NFLPA/Brady reply brief to NFL/Goodell deflategate appeal

[venecol]

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

That's not what I wanted. I just wanted Tommy to play. The fact he kicked Goodell in the balls in court was just a plus.

 

[TheBostonStraggler]

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

Here is the only accuracy Munson is used to dealing with:

 

[jpat]

Here is a great analysis,

Ian Gunn's Analysis of NFLPA's Deflategate Appellate Brief (with images, tweets) · IanPGunn

 

[memento]

Here is a great analysis,

Ian Gunn's Analysis of NFLPA's Deflategate Appellate Brief (with images, tweets) · IanPGunn

Daniel Wallach also suggested this top ten list out of the NFLPA brief
The Top 10 Quotes By Tom Brady’s Lawyers Antagonizing the NFL and Roger Goodell

 

[Deus Irae]

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.

I was referring to the level of deference given to arbitration decisions.

 

[Koma]

This is cherry picking, but compare some of the arguments that Kessler uses with this one from the NFL's appellate filing (from Ian Gunn's analysis in November):

Ian Gunn @IanPGunn


NFL: Berman mistakenly assumed Pash was "co-lead investigator" because the League had announced he would co-lead the investigation. wut

2:17 PM - 7 Nov 2015

and

View image on Twitter

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Ian Gunn @IanPGunn

Guys, you think I'm joking about that last tweet. See for yourself:

2:22 PM - 7 Nov 2015
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How can that seriously be their explanation? "You assumed Pash was the co-lead investigator because that's what we said when we announced the investigation. And wrote in the Wells report. That assumption is not correct, though." This might work on Patriots hating fans, but do they honestly think this will fool federal judges?

 

[convertedpatsfan]

BTW, I think I speak for all NFL fans when I say, THANK YOU NFL for keeping this alive. I was so sick of watching football games and crazy comebacks and emerging stars. I missed all the legal filings and court cases and procedural tidbits because all of that stupid football was getting in the way.

Holy ****...

 

[Galeb]

LMAO! So the NFL announcing that Pash is the co lead investigator and the fact that Pash did the final edit means that Pash wasn't actually the co lead investigator. That's frickin funny.

 

[jpat]

what scary about our legal system, you read all this legal analysis, all these sports law people mocking the NFL arguments, then they end with "well it really will depend on the judge and if they favor management".

Wow. That scares me that a judge can have their personal preferences dictate something like this when all law people say it seems like a slam dunk for brady.

 

[scott99]

From what I've read, the NFL has a 10% chance of winning. If by some weird happenstance they do win, you know Brady will appeal that. This could go on for years, he may retire before this gets resolved. If Brady wins (most likely), it's finally over.

 

[363839]

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.

I wonder what could be a better thing to do than clearing his legacy.

 

[YOUGOTMOSSED]

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.

"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."

The NFL IS the problem. Clearly, it has a serious corruption problem beginning with Goodell. The question is whether the NFL is redeemable at this point or whether it should be blown up and replaced.

I can't help but feel it's just going to go the way of the NBA, i.e. it will make plenty of money but most people won't take it seriously except for some die hards who will choose to ignore the obvious corruption.

 

[DaBruinz]

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.

Making a conclusion like that is a statement of fact.. Not a statement of opinion. Furthermore, I understood exactly what you meant why you stated that it would cover Goodell in a defamation case. I asked you how it would do so when Brady was told by a representative of the NFL (Wells) that he didn't have to turn over the phone. Nothing you've said so far explains that..

 

[DaBruinz]

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.

No. He doesn't need the money. But his "brand" certainly has been tarnished by the lies the NFL has spread about him. And that is the point.

 

[Huckleberry1]

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.

I honestly think that even the league office and owners realize how absurd it would be to ask the Supreme Court to take this case up. There is a slight chance it gets kicked back to Berman but even that is unlikely and would be the result of Brady getting two ideologues on the three judge panel.

 

[Huckleberry1]

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.

I think powerful owners like Mara and Rooney will step in and tell him it's over, they will realize just how absurd it will make the league look.

 

[PatsFanSince74]

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.

Well, the question is moot until the Appeal is resolved. But, the reports I have read suggest that Johnson's brief is so compelling that I doubt very much that the SDNY ruling will be overturned. But, we really won't have a way of assessing that probability until the three judges are named. The Second Circuit is a very diverse group, including three Senior Judges appointed by Carter and Reagan and the rest appointed by Clinton, Obama and one Bush or the other. So, they are coming from a wide range of ideological perspectives. I felt very good about Brady's chances once I found out who Berman was. I won't know how I feel about the Appeal until I see the panel. But, I think that it is very likely that the SDNY ruling will stand.

So, on that assumption. I really don't think Brady will sue for defamation, for the reasons you cited. Not only is he a highly visible public figure, but, as I believe you have already observed, the wording of the Pash/Wells report and the NFLPA briefs is carefully constructed. Tough mountains to climb for anyone filing a defamation suit.

More importantly, the language of the CBA is so awful that, while Goodell may have failed the test of the law in his ruling, that language gives him such broad discretion that it would be difficult for TB to prevail. Most importantly, his legacy is sealed. 15 years from now, he will be remembered as the GOAT and the rest of this nonsense will be seen for the petty vindictiveness of the other Owners, executed by their Commissioner. The downside of such a suit is just too great.

What I think Brady should do, is become the face of the NFLPA during the next CBA....or even earlier. The only way the travesty that was visited on Brady will never happen to another player will be if the players are prepared to go on a lengthy strike to redraft the CBA and restate the powers of the Commissioner. I think Brady should run for Executive Director of the NFLPA and then hire a group of very smart lawyers, of Kessler quality, to surround him and get this done.

In short, Brady's best possible revenge on the NFL and the owners is to focus his energies on tearing down their houses and not waste his energy on a Quixotic defamation suit.

 

[Patsfanin Philly]

I would sooner expect McNally and Jastremski to file defamation suits (ESPN//NFL?)as the standard for them is a lower one than for Brady as a public figure. For Brady, it is the NY Times v Sullivan standard of actual malice which is that it was knowledge of the falsity or reckless indifference as to the truth of the matter. For those guys as non-public figures, it is a much lower standard.
It would also be interested if they did file and went through discovery and depositions to see what shook out which would help Brady decide what action to take.......
Just my humble opinion, not legal advice.............
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[Jackson 2]

I think powerful owners like Mara and Rooney will step in and tell him it's over, they will realize just how absurd it will make the league look.

I used to think that, but I don't anymore. I think they figure we can't look any worse at this point, so we'll roll the dice. They're all-in at this point, logic be damned.

 

[Tuck]

"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."

The NFL IS the problem. Clearly, it has a serious corruption problem beginning with Goodell. The question is whether the NFL is redeemable at this point or whether it should be blown up and replaced.

I can't help but feel it's just going to go the way of the NBA, i.e. it will make plenty of money but most people won't take it seriously except for some die hards who will choose to ignore the obvious corruption.

Agreee with most of what you said but I think the corruption actually starts and ends with the owners, not Goodell.

Goodell is simply simply the messenger in my mind.

If you think he is actually making any of the meaningful decisions in all this you are giving him way too much credit.