NFLPA/Brady reply brief to NFL/Goodell deflategate appeal

[RobertWeathers]

You know I love Kessler as much as the next guy, and in this Herald article they call him a "superstar". However the major points in this case that we all know so well by this point are pretty conclusive.

The fact is they are SO conclusive, even on the technical labor law level, that most of us could have written a cogent rational brief that would be able to "decimate the NFL deflategate appeal". This issue has been clear for months and it is really a shame that some much time and money is being WASTED on adjudicating such a one sided case as this one is.

The defamation suit will turn out to be equally one sided since at that point the lawyers can directly attack the NFL's flawed assertion that something punishable happened in the first place. Besides the only thing we do know for an unmitigated fact was the NFL purposely withheld exculpatory evidence, lied,. and maliciously misrepresented facts throughout this saga. And that doesn't even start to get into any of BSPN's maleficence

You are predicting that TB12 will file a defamation suit v the NFL?

 

[Sciz]

Didn't NFL Vice President Troy Vincent serve as NFLPA President in 2004-2008?

Yes, although there's a major difference between President (a veteran or recently retired player) and Executive Director (a lawyer).

That's actually a really good comparison for my opinion on Goodell. He was chosen to be the commissioner basically because he had worked for the NFL for a long time, despite being completely incompetent at the legal duties that they now want the commissioner to have. He's equivalent to the NFLPA's President when really that role needs to be more like the Executive Director.

 

[memento]

Yes, although there's a major difference between President (a veteran or recently retired player) and Executive Director (a lawyer).

That's actually a really good comparison for my opinion on Goodell. He was chosen to be the commissioner basically because he had worked for the NFL for a long time, despite being completely incompetent at the legal duties that they now want the commissioner to have. He's equivalent to the NFLPA's President when really that role needs to be more like the Executive Director.

I have heard that Goodell benefits from no legal experience, contrary to Tagliabue. Part of the NFL's argument against contempt charges was that Goodell has no background in law and only does what his lawyers tell him

“I’m not sure the commissioner understands there is a CBA,” Doty said, citing Goodell’s actions and quotes in newspaper articles he has read.

The NFL's labor deal gives the commissioner broad power to impose and arbitrate discipline. The union has argued on a string of recent cases Goodell has abused that power and failed to follow proper processes.

Because Goodell — who wasn’t present Wednesday — lacks legal expertise, Doty said, he doesn’t understand contempt and only would’ve been acting on the advice of his attorneys on such matters.

“Jail time – is that what you want?” Doty asked Kessler at one point. “Do you want us to put the commissioner in jail?”

Judge: I'm not sure Roger Goodell understands there is a CBA

It's also part of the NFL's legal argument against Brady. Since Goodell has no understanding of law, it's reasonable for him to consider both conduct detrimental and equipment violations as equally relevant and simply chose the criteria he felt best, and since he chose that as the arbitrator it should not be questioned by the courts.

 

[patfanken]

You are predicting that TB12 will file a defamation suit v the NFL?

I only wish I could, because I firmly believe he'd win it. The pluses of that kind of win would be the following.

a. the corrupt and toxic innards of the 353 Park Ave would be laid bare for all to see.

b. Several well deserved charities would reap the benefits of what would likely be a 9 figure windfall.

c. The question of whether Brady did anything untoward that night would be FINALLY laid to rest. There would be no more qualifications or dealing with getting off on a "technicality". In this court the issue of Brady's innocence would be the main issue, and not shunt to the side like it was in the Appeals Court.

d. The incestuous nature of the NFL's proxy system would also be laid bare, and we'd see first hand how media organizations were used by the NFL to spread their narrative, as opposed to finding the truth.

e. Goodell and his cabal (Kensil, Pash, Vincent, Welles, etc would not survive the carnage, regardless of whether Brady wins or loses. Way too much negative information will be exposed during discovery that would make it likely that he wouldn't even make it until the verdict.

f. A successful case the ruins Goodell will open up more people to look upon his handling of spygate and what the real issues were. It would finally be viewed as ANOTHER in a long line of power grabs, and arbitrary and inconsistent punishments designed to penalize certain teams.

The only negatives would be that the lawyers would all make millions and the NFL would be severely damaged which might hurt the game of football.

Brady's case, even with just the surface information we have now would seem to satisfy all the check points a successful defamation suit requires for a win. Money was lost. False information was spread.
The defendant knew the information was false, And you can prove malicious intent to discredit and harm the plaintive.

Christ, you can do the last one by reading off the ridiculous claims the NFL makes in it's written appeals court brief. In they call Brady the leader of a conspiracy to defraud and cheat the game of football, and who willfully obstructed the investigation. NONE of those things can be proven, or even reasonably claimed....and you can use their own Welles report to do it.

BOTTOM LINE - Do I WANT Brady to file suit, absolutely. SHOULD he do it, again absolutely. If he doesn't his legacy will always have an asterisk beside it, even decades from now. Do I predict he will? Unfortunately I don't think so.

I don't think Brady wants to endure another year of this issue. Plus to win this one, he'd have to be a lot more active in the case than he was in the Investigation and appeal. He might feel the distraction would be too much. He's a pretty private guy, and I'm sure he just wants it to "go away". Filing a defamation suit might not be viewed as a way to make that happen. But IMHO, if he doesn't he'll regret it down the road.

 

[Danger Zone]

I hear the whiny fans of other teams yelling about how Brady is supposedly clinging to technicalities.

Will they ever grasp that the court case is a labor dispute?

And what is even more hypocritical, short-sighted or ironic or what have you is the fact that its the NFL's case not Brady's defense that is clinging to technicalities.

 

[memento]

And what is even more hypocritical, short-sighted or ironic or what have you is the fact that its the NFL's case not Brady's defense that is clinging to technicalities.

The whole case seems like technicalities when all we want is exoneration of illegal ball tampering based on natural deflation.

 

[QuantumMechanic]

Christ, you can do the last one by reading off the ridiculous claims the NFL makes in it's written appeals court brief. In they call Brady the leader of a conspiracy to defraud and cheat the game of football, and who willfully obstructed the investigation. NONE of those things can be proven, or even reasonably claimed....and you can use their own Welles report to do it.

I'm pretty sure court filings are privileged against libel/slander actions, so he can't sue the NFL over anything it said in any of its filed legal briefs.

Second, you can't sue for libel/slander over statements of opinion, especially when you disclose the facts you are basing your opinion on. Here's a quote from the MA SJC decision just the other day in the Brad Delp case:

Even a statement that is "cast in the form of an opinion may imply the existence of undisclosed defamatory facts on which the opinion purports to be based, and thus may be actionable." King v. Globe Newspaper Co., 400 Mass. 705, 713 (1987). By contrast, an opinion "based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified or unreasonable the opinion may be or how derogatory it is." Dulgarian v. Stone, 420 Mass. 843, 850 (1995), quoting Lyons v. Globe Newspaper Co., supra at 262. (Scholz v. Delp at 17).

The conclusions in the Wells/Pash Report, the disciplinary letter, and the Goodell arbitration decision are all couched in language of opinion (quite intentionally, I'm sure) and the report has plenty of "disclosed or assumed nondefamatory facts". That the opinions are unjustified from the facts doesn't matter. I would not be surprised if the disclosed fact of Brady not turning over his phone alone gives legal cover to all of Goodell's opinions about Brady in any libel/slander lawsuit.

Don't get me wrong -- I want to see Goodell et al get crushed. But I think it's going to be a pretty hard row to hoe.

But to further the discussion, what specific statements to do you think Brady should sue over?

 

[Deus Irae]

The whole case seems like technicalities when all we want is exoneration of illegal ball tampering based on natural deflation.

The case at law is about procedure and process, because that's all it can be about. The 9 idiots in black robes have made it that way.

 

[Huckleberry1]

You know I love Kessler as much as the next guy, and in this Herald article they call him a "superstar". However the major points in this case that we all know so well by this point are pretty conclusive.

The fact is they are SO conclusive, even on the technical labor law level, that most of us could have written a cogent rational brief that would be able to "decimate the NFL deflategate appeal". This issue has been clear for months and it is really a shame that some much time and money is being WASTED on adjudicating such a one sided case as this one is.

The defamation suit will turn out to be equally one sided since at that point the lawyers can directly attack the NFL's flawed assertion that something punishable happened in the first place. Besides the only thing we do know for an unmitigated fact was the NFL purposely withheld exculpatory evidence, lied,. and maliciously misrepresented facts throughout this saga. And that doesn't even start to get into any of BSPN's maleficence

Ken, I hate to be the one to break it to you but there is not going to be any defamation lawsuit. Brady wants this done and that's it, even if he loses, which I doubt will happen the most he would do is go back to Berman, he's not taking it to the Supremes and he isn't going to spend the next three years in court. If the 2nd COURT OF APPEALS upholds Berman that will be the end of this, even the league will call it quits.

 

[Jimke]

Ken, I hate to be the one to break it to you but there is not going to be any defamation lawsuit. Brady wants this done and that's it, even if he loses, which I doubt will happen the most he would do is go back to Berman, he's not taking it to the Supremes and he isn't going to spend the next three years in court. If the 2nd COURT OF APPEALS upholds Berman that will be the end of this, even the league will call it quits.

I hope your last sentence proves true. I believe the case will go all the way to the Supreme Court.
Goodell cannot give up or he will surrender complete power over player discipline.

 

[QuantumMechanic]

The case at law is about procedure and process, because that's all it can be about. The 9 idiots in black robes have made it that way.

Let's be fair. The doctrine of an appellate case being limited to issues of law in the court below goes back a long, long, long way.

 

[DaBruinz]

Didn't NFL Vice President Troy Vincent serve as NFLPA President in 2004-2008?

Yes. And quite a few players were upset when he defected to the NFL Commissioner's office after he lost out on being re-elected..

 

[Hoodie]

I hear the whiny fans of other teams yelling about how Brady is supposedly clinging to technicalities.

Will they ever grasp that the court case is a labor dispute?

Brady simply cannot argue for upholding the ruling based upon his factual innocence, because this is a dispute over labor law. Thus he is emphasizing Goodell’s decision to trample his collectively-bargained rights.

Brady is not admitting to what we all know, by now, that he did not do. He is merely saying that even if you believed the NFL’s shoddy misrepresentation of the facts of the case, the punishment is fundamentally unfair, illegal, and wholly without precedent.

This is true but Judge Berman let us know in every sentence of his ruling that he thinks the NFL's case is crap.

 

[reflexblue]

Lester Munson said this was a poorly-written, shoddy document - with no chance of winning against the NFL's filing of legal brilliance.

Munson isn't an analyst, hes a comedian.

 

[RobertWeathers]

I only wish I could, because I firmly believe he'd win it. The pluses of that kind of win would be the following.

a. the corrupt and toxic innards of the 353 Park Ave would be laid bare for all to see.

b. Several well deserved charities would reap the benefits of what would likely be a 9 figure windfall.

c. The question of whether Brady did anything untoward that night would be FINALLY laid to rest. There would be no more qualifications or dealing with getting off on a "technicality". In this court the issue of Brady's innocence would be the main issue, and not shunt to the side like it was in the Appeals Court.

d. The incestuous nature of the NFL's proxy system would also be laid bare, and we'd see first hand how media organizations were used by the NFL to spread their narrative, as opposed to finding the truth.

e. Goodell and his cabal (Kensil, Pash, Vincent, Welles, etc would not survive the carnage, regardless of whether Brady wins or loses. Way too much negative information will be exposed during discovery that would make it likely that he wouldn't even make it until the verdict.

f. A successful case the ruins Goodell will open up more people to look upon his handling of spygate and what the real issues were. It would finally be viewed as ANOTHER in a long line of power grabs, and arbitrary and inconsistent punishments designed to penalize certain teams.

The only negatives would be that the lawyers would all make millions and the NFL would be severely damaged which might hurt the game of football.

Brady's case, even with just the surface information we have now would seem to satisfy all the check points a successful defamation suit requires for a win. Money was lost. False information was spread.
The defendant knew the information was false, And you can prove malicious intent to discredit and harm the plaintive.

Christ, you can do the last one by reading off the ridiculous claims the NFL makes in it's written appeals court brief. In they call Brady the leader of a conspiracy to defraud and cheat the game of football, and who willfully obstructed the investigation. NONE of those things can be proven, or even reasonably claimed....and you can use their own Welles report to do it.

BOTTOM LINE - Do I WANT Brady to file suit, absolutely. SHOULD he do it, again absolutely. If he doesn't his legacy will always have an asterisk beside it, even decades from now. Do I predict he will? Unfortunately I don't think so.

I don't think Brady wants to endure another year of this issue. Plus to win this one, he'd have to be a lot more active in the case than he was in the Investigation and appeal. He might feel the distraction would be too much. He's a pretty private guy, and I'm sure he just wants it to "go away". Filing a defamation suit might not be viewed as a way to make that happen. But IMHO, if he doesn't he'll regret it down the road.

Great post. I agree wholeheartedly.

 

[DaBruinz]

I'm pretty sure court filings are privileged against libel/slander actions, so he can't sue the NFL over anything it said in any of its filed legal briefs.

Second, you can't sue for libel/slander over statements of opinion, especially when you disclose the facts you are basing your opinion on. Here's a quote from the MA SJC decision just the other day in the Brad Delp case:

The conclusions in the Wells/Pash Report, the disciplinary letter, and the Goodell arbitration decision are all couched in language of opinion (quite intentionally, I'm sure) and the report has plenty of "disclosed or assumed nondefamatory facts". That the opinions are unjustified from the facts doesn't matter. I would not be surprised if the disclosed fact of Brady not turning over his phone alone gives legal cover to all of Goodell's opinions about Brady in any libel/slander lawsuit.

Don't get me wrong -- I want to see Goodell et al get crushed. But I think it's going to be a pretty hard row to hoe.

But to further the discussion, what specific statements to do you think Brady should sue over?

Sorry, but I gotta disagree with you that Goodell's arbitration decision was couched in language of opinion. If it had been, he would have just regurgitated the BS from the Wells report. Instead, Goodell doubled down with his false claims that had no basis in fact what so ever.

- ..."Mr. Brady knew about, approved of, consented to, and provided inducements and rewards in support of a scheme by which, with Mr. Jastremski's support, Mr. Mcnally tampered with the game balls. The result was to undermine if not vitiate, the game officials' efforts to ensure that the game balls used by the Patriots complied with league rules"

That is not a statement of opinion. That is a statement of fact by Goodell. A fact that is not supported by the Wells Report.

He makes several other statements as fact in his decision that many people pointed out were false on his part.

There have been numerous people with the legal background who have chimed in saying that Brady does, in fact, have a defamation case. Not sure why you are, all of a sudden, saying that he doesn't have one..

BTW, How would Brady not turning over his phone to Goodell give legal cover? Please remember that Wells, in his capacity as investigator and NFL representative, told Brady that he didn't need the actual cell phone.

 

[venecol]

I only wish I could, because I firmly believe he'd win it. The pluses of that kind of win would be the following.

a. the corrupt and toxic innards of the 353 Park Ave would be laid bare for all to see.

b. Several well deserved charities would reap the benefits of what would likely be a 9 figure windfall.

c. The question of whether Brady did anything untoward that night would be FINALLY laid to rest. There would be no more qualifications or dealing with getting off on a "technicality". In this court the issue of Brady's innocence would be the main issue, and not shunt to the side like it was in the Appeals Court.

d. The incestuous nature of the NFL's proxy system would also be laid bare, and we'd see first hand how media organizations were used by the NFL to spread their narrative, as opposed to finding the truth.

e. Goodell and his cabal (Kensil, Pash, Vincent, Welles, etc would not survive the carnage, regardless of whether Brady wins or loses. Way too much negative information will be exposed during discovery that would make it likely that he wouldn't even make it until the verdict.

f. A successful case the ruins Goodell will open up more people to look upon his handling of spygate and what the real issues were. It would finally be viewed as ANOTHER in a long line of power grabs, and arbitrary and inconsistent punishments designed to penalize certain teams.

The only negatives would be that the lawyers would all make millions and the NFL would be severely damaged which might hurt the game of football.

Brady's case, even with just the surface information we have now would seem to satisfy all the check points a successful defamation suit requires for a win. Money was lost. False information was spread.
The defendant knew the information was false, And you can prove malicious intent to discredit and harm the plaintive.

Christ, you can do the last one by reading off the ridiculous claims the NFL makes in it's written appeals court brief. In they call Brady the leader of a conspiracy to defraud and cheat the game of football, and who willfully obstructed the investigation. NONE of those things can be proven, or even reasonably claimed....and you can use their own Welles report to do it.

BOTTOM LINE - Do I WANT Brady to file suit, absolutely. SHOULD he do it, again absolutely. If he doesn't his legacy will always have an asterisk beside it, even decades from now. Do I predict he will? Unfortunately I don't think so.

I don't think Brady wants to endure another year of this issue. Plus to win this one, he'd have to be a lot more active in the case than he was in the Investigation and appeal. He might feel the distraction would be too much. He's a pretty private guy, and I'm sure he just wants it to "go away". Filing a defamation suit might not be viewed as a way to make that happen. But IMHO, if he doesn't he'll regret it down the road.

I think Brady has better things to do (Gisele) than to spend the next two years in court just to make patriot fans happy or to remove a non-existent asterisk from his name. He certainly doesn't need the money.

 

[QuantumMechanic]

How would Brady not turning over his phone to Goodell give legal cover? Please remember that Wells, in his capacity as investigator and NFL representative, told Brady that he didn't need the actual cell phone.

Boiled down Goodell:
"Because he didn't turn over his phone, I conclude that Brady knew what was going on and in fact masterminded it."

By cover I mean cover in a defamation case, not in the Brady suspension case. I agree with you that Wells saying he didn't need the phone is a major, major problem for the NFL when it argues that Goodell had the right to suspend Brady for not turning over the phone as it goes to the lack of notice.

Anyhow, I remain curious (in an honestly curious sense, not in an attacking sense) about what specific things @PatsFanSince74 thinks Brady should sue over.

 

[QuantumMechanic]

Here's a quote from McCann back in June:

Brady would need to show that not only were public statements made about him false and damaging to his reputation, but he’d have to show those statements were made with actual malice, which means knowingly or intentionally. In other words, if the Wells Report contained reputationally-damaging inaccuracies or lies about Brady, that would not be enough for Brady to prevail in a defamation lawsuit. He’d have to show that Wells included statements that Wells knew were false. That would be hard to show, especially as it relates to a controversy where there remain different scientific opinions and theories about what may have happened.

Debate about the science in Deflategate is itself a defense for defendants in any defamation lawsuit brought by Brady. Those defendants can argue that at the time they made those statements about Brady, there was debate about what happened in Deflategate and thus a lack of consensus about what constituted the truth and what constituted a lie.

 

[venecol]

Lester Munson said this was a poorly-written, shoddy document - with no chance of winning against the NFL's filing of legal brilliance.

I love to read Munson's crisp legal opinion on this. Munson is known for being very accurate in these matters.