Official Brady vs. NFL Federal Court 8/12 Thread (LIVE UPDATES)

[PatsFanSince74]

Yes, when you write a contract and have two clauses that are in any way contradictory, the clause with specific language takes precedent over the clause with general language. That's contract law 101. The clause for equipment violations is specific, the clause for conduct detrimental is vague. Equipment clause should take precedent in this case.

thanks. That was very helpful to us laymen

 

[Deus Irae]

Wallach seems to be confident. Anyone able to put this in layman's terms?

Think of it as something like the more specific language Second Amendment overriding the general welfare clause of the U.S. Constitution.

 

[PatsFanSince74]

You should keep a celebratory cigar and clean up towel on hand as well...

just finished my first read. Kessler is devastating and his language is actually quite restrained by the standards of this town. Best Friday night behavior.

 

[PatsFanSince74]

If Brady does beat this, I have to call my Vegas guy. I want to bet, say $10,000, that before week 4 Brady is ejected from a game by a referee for some kind of thing (complaining about a call etc). The fix is going to be in fellas.

I'd keep that money in my pocket if I were you.

 

[Tony2046]

Man this looks incredibly aggressive: (After reading this I had an emotional state similar or close to a few seconds after the Butler interception.)

Although no more than objective partiality is required to disqualify Goodell (NFLPA Mot. 14-15), the Award in fact evidences his actual bias. It is more smear campaign than reasoned decision—a propaganda piece written for public consumption, at a time when the NFL believed the transcript would be sealed from public view, to validate a multi-million-dollar “independent” investigation. For example:

x Goodell leads the Award with a “gotcha!” discussion about Brady purportedly destroying his phone, never acknowledging that Brady had turned over all of his emails and all of his phone bills (which demonstrated that Wells already had all relevant text communications from other sources) or mentioning that it was Brady’s career-long practice to recycle his phones because of Brady’s privacy concerns.19

x Goodell found that Brady’s increased communications with Jastremski after the AFC Championship game “undermine[d] any suggestion that the communications addressed only preparation of footballs for the Super Bowl rather than the tampering allegations” (Award 9) when Brady actually testified—at length—that he did discuss the tampering allegations with Jastremski because he was concerned they were causing Jastremski considerable stress and he wanted to know what had happened.20

x Goodell wrote that the NFLPA’s expert, Dean Snyder, “performed no independent analysis or experiments” (Award 6) when Snyder testified for two hours about the statistical, regression, and other analyses that his team conducted (Hr’g Tr. 150-227).

x Goodell wrote in the Award (at 8) that Brady testified “that the Patriots’ equipment personnel would not do anything to game balls that was inconsistent with what he wanted” when Brady actually testified that this is why he “do[es]n’t think anyone would tamper with the ball” (Hr’g Tr. 147:21-22).

x Goodell radically changed Wells’ finding of “general awareness” of purported ball deflation by others into a conspiratorial “scheme” when the hearing record contains not a shred of evidence about any such “scheme” that Goodell could cite.21

The point here is not that the Court needs to decide any disputed issues of fact, but that the Award itself evidences a clearly biased agenda—not an effort at fairness and consistency.22 At a minimum, any reasonable person would have to find Goodell to be partial. Applied Indus.

Footnote 1
The NFL’s attempt to distinguish Morris and Erving because both cases arise under the FAA and not the LMRA is a distinction without a difference, as the law is clear that the FAA is used as a guide by the courts for LMRA arbitration cases. Answer 1 n.1 (collecting cases). Case 1:15-cv-05916-RMB-JCF Document 40 Filed 08/14/15 Page 17 of 19 15

Footnote 2
19 Compare Award 1-2 with Answer ¶¶ 22, 82, 99-100. Goodell’s plan to arrive at his preferred conclusion rather than the truth is further evidenced by his declining Brady’s offer to provide even more information about his phone communications. Award 12 n.11. 20 Hr’g Tr. 130:8-18, 143:21-144:14, 74:25-75:20, 134:12-23, 142:4-10. 21 Compare Award 10 with Hr’g Tr. 274:20-275:2 (Wells). 22 It was no accident that the NFL “leaked” its accusation of phone destruction before the Award came down in order to “bias” the public discussion. Tom Curran, Another NFL Leak: Smith “Hears” Brady “Destroyed Phone,” CSNNE.com, July 28, 2015, http://www.csnne.com/newengland-pat...via-stephen-a-smith-tom-brady-destroyed-phone.

 

[Tony2046]

Just curious. What does "Applied Indus" mean? Applied industrial practices?

 

[BradyFTW!]

via reddit on NFLPA filings
https://www.reddit.com/r/nfl/comments/3h12l3/nflpa_comes_out_swinging_tonight/
"I hope they know their audience, because a lot of judges get pissed off by that kind of vitriolic language in the filings."

FWIW, the redditor that you're quoting is a Patriot hater who will go to great lengths to find any possible anti-Patriot spin. I only have maybe 4-5 people tagged as anti-Pat trolls, and he's one of them.

He's also been consistently wrong about pretty much everything in all of this. IIRC, he was quite vocally arguing that Brady would never take this to court because he knew he would lose and he had too much to hide.

 

[ViperGTS]

FWIW, the redditor that you're quoting is a Patriot hater who will go to great lengths to find any possible anti-Patriot spin. I only have maybe 4-5 people tagged as anti-Pat trolls, and he's one of them.

He's also been consistently wrong about pretty much everything in all of this. IIRC, he was quite vocally arguing that Brady would never take this to court because he knew he would lose and he had too much to hide.

So his name is Gary Tanguay?

 

[Galeb]

I didn't find most of the brief to use particularly inflamatory. It certainly picked up towards the end, but to me, it seemed appropriate and natural, a crescendo resulting from the cumulative frustration generated by the NFL's escalation of clear bias and misplaced aggression.

I don't read much lawyer speak, but found that, in righteous defense, such language is both beautiful and satisfying... and strangely seductive. After some reflection, I found the idea of such persuasive language and logic used to deceive or take unfair advantage particularly repugnant. Before now, I've never deeply contemplated the use of something beautiful for less than honorable purposes. I'm genuinely bewildered at the scale and scope of my profound disgust at such a concept.

Noting what I perceive as similarities in how I use language, I feel compelled to moderate my writing style in all but the most certain situations. This abundance of food for thought is going to take a while to digest.

 

[wahwho]

Michael McCann ‏@McCannSportsLaw 16m16 minutes ago
Talk of witnesses in federal court review of Tom Brady arbitration is odd--it isn't supposed to be a trial. Then again, Deflategate is odd.

Been thinking about this. If the question is supposed to be process, I wonder if the witness would be from the league? Wells would be obvious, but it seems as though getting Pash to testify would get closer to the heart of how biased or fair the process was. There are a couple issues he could shed light on: What edits did he make to the Wells report, and what other influence might he have had? What does he know about the leaks, and why didn't the NFL correct them? etc.

The problem, of course, is that Pash wouldn't be able to say anything because of confidentiality. (Would be interesting to see if Wells makes the same confidentiality argument to a judge that he did to Goodell too...) But what about calling someone like Vincent? That also gets to the process question. Either way, I get the feeling that any potential witnesses called would be people from the league office because they're the ones who could speak to process. As much as I'd love to see them have to answer questions in an open session, it may just be a way the judge can apply more pressure to the NFL to settle - the last thing they want is to have their executives face questions from a judge. They wouldn't even let Kessler ask questions of them in the appeal hearing and they had no plans to ever release that transcript.

 

[RelocatedPatFan]

Kessler crushed the NFL on changing the NFL's punishment from being "Generally Aware" to "for having 'approved of, conented to, and provided inducements in support of 'a scheme to tamper with the game balls". Roger and the NFL office are an embarrassment to how a successful organization should be run. The owners shouldn't walk, they should run from Goodell.

the only reason I think they did this was to try to make a more compelling case for article 46 that would place it on the level of a means to rig the game rather than a simple equipment violation. And they they have the gumption to tell the judge that he can only decide the case based on whatever Goodell says the case is about?

Am I summing that up in laymen terms accurately? If this was baseball, the NFL would be a pitcher, playing a bunt against a line drive slugger who shows all signs he's going for a hit and not a bunt. it seems most self-destructive. I'm curious who is directing this action.

 

[Patsfanin Philly]

To sum it up, the people who ran to court to get a declaratory judgment validating the arbitration decision are now telling that same judge that he lacks the authority to overturn the decision.......Got it......

The people who claimed it was an independent investigation are invoking attorney-client privilege to prevent revealing the actions of the league to alter/edit the investigation.

The people who refused to use an university based scientific researcher because of alleged news leaks had no such compunction regarding their own leaks of false information (Mort's 11/12) or to get ahead of a story as in the "destroyed" cell phone.

The people who don't understand the Ideal Gas Law still think that a prankster let the air out of their car tires when they go outside in the dead of winter and their car reads "low tire pressure."

The people who ran an "independent investigation" refused to turn over the notes of that investigation to the defendant saying they didn't matter but they used those notes in the appeal.... Someone ought to tell them that the Star Chamber went out of vogue several hundred years ago and you have a right to face your accuser.

Those same people who claim the Commissioner can do whatever he wants because of "Article 46" forget that this nation still has a Constitution and that fairness and justice exist and that there is a presumption of fair dealing in behaviors governed by contracts or collective bargaining....They also forget that in the real world, Federal Judges Commissioners,,....

SMH........

 

[Ring 6]

I was gonna do a whole long thing, but I think I'll just try to boil it down.

Article 46 of the CBA give Goodell sole authority as to who the hearing officer will be. He can choose himself. It says it right there, Article 46, section 2 -



Bolded, italicized, underlined. It says it right there.

The NFLPA is not opposing this point.

For some reason, you are. I don't know.

Just because the CBA gives that power does not mean it is legal in all situations.

What the NFLPA is arguing, and I agree, is in Section 16 of the CBA, where the arbitrator MUST be a neutral, impartial arbitrator. THEORETCIALLY, Roger Goodell can serve this role, but his actions in this case and the previous four cases he's lost prove otherwise.

Exactly my point

This has little to do with Section 46, save for the fact that Goodell had the right to appoint someone else (and didn't). It's Section 16 which buries Goodell, especially in that "increasing of punishment" part which I think can be reasonably argued.

IT has to do with Section 32 needing, by law, to be applied with the intention of the parties. The NFLPA never foresaw this type of situation where the arbitration centers around Goodell's own actions. A court can easily consider that.

You're right on your second part about looking for guilt, by the way. It's just super-unusual for a judge to do that in this situation. That's bad, bad news for the NFL, way worse than the sports media is letting on, and that's why your Stradleys, your Wallachs, your McCanns have gone from "50/50-ish" to "I'd be stunned if Brady loses".

UNLESS Berman bought what the NFL had to say, of course. That's always a possibility.

The CBA says what it says, and it was agreed to, and DeMaurice Smith needs to lose his job over it. The upshot is, going forward, Section 46 is going to have very little bite, unless Goodell really enjoys losing in court - because he could very well be looking at 0-5. He would be the Jacksonville of NFL Comissioners.

Anything in the CBA is subject to the court ruling on differing interpretations, as well as abuse and unconscionable results.

 

[RelocatedPatFan]

Did Dues ever come our with his "need to sleep on it" thought?

If it was any good, I was thinking of naming it "Dues de grace".

 

[Zuma]

At the NFL's owners meeting on Wednesday in Chicago, commissioner Roger Goodell once again referred to the Wells report as “independent.” A natural follow-up question to me is how he defines “independent” because attorney Ted Wells himself acknowledged in testimony at Tom Brady's appeal that NFL general counsel Jeff Pash did some “wordsmithing” to the Wells report. Also, Lorin Reisner, a co-author of the Wells report, cross-examined Brady at the appeal hearing on behalf of the NFL. Based on what is now on the public record, I think it's fair to challenge Goodell's use of the word “independent” when it comes to the Wells report.

http://espn.go.com/blog/new-england...llenge-roger-goodells-use-of-word-independent