 2012 WL 4056088, at *2 (S.D.N.Y. Sept. 12, 2012) (Berman declines to interfere with a CBA)

New York City Dist. Council of Carpenters Pension Fund v. Mcintosh Interiors, LLC, No. 10 CIV. 2243 (RMB), 2010 WL 3001907, at *2-3 (S.D.N.Y. July 20, 2010) (Berman confirms arb award)

New York City v. Ass'n of Wall-Ceiling & Carpentry Indus. of New York, Inc., No. 14 CIV. 6091, 2015 WL 1938148, at7 (S.D.N.Y. Apr. 27, 2015) (Berman overturns arb award *against** labor union)

So there is plenty of history of Berman ruling against a union or against upsetting an arb award. I'm sure he has decisions in favor of Brady's argument, but my quick and dirty scan of his recent big opinions revealed the foregoing.