Wallach: Good Chance for re-hearing En Banc

[TheBostonStraggler]

Let's not fool ourselves that this is setting any precedent.

There are parts of the decision that Gunn highlights in which the majority argues that a sports league in particular is different from other businesses because these decisions relate to conduct on the playing field. They state blatantly, "Only the league can adjudicate in matters such as this." In other words, this for them has more to do with matters of playing a game. Rules. Entertainment, etc.

I'm curious why you say this? Would this be the first ruling that seemingly had specifics that were then applied in a more blanket fashion?

I'd also argue this, what law says 'if its sports then whatever an arbitrator says is Ok'? If there is one then this ruling makes more sense. If there isn't one then this is why we get into these messes(mess). The law is the law and should not be open to the whim of a fallible human to say 'well this is just sports so the law doesn't apply?". When that happens the ramifications are in fact potentially severe. Again if the arbitrator laws specify that sports gets treated different and the arbitrator is not subject to that of a shop floor worker then I understand the ruling better (not like it but understand it). Otherwise tom brady in the locker room or on the field is essentially the same as joe blow on the shop floor or in the break room.

 

[TheBostonStraggler]

Don't worry, if man is involved, there can be no doubting it will be fundamentally flawed. In Australia, we're headed down our own slippery slope.

What worries me most about man is not that we are fundamentally flawed but that it spirals down an even more fundamentally flawed trajectory faster than we can recognize that frailty and counteract it.

And as far as Down Under, you may be headed down your own slippery slope but from what I have seen it's at a slower pace than many many others

 

[SHOWTIME15]

I know there are a lot of naysayers right now, but Wallach also said that he felt that Brady didn't have a very good day in court during the appeals hearing. He knows a little bit about this process.

 

[BradyFTW!]

Wallach was very on-point throughout the original case, and saw the writing on the wall for the appeal immediately after the hearing. Either way, he knows the second circuit pretty well, so I'll remain cautiously hopeful, if not optimistic.

 

[SHOWTIME15]

Wallach was very on-point throughout the original case, and saw the writing on the wall for the appeal immediately after the hearing. Either way, he knows the second circuit pretty well, so I'll remain cautiously hopeful, if not optimistic.

This ^^^^^^

 

[XLIX]

Why are the odds long that SCOTUS would take up this case if brought before it? I get that it's "just sports", but it's not "just sports". We are talking about a major industry, and we are talking about U.S. labor law. This isn't about Brady being involved in the alleged deflation of footballs. This is about the rights of employees and the relationship between collective bargaining agreements and United States labor law. This kind of decision could impact all the major sports, and all situations where there are CBAs between employers and employees.

That it has major star power only adds to it.

EDIT: Or what AllstonPatsFan said about three seconds before me.

From what I have read today, the chances increase dramatically if Adrian Peterson wins his 8th Circuit Appeal out in Missouri. If he wins, then you have 2 federal districts making 2 separate rulings, which is the sort of thing we need the USSC to resolve.

I have no idea when that case will be adjudicated though.

 

[SHOWTIME15]

FRAP 35. En Banc Determination

Here is the 2nd circuit rule on En Banc hearings:

(a) When Hearing or Rehearing En Banc May Be Ordered.



A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:



(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or



(2) the proceeding involves a question of exceptional importance.

 

[SHOWTIME15]

(a) Judges Eligible to Request an En Banc Poll. Only an active judge of the court or a senior judge who sat on the three-judge panel is eligible to request a poll of the active judges to determine whether a case should be heard or reheard en banc.



(b) Judges Eligible to Vote in an En Banc Poll. Only an active judge may vote to determine whether a case should be heard or reheard en banc and whether an en banc panel, once constituted, should be dissolved. A judge's status as an active or senior judge for the purpose of an en banc poll is determined on the date of entry of the en banc order.



(c) Judges Eligible to Participate in an En Banc Hearing or Rehearing. Only an active judge or a senior judge who sat on the three-judge panel is eligible to participate in the en banc hearing or rehearing. A judge's status as an active or senior judge is determined on the date of the hearing or rehearing en banc, i.e., on the date oral argument is heard or the case is submitted.



(d) Judges Eligible to Participate in an En Banc Decision. Only an active judge or a senior judge who either sat on the three-judge panel or took senior status after a case was heard or reheard en banc may participate in the en banc decision. A judge who joins the court after a case was heard or reheard en banc is not eligible to participate in the en banc decision.

 

[SHOWTIME15]

FRAP 35. En Banc Determination

Here is the 2nd circuit rule on En Banc hearings:

(a) When Hearing or Rehearing En Banc May Be Ordered.



A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:



(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or



(2) the proceeding involves a question of exceptional importance.

I am not sure how Brady would qualify under (1) or (2) above. You could argue that this is a case is of "exceptional importance," but some of the judges may think that this is just about deflated footballs.

 

[XLIX]

I think there's a chance. These judges are human beings too, and may want the chance to weigh in on a case which, short of actual USSC rulings, has probably been the most prominent, most newsworthy civil court case I can think of over the past year or so.

(I might be biased by calling it the most prominent and newsworthy case over the past year since I watch and follow sports disproportionally to other activities)

 

[upstater1]

I'm curious why you say this? Would this be the first ruling that seemingly had specifics that were then applied in a more blanket fashion?

I'd also argue this, what law says 'if its sports then whatever an arbitrator says is Ok'? If there is one then this ruling makes more sense. If there isn't one then this is why we get into these messes(mess). The law is the law and should not be open to the whim of a fallible human to say 'well this is just sports so the law doesn't apply?". When that happens the ramifications are in fact potentially severe. Again if the arbitrator laws specify that sports gets treated different and the arbitrator is not subject to that of a shop floor worker then I understand the ruling better (not like it but understand it). Otherwise tom brady in the locker room or on the field is essentially the same as joe blow on the shop floor or in the break room.

I'm just referring to the decision itself in which the majority literally spelled it out that this would only apply to sports and entertainment. So this is a decision which the majority thinks is necessary for the league to maintain competition and balance, to put an entertaining product on the field and to vouchsafe the product. It goes to the question of the league best determining how to police competition. If this were a question of, for instance, punishment meted out to Rice for beating his wife (off the field of play) then they would not have emphasized that this was related to sports.

Again, this isn't my argument. It's right in the decision itself.

 

[Patsfanin Philly]

Why are the odds long that SCOTUS would take up this case if brought before it? I get that it's "just sports", but it's not "just sports". We are talking about a major industry, and we are talking about U.S. labor law. This isn't about Brady being involved in the alleged deflation of footballs. This is about the rights of employees and the relationship between collective bargaining agreements and United States labor law. This kind of decision could impact all the major sports, and all situations where there are CBAs between employers and employees.

That it has major star power only adds to it.

EDIT: Or what AllstonPatsFan said about three seconds before me.

Flood v. Kuhn (407 U.S. 258) Curt Flood sued Baseball after being traded and ultimately shattered the reserve clause binding a player to a team indefinitely... It also was "just sports" but ended up being decided in the Supreme Court for labor law issues bigger than the game....

 

[reneluar]

There is a chance, like Jets winning the superbowl....... but a chance is a chance

 

[SammyBlueCat]

In Kessler we trust. (?)

 

[XLIX]

In Kessler we trust. (?)

My trust went down after the appeal hearing. He probably wasn't going to win anyway, but most reports talked about how he was definitely out-lawyered.

 

[JetFan79]

There is a chance, like Jets winning the superbowl....... but a chance is a chance

 

[raduray]

Remember when John Madden said the Pats should run out the clock?

 

[SVN]

 

[JMC00]

Someone needs to find out how many en bancs have been heard when it's the party who initially won requesting it and how many of those are when it was 2-1 in the appeal to reverse the decision, not 3-0.

I know the percentage is small for en bancs to be heard but I would bet that the ones that are heard, a large percentage fit the scenario I just laid out.

 

[Ivan]

From what I have read today, the chances increase dramatically if Adrian Peterson wins his 8th Circuit Appeal out in Missouri. If he wins, then you have 2 federal districts making 2 separate rulings, which is the sort of thing we need the USSC to resolve.

I have no idea when that case will be adjudicated though.

I think Doty will be even more inclined to find for Peterson given what happened to Brady yesterday. Imo he will set up a showdown over player rights.