8/14: NFLPA's latest submission is in

[TommyD4207]

Berman's court is in the 2nd Circuit. Only the US Court of Appeals for the 2nd Circuit (CA2) and SCOTUS can make precedent that binds Berman.

The NFL was apparently unable (or forgot) to find on-point cases by CA2 that support the NFL's claim that Goodell is allowed to consider and reject the allegedly binding effects of prior awards. The NFL says a bunch of non-CA2 circuits do allow him to do that.

So those cases can only act as potentially persuasive authorities for Berman -- he is not bound by them.

The NFLPA did cite NHLPA v. Bettman in their brief from 1994 - that was a CA2 case. They cited others in their larger filing as well.

 

[QuantumMechanic]

You also have the irony that the NFL is citing CA8 law about Goodell's ability to ignore the effects of prior arbitrations. CA8 is the circuit that includes Minnesota -- where the NFLPA filed but was forced out of due to the NFL filing in NY.

 

[JJC]

I am not sure what will annoy the judge more. Kessler being a little fiery in his latest report or the NFL telling the judge he has no say in this at all.

Hmmm, let me get back to you.

He's a NYC judge - fiery confrontation is natural conversation in NYC. Being told you have no authority is probably the quickest way to get him to drop the hammer. They are probably trying to get him to overreach in his ruling so that they can appeal it.

 

[Fencer]

Daniel Wallach ?@WALLACHLEGAL 13m13 minutes ago
NFL: "Supreme Court precedent precludes a retrial of Brady’s disciplinary appeal in this Court. But that is precisely what the Union seeks"

What is this crap? Nash said the same thing that day. Any one explain what he means ? That the judge cannot ovverule NFL ? then why even file this before the NFLPA in court and why hasnt the judge thrown this case out yet ? Maybe I dont follow.

This is what Kessler meant in his brief where he said that the NFL is mischaracterizing the NFLPA's argument.

 

[Patsfanin Philly]

Berman's court is in the 2nd Circuit. Only the US Court of Appeals for the 2nd Circuit (CA2) and SCOTUS can make precedent that binds Berman.

The NFL was apparently unable (or forgot) to find on-point cases by CA2 that support the NFL's claim that Goodell is allowed to consider and reject the allegedly binding effects of prior awards. The NFL says a bunch of non-CA2 circuits do allow him to do that.

So those cases can only act as potentially persuasive authorities for Berman -- he is not bound by them.

Why do I think that Kessler will find a CA2 case that supports his position and the league will be shocked that they couldn't find it....?

 

[Fencer]

Daniel Wallach ?@WALLACHLEGAL 14s14 seconds ago
NFL disparages Peterson case as an "out-of-circuit district court opinion . . . currently under appeal" (Me: but it's predicated on Rice)

Weird that the NFL would disparage a case that they are currently in contempt of court over.

They're showing their contempt for it.

Seriously, they have a point. HOWEVER, in any jurisdiction it's undeniable precedent for Law of the Shop. To attack that kind of inference, they have to attack the legal claims about Law of the Shop being a thing. If they can't defeat those, then the particulars about the Law of the Shop are pretty well established.

 

[QuantumMechanic]

He's a NYC judge - fiery confrontation is natural conversation in NYC. Being told you have no authority is probably the quickest way to get him to drop the hammer. They are probably trying to get him to overreach in his ruling so that they can appeal it.

Some of the legal twitterers were pointing out that if the rumors of witnesses on Wednesday are true that might be inviting a reversal.

 

[TommyD4207]

I don't think the league cares. Berman could throw out the punishment and Goodell will turn around and suspend Brady 8 games on principle.. The are mad with power and like others, pride goeth before the fall......and they will fall......If he did resuspend Brady it would end up in court and the PR hit for the league would be a tidal wave....

If the suspension gets vacated, it will either be vacated, or vacated and then re-appealed to a neutral arbitrator, very likely one chosen by both sides.

The league can't just turn around and suspend Brady again. That's the Rice case. That's settled Labor law.

That won't stop them from trying, I suppose - but I have to imagine even the dumbest owners know when enough is enough.

 

[XLIX]

I don't think the league cares. Berman could throw out the punishment and Goodell will turn around and suspend Brady 8 games on principle.. The are mad with power and like others, pride goeth before the fall......and they will fall......If he did resuspend Brady it would end up in court and the PR hit for the league would be a tidal wave....

Honest question: Does this case "belong" to Berman now? What I mean is this:

Suppose Berman overturns the punishment. The NFL can appeal or they can simply levy a new punishment. Obviously if they appeal it goes to a higher court, so that wouldn't be Berman. But suppose the NFL continues their pattern or obscene conduct and they simply issue a "new" punishment of a 3-game suspension. If/when the NFLPA opposes that, would it go straight to Berman or do we go back to deciding a judge by random chance? (or, for that matter, would we have to go through the farce of Goodell serving as arbitrator for the 3-game punishment?)

 

[TommyD4207]

He's a NYC judge - fiery confrontation is natural conversation in NYC. Being told you have no authority is probably the quickest way to get him to drop the hammer. They are probably trying to get him to overreach in his ruling so that they can appeal it.

It's the only shot they have left.

 

[QuantumMechanic]

They're showing their contempt for it.

Seriously, they have a point. HOWEVER, in any jurisdiction it's undeniable precedent for Law of the Shop. To attack that kind of inference, they have to attack the legal claims about Law of the Shop being a thing. If they can't defeat those, then the particulars about the Law of the Shop are pretty well established.

Though literally any day now CA8 could reverse the trial court's Peterson decision, so pointing out that the NFLPA is using a decision that could go "poof" tomorrow is a reasonable thing to do.

 

[Fencer]

amazing that players association agreed to this type of garbage.
how did peterson's case get thrown out then??

Because under labor law even unlimited power has limits.

 

[SVN]

Stephanie Stradley ?@StephStradley 6m6 minutes ago
re: the SalPal report saying witnesses may be attending Wed hearing. That's weird. Don't know what's up w/that or any good speculation yet.

 

[Patsfanin Philly]

Some of the legal twitterers were pointing out that if the rumors of witnesses on Wednesday are true that might be inviting a reversal.

If so, would they be voluntary or under subpoena ???? I'm curious to see who would be called....and yeah I have to believe Brady will be there. Would you want to miss it???

 

[SVN]

I read somewhere that if judge berman makes this a trial of the evidence by getting witnesses and vacates the suspension, the nfl has a good chance of winning the appeal.

 

[XLIX]

If the suspension gets vacated, it will either be vacated, or vacated and then re-appealed to a neutral arbitrator, very likely one chosen by both sides.

The league can't just turn around and suspend Brady again. That's the Rice case. That's settled Labor law.

I remember reading that if the current punishment is vacated, the league can simply reinstitute a brand new punishment. It's not like Ray Rice where the league is trying to punish Brady a second time for one single transgression. If the punishment gets vacated, the league gets to come up with something new.

 

[SVN]

Stephanie Stradley ?@StephStradley 2m2 minutes ago
Especially not them. Their testimony is a PR subplot but irrelevant to any legal appeal point on process. RT @Glover91: Jags and McNally?
Stephanie Stradley ?@StephStradley 1m1 minute ago
nope. RT @Redleg1_101 there is speculation that that was a deliberate @NFL leak to try & scare Brady/Kessler, can you see any point to that?

 

[Soul_Survivor88]

Brady should file a restraining order against everyone in the league office when this is over. Those people are seriously out to get him. They might just try to take him out. I have never seen anything like this in my life. These people are determined to keep him off the field. It doesn't matter if he's guilty or innocent. They want him gone.

Quoted for emphasis!

 

[eom]

hey -- did the nfl's submission get folded in here somewhere already?

 

[XLIX]

I read somewhere that if judge berman makes this a trial of the evidence by getting witnesses and vacates the suspension, the nfl has a good chance of winning the appeal.

Judges don't want to be overturned on appeal. While such a thing is certainly possible, Berman will certainly do his best to make sure his decision is consistent with the law (assuming we get to the point where he actually makes a decision instead of a settlement).