I would not be surprised if we have a couple of posters here who are also members of the bar. It's always good to remember that even if you've done your homework you're still an amateur and there's no way of knowing who else might be a professional. So it's often better to listen more and spout off less. Always remember the truism "it's better to remain silent and be thought a fool than to speak and remove all doubt." Except here remaining silent earns no onus while posting often spotlights those afflicted with the Dunning-Kruger disease.
Good advice.
I've always made it clear that IANAL, but I am deeply plugged into the legal and political worlds in NY and Boston (much less in DC these days). I've known one SCOTUS Justice for over 25 years and have friends that are very close to others. I have more friends than I can count who have clerked for Supreme Court Justices. To a person, they don't say a word about what they are told by their boss occurs after the door to the Justices Conference Room is closed on Wednesday and Friday mornings, or in Chambers, but it is possible to get a sense of how their world works.
I was fortunate to be able to get a read on Judge Berman from people I know, including some in the media, last year and pretty well nailed his profile out here a few days after he was named. Dumb luck that it turned out I was on the money when he issued his ruling, but people seem to listen when I write about this stuff. I try to be straight about what I know and where I'm just guessing. I don't claim to be infallible, but I can tell when people have no idea what they are talking about.
Quantum has been particularly insightful and a wealth of information in this and other threads; he seems to know a lot more than I do. There have been others as well who have provided a lot of information and insight.
It's hard not to call out some of the uninformed nonsense that gets put forth out here, but your reference to Dunning-Kruger is a good reminder of what is going on in some cases. The people who say that Chin and/or Parker were "bribed" or "greased" are just embarrassing themselves; they're trying to blame Chin for Kessler's lack of preparation and for throwing up all over himself in the hearing. The greatest irony, of course, is when some of the most delusional and truly naive accuse those of us who actually know what we are talking about of being "naive." Gives me a chuckle every time.
So, I've pretty well said what I think in other posts in this thread and won't go into the details again, but here's where I come down:
I think there is a 50--50 chance that the NFLPA will get an
en banc review (high odds given the track record of CA2), should Olson formally seek such (which as of noon today he has not yet done), partially out of deference to Chief Judge Katzmann, partially out of respect for Olson and partially because it was a split decision, making it 2--2 among the Federal Judges who have heard the case.
I think it's very unlikely but not impossible that the NFLPA would prevail in that review. The majority opinion is clear: " The basic principle driving both our analysis and our conclusion is well established: a federal court’s review of labor arbitration awards is narrowly circumscribed and highly deferential—indeed, among the most deferential in the law." (it goes on from there; you can read it for yourselves)
Katzmann, in his dissent, clearly argues that: "When the Commissioner, acting in his capacity as an arbitrator, changes the factual basis for the disciplinary action after the appeal hearing concludes, he undermines the fair notice for which the Association bargained, deprives the player of an opportunity to confront the case against him, and, it follows, exceeds his limited authority under the CBA to decide “appeals” of disciplinary decisions." (there's more, which you can read for yourselves)
Those two paragraphs essentially lay out the difference between the Garvey and the Steelworkers decisions. By suggesting that Goodell had "undermind[ed]" the bargaining agreement and "exceed[ed]" his "authority," Katzmann is suggesting that the NFL has violated the "essence" of the CBA and that Goodell was thereby dispensing "his own brand of Industrial Justice," which would trump the traditional deference given to an arbiter.
So, can Olson make the second view of the case stick in an
en banc brief? Can Olson weave, in 30 pages or so, a credible tale that the NFL lied and distorted the truth (repeatedly) in its pursuit of Brady, thereby violating the "essence" of the CBA?
That's an uphill climb without being able to subpoena and depose witnesses, but the NFL's behavior was so poor that it is not impossible. As I've said before, if anyone can do it, the guy who (effectively) sold the legitimacy of GWB's election to the Supreme Court is the guy who can do it.
If they don't prevail in the
en banc review, I don't think there's much of a chance that SCOTUS will take the case unless CA8 finds for Peterson and leaves a Split between two Appeals Courts.
In that event, the Court would only take the case if four (I believe it's four) members take the view that it is important enough to Labor Law to resolve the Split between two Appellate Courts. I have no idea how to handicap that.
I also think it's more likely that the SCOTUS Circuit Justice (Ginsburg) would grant a Temporary Stay of Brady's Suspension, pending a decision by the entire Court, if there is a Split. If there isn't a Split and she determines that it's inevitable that the case will quickly find its way into the very big pile of cases that are turned down, it's possible that she won't grant a Stay. But, I'm just guessing there.
As some of you know, in the last week or so, SCOTUS has started to move at a decelerated pace, referring as many matters as possible back to lower courts for compromise or reconsideration and, in general, limiting its rulings to cases that, while important, are primarily technical in nature.
So we have no idea (a) whether the court will take the case or (b) return it to SDNY to be fiddled with until there are nine justices (given the importance of the case) or (c) when it will issue its decision in these regards; early October seems most likely, according to Quantum.
This means that Brady could have to start serving his Suspension in October/November...or never...or September...or later...take your pick. I could make an argument for any one of the possibilities...
I have nothing more to say on this in this thread until we see what Olson's strategy and approach are.
In the meantime, we can all dream that CA2 will agree to hear the Appeal
en banc, sua sponte.
