2017 Cowboys: NoMo' Romo (or playoffs)

soxhop411

news aggravator
SoSH Member
Dec 4, 2009
46,278
So the NFLPA filed a temporary restraining order to block the suspension.

Like I said earlier. I feel there is a high probability we have a long strike when the CBA is up.
 

dcmissle

Deflatigator
Lifetime Member
SoSH Member
Aug 4, 2005
28,269
dcmissile, I have not been able to stomach getting deep into the facts on another NFL suspension jihad. Are there facts here that suggest there's any likely outcome other than the Brady outcome? I of course understand changing jurisdictions might yield a different result---but is that all that's really in play here?
No, IMO.

Same starting lineups, just a different stadium, as you suggest.

The most interesting thing about this one to me is whether judge in Texas takes this on, or punts.

I expect Henderson to rule, and the NFL to file a case to confirm the award in the SDNY. It will then move to dismiss this Texas case, as it successfully moved to get rid of the Brady case filed in Minnesota.
 

Kenny F'ing Powers

posts way less than 18% useful shit
SoSH Member
Nov 17, 2010
14,429
So the NFLPA filed a temporary restraining order to block the suspension.

Like I said earlier. I feel there is a high probability we have a long strike when the CBA is up.
If there is a strike, it'll be over money, like always. The league will use this (the commissioner having appeal power) as a leverage chip, but it isnt going to be a sticking point.
 

PC Drunken Friar

Member
SoSH Member
Sep 12, 2003
14,542
South Boston
So the NFLPA filed a temporary restraining order to block the suspension.

Like I said earlier. I feel there is a high probability we have a long strike when the CBA is up.
No way will this be the sticking point. The NFL's random punishments really only fuck over a few players during the whole CBA lifetime. Thousands of other players are not going to care about those few. The strike will come because of money, as it always does.
 

Kenny F'ing Powers

posts way less than 18% useful shit
SoSH Member
Nov 17, 2010
14,429
No way will this be the sticking point. The NFL's random punishments really only fuck over a few players during the whole CBA lifetime. Thousands of other players are not going to care about those few. The strike will come because of money, as it always does.
Always good to know who has you blocked.
 

dcmissle

Deflatigator
Lifetime Member
SoSH Member
Aug 4, 2005
28,269
Nit-pick: Wasn't it 2nd?
Not to reopen old wounds here but do you really think Kessler was the difference at the Ninth Circuit?
We'll never know for sure, but I'm afraid so, and it's too bad because I think the Second Circuit will likely have the last word until this process is revisited in the next CBA, if it's revisited in the next CBA.

Remember, it was a 2-1 decision, with Chief Judge Katzmann in the minority. Brady came damn close. Kessler is a fine lawyer overall but got mauled on appeal.

Don't call an electrician if you need a plumber and vice versa. It's a great life lesson.
 

Harry Hooper

Well-Known Member
Lifetime Member
SoSH Member
Jan 4, 2002
34,402
This is more horsehockey by the NFL. Looks like they made their lead investigator and her notes & findings essentially disappear. The usual caveat applies that this is the NFLPA's claims.

In imposing discipline against Elliott despite the absence of any action by law enforcement, the NFL conducted a massive investigation that lasted more than a year, co-led by Roberts, who interviewed every fact witness personally. This massive amount of work resulted in a final investigative report (“Elliott Report”) which, unlike virtually every similar NFL investigative report in the past, deliberately omitted a conclusion. Had the report stated a conclusion, Roberts, as co-author, would have had to reveal her conclusion, as an experienced lawyer and prosecutor, that there was not sufficient evidence to proceed with any discipline. Unbeknownst to Roberts, it was Friel—who believed that the evidence was sufficient to support the imposition of discipline—along with NFL counsel, who determined that the report should be void of a conclusion.
Pages 4-5 of NFLPA filing
and
Unlike most other NFL investigative reports issued in connection with Commissioner discipline, the investigators’ conclusions about what the evidence showed were excluded from the report. See id. Neither Roberts nor Friel—the co-authors of the report—could identify who at the NFL made the decision not to have any conclusions or recommendations in this mammoth report, which was more than 160 pages long, with more than 100 exhibits.
Pages 23 of NFLPA filing


It was the lack of credibility and continued inconsistency in her claims that led Roberts, who interviewed her, to conclude that the allegations had no merit. Indeed, Roberts prepared a separate document listing some of the most significant inconsistencies in Thompson’s claims as compared to other credible witnesses and evidence; she labeled this document the “Inconsistency Transcript” (a term someone at the NFL tried to cross out).
Pages 6 of NFLPA filing


The NFL convened a meeting on June 26—attended by League personnel, a panel of outside “expert” advisors to the Commissioner (provided for in the PCP), Elliott, his agents, and NFLPA counsel—at which NFL Special Counsel for Investigations Lisa Friel presented the findings of the Elliott Report. A-NFLPA-45. Significantly, Roberts was excluded from this critical meeting, and neither Roberts nor Friel could identify which top NFL Executive made this decision. Id. Hr’g Tr. (Aug. 29) at 162:22-25 (Roberts: Is the question do I know why I wasn’t invited? Mr. Kessler: Yes. Ms. Roberts: No); Hr’g Tr. (Aug. 30) at 277:5-8 (Q: Who made the decision for Ms. Roberts not to meet with the outside advisors at the meeting? Friel: I have no idea.”)
Page 14 of the NFLPA filing


and so on and so on
 

DennyDoyle'sBoil

Found no thrill on Blueberry Hill
SoSH Member
Sep 9, 2008
42,297
AZ
I've read the NFLPA's papers, and there's some smoke and mirrors there. These are some technical lawyer points.

They essentially have two procedural arguments. The first is that they didn't have access to important evidence. That's a valid basis for overturning an arbitrator's decision, except the problem is that they gloss over, entirely, when they are entitled to have the evidence. They clearly had it as part of the arbitration/appeal to Henderson. Their complaint is that they should have it before the league imposed its discipline. I'm not aware of any authority that says you're entitled to pre-discipline disclosures.

That's not usually how it works in arbitration in the workplace. Your boss suspends you. You demand a hearing. That's when you get the evidence. That seems to be what happened here. The NFLPA got the documents. Their papers show they got to cross examine everyone they wanted to cross examine about the papers (except Goodell, see below). They got to put the NFL's investigator on the stand under oath. They got everything they wanted. It's not like this stuff was hidden by the NFL, and the NFLPA had to find it some other way. They filed their TRO papers during the hearing, so they clearly had it all for the hearing, and their papers don't say otherwise.

When you dig deep, their real argument is that the Commissioner didn't have access to this information when the original discipline was imposed. But actually, they don't know that, and I assume we'll hear that he did in the NFL's response. So, as a fall back, their second argument is that they should have been allowed to cross examine the Commissioner during the hearing, but the arbitrator abused his discretion by not allowing it. Good luck with that.

Bottom line, this was a stunt in part. The real reason to file was to get out in the public domain the fact that the NFL's investigator found no basis for discipline. But their indignant hyperbole about this supposedly being kept from them is nonsense. As far as I can tell from the hearing transcripts they cite, it was practically the entire basis for the defense at the hearing. Secondarily, they were burned in the Brady case, and so they wanted to win the race to court this time, because they probably suspected the NFL was ready with a motion to confirm in NY that they would file as soon as Henderson rules. I think that part of it was smart. But if I'm the judge, I'm likely to be pretty pissed -- in order to pull that off, they had to claim they know what Henderson is going to do. They are literally seeking to restrain something that hasn't even happened yet and might not.

All that said, I still expect a stay will be issued, unless Henderson reduces the penalty and Elliott and the Cowboys just decide that's good enough. Elliott is a second year player. The harm of kicking the suspension down the road a bit is minor -- there will be time enough for him to serve his suspension in future just like Brady did. On the other hand, if you don't enter an injunction, you've basically mooted the case. So, unless you conclude there is zero merit, you sort of have to issue an injunction here and I think that's what will probably happen. That said, on the merits, this is pretty weak to me.
 

dcmissle

Deflatigator
Lifetime Member
SoSH Member
Aug 4, 2005
28,269
I'd rather have him game 1 against the Giants than game 7 at Washington.

I hope he goes for a buck fifty.
 

dcmissle

Deflatigator
Lifetime Member
SoSH Member
Aug 4, 2005
28,269
NFLPA says we'll get a decision today. In the past, if the suspension wasn't upheld by 4:00 pm today, it would not go into effect until next week. NFL backing off this limitation; (laughably, it also argued that Elliott will not suffer irreparable harm).

My guess is that unless the League relents on week 1, the judge will bully it into relenting on week 1, assuming the suspension is upheld.
 

Bosoxen

Bounced back
Lifetime Member
SoSH Member
Apr 29, 2005
10,186
And yet the NFL is already putting out there that there is no such deadline and that he could serve the suspension even without the arbitration decision coming in before 4:00 PM (NFLPA suits, notwithstanding, of course). Which, unless I'm reading my clock wrong, has already passed.

Remind me again who the Cowboys play Week 1?
 

dcmissle

Deflatigator
Lifetime Member
SoSH Member
Aug 4, 2005
28,269
And yet the NFL is already putting out there that there is no such deadline and that he could serve the suspension even without the arbitration decision coming in before 4:00 PM (NFLPA suits, notwithstanding, of course). Which, unless I'm reading my clock wrong, has already passed.

Remind me again who the Cowboys play Week 1?
Although Jones and Kraft are not pimps, we've known for a while that it's Mara all along.

Seriously, I think you go before the judge in a couple of hours. If I'm the judge, I enter a TRO freeing Elliot to play in week 1, then set another conference for next Monday. Let these assholes seek emergency relief from the 5th Circuit. They won't and everyone knows it.
 

DennyDoyle'sBoil

Found no thrill on Blueberry Hill
SoSH Member
Sep 9, 2008
42,297
AZ
And yet the NFL is already putting out there that there is no such deadline and that he could serve the suspension even without the arbitration decision coming in before 4:00 PM (NFLPA suits, notwithstanding, of course). Which, unless I'm reading my clock wrong, has already passed.

Remind me again who the Cowboys play Week 1?
If they've said that publicly, that cuts against what they are arguing in court.

Their motion to dismiss in court says that the case is not yet ripe, because the arbitrator has not yet ruled and thus the NFLPA brought a suit challenging something that doesn't exist yet in an improper race to the courthouse. (Which is kind of ballsy given what the NFL did in Brady.)

Procedurally, there is some merit to that argument. If, however, they are also saying, "we can still keep the player suspended without waiting for the ruling from Henderson," then I think if I'm the judge I have all I need to enter a TRO. Otherwise, the NFL has just set up this Kafka-esque procedural minefield where they insulate their own decisions from review.
 

Bosoxen

Bounced back
Lifetime Member
SoSH Member
Apr 29, 2005
10,186
If they've said that publicly, that cuts against what they are arguing in court.

Their motion to dismiss in court says that the case is not yet ripe, because the arbitrator has not yet ruled and thus the NFLPA brought a suit challenging something that doesn't exist yet in an improper race to the courthouse. (Which is kind of ballsy given what the NFL did in Brady.)

Procedurally, there is some merit to that argument. If, however, they are also saying, "we can still keep the player suspended without waiting for the ruling from Henderson," then I think if I'm the judge I have all I need to enter a TRO. Otherwise, the NFL has just set up this Kafka-esque procedural minefield where they insulate their own decisions from review.
They definitely said it publicly:


Tom Pelissero @TomPelissero·8h

While #Cowboys believe Harold Henderson must rule by 4 p.m. today or Ezekiel Elliott plays Sunday, league source says there is no deadline.

But it appears to be moot, since the league has declared that he will play Sunday. From Cowboys beat writer Mike Fisher:


mike fisher ✭ @fishsports

ALERT courtroom source to me: Judge Mazzant just askd #NFL if #EzekielElliott is onfield for #Cowboys this wk, even if HH rules. Answer: YES

Edit: Apologies if formatting is funky. I'm on mobile.
 

thehitcat

Member
SoSH Member
Nov 25, 2003
2,377
Windham, ME
So a complete neutral here but I am thrilled that he gets to play against that snake Mara and the Giants who actively worked to get him suspended not just because he committed assault against another human but because it would keep him from playing against their team. I am also thrilled that he gets the full 6 games for beating up his girlfriend. I hope the cowboys run him 100 times on Sunday, they don't need him for another 6 weeks after that and he might actually break the Giants front 7.
 

dcmissle

Deflatigator
Lifetime Member
SoSH Member
Aug 4, 2005
28,269
As expected, NFL files suit in NY to confirm the arbitrator's decision. It will move to dismiss the case in Texas.
 

Marciano490

Urological Expert
SoSH Member
Nov 4, 2007
62,312
So a complete neutral here but I am thrilled that he gets to play against that snake Mara and the Giants who actively worked to get him suspended not just because he committed assault against another human but because it would keep him from playing against their team. I am also thrilled that he gets the full 6 games for beating up his girlfriend. I hope the cowboys run him 100 times on Sunday, they don't need him for another 6 weeks after that and he might actually break the Giants front 7.
You're like the Simone Biles of mental gymnastics here.
 

StuckOnYouk

Member
SoSH Member
Jun 26, 2006
3,538
CT
So a complete neutral here but I am thrilled that he gets to play against that snake Mara and the Giants who actively worked to get him suspended not just because he committed assault against another human but because it would keep him from playing against their team. I am also thrilled that he gets the full 6 games for beating up his girlfriend. I hope the cowboys run him 100 times on Sunday, they don't need him for another 6 weeks after that and he might actually break the Giants front 7.
For what it's worth, In two games against the Giants last year, Elliott only totalled 159 yards.
 

Bosoxen

Bounced back
Lifetime Member
SoSH Member
Apr 29, 2005
10,186
You're like the Simone Biles of mental gymnastics here.
So neutral!
For what it's worth, In two games against the Giants last year, Elliott only totalled 159 yards.
I'd say that's worth very little. One of those games was the first game of the season for which he was incredibly jittery and not at all the player he turned out to be (in the other, he ran for 107 yards). It was, as it currently stands, his worst game as a professional and not at all indicative of what he's capable of doing against them on Sunday. He averaged just 2.6 yards per carry that day. The only other time he failed to rush for at least 4 ypc was his 97-yard effort against (then) #1 rushing defense Baltimore, in which he averaged 3.9 ypc.

Frankly, of far bigger concern will be his state of mind and the re-shuffled offensive line.
 

DennyDoyle'sBoil

Found no thrill on Blueberry Hill
SoSH Member
Sep 9, 2008
42,297
AZ
I scanned some of the papers. The NFLPA's case is pretty weak. One of the downsides to trying to win the race to court came with a cost. They gave Henderson a bit of a blueprint.

That said, I still think they will get a stay. The fact that the NFL's lead investigator found no basis for discipline makes it so that the judge will probably call a time out and slow things down. In the end the fact is largely irrelevant since the judge can't second guess the Commissioner's or the arbitrator's credibility findings, but there's enough that a stay seems likely given that the consequence of not giving a stay is to moot the claim and is tantamount to a victory for the NFL on the merits. The problem is that the case theoretically could get decided quickly on the merits, which at last in theory leaves the Cowboys with the possibility of a lifting of the stay in November or December. Be careful what you wish for.

That said, the NFLPA's claims seem so weak to me that I think there is a something-greater-than-zero chance the judge will find they haven't even presented a substantial question warranting a stay.

In the end, the stay or non-stay question is probably only relevant to fantasy football because I think this year or next, Elliott is going to serve a suspension, even if the Court makes the NFL do a procedural do-over.

I would enjoy responding to the NFL's motion in New York, though. I suspect there are some really good juicy quotes you could pull from the NFL's filings in Brady about the first to file rule.

In the end, the one thing the NFLPA has done, to me at least, is raise a significant question whether the accused did the things he's accused of. So, even if there are no other similarities, I guess it has that in common with Brady v. NFL.
 

Bosoxen

Bounced back
Lifetime Member
SoSH Member
Apr 29, 2005
10,186
In the end, the one thing the NFLPA has done, to me at least, is raise a significant question whether the accused did the things he's accused of. So, even if there are no other similarities, I guess it has that in common with Brady v. NFL.
In the end, isn't what this should have been about all along (don't answer that, it's rhetorical)? Does it seem to you like the bolded is the reason why the lead investigator suggested no suspension?
 

Marciano490

Urological Expert
SoSH Member
Nov 4, 2007
62,312
I scanned some of the papers. The NFLPA's case is pretty weak. One of the downsides to trying to win the race to court came with a cost. They gave Henderson a bit of a blueprint.

That said, I still think they will get a stay. The fact that the NFL's lead investigator found no basis for discipline makes it so that the judge will probably call a time out and slow things down. In the end the fact is largely irrelevant since the judge can't second guess the Commissioner's or the arbitrator's credibility findings, but there's enough that a stay seems likely given that the consequence of not giving a stay is to moot the claim and is tantamount to a victory for the NFL on the merits. The problem is that the case theoretically could get decided quickly on the merits, which at last in theory leaves the Cowboys with the possibility of a lifting of the stay in November or December. Be careful what you wish for.

That said, the NFLPA's claims seem so weak to me that I think there is a something-greater-than-zero chance the judge will find they haven't even presented a substantial question warranting a stay.

In the end, the stay or non-stay question is probably only relevant to fantasy football because I think this year or next, Elliott is going to serve a suspension, even if the Court makes the NFL do a procedural do-over.

I would enjoy responding to the NFL's motion in New York, though. I suspect there are some really good juicy quotes you could pull from the NFL's filings in Brady about the first to file rule.

In the end, the one thing the NFLPA has done, to me at least, is raise a significant question whether the accused did the things he's accused of. So, even if there are no other similarities, I guess it has that in common with Brady v. NFL.
It's not just that the lead investigator found no basis for discipline, it's that they excluded that recommendation from the arbitrator's ruling. I believe that's not common procedure, and seems like a strong basis for a stay from what I remember of this area of the law. You can have almost any policy in place, but once you have a policy and course, you have to follow it.
 

DennyDoyle'sBoil

Found no thrill on Blueberry Hill
SoSH Member
Sep 9, 2008
42,297
AZ
It's not just that the lead investigator found no basis for discipline, it's that they excluded that recommendation from the arbitrator's ruling. I believe that's not common procedure, and seems like a strong basis for a stay from what I remember of this area of the law. You can have almost any policy in place, but once you have a policy and course, you have to follow it.
They may or may not have excluded it from the Commissioner when he approved the punishment. I doubt he was unaware. The evidence was provided to Elliott in the appeal hearing. The right to evidence is traditionally a right to have it for a hearing, not to have it to appeal to the discretion of the employer before he imposes punishment.

If you read the NFLPA's papers, their complaint is they should have had the evidence before Goodell ruled and should have been permitted by Henderson to cross Goodell. The former seems like a loser. Henderson considered the evidence and rejected it. The latter is subject to a very high abuse of discretion standard.
 
Last edited:

dcmissle

Deflatigator
Lifetime Member
SoSH Member
Aug 4, 2005
28,269
I think the legal battle is lost. Even if the Union can get this to the Supreme Court, Gorsuch strikes me as pro-arbitration like Scalia, and a "you-made-your-bed, sleep-in-it" kind of guy.

I think players will get relief only in outlier cases. Trying to punish somebody twice (Rice); exceeding a clearly prescribed maximum penalty (Hardy). Maybe a blatant and clearly prejudicial procedural fault.

What Elliot does now is unclear. He seems inclined to go forward, and I get that because, what does he have to lose? The Union has nothing to lose.

If I were advising Elliot, I'd urge him to focus on his reputation. If this is ventilated further in federal court, does he come out looking better or worse? I don't know, but you figure his team should have a handle on it.

I'm not presuming his guilt or innocence. The principal investigator's recommendation NOT to penalize him does suggest that the case on its merits has problems, and that if he pursues this, he may come out looking better.
 

DennyDoyle'sBoil

Found no thrill on Blueberry Hill
SoSH Member
Sep 9, 2008
42,297
AZ
I think it depends in part on whether he did it. If he didn't, I can see him fighting to the end. I would. And maybe hope that something like what happened in Brady happens. Fans who want to believe (either way) will never be changed, but I think Brady flipped the narrative a bit in the minds of serious people who were reasonably neutral and interested in the evidence. The fact that the NFL had to ignore the recollection of the ref about which gauge he used, I think, was a very significant event when it saw the light of day. If Elliott can get some traction with a fact like that about the NFL's findings, he may be able to turn public opinion around. Not completely, but there at least are some serious people who look back on Brady and think, "holy shit, we may have been handed a big bowl of bullshit."

I think I'm neutral on Elliott. No love for the Cowboys and certainly very cautious about anything that makes women even more reluctant to fight back against violence. But I'm also deeply suspicious of the NFL based on bounty and deflategate. I'm a bit concerned based on what I've read -- far less than many, I admit -- that this guy may not have done these things. I still think his guilt is the Occam's razor answer, but admit I'm queasy about it. If I were Elliott and I were innocent, the potential existence of people like me would probably be enough for me to keep pushing.
 

ifmanis5

Member
SoSH Member
Sep 29, 2007
63,777
Rotten Apple
EE will likely play the full season after all: http://www.espn.com/nfl/story/_/id/20631811/judge-grants-temporary-restraining-order-request-dallas-cowboys-running-back-ezekiel-elliott
FRISCO, Texas -- Federal judge Amos Mazzant III on Friday granted a request by the NFL Players Association for a temporary restraining order and preliminary injunction to prevent the implementation of the six-game suspension for Dallas Cowboys running back Ezekiel Elliott.

Elliott was already eligible to play in Sunday's season opener against the New York Giants but his suspension for violating the league's personal conduct policy was set to begin Monday. With the injunction granted, Elliott will likely be able to continue playing as the legal process plays out.
 

Cellar-Door

Member
SoSH Member
Aug 1, 2006
34,464
Likely play the whole season is probably a stretch. There are a couple things still in the air. First the judge may dismiss still on NFL's jurisdiction claim, he didn't decide that today.
Also NFL will go to 5th Circuit, probably Monday.
(The facts are pretty good for Elliot, and this judge seems like he wants the case, so it's a decent shot to go all year, but likely is probably too confident based on just this).
 

Oil Can Dan

Well-Known Member
Lifetime Member
SoSH Member
Jul 31, 2003
8,015
0-3 to 4-3
Can someone explain the whole Mara-is-driving-the-bus thing to me? Is there any actual evidence that supports that?
 

Ed Hillel

Wants to be startin somethin
SoSH Member
Dec 12, 2007
43,592
Here
He's still likely to serve the suspension at some point, but more good theater I suppose.
 

AB in DC

OG Football Writing
SoSH Member
Jul 10, 2002
13,633
Springfield, VA
When the entire process is corrupt from the start, it doesn't just screw the innocent, it also prevents the guilty from getting what they truly deserve. At some point you gotta acknowledge that an organization like this just doesn't have the expertise to properly investigate misconduct and determine the appropriate level of punishment. There's gotta be a better way.
 

dcmissle

Deflatigator
Lifetime Member
SoSH Member
Aug 4, 2005
28,269
Likely play the whole season is probably a stretch. There are a couple things still in the air. First the judge may dismiss still on NFL's jurisdiction claim, he didn't decide that today.
Also NFL will go to 5th Circuit, probably Monday.
(The facts are pretty good for Elliot, and this judge seems like he wants the case, so it's a decent shot to go all year, but likely is probably too confident based on just this).
5th Circuit chances at this point are slim and none. It's an interlocutory order, not an appealable final order. Interlocutory orders are appealable in certain cases, but this likely isn't one of them. The NFL has no claim of irreparable harm. The judge may dissolve the PI at some point, and the suspension can begin then unless Elliot wins relief. If the judge issues a final judgment in Elliot's favor, the NFL can appeal then and, if it prevails, the suspension will be served. This is what happened in the Brady case.
 

InstaFace

The Ultimate One
SoSH Member
Sep 27, 2016
21,770
Pittsburgh, PA
I think players will get relief only in outlier cases. Trying to punish somebody twice (Rice); exceeding a clearly prescribed maximum penalty (Hardy). Maybe a blatant and clearly prejudicial procedural fault.
Like, say, $25k fine for tampering with equipment? Or an as-practiced precedent of a sternly-worded letter?

All to say, your latter two examples seem to not even clear the threshold that exists.

Can someone explain the whole Mara-is-driving-the-bus thing to me? Is there any actual evidence that supports that?
As the head of the "NFL Management Council", the body of owners that formally controls the (nonprofit) NFL entity and formally employs Goodell, Mara has a functional role in some of the decision-making behind the scenes. Berman, you may recall, called him in to answer for the dispute, and he was the counterparty when Berman was trying to resolve things via mediation. I think that was the origin.
 

DennyDoyle'sBoil

Found no thrill on Blueberry Hill
SoSH Member
Sep 9, 2008
42,297
AZ
Well, the NFL is screwed as long as this case stays before this judge. To me, it is a horrible, results-oriented decision where the judge plainly reached a conclusion and the worked backwards to justify it by making whatever findings he needed to in order to protect his decision from review. (Obligatory deflategate reference -- I wish Berman had done the same.)

Particularly noteworthy is how hard he avoids deciding the standing issues in a way that would allow the NFL to say that they won the race to court in NY because the case wasn't ripe when the NFLPA filed.

Anyway, the NFLPA found the right forum. This judge is buying everything the NFLPA is selling. He calls the NFL's case "egregious" and "unmatched by anything the court has seen." They may have found a Cowboys fan. If the NFL wants relief -- either moving the case or on the merits -- it will need it from a higher court.
 

DennyDoyle'sBoil

Found no thrill on Blueberry Hill
SoSH Member
Sep 9, 2008
42,297
AZ
5th Circuit chances at this point are slim and none. It's an interlocutory order, not an appealable final order. Interlocutory orders are appealable in certain cases, but this likely isn't one of them. The NFL has no claim of irreparable harm. The judge may dissolve the PI at some point, and the suspension can begin then unless Elliot wins relief. If the judge issues a final judgment in Elliot's favor, the NFL can appeal then and, if it prevails, the suspension will be served. This is what happened in the Brady case.
The injunction was entered as a preliminary injunction, not a TRO, though, so should be appealable at this point.
 

Bosoxen

Bounced back
Lifetime Member
SoSH Member
Apr 29, 2005
10,186
They may have found a Cowboys fan.
That's quite the accusation. Are you really suggesting a judge would rule on a case based on his rooting interests? If that were actually true, that would be a FAR bigger scandal than this clusterfuck.
 

dcmissle

Deflatigator
Lifetime Member
SoSH Member
Aug 4, 2005
28,269
That's quite the accusation. Are you really suggesting a judge would rule on a case based on his rooting interests? If that were actually true, that would be a FAR bigger scandal than this clusterfuck.
He can speak for himself, of course, but Denny did not mean to suggest that, IMO.

The NFLPA filed the case in the Eastern District of Texas. From a strict convenience standpoint, it's natural home in Texas would be the Northern District. That's where Dallas is.
But the ED generally is more liberal than the ND. Now I recognize that liberal/conservative political/judicial leanings do not necessarily translate perfectly in this context. But in many cases they do. For example, Judge Berman, who handled the Brady case, could reasonably be characterized as "a liberal Democrat."

The judge in this case was appointed by President Obama. Although he recently ruled against one of Obama's actions in a case of national importance, this judge can reasonably be figured to be sympathetic to the Union's position.

There is nothing wrong with this tactic, and it's the smart thing to do.

That's all I think Denny was alluding to -- but again he can speak for himself.

EDIT. This is not to preclude the possibility that the judge was offended at a visceral level by how this League operates and its action in this case, and deliberately and disingenuously crafted his ruling to be as bulletproof as possible. That may well have happened, and Denny believes he did. But this also happens with regularity; judges are human.
 
Last edited:

DennyDoyle'sBoil

Found no thrill on Blueberry Hill
SoSH Member
Sep 9, 2008
42,297
AZ
Sorry to have dropped that bomb and disappeared. No, I think a judge would do his or her best to put fandom to the side even if it were the case. Missle basically has my view correct. This judge appears to me to have decided on the result and then worked backwards, instead of applying the law and taking it where it leads. My Cowboys fan comment was a snarky way of saying only that.

But that only makes him like 90 percent of his colleagues. Most judges judge that way from time to time. Still, compare to Berman's opinion in Brady, which read more like a judge trying to faithfully apply the law. Doing it that way exposed the decision to some holes on appeal. This judge was clearly pissed at the NFL -- I think Missle has my view right though I didn't mean to say the judge was disingenuous. I think he probably thinks he's got it 100 percent right. But his opinion is not what I personally think judges should be doing. "Horrible" by me was too strong. He had a visceral reaction then tried to write a decision that protected his result (with a bit of hyperbole). He was pissed at the handling of the case and then he used whatever he could find that was favorable in the labor cases to support himself.

Some would say that's good judging at the trial level. You're trying to do justice and there's a three judge panel above you if you go too far. You're supposed to use your judgment, and he did. If there was a legal error, let the court of appeals sort it out. In the end, I agree with the result so I'm not trying to be overly critical. I just would have done things differently if I had that job -- but I don't and he does and maybe there's a good reason for that.

Edit: A bit more explanation
 
Last edited:

TFisNEXT

Well-Known Member
Lifetime Member
SoSH Member
Jul 21, 2005
12,529
Pretty huge domination of the Giants. Was not expecting Dallas to handle them so easily. A lot of "experts" picked the Giants to win the division. They looked like a 3 or 4 win team last night. Dallas' own questionable play calling inside the red zone and some unforced errors (penalties and flat-out missed throws by Dak) probably kept the game from being a 4 score blowout.

Obviously the Giants didn't have their best weapon OBJ...but man, not sure he would have mattered that much. Eli's O-line got manhandled. Under pressure all night. You never want to take too much stock from week 1, but the Giants looked like a team in trouble. Dallas looked pretty good though as stated above, Dak missed a lot of throws.
 

BigSoxFan

Member
SoSH Member
May 31, 2007
47,094
Only scoring 3 points against this Cowboys defense is pretty putrid, with or without Beckham. Offensively, the Cowboys will be a very good team this year unless Dak really regresses. They are very well-balanced. I'm not sold at all on this defense but they may prove to be serviceable or even better. Only week 1 but this looks like a team that will be playing in the Divisional around.

The Giants, on the other hand, look similar to last year's version. The defense will keep them in games and even win some against bad opponents but this offense is so remedial that it's tough to take them seriously. Zero OL. Zero running game. Marshall looks like he's running in quick sand. Shepard is a pure slot guy. And Beckham has a high ankle sprain that will probably bother him all year. Engram had a decent debut but doesn't really look like a difference maker.
 

Jed Zeppelin

Member
SoSH Member
Aug 23, 2008
51,333
Only scoring 3 points against this Cowboys defense is pretty putrid, with or without Beckham. Offensively, the Cowboys will be a very good team this year unless Dak really regresses. They are very well-balanced. I'm not sold at all on this defense but they may prove to be serviceable or even better. Only week 1 but this looks like a team that will be playing in the Divisional around.

The Giants, on the other hand, look similar to last year's version. The defense will keep them in games and even win some against bad opponents but this offense is so remedial that it's tough to take them seriously. Zero OL. Zero running game. Marshall looks like he's running in quick sand. Shepard is a pure slot guy. And Beckham has a high ankle sprain that will probably bother him all year. Engram had a decent debut but doesn't really look like a difference maker.
I don't know enough about teams around the league to know for sure, but Ereck Flowers must be a bottom 5 LT in this league. One of the most-penalized players (at any position). Obviously a crucial position protecting a QB who needs time in the pocket to operate at max efficiency. They've been woefully under talented at RB, but even so, the run game in NY has been dismal. That's not all on Flowers as they've pretty much sucked since before David Wilson broke, and the interior OL gets plenty of blame as well.