Tom Brady, NFLPA Granted 14-Day Extension To File Motion For Rehearing By Second Circuit Court

[Hammer of Thor]

Thought it might be interesting to really highlight the changes between the draft and the final version. I thought the language of the draft was strong. Their edits to the final version intentionally raised it up even further.

The first paragraph itself is a great example. Only the last sentence remains unchanged. Here is the draft:

This case arises from an arbitration ruling by NFL Commissioner Roger

Goodell that defies the rule of law. After orchestrating a multi-million dollar

investigation into purported football deflation during the 2015 AFC Championship

Game, Goodell imposed a severe and unprecedented punishment on Patriots

quarterback Tom Brady. When Brady exercised his right under the collective

bargaining agreement to appeal the punishment to an arbitrator, Goodell appointed

himself as the arbitrator and “affirmed” the punishment he had just imposed.
​

Here is the final version:

This case arises from an arbitration ruling by NFL Commissioner Roger

Goodell that undermines the rights and expectations of parties to collective

bargaining agreements, and runs roughshod over the rule of law. Goodell

superintended a multimillion-dollar investigation into purported football deflation

during the 2015 AFC Championship Game—an investigation he falsely portrayed

as independent. The NFL then used the findings of that investigation to impose a

severe and unprecedented punishment on New England Patriots quarterback Tom

Brady based on his supposed “general awareness” of misconduct by team

employees. When Brady exercised his right under the collective bargaining

agreement to appeal the punishment, Goodell appointed himself as the arbitrator

and “affirmed” the punishment he had himself imposed.
​

EDIT: Looking at it closely, most of the language changes served to either 1) even more strongly highlight Goodell's incompetence, or 2) slightly soften the language used against Parker and Chin. Probably for the best I would think; probably not a good thing to request a hearing by arguing that your peers (that you've worked with daily for years) are incompetent. Save the vengeance for the deserving moron and jerk of an arbitrator instead.

 

[bbobbo]

When I googled Michelle McGuirk, what I primarily found was a professional wrestling entertainment personality.

If the person filing these attempts at court intervention is indeed the same person, then this case has indeed jumped the shark.

nope, that's the wrong michelle mcguirk. this one is a former gymnast, maiden name "hilse":

Here is an extract that gives a good flavor:

Per Fed.R.App.Pr.35(b)(l)(B) exceptional circumstances exist as my surviving many diagnosis of disease and qualifying to the 1984 U.S. National Gymnastics Team and Olympic Trials is likely highly statistically remote over Mr. Brady's record yet not without due respect.
​

Maybe she and Rusty could get together to discuss this case further.

Michelle Hilse in Bernardsville, NJ | Intelius

Michelle L Hilse
Michelle L Scoza
Michelle Lynn McGuirk
Michelle L McDonald

D. Athletics - Gymnastics Fd 28 #43

HILSE SAYS IT'S NOT FUN, QUITS TEAM

Little Girls in Pretty Boxes

Where are they now? Utah Gymnasts of the past

Michelle Hilse (1987-88) - VP of credit management for Swiss RE in Morris Township, N.J.

http://www.leagle.com/decision/In NJCO 20110629662/McGUIRK v. McGUIRK

apparently she sued her own employer:

McGuirk v. Swiss Re Financial Services, Corp. et al

 

[borisman]

Is there a way to find out what cases (the 1%) the Second Circuit DID decide to hear?? It's not like this is a baseless appeal by team Brady. Olson made a great appeal to have the case heard by the entire panel so I think the 1% does not apply in this case. It's a big labor issue, not as big as Olson makes it to be but enough to seriously consider.

 

[Hammer of Thor]

Is there a way to find out what cases (the 1%) the Second Circuit DID decide to hear?? It's not like this is a baseless appeal by team Brady. Olson made a great appeal to have the case heard by the entire panel so I think the 1% does not apply in this case. It's a big labor issue, not as big as Olson makes it to be but enough to seriously consider.

Problem is, everyone is going to try to make their case stand out. As a layman, I look at this and I think it's compelling. But there probably are another 20 en banc appeals out there waiting for approval/denial by CA2. I'm sure if I read them, about 15-20 of them would also look very compelling to me, with references to Supreme Court decisions and other Circuit decisions in conflict with the actual ruling. And they'd reference the far-reaching implications well beyond the particular case but to the world at large. That's what these attorneys are paid to do, and you generally get really competent people at this stage.

Not to take anything away from Olson who is pretty much the crème-de-la-crème (along with Clement). It's just that I'm sure most of these cases would look compelling to me, yet CA2 will only choose 1 of those to review if any. I'd be interested in an appeals lawyer's opinion as to how compelling this brief really is compared to the typical rehearing/en banc brief.

 

[cmasspatsfan]

Is there a way to find out what cases (the 1%) the Second Circuit DID decide to hear?? It's not like this is a baseless appeal by team Brady. Olson made a great appeal to have the case heard by the entire panel so I think the 1% does not apply in this case. It's a big labor issue, not as big as Olson makes it to be but enough to seriously consider.

McCann said it's higher than the typical 1% but couldn't give a number. All I know is they said Berman wouldn't overturn Goody's ruling, and he did, then they said CA2 wouldn't overturn Berman, and they did. Now they're saying CA2 won't take the case, fill in the rest yourself.

 

[borisman]

Decisions

There are a lot of appeals filed so I can see why only a small percentage are actually heard.

 

[letekro]

Problem is, everyone is going to try to make their case stand out. As a layman, I look at this and I think it's compelling. But there probably are another 20 en banc appeals out there waiting for approval/denial by CA2. I'm sure if I read them, about 15-20 of them would also look very compelling to me, with references to Supreme Court decisions and other Circuit decisions in conflict with the actual ruling. And they'd reference the far-reaching implications well beyond the particular case but to the world at large. That's what these attorneys are paid to do, and you generally get really competent people at this stage.

Not to take anything away from Olson who is pretty much the crème-de-la-crème (along with Clement). It's just that I'm sure most of these cases would look compelling to me, yet CA2 will only choose 1 of those to review if any. I'd be interested in an appeals lawyer's opinion as to how compelling this brief really is compared to the typical rehearing/en banc brief.

I don't know anything about labor law, so I really don't know how compelling the brief is on a substantive legal basis. As I've said, the overuse of italics worries me a bit. The second of the two grounds --that Goodell's ruling is flawed because it he at least had to "consider" the alternative penalties but apparently did not, just strikes me as perhaps overly technical, not particularly compelling.

The first ground--that Goodell could not uphold the discipline on new grounds--sounds compelling to me as a quasi-layperson. The question there, though, is were there really any "new grounds", or will the judges conclude that there was enough in the Wells Report and Vincent letter about noncooperation and memorabilia-for-deflation, such that Goodell's ruling was not based on new grounds?

 

[QuantumMechanic]

The first ground--that Goodell could not uphold the discipline on new grounds--sounds compelling to me as a quasi-layperson. The question there, though, is were there really any "new grounds", or will the judges conclude that there was enough in the Wells Report and Vincent letter about noncooperation and memorabilia-for-deflation, such that Goodell's ruling was not based on new grounds?

And there is a potential place that Brady and NFLPA interests diverge.

Brady, obviously, doesn't want to be suspended. The NFLPA would prefer that Brady not be suspended, but what they really care about is getting their interpretation of the CBA upheld. If the en banc court says (which it certainly could) "We agree with the NFLPA that the Commissioner cannot uphold an appeal based on 'new grounds'. However, in this case we find there are not new grounds, so we affirm the arbitral award" then the NFLPA gets its win on that point even though Brady loses.

Did the NFLPA team pick a strategy that makes it easier for them to win on having the CBA interpreted as they'd like but one that perhaps made it harder for Brady to avoid suspension? Dunno.

It would be interesting to know how much say Brady's been allowed to have in all this and what his options were if he felt he would be better served with a different strategy than what the NFLPA thought was best.

 

[KDPPatsfan85]

Meanwhile at the NFL League office, Goodell and Kensil are hard at work...

 

[RobertWeathers]

It would be interesting to know how much say Brady's been allowed to have in all this and what his options were if he felt he would be better served with a different strategy than what the NFLPA thought was best.

Thought I had read somewhere that TB12 needed a lot of convincing to abide by the current strategy and not one that sought to prove that no one deflated footballs.

 

[SlowGettingUp]

McCann said it's higher than the typical 1%

The actual percentage is way less than 1% - only 8 in over 27,000 cases:

Rehearing En Banc is Rarely Granted = Less Than 3/100 of 1% of the Cases
Sports Law Blog

·The Federal Court Management Statistics published by the Administrative Office of the United States Courts confirm that the Second Circuit does indeed consider a far smaller percentage of its cases en banc than do the other regional circuits. (Source)
·According to the official statistics, in the 11-year period from 2000 through 2010, the twelve regional circuits heard a total of more than 325,000 cases that were terminated on the merits after oral hearings or submissions on briefs. A total of 667 (as reported) to 670 cases (using our Second Circuit data) were heard en banc during that same 11-year period—a little over 2/10 of 1% of the total. (Source)
·The average for the Second Circuit was about one-eighth that of the system-wide average: eight cases heard en banc out of a total of 27,856 appeals that were terminated on the merits, or less than 3/100 of 1% of the cases. (Source)
·The court appears to have taken an even more restrictive approach to granting en banc review, as in the 11-year period from 2000 through 2010, the court heard only eight cases en banc—a decline from an average of about 1.2 cases per year from 1979 through 1993 to a rate of about 0.7 cases per year from 2000 through 2010. (Source)
·Second Circuit Judge Robert A. Katzmann explains, in a concurring opinion in Riccio v. DeStefano, 53 F.3d 88, 89-90 (2d Cir. 2008), that “our Circuit [has] a “longstanding tradition of general deference to panel adjudication—a tradition which holds whether or not the judges of the Court agree with the panel’s disposition of the matter before it. Throughout [its] history, [the Court] ha proceeded to a full hearing en banc only in rare and exceptional circumstances.” (Source)
·Another explanation for the small number of cases heard en banc by the Second Circuit may be the informal procedure its judges follow of circulating cases to each other before issuance of a panel opinion in cases that might otherwise merit en banc review. (Source)​

 

[IllegalContact]

Engineering and physics professors support Tom Brady in Deflategate case

Papers filed with the 2nd U.S. Circuit Court of Appeals said these experts believe the 2nd Circuit's ruling upholding the suspension lacks any scientific proof and the appeals judges should reconsider an April decision that reinstated Brady's suspension."In the name of science, we support the petition for rehearing," the papers said.The documents said it was no surprise to any scientist when the NFL discovered that the Patriots' footballs had lost pressure when New England routed the Indianapolis Colts 45-7 in the 2015 AFC Championship game. They said deflation happens naturally when a closed vessel such as a football moves from a warm environment to a cold one."This is not tampering. It is science. And it pervades the NFL. Games routinely are played with footballs that fall below the league's minimum pressure requirement," the papers said. "Courts should not be powerless to consider the absence of scientific proof when a proceeding is so interlaced with laws of science."The legal brief was filed on behalf of 21 professors from the Massachusetts Institute of Technology, the University of California, Berkeley, University of Michigan, Stanford University, University of Southern California, University of Delaware, Purdue University, University of Pennsylvania, Boston College and the University of Minnesota.

 

[Mack Herron]

All hail Science!

Physics, Engineering Professors Admonish NFL's Science, Support Tom Brady In Amicus Brief With Second Circuit

This is not tampering. It is science. And it pervades the NFL. Games routinely are played with footballs that fall below the league’s minimum pressure requirement.”

 

[BelichickFan]

Physics, Engineering Professors Admonish NFL's Science, Support Tom Brady In Amicus Brief With Second Circuit

This is the money image right here :

The dots below the lower red line are the games played with illegal balls. So says High School Chemistry, anyway.

Or in words :

The group then looked at the temperature for 10,000 NFL games dating back to 1960 and determined that if footballs were inflated in a 70-degree room:

–Footballs inflated to 12.5 PSI before the game would have dropped below the NFL’s allowable limit in approximately 82 percent of every NFL game since 1960.

–Footballs inflated to 13.0 PSI before the game would have dropped below the NFL’s allowable limit in approximately 61 percent of every NFL game since 1960.

–Footballs inflated to 13.5 PSI before the game would have dropped below the NFL’s allowable limit in approximately 38 percent of every NFL game since 1960.

 

[h0c2000]

This is the money image right here :

The dots below the lower red line are the games played with illegal balls. So says High School Chemistry, anyway.

To put man's knowledge of gas law in context, the Salem witch trials happened 30 years AFTER Boyle first published the relationship of volume, pressure, and temperature.

 

[AQPE]

I thought this particular functional relationship between pressure and temperature at constant volume (for an "ideal" gas) was Gay-Lussac's Law. Not that there's anything wrong with that.

 

[Hammer of Thor]

The actual percentage is way less than 1% - only 8 in over 27,000 cases:

Rehearing En Banc is Rarely Granted = Less Than 3/100 of 1% of the Cases
Sports Law Blog

·The Federal Court Management Statistics published by the Administrative Office of the United States Courts confirm that the Second Circuit does indeed consider a far smaller percentage of its cases en banc than do the other regional circuits. (Source)
·According to the official statistics, in the 11-year period from 2000 through 2010, the twelve regional circuits heard a total of more than 325,000 cases that were terminated on the merits after oral hearings or submissions on briefs. A total of 667 (as reported) to 670 cases (using our Second Circuit data) were heard en banc during that same 11-year period—a little over 2/10 of 1% of the total. (Source)
·The average for the Second Circuit was about one-eighth that of the system-wide average: eight cases heard en banc out of a total of 27,856 appeals that were terminated on the merits, or less than 3/100 of 1% of the cases. (Source)
·The court appears to have taken an even more restrictive approach to granting en banc review, as in the 11-year period from 2000 through 2010, the court heard only eight cases en banc—a decline from an average of about 1.2 cases per year from 1979 through 1993 to a rate of about 0.7 cases per year from 2000 through 2010. (Source)
·Second Circuit Judge Robert A. Katzmann explains, in a concurring opinion in Riccio v. DeStefano, 53 F.3d 88, 89-90 (2d Cir. 2008), that “our Circuit [has] a “longstanding tradition of general deference to panel adjudication—a tradition which holds whether or not the judges of the Court agree with the panel’s disposition of the matter before it. Throughout [its] history, [the Court] ha proceeded to a full hearing en banc only in rare and exceptional circumstances.” (Source)
·Another explanation for the small number of cases heard en banc by the Second Circuit may be the informal procedure its judges follow of circulating cases to each other before issuance of a panel opinion in cases that might otherwise merit en banc review. (Source)​

Engineering and physics professors support Tom Brady in Deflategate case

And this is the one thing that throws all of those statistics out. This is a trivial case in the overall greater scheme of things, although Olson certainly argues the possible arbitration and CBA ramifications. But what sets this case apart from the others is the massive public interest. Very few cases are this high-profile. Very few cases bring together both the world of employment labor law and higher education. There are massive, "Think of the children!" implications here, both in terms of educational perspective (as the professors argue) and moral perspective ("How do I as a parent explain to my kids that an innocent man was found guilty in the US, the fairest country of all?"). I expect there is a level of personal pride among the justices, too - I expect many want their names on famous cases, just like big-name attorneys like Clement and Olson want to get attached to cases like this.

I know it's still unlikely overall to be heard. But I think those blanket statistics should be thrown out the window when considering the odds.

 

[Tony2046]

Engineering and physics professors support Tom Brady in Deflategate case

Somebody please tell me that this will mean something to court.

 

[PatsWickedPissah]

It won't since the appeal is about labor law not what did or did not happen

 

[jimnance]

Thats why Ive been saying all along I dont think Bradys chances of getting an en banc are as much of a long shot as people think. Those stats are deceptive anyway-first, theyre not quantified. You cant just say "only 8 appeals out of 20,000 (or whatever) were granted"--you have to first remove all the cases that werent already originally won in court(eg Berman), that will likely remove thousands-then ,of those remaining, remove those where the vote was as close to 2-1, PLUS the dissenting opinion was the CHIEF JUDGE. Add that to the high-profile nature of this case-and I'll wager tom's odds are FAR greater than waht people are quoting. You dont need to be legal expert to know that-just use a little common sense.