Wetzel's report on today's (8/19) hearing.

[rochrist]

Ive watched every episode of Boston Legal.. I know how all this/the law works

I'm Denny Green!

 

[rochrist]

Then there was this one from Kessler: "No one in the NFL knew anything about Ideal Gas Law, which is surprising because I think I studied that in ninth-grade science class."
Even Berman laughed at that.

Berman for president

I have an image of the NFL office watching all this (after patting themselves on the back for their 'coup' of getting the case heard in NY) with the horrified fascination of someone watching a hand grenade they just dropped blow up in slow motion.

 

[patfanken]

Berman saying things in court doesn't guarantee an outcome. I know this. The media lawyers following this case know this. The other Patsfans.com lawyers know this. You don't know how the judge is going to rule. Neither does Brady. That's the 'leverage'.

No we don't know for an absolute certainty how Berman will rule, when it comes down. But be serious, how could a jurist as accomplished as Berman NOT vacate Brady's suspension after spending hearings literally making the PA's case for them in open court.

I guess he "could" still rule for the League office, but he'd have a "lot of splaining to do" to justify a complete reversal of his Wednesday's comments. The PA has given him 3 or 4 specific issues that are specific to the CBA . He has already publicly seem to agree with the PA's position on 3 of them. Any ONE of them are reason for him to vacate. And there is precedent for all of them.

No. I've put on my contrarian hat, and tried to look at what technicalities or points of law that the NFL can hope to hang on to, and I'm having a problem with it, even if you narrow it down to Section 46 of the CBA. And the judge has already stated that he believes just because there is a very management friendly clause in the CBA, it doesn't give the NFL the right to contradict US labor law.

If you know something I'm not seeing, please make me aware of it. I'm always interested in learning new things.

 

[Bobs My Uncle]

The PA has given him 3 or 4 specific issues that specific to the CBA . He has already publicly seem to agree with the PA's position on 3 of them. Any ONE of them are reason for him to vacate. And there is precedent for all of them.

WRT the "issues", the thing I wonder about is to what degree of negligence is required to vacate the award? I worry that Berman might consider the "issues" nothing more than a technicality.

 

[patfanken]

WRT the "issues", the thing I wonder about is to what degree of negligence is required to vacate the award? I worry that Berman might consider the "issues" nothing more than a technicality.

The Judge already questioned the issue of them not allowing the Pats to question Pash, AND resoundingly reject their lawyer's explanation in hearing. There is precedent that that issue ALONE could be reason to vacate. Forget about the rest that Wetzel listed so well.

That's what I'm talking about. But its not just this one "technicality" there are a slew of them, both in the narrow spectrum and the broader ones that the Judge seems eager to include. You know when you think about it, about the only thing the league office has done really well in the last several years is run that smear campaign on Brady and the Pats. With about every procedural advantage management can ask for, they have STILL managed to blow this case by their own unique combination of arrogance and ineptness.

BTW- I hate to admit it, but I don't what "WRT" means? '

 

[Bobs My Uncle]

The Judge already questioned the issue of them not allowing the Pats to question Pash, AND resoundingly reject their lawyer's explanation in hearing. There is precedent that that issue ALONE could be reason to vacate. Forget about the rest that Wetzel listed so well.

That's what I'm talking about. But its not just this one "technicality" there are a slew of them, both in the narrow spectrum and the broader ones that the Judge seems eager to include. You know when you think about it, about the only thing the league office has done really well in the last several years is run that smear campaign on Brady and the Pats. With about every procedural advantage management can ask for, they have STILL managed to blow this case by their own unique combination of arrogance and ineptness.

BTW- I hate to admit it, but I don't what "WRT" means? '

With Respect To.

I agree 100% that the judge has identified the negligent issues. My concern pertains to whether or not he considers them malicious enough for him to vacate the suspension.

 

[raduray]

With Respect To.

I agree 100% that the judge has identified the negligent issues. My concern pertains to whether or not he considers them malicious enough for him to vacate the suspension.

I think the judge has to assess where justice resides and then, if at all possible, cite applicable law and precedent to his opinion. Assuming Berman now favors Brady, Kessel and team have provided all sorts of options to make that possible.

 

[Ring 6]

WRT the "issues", the thing I wonder about is to what degree of negligence is required to vacate the award? I worry that Berman might consider the "issues" nothing more than a technicality.

If I understand you correctly, your argument is something like this:

Berman can find issues in the way that the NFL handled the appeal, but are they just technicalities, or what is the threshold of issues to vacate.

My feeling would be that this is a huge reason why he is delving into guilt or innocence issues. It is why he is looking at the actual investigation, and the punishment and trying to understand the fairness of the conclusion, the basis for it, and the level of punishment.
This is because he knows he is going to have latitude in how he rules, because there are certainly reasons that he can vacate, in fact, he said so himself.

So, what it appear to me he is doing is considering all of the following:

1) Is there reason for vacatur. (This is a yes)
2) Is the reason compelling
i.e. if Pash was withheld from testifying and there is nothing you could really expect to be relevant that would change the result, then it is reason to vacate, but not enough of a reason.

Based on 1 and 2 he can absolutely choose to confirm or vacate, depending upon where he places the weight.

3) Is Brady actually guilty
4) Was the investigation fair, especially if 3 is uncertain
5) If there was a truly independent arbitrator would he have found differently than Goodell

So IMO Berman can confirm or vacate and have legal justification. Remember, he really only needs one reason to vacate out of all the ones that are presented. Which way he rules is going to depend on what he feels is just.

In other words, if he thinks Brady is not credible, and has lied to cover his tracks, and the procedural violations that occurred would not have changed the result, he will confirm.
If he feels Brady was, or may be innocent, and/or that his right to defend himself was obstructed to the point that he was denied process, then he vacates.

I think the point of yesterday was giving the NFL an opportunity to convince him that Brady was likely guilty and that any unfairness in the appeal was inconsequential.

I really think that what he was doing was trying to allow the NFL to blow holes in Brady's theory by showing him why these issues are meaningless. It was there chance to prove they should win. I think they failed.
It felt like yesterdays questioning amounted to "OK, I am coming at this from Brady is innocent until proven guilty, so go ahead and shoot down the innocent theory and prove him guilty".
I don't think Nash convinced anyone.

 

[TheBostonStraggler]

I don't understand why you think Brady has to accept ANY concession for something he isn't guilty of, just because you think the Judge wants a settlement rather than a have to make a ruling.

Did you read Wetzel's article? Where's the leverage for Brady to accept any deal from the League other than a full reduction of all penalties, fines and responsibility. The judge put gaping holes not only into the League's procedural points as it pertains to the CBA, he questioned the league's basic fairness in there appeals process, as well as the whether any balls were tampered with in the first place.

Why would Brady consider even a $5 fine? Would you plea down to a felony with no jail time if you were innocent? I don't think so, Fencer.

No offense intended but that is disassociated with reality. At all levels of court (criminal to civil) people accept a plea bargain often.
The government's side (or the extremely powerful) has interesting weapons on its side: (A) near unlimited resources. (B) near complete immunity from actions. (C) near complete ability to prolong the procedure for a generation.

Government seizure of property/money is an especially insidious thing they use these weapons for. You can fight it and spend money you don't have -- to against the other side that will go so far as to disregard the court's order (yes that actually happens). All the while the other side goes home at night without it costing them a dime in tangential money. Or you can just accept you have been screwed by the ultra powerful and get the best deal with the least pain you can out of it.
This happens. This happens more than most now. This happens on the criminal side too. You can face a 50/50 chance at 7 years in a maximum security or 2 years at a minimum security. You're off base if you think people of extremely limited means with iffy representation doesn't look at that deal and, sometimes, take the guaranteed lower pain versus the threat of the major boom coming down on them.
Institute for Justice is a good site to start to learn how Goodell-Defalatgate like many court proceedings can be.

 

[The Brandon Five]

No offense intended but that is disassociated with reality. At all levels of court (criminal to civil) people accept a plea bargain often.
The government's side (or the extremely powerful) has interesting weapons on its side: (A) near unlimited resources. (B) near complete immunity from actions. (C) near complete ability to prolong the procedure for a generation.

Government seizure of property/money is an especially insidious thing they use these weapons for. You can fight it and spend money you don't have -- to against the other side that will go so far as to disregard the court's order (yes that actually happens). All the while the other side goes home at night without it costing them a dime in tangential money. Or you can just accept you have been screwed by the ultra powerful and get the best deal with the least pain you can out of it.
This happens. This happens more than most now. This happens on the criminal side too. You can face a 50/50 chance at 7 years in a maximum security or 2 years at a minimum security. You're off base if you think people of extremely limited means with iffy representation doesn't look at that deal and, sometimes, take the guaranteed lower pain versus the threat of the major boom coming down on them.
Institute for Justice is a good site to start to learn how Goodell-Defalatgate like many court proceedings can be.

Even worse is that the prosecution can essentially influence potential witnesses by offering them deals. You don't think people make stuff up when faced with jail time?

 

[SVN]

I guess he "could" still rule for the League office, but he'd have a "lot of splaining to do" to justify a complete reversal of his Wednesday's comments. The PA has given him 3 or 4 specific issues that are specific to the CBA . He has already publicly seem to agree with the PA's position on 3 of them. Any ONE of them are reason for him to vacate. And there is precedent for all of them.

http://www.usatoday.com/story/sport...-roger-goodell-new-england-patriots/31977247/

If there was one instance, however, that captured the essence of the day, it was when Kessler was about to outline the fourth and final ground on which the union is basing its argument.

Berman stopped and posed an innocent question.

Of those four grounds, he asked, was there one that carried more significance?

"Well, you can put this one first," Kessler shot back, "because we would win with any one of them."

 

[Deus Irae]

No we don't know for an absolute certainty how Berman will rule, when it comes down. But be serious, how could a jurist as accomplished as Berman NOT vacate Brady's suspension after spending hearings literally making the PA's case for them in open court.

Because the U.S. Supreme Court has significantly limited the areas available to overturn arbitration decisions, in light of U.S. Federal Arbitration Act (Title 9), and arbitration decisions are given high deference. Here's the U.S. Code:

https://www.law.cornell.edu/uscode/text/9

 

[Deus Irae]

From the U.S. Code:

(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
(1)
where the award was procured by corruption, fraud, or undue means;
(2)
where there was evident partiality or corruption in the arbitrators, or either of them;
(3)
where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4)
where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
(b)
If an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.
(c)
The United States district court for the district wherein an award was made that was issued pursuant to section 580 of title 5 may make an order vacating the award upon the application of a person, other than a party to the arbitration, who is adversely affected or aggrieved by the award, if the use of arbitration or the award is clearly inconsistent with the factors set forth in section 572 of title 5.
(July 30, 1947, ch. 392, 61 Stat. 672; Pub. L. 101–552, § 5, Nov. 15, 1990, 104 Stat. 2745; Pub. L. 102–354, § 5(b)(4), Aug. 26, 1992, 106 Stat. 946; Pub. L. 107–169, § 1, May 7, 2002, 116 Stat. 132.)

https://www.law.cornell.edu/uscode/text/9/10

 

[BradyFTW!]

From the U.S. Code:

(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
(1)
where the award was procured by corruption, fraud, or undue means;
(2)
where there was evident partiality or corruption in the arbitrators, or either of them;
(3)
where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4)
where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
(b)
If an award is vacated and the time within which the agreement required the award to be made has not expired, the court may, in its discretion, direct a rehearing by the arbitrators.
(c)
The United States district court for the district wherein an award was made that was issued pursuant to section 580 of title 5 may make an order vacating the award upon the application of a person, other than a party to the arbitration, who is adversely affected or aggrieved by the award, if the use of arbitration or the award is clearly inconsistent with the factors set forth in section 572 of title 5.
(July 30, 1947, ch. 392, 61 Stat. 672; Pub. L. 101–552, § 5, Nov. 15, 1990, 104 Stat. 2745; Pub. L. 102–354, § 5(b)(4), Aug. 26, 1992, 106 Stat. 946; Pub. L. 107–169, § 1, May 7, 2002, 116 Stat. 132.)

https://www.law.cornell.edu/uscode/text/9/10

Seems like 2, 3 and 4 are all in play.

 

[Deus Irae]

Seems like 2, 3 and 4 are all in play.

Yes...

Berman's made it pretty clear that he at least has arguments for all 3 you point to.

 

[TommyD4207]

Yes...

Berman's made it pretty clear that he at least has arguments for all 3 you point to.

I still think "2", the partiality, is the strongest argument. You have Goodell changing the suspension, even though he's prohibited by the CBA to do it. You have him determining as "not credible" all the answers by Brady under oath - which matched his answers from the Wells/Pash investigation. You have him refusing to make Jeff Pash available, failing to provide discovery (which they have done before in appeals cases), etc.

 

[Deus Irae]

I still think "2", the partiality, is the strongest argument. You have Goodell changing the suspension, even though he's prohibited by the CBA to do it. You have him determining as "not credible" all the answers by Brady under oath - which matched his answers from the Wells/Pash investigation. You have him refusing to make Jeff Pash available, failing to provide discovery (which they have done before in appeals cases), etc.

Pash not being brought forth to testify would more directly fall under #3.

 

[BradyFTW!]

I still think "2", the partiality, is the strongest argument. You have Goodell changing the suspension, even though he's prohibited by the CBA to do it. You have him determining as "not credible" all the answers by Brady under oath - which matched his answers from the Wells/Pash investigation. You have him refusing to make Jeff Pash available, failing to provide discovery (which they have done before in appeals cases), etc.

I think they're all pretty compelling, and obviously IANAL, but it seems like 3 might be the easiest route for attack because it's the most specific. Goodell refused to allow testimony by Pash, let alone hear it. If Berman wants to craft a decision that will stand up to appeal, my guess would be that he starts with a simple and indisputable fact--like Pash not being allowed to testify--and states that the award is to be vacated on those grounds alone, even if the rest could be accounted for. Then work backwards from there, possibly, and point out all the other reasons for which it must be vacated, in order to inform how the re-hearing of the appeal must be conducted.

 

[QuantumMechanic]

Just remember that the words in that statute (like in any other statute) don't necessarily have their plain English meanings. Some might mean their legal-term-of-art meaning and on top of that, CA2 and SCOTUS decisions may have made their meanings more limited than they might seem on the face of it.

For example, take "evident partiality". What exactly does that mean in a court of law? How partial does an arbitrator have to be for it to be "evident partiality". One's going to have to look at CA2 and SCOTUS cases to see how that's been interpreted.

(To be clear, I have no answers to any of those questions. Just pointing out that one has to be careful assigning everyday meanings to things like this.)

 

[Deus Irae]

Just remember that the words in that statute (like in any other statute) don't necessarily have their plain English meanings. Some might mean their legal-term-of-art meaning and on top of that, CA2 and SCOTUS decisions may have made their meanings more limited than they might seem on the face of it.

For example, take "evident partiality". What exactly does that mean in a court of law? How partial does an arbitrator have to be for it to be "evident partiality". One's going to have to look at CA2 and SCOTUS cases to see how that's been interpreted.

(To be clear, I have no answers to any of those questions. Just pointing out that one has to be careful assigning everyday meanings to things like this.)

F'rinstance...

http://kluwerarbitrationblog.com/bl...arbitrators-evident-partiality-under-u-s-law/