#DFG: Canceling the Noise

Is there any level of suspension that you would advise Tom to accept?


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Bleedred

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H78 said:
Nothing would make me happier, as massively unlikely as it is, than to see Roger Goodell have to go up to the podium at the 2016 NFL draft and say, "With the 32nd pick of the 2016 NFL Draft, the New England Patriots select..."
Never going to happen unless and until Bob Kraft (or Jonathan) is prepared to burn it all down and wage war on the entire NFL.   And even then, they still lose.   
 

Jed Zeppelin

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Regardless of psi data, the team will always have failed to produce the dink for an umpteenth interview, so that justification (as bogus as it is) will always exist.

Only chance would probably be something like Walt Anderson admitting he didn't measure the balls or didn't remember the numbers and just said what his bosses told him to say.
 

H78

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Bleedred said:
Never going to happen unless and until Bob Kraft (or Jonathan) is prepared to burn it all down and wage war on the entire NFL.   And even then, they still lose.   
 

Alcohol&Overcalls

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Omar's Wacky Neighbor said:
Color me naive, but what if anything does the CBA have to do with Kraft's ownership interaction with the NFL?
 
(unless you meant the standard ownership agreement with the league.....?)
Yep, you're exactly right - I was loose with language there. The concept is the same, though - unless Kraft has exhausted the procedures contracted with the league, it is very difficult seeing him getting to court, and (at least on the surface) it looks like he chose not to.
 

PBDWake

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DennyDoyle'sBoil said:
Maybe there is a union greivance there. Can't see how it adds much to the current case beyond the points that have been made. We don't really know what Wells' standard patter was before each interview. For the arbitration challenge, I would think he would have to describe specifically what he would have said or done differently had Wells' non-independence been revealed. It's hard to believe Brady could credibly say he didn't understand anything he said could be used against him.
 
Yeah, it honestly seemed like a bit of a stretch to me. Maybe it was part of a push back on the non-cooperation charge, in that if Brady knew Wells was an NFL agent, the phone might have been handled differently. I also thought it might be one of those things where "If Berman wants to vacate the decision, he'll find some reasoning" arguments.
 

Myt1

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Dewy4PrezII said:
IANAL but I wouldn't think federal judges take kindly to that kind of arrogance
It's not arrogant and it's not an esoteric argument. It's completely vanilla. Berman may disagree, but Jenkins--who has otherwise been great--calling it arrogant is silly.

I spend a substantial portion of my current practice telling Federal District Court judges that their hands are largely tied, often due to deferential standards of review. It is what it is.
 

tedseye

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RetractableRoof said:
Question for the legal team:
 
Assume Berman during any ruling skewers the NFL and declares that Wells was not independent, despite proclamations to the contrary, citing all the various reasons that are being bandied about.  Does this give Kraft (if were inclined) room or an opening to then sue the NFL on the basis that they were punished under false pretenses, i.e. an independent investigation that wasn't?  That as a member organization it was damaged and denied reasonable treatment or due process?
 
Obviously I'm not asking this very clearly, but if Wells is asked to testify and invokes any kind of attorney client privilege - doesn't that also muddy the Patriots organization punishment?
 
I'm not asking if Kraft WILL do anything, but simply if it could be revisited based on any court outcome. 
A waiver has to be "knowing and intelligent." If based on one set of facts (independent investigation) and the true state of facts (nonindepedence) is concealed, there is a good argument it is not a valid waiver.
 

PedroKsBambino

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Bleedred said:
Never going to happen unless and until Bob Kraft (or Jonathan) is prepared to burn it all down and wage war on the entire NFL.   And even then, they still lose.   
 
I do not believe it will happen.  However, I think the next step has always been an antitrust lawsuit and that is as viable (which is to say, almost not at all) as it ever was for Kraft.

The only other scenario they get the pick back is if RG is fired and this fiasco is a primary cause---say, NFL ends up somehow being held in contempt by Berman and owners have emergency meeting to fire RG.  In that scenario, it's reasonably possible the new commissioner comes in and changes the way the entire thing was penalized.  That's more likely than the Kraft antitrust suit in my book, but only slightly.
 

jacklamabe65

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PedroKsBambino said:
 
I do not believe it will happen.  However, I think the next step has always been an antitrust lawsuit and that is as viable (which is to say, almost not at all) as it ever was for Kraft.
The only other scenario they get the pick back is if RG is fired and this fiasco is a primary cause---say, NFL ends up somehow being held in contempt by Berman and owners have emergency meeting to fire RG.  In that scenario, it's reasonably possible the new commissioner comes in and changes the way the entire thing was penalized.  That's more likely than the Kraft antitrust suit in my book, but only slightly.
The new commissioner being, of course, Condoleezza Rice.
 

dcmissle

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tedseye said:
A waiver has to be "knowing and intelligent." If based on one set of facts (independent investigation) and the true state of facts (nonindepedence) is concealed, there is a good argument it is not a valid waiver.
Bob Kraft is not suing over this and would be a bigger pariah than Al Daviis if he did.
 

Ed Hillel

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He won't sue, but does his "declining" to challenge actually hold any weight? Or is there just a certain time period in which an appeal can be filed? On top of that, I think the most likely strategy will be a PR campaign, based on Brady getting off (assuming that happens) and a "wait and see" compared to how the results come down from this season's testing. I have no trust in the NFL not to rig that in some way, however.
 

Average Reds

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I will admit that I forget all of the details we discussed months ago, but I don't think there is any provision for the Pats to appeal other than to file an anti-trust suit and (to repeat what a lot of us have said) he's just not going to do that.
 

dcmissle

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Average Reds said:
I will admit that I forget all of the details we discussed months ago, but I don't think there is any provision for the Pats to appeal other than to file an anti-trust suit and (to repeat what a lot of us have said) he's just not going to do that.
That is correct. When you buy into the billionaires' boys club, you have virtually no rights against the League in cases like this.

As for the antitrust suit, forget it. Al Davis the other owners could at least understand. He wanted to move the team. They would not let him. And as much as he grated on them, the other owners also would be tempted to sue if they were in Al's position.

Suing over lost draft picks and a fine when you, Bob Kraft, are probably more responsible than any other individual owner for creating and sustaining this Frankenstein monster, RG? Give me a break. They would be greatly angered, and if any of them had to sit for deposition, they would go after Kraft with meat cleavers.
 

dcmissle

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Monbo Jumbo said:
Attorney Alan Milstein has joined twitter within the last 24 hours.
 
 
He is reaching for his 15 minutes outside of strictly legal circles. It's cute. I hope for all of us he goes not get Jeff Toobin-Ed.
 

lithos2003

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dcmissle said:
That is correct. When you buy into the billionaires' boys club, you have virtually no rights against the League in cases like this.

As for the antitrust suit, forget it. Al Davis the other owners could at least understand. He wanted to move the team. They would not let him. And as much as he grated on them, the other owners also would be tempted to sue if they were in Al's position.

Suing over lost draft picks and a fine when you, Bob Kraft, are probably more responsible than any other individual owner for creating and sustaining this Frankenstein monster, RG? Give me a break. They would be greatly angered, and if any of them had to sit for deposition, they would go after Kraft with meat cleavers.
 
Completely a tinfoil hat theory here.. but we've all talked about Brady not having a chance at a defamation suit because he's a public figure.. McNally is not a public figure - wouldn't the standard be much lower?  What's to stop Bob Kraft from quietly slipping him his attorney's phone number and saying don't worry about the costs?
 

geoduck no quahog

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SemperFidelisSox said:
If communication between Brady and McNally had stopped after the AFC championship instead of increasing, the NFL would have called that suspicious too.
 
As someone who's apparently following the details of this case, you should at least try not to make shit up, unless you're a sports journalist.
 
{edit: Unnecessary snark. Still, the record shows that Brady never communicated with McNally. I think you meant to say Jastremski)
 

geoduck no quahog

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So - new poll:
 
Which of these best mimics the NFL's statement after the penalty is vacated?
 
1. Brady was guilty, but he got off only because he wan't given "enough notice" that paying people to deflate balls was against the rules...
 
2. Brady was guilty, but he got off only because "tampering with footballs in order to cheat" only applied to teams and not players...
 
3. Brady was guilty, but he got off only because no one "told him he'd be in trouble" if he destroyed all the evidence on his phone that he directed footballs to be deflated
 
4. Brady was guilty, but he got off only because Vincent signed the disciplinary letter instead of Goodell - a clerical error
 
5. Brady was guilty, but he got off only because some Judge ruled that, despite what's clearly stated in the CBA, Goodell couldn't arbitrate the hearing - a minor technicality
 
6. Brady was guilty, but he got off only because Reisner sat in on the arbitration hearing, when he wasn't even needed
 
7. Brady was guilty, but he got off only because we wouldn't let Kessler cross examine Pash - an NFL Executive who had nothing to do with the meat of the case
 
8. Brady was guilty, but he got off only because well-paid Union lawyers managed to obfuscate all of the facts to such a degree that a confused Judge made am improper ruling
 
How about "all the above"?
 

One Red Seat

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geoduck no quahog said:
So - new poll:
 
Which of these best mimics the NFL's statement after the penalty is vacated?
 
1. Brady was guilty, but he got off only because he wan't given "enough notice" that paying people to deflate balls was against the rules...
 
2. Brady was guilty, but he got off only because "tampering with footballs in order to cheat" only applied to teams and not players...
 
3. Brady was guilty, but he got off only because no one "told him he'd be in trouble" if he destroyed all the evidence on his phone that he directed footballs to be deflated
 
4. Brady was guilty, but he got off only because Vincent signed the disciplinary letter instead of Goodell - a clerical error
 
5. Brady was guilty, but he got off only because some Judge ruled that, despite what's clearly stated in the CBA, Goodell couldn't arbitrate the hearing - a minor technicality
 
6. Brady was guilty, but he got off only because Reisner sat in on the arbitration hearing, when he wasn't even needed
 
7. Brady was guilty, but he got off only because we wouldn't let Kessler cross examine Pash - an NFL Executive who had nothing to do with the meat of the case
 
8. Brady was guilty, but he got off only because well-paid Union lawyers managed to obfuscate all of the facts to such a degree that a confused Judge made am improper ruling
 
How about "all the above"?
If the penalty is indeed vacated, I won't give a flying f--- what they say. We/Pats/Brady can simply reply...."scoreboard". 
 

BigJimEd

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Average Reds said:
I will admit that I forget all of the details we discussed months ago, but I don't think there is any provision for the Pats to appeal other than to file an anti-trust suit and (to repeat what a lot of us have said) he's just not going to do that.
Kraft could have appealed to the league. it almost certainly would have went like Brady's but they could have appealed.
 

ipol

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geoduck no quahog said:
So - new poll:
 
[Depressing list]
 
How about "all the above"?
 
The next step would be getting through Goodell's feigned indignity. Seeing how often and how well he lies is what has filled me with the most disdain throughout this charade. As much as I love watching this sport - I'm paying attention to a Vikings / Buccaneers preseason game fer Christ's sake - it's become decidedly less palatable to do so, simply because of his reign. He'll no doubt repeatedly raise his eyebrows and puff out unbelieving sighs when lobbed the softball questions at his first press conference following the vacation of the arbitration award.
 
While I'm on the wish wagon I'll also hope for some very strong language from Judge Berman for the remand. Something along the lines of, "You clearly have no evidence of any impropriety having occurred and can't make up shit as you go along besides. Despite that, go ahead and fine Brady the eight grand-ish that's already been decided by the CBA and get the fuck over yourself." That would give us fans enough ammunition to quiet the "Cheatriots" morons without reverting to teaching sixth grade physics.
 

Reverend

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BigJimEd said:
Kraft could have appealed to the league. it almost certainly would have went like Brady's but they could have appealed.
 
I keep hearing this, but I don't see what part of the NFL Constitution & Bylaws allows for any such appeal. I do, however, see a couple of places that could be construed as to mean no appeal is allowed.
 
 

soxhop411

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snowmanny

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Is this the sort of thing that might come up at Wednesday's hearing? I mean, here is one of the plaintiffs leaking/inventing something to Brady's hometown paper.
 

Sportsbstn

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Makes perfect sense that Goodell would make lies about Brady, or at minimum keep shifting the story, but he would sit on damaging evidence to the Pats and Brady.....
 
If it sounds ridiculous Volin, it likely is.   You are being used for the tool that you are.
 

Reverend

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There's a nice new shiny thread in the media forum for people who want to bitch about Volin.
 
For those who want to do it here, there's a serious possibility of being suspended on the sight of a capital "V" just for not wanting to even think about it any more. Not out of maliciousness but just out of fatigue.
 
There's been lots of very cool positive feedback about these DFG threads about how people feel they can really tune in and follow and understand what's happening.
 
Don't be part of messing that up, yeah?
 

Leather

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soxhop411 said:
for those that cant see the tweet

 
 
Daniel Wallach ‏@WALLACHLEGAL  1m1 minute ago
Second Circuit case authority re: prior tweet: 857 F.2d 91, 94 (2d Cir. 1988) 878 F.2d 56, 60 (2d Cir. 1989) 916 F.2d 63, 65 (2d Cir. 1990)
 
Daniel Wallach ‏@WALLACHLEGAL  10m10 minutes ago
CA2: Arbitrator fails to draw award from essence of CBA when he bases award on policy that is outside CBA (and non-collectively bargaine
 
Eh... Without more clarification on what they mean by "essence of the contract", it's a wishy-washy thing to pin hopes on.    It's certainly not a bad thing, and if I were arguing for Brady I'd use it, but the crux is still the same in that they have to demonstrate that Goodell's own inferences and conclusions were so arbitrary and capricious as to be outside the parties' intent when the CBA was drafted.    Because the CBA certainly allows him some leeway in making these decisions.
 

ivanvamp

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drleather2001 said:
 
Eh... Without more clarification on what they mean by "essence of the contract", it's a wishy-washy thing to pin hopes on.    It's certainly not a bad thing, and if I were arguing for Brady I'd use it, but the crux is still the same in that they have to demonstrate that Goodell's own inferences and conclusions were so arbitrary and capricious as to be outside the parties' intent when the CBA was drafted.    Because the CBA certainly allows him some leeway in making these decisions.
 
Some leeway for sure.  Even the rulebook on tampering with footballs gives some leeway.  Including, but not limited to, a $25,000 fine.  
 
Ok, some leeway yes.  But $25,000 fine to four games ($1.8 million financial penalty) for Brady, $1 million team fine, a first round pick, and a fourth round pick....well....that's a little more than "some leeway".  
 
Littering = $100 fine.  Rumors have it you were littering, even though there is no real evidence you did.  Judge throws you in prison for three years.
 
Some leeway, yes.  THAT kind of leeway?  No way.  If Goodell wins this, then all it means is that he literally can do whatever he wants.  He can lie, make stuff up, fabricate things, come to any conclusion he wants, and issue any penalty he wants, and there's nothing anyone can do about it.  
 
That's a hell of a lot more than "some leeway".  That's carte blanche.
 

garzooma

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RetractableRoof said:
 
Obviously I'm not asking this very clearly, but if Wells is asked to testify and invokes any kind of attorney client privilege - doesn't that also muddy the Patriots organization punishment?
 
I'm not asking if Kraft WILL do anything, but simply if it could be revisited based on any court outcome. 
 
This prompts me to wonder: what if Kraft asked to see the correspondence between the NFL and Wells?  Theoretically, he's (one of) Goodell's bosses.  How would the other owners react?
 

jimbobim

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One thing I think we could see escalate this week from the NFL/league office side is forcing Tom to fulfill his media obligations. It's very easy to point to Lynch's performances and say "See he did it Tom We're just enforcing the rules for everybody."Further, this allows the NFL to perhaps preemptively show Tom what the season's going to be like in addition to the proceedings in court. If I were advising Tom I'd say sure you can do some pressers with questions but just " No Comment" the journos into oblivion with re all things Inflated Footballs. Can take some lessons from the woodchipper to questions that is BB. 
 

DJnVa

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jimbobim said:
One thing I think we could see escalate this week from the NFL/league office side is forcing Tom to fulfill his media obligations.
 
Are there required media obligations? This isn't Super Bowl media day.
 

NortheasternPJ

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Yes there is. The Lynch stuff started well before the Super Bowl
 
http://profootballtalk.nbcsports.com/2014/11/20/like-it-or-not-nfls-media-policy-is-clear/
 


The league’s media policy is clear:  “Players must be available to the media following every game and regularly during the practice week as required under league rules.  Star players, or other players with unusually heavy media demands, must be available to the media that regularly cover their teams at least once during the practice week in addition to their required post-game media availability. . . .  Each club will open its locker room during the normal practice week (based on a Sunday game) on Monday, Wednesday, Thursday and Friday to all accredited media for player interviews for a minimum of 45 minutes.”
So “star” players — like Lynch, who is paid accordingly — have two required media availabilities per week.  Lynch consistently has declined to make himself available.  Sure, it’s a small issue in the grand scheme of things.  Yes, players and coaches routinely say nothing of value during these media availabilities.  But the NFL requires that the player show up and say something.
 

jimbobim

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DrewDawg said:
 
Are there required media obligations? This isn't Super Bowl media day.
Multiple reports from ESPN and SI have alluded to media obligations generally that have been avoided due to ongoing court proceedings. I don't know when they become mandatory, but I can see the NFL using that lever to apply pressure eventually.