Why "it was repealed on procedure" is BS

[juny]

Michael McCann ‏@McCannSportsLaw 12h12 hours ago

Michael McCann retweeted Mooooooose

Tom Brady didn't win on a technicality or the legal equivalent of the Tuck Rule. It was a complete and decisive win.

 

[QuantumMechanic]

Thanks. I understand that Berman's role was not to judge Brady's guilt or innocence but rather to judge whether or not the NFL fairly administered article 46 of the CBA during the investigation and punishment process. I also understand that Berman didn't feel the need to have to rule on guilt for he had enough ammunition to vacate on process alone.

I suppose what I am wondering is what harm could have been (potentially) done by him judging on both, process and guilt?

He was not allowed to judge on process and guilt. If he had made his own determination of guilt his ruling would have been a slam dunk to be overturned.

The relevant federal law -- the Federal Arbitration Act -- that allow arbitrators' decisions to be vacated essentially does not allow judges to put themselves in the place of the arbitrator. The judge is basically forced by the law to defer to the abitrator's determination of (a) what the facts are, and (b) if those facts support the given arbitral award. All the judge can do is look to the process/procedure of the arbitration (that it was conducted fairly, that it didn't break any laws, and are the relevant contract provisions enforceable) and whether or not the arbitrator was "evidently partial".

I imagine but do not know that perhaps some factual determinations could be looked at as part of determining if an arbitrator is evidently partial. For example, if a person could be punished for holding yen and standing in direct sun, and the person in question was found standing against the west wall of a building at sunrise (thus impossible to be in direct sun) in East Bumblef**k, NE (thus very unlikely anyone would have yen), and the arbitrator said "since the sun rises in the west and the legal currency of the USA is the yen, then person X had to be in the sun and almost definitely had yen and therefore is punished", I would not be surprised if the judge could use those repeated clear misstatements of fact as evidence of bias.

 

[40yrpatsfan]

Glad to see the tweet from McCann.

It takes 2 or 3 deductive steps to understand what a sweeping and exonerating victory this was for Brady, which is way more than the average meathead hater is willing or capable of doing. As for the media, they are desperately defending their wrong positions by repeating the "technicality" angle as a mantra. The only way to turn that is for us to educate friends in the media (eg a Heath Evans) on how to defend that ploy.

Meanwhile our mantra changes to "FU moron we're coming after your women and children next".

 

[Bobs My Uncle]

He was not allowed to judge on process and guilt. If he had made his own determination of guilt his ruling would have been a slam dunk to be overturned.

The relevant federal law -- the Federal Arbitration Act -- that allow arbitrators' decisions to be vacated essentially does not allow judges to put themselves in the place of the arbitrator. The judge is basically forced by the law to defer to the abitrator's determination of (a) what the facts are, and (b) if those facts support the given arbitral award. All the judge can do is look to the process/procedure of the arbitration (that it was conducted fairly, that it didn't break any laws, and are the relevant contract provisions enforceable) and whether or not the arbitrator was "evidently partial".

I imagine but do not know that perhaps some factual determinations could be looked at as part of determining if an arbitrator is evidently partial. For example, if a person could be punished for holding yen and standing in direct sun, and the person in question was found standing against the west wall of a building at sunrise (thus impossible to be in direct sun) in East Bumblef**k, NE (thus very unlikely anyone would have yen), and the arbitrator said "since the sun rises in the west and the legal currency of the USA is the yen, then person X had to be in the sun and almost definitely had yen and therefore is punished", I would not be surprised if the judge could use those repeated clear misstatements of fact as evidence of bias.

Thanks. This is clearer to me now. What I am understanding is that Berman was not allowed to act outside of his authority (to rule on process only) and doing so would otherwise jeopardize his ruling.

If so, I wonder if there is any chance that the NFL lawyers will contend that Berman, simply by publicly questioning the guilt/innocence of Brady in the hearings, might have allowed his opinion on guilt/innocence to sway his process ruling? Is this even possible? I can't imagine Berman would jeopardize his ruling by opening himself as such.

 

[40yrpatsfan]

Here's my 3-step argument for defeating the "procedure" BS:

1. Berman could only rule on the fairness of the arbitration/appeal ruling by Goodell, not the original case ruling by Vincent. He's required to assume that the findings of the original ruling are true when writing his ruling. If his ruling to overturn the arbitration is based on any circumstances of the original case (e.g., say he concludes that the NFL should have considered Anderson's testimony about which gauge he recalled using), then Berman's ruling would get overturned on appeal. So he cannot base his ruling or state in his ruling that Tom was innocent of the original charges.

2. Berman gutted the NFL on fundamental fairness in his written ruling on the arbitration process, on multiple counts: not letting Kessler question Pash, not giving him Wells' interview notes, etc. He put quotes around the word "independent" when alluding to the Wells report, and also re-named it to the "Pash-Wells" report, both direct hits on NFL fairness and credibility. He "nullified" the suspension rather than remand it back to the NFL to re-arbitrate, so that Goodell would never have another crack at this.

Prior to the written ruling, he also nailed them in many other ways related to fairness - e.g. he released the transcript of the arbitration hearing to the public, cause he saw that Goodell had lied and misled everyone about Brady's testimony, leading to a firestorm on Goodell's head. Also, during questioning of the NFL attorney, Berman nailed him on many of the original facts of the case, further exposing them - e.g., he was openly incredulous that there was no proof at all linking TB to the AFCC game. He was careful not to include any of that in his written ruling, but this judge was outraged and also knows how to play the game. He completely established that the NFL acted in a scummy sleazy way both during the arbitration and before.

3. So why did the NFL conduct such an unfair arbitration/appeal, why did they convict TB with no proof at all connecting him to the AFCC game? Because they had NO CASE, NO PROOF. Being unfair was their only hope, and they've always gotten away with this bs so why not this time? By outing them as unfair sleazebags while cleverly exposing how empty their original case was, the NFL's entire case in in the toilet and he completely exonerates Brady.

 

[juny]

Also if Brady was to get off on a technicality, the judge could have easily said something like "even though evidence suggests strongly that such and such happened...i have to rule this way"
But from reading the transcript from the hearings, it was clear that the judge found no such evidence.

 

[Mr. Plow]

The common theme running in the media etc. is that Berman's decision was just a procedural vacating of the suspension and does not exonorate Brady. While this is technically true , in this case it does not tell the real story. The reason the NFL' s case is chock full of procedural gaffes is because they had no real evidence so they were forced to act accordingly, much like when a team is overmatched and has to hold etc to keep from getting crushed. The media makes it sound like someon forgot to file by a deadline or some technical screw up was the cause for the ruling. However, to use Greg Doyel's words the NFL "tried to rig the game" at every turn. In my opinion this does exonerate Brady because if they had true evidence of guilt there would have been no need to convince Anderson he used the other gauge, no need to have Wells leave out big portions of testimony, no need to leak false PSI numbers and never correct them, no need to lie about Pash being part of the investigation, and most of all no need to waste 8 months and millions of dollars on this travesty. The true cheaters are the NFL and their cohorts!

Damn, I love this post.

Marko, that's a great analogy. As you've stated, the procedural errors came because the underlying case is so weak. Thank you for posting this.