#DFG: Canceling the Noise
- Thread starter nattysez
- Start date
Albert Breer @AlbertBreer 1m1 minute ago
So settlement talks are nowhere. Could change. Worth noting: These deals routinely have language that settlement has "no impact on the CBA."
So settlement talks are nowhere. Could change. Worth noting: These deals routinely have language that settlement has "no impact on the CBA."
To add my (worthless) two cents:
There's a big difference between one game suspension for a failure to cooperate and a 4 game suspension. For all the reasons stated, the latter is disproportionate to the offense, but TB could reluctantly accept a one-game suspension if focused on the failure to cooperate (already acknowledged). He can't accept either a four-game suspension or an endorsement of the Wells report/RG's so-called award, but there are other options available to him. ..
If there's an active conspiracy to violate a rule by monkeying with the football, it's far easier to endorse a four game suspension, but Brady for understandable reasons will not accept this, even with a lesser suspension, while RG has now staked a lot on validating the Wells report and his process, or at least not an overt rejection.
That's why I put some credence in reports of TB's offer to settle on that basis
What complicates it is that RG is not the ultimate client, whereas on his side, TB is. RG has to come out with a resolution that protects his butt vis-a-vis the owners, who as noted are already thinking ahead to the next CBA, so, a defeat at the 2d Circuit is much easier to live with, and anything short of a concession by TB is off the table. Add that to ego and you're talking about a client that won't move much if at all.
I defer to the litigators, but I just don't believe Berman will be swayed by the parties' flexibility or rigidity for settlement purposes. He'd be much more sensitive to a possible reversal by the Circuit. Trial judges don't like that. I take his probing to be the usual attempt to see how deeply rooted each party is, by focusing on possible weaknesses in their respective cases. They're not necessarily harbingers of what may occur. Some cases just have to try.
I think this winds up with a reaffirmation of the CBA and a stay pending appeal.
There's a big difference between one game suspension for a failure to cooperate and a 4 game suspension. For all the reasons stated, the latter is disproportionate to the offense, but TB could reluctantly accept a one-game suspension if focused on the failure to cooperate (already acknowledged). He can't accept either a four-game suspension or an endorsement of the Wells report/RG's so-called award, but there are other options available to him. ..
If there's an active conspiracy to violate a rule by monkeying with the football, it's far easier to endorse a four game suspension, but Brady for understandable reasons will not accept this, even with a lesser suspension, while RG has now staked a lot on validating the Wells report and his process, or at least not an overt rejection.
That's why I put some credence in reports of TB's offer to settle on that basis
What complicates it is that RG is not the ultimate client, whereas on his side, TB is. RG has to come out with a resolution that protects his butt vis-a-vis the owners, who as noted are already thinking ahead to the next CBA, so, a defeat at the 2d Circuit is much easier to live with, and anything short of a concession by TB is off the table. Add that to ego and you're talking about a client that won't move much if at all.
I defer to the litigators, but I just don't believe Berman will be swayed by the parties' flexibility or rigidity for settlement purposes. He'd be much more sensitive to a possible reversal by the Circuit. Trial judges don't like that. I take his probing to be the usual attempt to see how deeply rooted each party is, by focusing on possible weaknesses in their respective cases. They're not necessarily harbingers of what may occur. Some cases just have to try.
I think this winds up with a reaffirmation of the CBA and a stay pending appeal.
That's one of the difficulties settling a case where money isn't the settling point. If I offer you $431,785.62 to settle, don't ask me "how'd you get that number?" Just tell me whether you'll take it or make a counter. There's very little discussion of the "facts." We're just making a business deal now.
When I hear "the parties are stuck on the facts," then I think settlement chances are pretty dim.
I am virtually certain that the first paragraph captures things.
I am less certain of the second, but I lean towards affirmance as the likely outcome.
If the NFL is leaking that Brady would take a game or two for non-cooperation, and will not accept Wells, that's a pretty stupid leak. As noted above, it makes Brady look reasonable and pragmatic. The NFL insisting that he admit to the Wells Report, with all of its holes and bad science, to say nothing of the fact that he'd be admitting to being a liar, is asking for the obviously impossible, especially given the NFL's failure to prove anything other than through inferences from texts of third parties. So here's to Zolak being wrong and this state of play being shared with Judge Berman. If I were Berman, it would be one more indication that the NFL is acting capriciously.
In general, I think judges are agnostic on settlement terms, even if one side is being unreasonable.
Here, though, if reports are to be credited, RG is asking for more than he could win in court as a precondition to cutting the suspension. As I noted in the legal thread last night, that is virtually unprecedented, unrealistic and incredibly ballsy. And I could envision Berman really being put off by it.
Here, though, if reports are to be credited, RG is asking for more than he could win in court as a precondition to cutting the suspension. As I noted in the legal thread last night, that is virtually unprecedented, unrealistic and incredibly ballsy. And I could envision Berman really being put off by it.
Nate Raymond @nateraymond 7m7 minutes ago
Judge Berman urges #NFL, union to reach 'logical and rational' conclusion and settle their case over #Deflategate suspension of Tom #Brady
Nate Raymond @nateraymond 5m5 minutes ago
Judge Berman sets Aug. 31 hearing, says #Brady and #NFL's Goodell must attend. Judge will also meet with lawyers today re: #Deflategate deal
Judge Berman urges #NFL, union to reach 'logical and rational' conclusion and settle their case over #Deflategate suspension of Tom #Brady
Nate Raymond @nateraymond 5m5 minutes ago
Judge Berman sets Aug. 31 hearing, says #Brady and #NFL's Goodell must attend. Judge will also meet with lawyers today re: #Deflategate deal
Couldn't "per league sources" mean anything, or are we to assume he'd say "sources connected with Tom Brady"? I'm not quibbling with you, I'm just trying to be precise (this whole case has made me paranoid about language).MuppetAsteriskTalk said:
Probably Berman trying to put pressure on them.
As has been said before, pretty sure Berman has his opinion pretty much written except for maybe a paragraph or two with some scattered placeholders throughout.
It's not going to delay too much.
Plus he is doing everything in his power to push leverage into the situation.
Only problem is most lawyers have been around the block enough to know what levers he is trying to push.
As has been said before, pretty sure Berman has his opinion pretty much written except for maybe a paragraph or two with some scattered placeholders throughout.
It's not going to delay too much.
Plus he is doing everything in his power to push leverage into the situation.
Only problem is most lawyers have been around the block enough to know what levers he is trying to push.
Raffi Melkonian @RMFifthCircuit 2m2 minutes ago
So this Aug. 31 hearing will be a showdown. The Judge will have decided by then - *privately*. He will have written his opinion.
So this Aug. 31 hearing will be a showdown. The Judge will have decided by then - *privately*. He will have written his opinion.
Otis's and J. Dokes prediction of affirmation of the award is depressing, and if they are to be credited (and they've been sober posters all along), then deference to the CBA truly trumps all, notwithstanding what I think are the much more compelling legal arguments in the NFLPA memorandum of law filed on August 14th. I have tried to read the legal briefs with as an objective eye as possible, and could only see an NFL victory if deference to an arbitrator's decision is essentially bulletproof with very few exceptions. I thought that the NFLPA's memo articulated those exceptions quite well, particularly on notice and that a specific policy of fine and no suspension (i.e. equipment penalties in the Player Policies) would override the general presumption of the right to suspend for conduct unbecoming that is found in the player's contract.
But if the award is upheld, then as a consequence of the failure of the NFLPA's arguments, it's open season on any NFL player, as the commissioner can suspend for conduct unbecoming at his discretion, as all players are on notice of the suspension penalty by virtue of their player contracts. That's a staggering result to me, but there it is.
But if the award is upheld, then as a consequence of the failure of the NFLPA's arguments, it's open season on any NFL player, as the commissioner can suspend for conduct unbecoming at his discretion, as all players are on notice of the suspension penalty by virtue of their player contracts. That's a staggering result to me, but there it is.
tims4wins said:
I agree in the case of the original leak (which spawned a debate about what "league sources" meant iirc), it could mean just about anybody. A GM, NFL official, team owner, etc.
If this particular leak came from Team Brady, it would be a little bit odd to attribute it to league sources. (I didn't even consider it to be a possibility.) Just my opinion and of course I could be very wrong.
TheoShmeo said:
A leak promoting the idea that Brady would be willing to accept any suspension is clearly intended (IMO) to bolster the perception of Brady's guilt. The fact that this leak also indicates that the NFL is standing firm on having Brady accept the findings of the Wells Report is consistent with the NFL's insistence that the "violation" is not up for discussion. What we're discussing is the penalty for that violation.
In short, the leak fits almost perfectly into the narrative the NFL is promoting. The fact that it might be false or stupid is almost an irrelevant consideration.
Good for Tom. Donates $50,000 to the Jimmy Fund this morning amidst all of this. https://www.youtube.com/watch?v=OLsAt0ydBE8
Eh, it's been 7 months, what's another 2 weeks?
Apologies if someone mentioned the 7 month anniversary yesterday - that was the official marker. January 18, 2015, a day that will live in infamy.
Apologies if someone mentioned the 7 month anniversary yesterday - that was the official marker. January 18, 2015, a day that will live in infamy.
The only reason (if he's stuck on deference trumps all) I could see Berman trying to thread the needle for not affirming the award is the point several people have made (including me).
If Berman affirms, the CBA on discipline becomes meaningless, and the Federal docket gets tons more cases from the NFL as Roger & crew will most assuredly abuse their new power until such time they get the final smack down or 2020 comes along and they find a way to trade the power for an extra 3-5% revenue split (e.g. move it from 50-50 to 53-47 owners)
If Berman affirms, the CBA on discipline becomes meaningless, and the Federal docket gets tons more cases from the NFL as Roger & crew will most assuredly abuse their new power until such time they get the final smack down or 2020 comes along and they find a way to trade the power for an extra 3-5% revenue split (e.g. move it from 50-50 to 53-47 owners)
So Berman just ordered Brady and Goodell to appear in court again on Aug. 31st if no settlement is reached, and has now said that he may not rule by the Sept. 4th date. This seems to be a pretty big deal, and seems like he is pissed at somebody, no?
http://espn.go.com/boston/nfl/story/_/id/13467909/judge-orders-patriots-quarterback-tom-brady-roger-goodell-back-court-aug-31
http://espn.go.com/boston/nfl/story/_/id/13467909/judge-orders-patriots-quarterback-tom-brady-roger-goodell-back-court-aug-31
edmunddantes said:
I'm still conscious of the neutrality/bias/fairness issue. They're all aspects of the same question: Will a court enforce a seemingly-unlimited grant of authority to one party to an agreement, or will it set some guidelines based roughly on the notion of good faith and fair dealing?
Because I'm not a labor lawyer, I don't know if the law surround CBAs is different, but it does offend my sensibilities as a lawye to say that there's no limit on the exercise of authority. There's plenty of case law that the authority must not be exercisable in a way that defeats the bona fide expectations of one party to an agreement, at least in the commercial setting.
Authorities available on request. Hourly rate of $500, with a 25% premium, with a retainer of $10,000 payable up front. Otherwise, wait till August 31.
I agree with this. Don't forget, in the minds of those who the PR-conscious league is trying to reach, the ONLY reason Brady settles is because he's guilty. The NFL is capitalizing on that. Not for the Judge. He doesn't give a shit about this stuff. It's dick-swinging for the "benefit" of the rest of the players. "We're happy to try and ruin Tom Brady's reputation, you could be next."
Having the principals at a hearing is not such a big deal. The timing announcement is leverage, since one of the few things both sides have agreed on is that they'd like to get it resolved soon. Of course a delay beyond opening night brings "time served" into any settlement discussion.
I don't think one can say he's pissed based solely on this announcement.
But it was Schefter. He has seemingly been one of the adults in the room when it comes to NFL reporting for quite some time (e.g. Breaking into OTL to blow up their report) and he had a front row seat to Mort pouring gasoline over his head and dropping a match.H78 said:
I have a hard time believing that with all of the falsehoods thrown around, media manipulation and outright lies from the NFL that Schefter would allow himself to be played.
Maybe I have too high of an opinion of the guy. But I'd be surprised if Schefter ran with something from the NFL while damn well knowing that it could very well be a half truth.
RGREELEY33 said:
Sounds like he was just trying to convince the parties that they'd be better off settling. I don't think there's much to it.
H78 said:
Unless he issues a temporary injunction, that is correct. OTOH, one of the predicates for an injunction is the likelihood that TB will prevail on the merits, and failing to issue one would moot the suspension issue.
I think the NFLPA would file for an injunction or whatever it's called, to prevent Brady from missing any time wile this is being litigated.H78 said:
I think Stephanie Stradley has a saying for this.
"Settle this thing, settlingly yours judge settle"
He's still hammering settlement to avoid this going up the tree. I think he's resigned to the fact that no matter how he rules, this will continue up the federal court chain.
He's trying his best to get them to get this out of the court system (since it's such a stupid case), but they do have actionable claims that you can't just dismiss on a summary judgement/dismissal ruling.
"Settle this thing, settlingly yours judge settle"
He's still hammering settlement to avoid this going up the tree. I think he's resigned to the fact that no matter how he rules, this will continue up the federal court chain.
He's trying his best to get them to get this out of the court system (since it's such a stupid case), but they do have actionable claims that you can't just dismiss on a summary judgement/dismissal ruling.
dcmissle said:
That really was a stunning observation. It's like they want to use this case to get leverage (see below) beyond punishment for behavior but to force expressions of conscience.
It's vaguely insane. Well, not insane. It's cravenly tyrannical.
Otis Foster said:
I'm there with you. I get that the NFL wrote it's brief to say that the judge is compelled by law to let the arbitrator's ruling stand. But they seem almost to imply that that will always be the case. If so, that would effectively be a lack of rule of law, and I don't believe that negotiating the notion that a party will not be constrained in any way by rule of law is legal.
Surely it should be philosophically offensive to anyone who thinks, like, rule of law is a good thing.
joe dokes said:
Note the elegance of how the NFL produced its own bludgeon and leverage that it is now using as a chip.
"We will only agree to consider reducing your suspension if you endorse the findings of this bs report that was the basis for your suspension."
The fundamental problem with settlement here that runs afoul of traditional "settlement theory" (of which there is a ton) is that the NFL got to set the stakes for both sides in an attempt to develop a kind of cake-and-eat-it set for the NFL. That is to say, their "concession" would be to reduce the suspension that is based on the Wells Report, but only if Brady accepts the Wells Report which they made just to get Brady.
That's... cravenly tyrannanical?
On the bright side, it'll be hell on the Steelers to develop a defensive game plan!H78 said:
Berman is no fool and I love that he's clearly doing all of his homework on the details related to WHY the NFL originally suspended Brady. I also love that he's insinuating that "findings" related to games outside of the AFCCG are irrelevant. This, to me, seems particularly important because if the league continues to push dialogue related to activity prior to the AFCCG it proves that the AFCCG was, indeed, a sting operation and that they didn't care about protecting the "integrity of the game" for the first half of the AFCCG. They're basically contradicting their own argument while, in parallel, doing nothing to help justify their suspension as it relates to activity on January 18th.
I'm really hoping Brady doesn't budge on anything more than a lack of cooperation fine. I am not a lawyer, but Berman seems to "get it" and that's fantastic to see.
I'm really hoping Brady doesn't budge on anything more than a lack of cooperation fine. I am not a lawyer, but Berman seems to "get it" and that's fantastic to see.
Average Reds, your assumption is that if Berman hears that Brady is willing to take a game that he will take it as a tacit admission of guilt. I disagree. Judges are used to seeing bitter adversaries settle to end and de-risk disputes all the time. I get how John Q Public would misinterpret Brady in that way, but I don't think a Judge would be as prone to doing so. I think that Brady's team is capable of messaging the concession in a way that makes clear that Tom would be doing it to move on and take the 4-game possibility off the table. Coupling that message with the notion that the deal will not get done because the NFL is asking for Brady to admit to a series of lies would reinforce that Tom is doing this to be pragmatic, not because he actually admits to anything. It's also consistent with the door that Kessler opened at the last hearing regarding Tom perhaps not cooperating as much as he should have.
PS: I also think based on the tenor of what I am reading regarding the Judge's questions and comments that he would appreciate that conditioning a deal on Tom admitting something that he has steadfastly denied and that would gravely damage his legacy, especially in the face of such limited evidence, is an out of touch ask. Maybe I am being too hopeful, but I perceive that ask as preposterous and that Berman would know that Tom could not agree to it.
PS: I also think based on the tenor of what I am reading regarding the Judge's questions and comments that he would appreciate that conditioning a deal on Tom admitting something that he has steadfastly denied and that would gravely damage his legacy, especially in the face of such limited evidence, is an out of touch ask. Maybe I am being too hopeful, but I perceive that ask as preposterous and that Berman would know that Tom could not agree to it.
Tom E. Curran @tomecurran 2m2 minutes ago
Stepped out of courthouse for update. Judge Berman banging NFL around for comparing ball deflation to steroid use, making Pash off limits.
Tom E. Curran @tomecurran 57s58 seconds ago
NFL attorney Daniel Nash says "some in NFL" wanted 4 games for deflation and 4 games for non-cooperation. #benevolent
Stepped out of courthouse for update. Judge Berman banging NFL around for comparing ball deflation to steroid use, making Pash off limits.
Tom E. Curran @tomecurran 57s58 seconds ago
NFL attorney Daniel Nash says "some in NFL" wanted 4 games for deflation and 4 games for non-cooperation. #benevolent
Holy Jeebus!jsinger121 said:
If nothing else screams out for someone to finally smack the NFL down, this does.
They are drunk with power. In what world would have that punishment made any sense or fit into any standard of fairness?
jsinger121 said:
Good on the first one, that was a ridiculous comparison, which was clear that the judge understood last week when he made mention that Brady gained no advantage in the first half from the pressure of the footballs.
Or is this the NFL saying "look. We feel strong in our position of 4 games. We already compromised by coming down to 4. We shouldn't have to compromise more unless we get something for it (admission of guilt, support for Wells report)."edmunddantes said:
If so, horrible argument to be making. If not, why even bring it up. "Hey look how benevolent we were. We could have really hammered him."
TheoShmeo said:
That is absolutely not my assumption. My assumption is that the NFL is playing to the public and (much more importantly) the NFL owners.
I have believed for some time that the NFL is treating the legal process here as a sideshow. This is all about projecting an image of strength, which is why they continue to leak false information casting Brady in a bad light.
If they win in court, great. But they lose a lot in court and it doesn't seem to bother them much if at all.
daniel kaplan @dkaplanSBJ 3m3 minutes ago
Brady hearing over. Another tough day for NFL lawyer, who was grilled by judge berman
Brady hearing over. Another tough day for NFL lawyer, who was grilled by judge berman
For a judge that, based more or less exclusively on what I've read here, seems pragmatic and sensible, I have to wonder what he sees that makes him think that continuing settlement discussions are worthwhile.
Right now it would appear, for Brady, that any admission of guilt or acceptance or the Wells Report is a worse outcome than a four-game suspension. Yet that's reportedly almost a pre-requisite for the NFL to even really begin engaging in talks. This would seem to render even the most optimal settlement for Brady as more unfavorable than even the worst possible ruling from Berman. Basically, unless he plans on filtering something to the NFL or is counting on Brady folding as the season arrives, he would seem to be advocating a course of action that he knows is futile.
My god, the craven arrogance of these people is endless. I know we have firmly established that there was never an official, legally binding gag order. But given Bermans stated preference that he wants the rhetoric toned down, this kind of naked attempt to further smear Brady in the public eye cannot be making him happy.jsinger121 said:
So... "Basically Roger will pull a rabbit out of his ass again and it is his prerogative to do as he wishes." With no thought to fairness, consistency, etc.
Glad to see NFL finally admit it.