Florio: Judge Berman put a poison pill in his ruling

[BradyFTW!]

James' MO is to just say stuff to get a reaction. He doesn't believe what he says, he believes what he says will get a reaction.

He'll gladly turn this political and argue either side just for the enjoyment of watching people argue.

Ahhh, okay, that's who's making waves? Thanks, no wonder I'm not seeing any of it, put him on ignore ages ago. In a forum full of low-effort crap posters, he wears the crown.

 

[Midship]

Lol, the Patriots put this up during the game apparently. Really trolling Goodell

That's funny, though a bit bush league.

 

[Bella*chick]

How is it bush league? It's every definition of awesome known to man.

 

[Mr. Objective]

I hesitate to post this because it's going to burst the bubble of this thread, but those three points that Berman threw out at the end are not a poison pill. The last thing Berman wants is for this case to be remanded to him. Trust me on that. He threw out those three points because they were the weakest parts of the case for Brady, and in particular, the first point deals with factual findings which he is not allowed to make and would have been reversed perhaps if he had.

I disagree. And just so you know that I’m not some 14-year-old reacting emotionally to someone trying to spoil his perfect day, I’ve practiced law for many years and have specialized in labor law the entire time. So I’m an experienced labor lawyer reacting emotionally to someone trying to spoil his perfect day. But to get to the point: Going into this litigation before Judge Berman I thought that arbitrator bias—one of the grounds for vacating Goodell’s arbitration award that Judge Berman specifically reserved judgment on—was the strongest argument that the NFLPA had for overturning Goodell’s verdict. There is abundant direct and indirect evidence of Goodell’s bias—including the leak of false information to Mortenson, the NFL’s failure to correct Mortenson’s report despite the fact that Brady and the Patriots were getting hammered in the press in the run-up to the Super Bowl, the transmission of false PSI information to the Patriots, the insistence that the Patriots not release the correct PSI figures after they were given them, the league’s persistent refusal to divulge the correct PSI figures to the public despite repeated requests by the Patriots to do so, the refusal by the league to have the Wells firm investigate the NFL’s conduct, Goodell’s endorsement of the Wells Report prior to the arbitration, Goodell’s delay in issuing the arbitration award, and the leak of information to Steven A. Smith immediately before issuing his arbitration award that Brady had destroyed his cell phone.

The problem with proving arbitrator bias in the litigation that just concluded before Judge Berman is that the NFL and the NFLPA had agreed that Judge Berman could decide the case on the basis of the arbitration record alone. Although there were a number of good reasons for why Kessler might have agreed to this—including the fact that an evidentiary hearing in which discovery was had and witnesses were examined would have kept the suspension hanging over Brady’s head throughout the season—it handicapped the NFLPA’s ability to prove this claim, as most of the evidence of Goodell’s bias involved conduct that was never alluded to during the arbitration hearing. However, there is nothing to prevent Judge Berman from considering this evidence if the case is remanded to him by the Second Circuit. Although Judge Berman went along with the NFL and NFLPA’s agreement and decided the case on the basis of the arbitration record alone, I am not aware that Judge Berman bound himself to this agreement and, in any case, any agreement between the NFL, NFLPA, and Judge Berman would not apply to any subsequent hearings before him. With such evidence it seems to me that proving Goodell’s bias would be a slam dunk.

So, as Florio points out, by specifically making note that he was not addressing Brady’s claim that Goodell was biased, Berman was, in effect, issuing a warning to Goodell that things could get worse for him if the NFL appeals and succeeds in getting the case remanded to him, for it would be more embarrassing for Goodell to have his arbitration award vacated because he was biased than because of the contract and process issues that Judge Berman relied on in issuing yesterday’s ruling.

 

[PatsFanSince74]

I disagree. And just so you know that I’m not some 14-year-old reacting emotionally to someone trying to spoil his perfect day, I’ve practiced law for many years and have specialized in labor law the entire time. So I’m an experienced labor lawyer reacting emotionally to someone trying to spoil his perfect day. But to get to the point: Going into this litigation before Judge Berman I thought that arbitrator bias—one of the grounds for vacating Goodell’s arbitration award that Judge Berman specifically reserved judgment on—was the strongest argument that the NFLPA had for overturning Goodell’s verdict. There is abundant direct and indirect evidence of Goodell’s bias—including the leak of false information to Mortenson, the NFL’s failure to correct Mortenson’s report despite the fact that Brady and the Patriots were getting hammered in the press in the run-up to the Super Bowl, the transmission of false PSI information to the Patriots, the insistence that the Patriots not release the correct PSI figures after they were given them, the league’s persistent refusal to divulge the correct PSI figures to the public despite repeated requests by the Patriots to do so, the refusal by the league to have the Wells firm investigate the NFL’s conduct, Goodell’s endorsement of the Wells Report prior to the arbitration, Goodell’s delay in issuing the arbitration award, and the leak of information to Steven A. Smith immediately before issuing his arbitration award that Brady had destroyed his cell phone.

The problem with proving arbitrator bias in the litigation that just concluded before Judge Berman is that the NFL and the NFLPA had agreed that Judge Berman could decide the case on the basis of the arbitration record alone. Although there were a number of good reasons for why Kessler might have agreed to this—including the fact that an evidentiary hearing in which discovery was had and witnesses were examined would have kept the suspension hanging over Brady’s head throughout the season—it handicapped the NFLPA’s ability to prove this claim, as most of the evidence of Goodell’s bias involved conduct that was never alluded to during the arbitration hearing. However, there is nothing to prevent Judge Berman from considering this evidence if the case is remanded to him by the Second Circuit. Although Judge Berman went along with the NFL and NFLPA’s agreement and decided the case on the basis of the arbitration record alone, I am not aware that Judge Berman bound himself to this agreement and, in any case, any agreement between the NFL, NFLPA, and Judge Berman would not apply to any subsequent hearings before him. With such evidence it seems to me that proving Goodell’s bias would be a slam dunk.

So, as Florio points out, by specifically making note that he was not addressing Brady’s claim that Goodell was biased, Berman was, in effect, issuing a warning to Goodell that things could get worse for him if the NFL appeals and succeeds in getting the case remanded to him, for it would be more embarrassing for Goodell to have his arbitration award vacated because he was biased than because of the contract and process issues that Judge Berman relied on in issuing yesterday’s ruling.

Thank you. I am quite impressed that there are around a half dozen or so Lawyers and Litigators like yourself, who have been commenting at a high level throughout this process. Seriously, it's really quite impressive when one cuts through the nonsense. I suspect, as Judge Berman is fond of saying, that a couple of them are "Harvard trained." And, BTW, it is important to remember that Berman went to NYU Law School, so there is a combination of respect and sarcasm in that remark.

But, I digress.

IANAL, but I am quite familiar with members of the legal and media community in New York City (I, too, for better or worse, am "Harvard trained," but not at "The Law School") and got a pretty good read on Judge Berman within a day or two of his appointment to this case from my friends.

I've written from Day One that Berman was the kind of guy who would have no time for weasels like Wells ("Harvard Trained" ), Nash and Pash...not to mention Goodell. I said that Berman would have much more affinity for Jeffrey Kessler ("Columbia Trained" but another New York guy with a lot more in common with Kessler ).

As soon as I read the banter between Kessler and Berman on August 12th when Berman chides Kessler for taking so much time to answer one of his questions that he says he's afraid to ask another...at that point, I had a feeling it was over, but Nash/Pash/Goodell/Wells were too dense to "get it."

So, what I'm trying to say is that the more I read about this, the more I think that Goodell et al. managed to really piss Berman off. He sent them enough signals that he was going to rule against them and in favor of the NFLPA that it's like he was almost insulted that they didn't get the message. So, yeah, it doesn't surprise me that he planted what you Litigators describe as a "Poison Pill" in his ruling as a final **** you to the NFL for wasting his time.

Thanks again to you and the other Lawyers and Litigators who have elevated this dialogue over the last few difficult weeks!

 

[PatsWickedPissah]

I disagree. And just so you know that I’m not some 14-year-old reacting emotionally to someone trying to spoil his perfect day, I’ve practiced law for many years and have specialized in labor law the entire time. So I’m an experienced labor lawyer reacting emotionally to someone trying to spoil his perfect day. But to get to the point: Going into this litigation before Judge Berman I thought that arbitrator bias—one of the grounds for vacating Goodell’s arbitration award that Judge Berman specifically reserved judgment on—was the strongest argument that the NFLPA had for overturning Goodell’s verdict. There is abundant direct and indirect evidence of Goodell’s bias—including the leak of false information to Mortenson, the NFL’s failure to correct Mortenson’s report despite the fact that Brady and the Patriots were getting hammered in the press in the run-up to the Super Bowl, the transmission of false PSI information to the Patriots, the insistence that the Patriots not release the correct PSI figures after they were given them, the league’s persistent refusal to divulge the correct PSI figures to the public despite repeated requests by the Patriots to do so, the refusal by the league to have the Wells firm investigate the NFL’s conduct, Goodell’s endorsement of the Wells Report prior to the arbitration, Goodell’s delay in issuing the arbitration award, and the leak of information to Steven A. Smith immediately before issuing his arbitration award that Brady had destroyed his cell phone.

The problem with proving arbitrator bias in the litigation that just concluded before Judge Berman is that the NFL and the NFLPA had agreed that Judge Berman could decide the case on the basis of the arbitration record alone. Although there were a number of good reasons for why Kessler might have agreed to this—including the fact that an evidentiary hearing in which discovery was had and witnesses were examined would have kept the suspension hanging over Brady’s head throughout the season—it handicapped the NFLPA’s ability to prove this claim, as most of the evidence of Goodell’s bias involved conduct that was never alluded to during the arbitration hearing. However, there is nothing to prevent Judge Berman from considering this evidence if the case is remanded to him by the Second Circuit. Although Judge Berman went along with the NFL and NFLPA’s agreement and decided the case on the basis of the arbitration record alone, I am not aware that Judge Berman bound himself to this agreement and, in any case, any agreement between the NFL, NFLPA, and Judge Berman would not apply to any subsequent hearings before him. With such evidence it seems to me that proving Goodell’s bias would be a slam dunk.

So, as Florio points out, by specifically making note that he was not addressing Brady’s claim that Goodell was biased, Berman was, in effect, issuing a warning to Goodell that things could get worse for him if the NFL appeals and succeeds in getting the case remanded to him, for it would be more embarrassing for Goodell to have his arbitration award vacated because he was biased than because of the contract and process issues that Judge Berman relied on in issuing yesterday’s ruling.

WOOOOOSSSSHHH!

The signals from the judge flying over Goodell's head.

I agree with Deus that lack of character is Roger's biggest flaw. However, everything I've seen tells me he is also not very bright. How the 32 ever hired him and worse yet kept him in his job given that he's personally contributed nada to the league's development is an unanswerable conundrum to me.

 

[Bledsoehasaring]

@Galeb @Bledsoehasaring @GaryfromTO Thanks for flagging me with a negative rating, for simply expressing doubt

I undid my disagree... Sometimes one drinks and gets a little trigger happy on the disagree button.

 

[Patsfanin Philly]

Thank you. I am quite impressed that there are around a half dozen or so Lawyers and Litigators like yourself, who have been commenting at a high level throughout this process. Seriously, it's really quite impressive when one cuts through the nonsense. I suspect, as Judge Berman is fond of saying, that a couple of them are "Harvard trained." And, BTW, it is important to remember that Berman went to NYU Law School, so there is a combination of respect and sarcasm in that remark.

But, I digress.

IANAL, but I am quite familiar with members of the legal and media community in New York City (I, too, for better or worse, am "Harvard trained," but not at "The Law School") and got a pretty good read on Judge Berman within a day or two of his appointment to this case from my friends.

I think the Harvard-trained comment, much like the "in my 40 years of practice" was a slap at Wells. It was Wells who used both expressions IIRC in his testimony mentioning Pash as Harvard-trained lawyer who "wordsmithed" and in his 40 years of practice he had never seen anything like Brady destroying the phone.
Kessler responded in open court the next time, referring to his "40 years of practice".....
And yes I think when Berman used it, it was both respect and sarcasm.....

 

[PatsFanSince74]

I think the Harvard-trained comment, much like the "in my 40 years of practice" was a slap at Wells. It was Wells who used both expressions IIRC in his testimony mentioning Pash as Harvard-trained lawyer who "wordsmithed" and in his 40 years of practice he had never seen anything like Brady destroying the phone.
Kessler responded in open court the next time, referring to his "40 years of practice".....
And yes I think when Berman used it, it was both respect and sarcasm.....

Thanks. I missed that.
And, as anyone who is fortunate enough to be "Harvard-trained" knows, it only helps you get your first job. After that, it's what you do and who you are as a person. Wells and Pash flunk that test.

 

[juny]

From interview transcript between Florio and Kessler (found on PFT)

JK: Right or the Second Circuit could say, “You know what? We’re going to reach one of those other three issues and overturn it on that ground.” They have that authority also

Did not know appeals court could rule on the things Berman did not rule on, makes odds brady win extremely good

 

[TomPatriot]

According to Florio, Judge Berman didn't rule on several of Brady's arguments just in case the NFL wins the appeal. Then it woud go back to Berman and he could rule on those issues and then send the NFL back in the appeals process. This could tie this up in court for years.

http://profootballtalk.nbcsports.co...ans-ruling-may-contain-a-warning-for-the-nfl/

Hilarious, wrong and unlikely. There is a reason Florio writes a football column.

 

[Patsfanin Philly]

Hilarious, wrong and unlikely. There is a reason Florio writes a football column.

McCann, Stradley and others who have written on the case from a legal viewpoint, said the same thing as Florio and how it was a brilliant move by Berman to make it bulletproof.......Kessler was on several radio shows on Friday and didn't deny it when asked specifically about this......
Florio may write a football column but he practiced law (employment law which is a form of labor law) so he is better versed on this than many others....

 

[raduray]

our country has become obsessed with "fairness"

everything has to be "fair"

i have been accused and punished for things that i didnt do a few times in my life

by my parents.....by teachers......by bosses

it wasnt "fair".........but i sucked it up and kept moving forward anyway

i didnt have any legal recourse......suing wasnt an option......and it taught me a valuable life lesson

sometimes even when the boss is wrong, they're still right....because thats how authority works in this world

i just feel bad for the young people of today who think they can get a lawyer every-time they feel aggrieved

someday the reality that life isnt fair is gonna hit them like a ton of bricks and they arent gonna have the reservoir of mental fortitude built up that i did

I hope you're being sarcastic. Fighting against injustice is a hallmark of our country. Yes, it's a hard fight, and there have been and continue to be many reversals, but in the aggregate, ours is a a more just society that it was at the founding. Maybe I'm being idealistic, but it's better than the cynic you portray.

 

[TomPatriot]

McCann, Stradley and others who have written on the case from a legal viewpoint, said the same thing as Florio and how it was a brilliant move by Berman to make it bulletproof.......Kessler was on several radio shows on Friday and didn't deny it when asked specifically about this......
Florio may write a football column but he practiced law (employment law which is a form of labor law) so he is better versed on this than many others....

It is typical for a court to issue a decision and leave some of the arguments unaddressed in the opinion if those arguments won't change the result. I think Berman tried to buttress the best arguments, mentioning the last three only because they include facts that many Second Circuit Judges would see as fundamentally unfair even though they probably don't form a sufficient legal argument for vacating the arbitrator's decision. That would be a lot more typical than the poison pill argument; the Second Circuit is Berman's boss and it can (but it won't) send the case back to Berman with instructions not to find for he NFLPA as a matter of law on the latter three points, forcing Berman to swallow his own poison pill. The poison pill argument doesn't wash, IMHO.

Of course, I've been wrong before.

 

[raduray]

Although I suspect they'll drop it, I actually hope the NFL goes through with the appeal. A verdict upheld by the appellate court is a much better precedent than the initial ruling by itself.

 

[Patsfanin Philly]

Although I suspect they'll drop it, I actually hope the NFL goes through with the appeal. A verdict upheld by the appellate court is a much better precedent than the initial ruling by itself.

You would think someone in the league's legal department or outside counsel at Paul, Weiss, Rifkind would raise this issue but sometimes egos get in the way...............Or if they think they have a good chance of winning on appeal, why not ( from their perspective). As someone wrote the other day, the sunken costs theory is perfectly in play here.

 

[Rob0729]

Hilarious, wrong and unlikely. There is a reason Florio writes a football column.

Florio said in the article that someone told him about it. He didn't not figure it out on his own. He said it was someone much smarter than him. So I trust the report.

 

[MagicMarker]

Although I suspect they'll drop it, I actually hope the NFL goes through with the appeal. A verdict upheld by the appellate court is a much better precedent than the initial ruling by itself.

I think an appeal could be way worse for the NFL. You're right...another loss looks bad, but if they win and the case is sent to a neutral arbitrator all the facts come into play again. I don't believe the Wells report can withstand the scrutiny of a neutral review.

 

[Rob0729]

I think the Harvard-trained comment, much like the "in my 40 years of practice" was a slap at Wells. It was Wells who used both expressions IIRC in his testimony mentioning Pash as Harvard-trained lawyer who "wordsmithed" and in his 40 years of practice he had never seen anything like Brady destroying the phone.
Kessler responded in open court the next time, referring to his "40 years of practice".....
And yes I think when Berman used it, it was both respect and sarcasm.....

The funny thing is I looked at the list of lawyers at Wells' firm (you can search the lawyers by law school they attended) and there are 22 Harvard educated lawyers at the firm.

http://www.paulweiss.com/profession...&key=&pract=&pos=&loc=&sch=Harvard University

The whole "We wanted a Harvard educated lawyer to wordsmith the report" is such utter bullcrap.

 

[TomPatriot]

I disagree. And just so you know that I’m not some 14-year-old reacting emotionally to someone trying to spoil his perfect day, I’ve practiced law for many years and have specialized in labor law the entire time. So I’m an experienced labor lawyer reacting emotionally to someone trying to spoil his perfect day. But to get to the point: Going into this litigation before Judge Berman I thought that arbitrator bias—one of the grounds for vacating Goodell’s arbitration award that Judge Berman specifically reserved judgment on—was the strongest argument that the NFLPA had for overturning Goodell’s verdict. There is abundant direct and indirect evidence of Goodell’s bias—including the leak of false information to Mortenson, the NFL’s failure to correct Mortenson’s report despite the fact that Brady and the Patriots were getting hammered in the press in the run-up to the Super Bowl, the transmission of false PSI information to the Patriots, the insistence that the Patriots not release the correct PSI figures after they were given them, the league’s persistent refusal to divulge the correct PSI figures to the public despite repeated requests by the Patriots to do so, the refusal by the league to have the Wells firm investigate the NFL’s conduct, Goodell’s endorsement of the Wells Report prior to the arbitration, Goodell’s delay in issuing the arbitration award, and the leak of information to Steven A. Smith immediately before issuing his arbitration award that Brady had destroyed his cell phone.

The problem with proving arbitrator bias in the litigation that just concluded before Judge Berman is that the NFL and the NFLPA had agreed that Judge Berman could decide the case on the basis of the arbitration record alone. Although there were a number of good reasons for why Kessler might have agreed to this—including the fact that an evidentiary hearing in which discovery was had and witnesses were examined would have kept the suspension hanging over Brady’s head throughout the season—it handicapped the NFLPA’s ability to prove this claim, as most of the evidence of Goodell’s bias involved conduct that was never alluded to during the arbitration hearing. However, there is nothing to prevent Judge Berman from considering this evidence if the case is remanded to him by the Second Circuit. Although Judge Berman went along with the NFL and NFLPA’s agreement and decided the case on the basis of the arbitration record alone, I am not aware that Judge Berman bound himself to this agreement and, in any case, any agreement between the NFL, NFLPA, and Judge Berman would not apply to any subsequent hearings before him. With such evidence it seems to me that proving Goodell’s bias would be a slam dunk.

So, as Florio points out, by specifically making note that he was not addressing Brady’s claim that Goodell was biased, Berman was, in effect, issuing a warning to Goodell that things could get worse for him if the NFL appeals and succeeds in getting the case remanded to him, for it would be more embarrassing for Goodell to have his arbitration award vacated because he was biased than because of the contract and process issues that Judge Berman relied on in issuing yesterday’s ruling.

I think Kessler would have moved for a preliminary injunction staying the decision if he thought arbitrator bias was the best argument. I think he was following precedent and knew his strongest argument was law of the shop because that was the basis for Doty's decision (Jones too) and it was clear Brady and the union had no notice of punishment. It was a simple, bright line call and the best shot at winning.