#DFG: Canceling the Noise

[Myt1]

Don't bury the lede.  First he suggested that a proper punishment would be for the city to pay for him to live out his days of being awesome in the prytaneum.
 
EDIT: I'm trying to figure out a way to work this into a salary demand.

 

[AB in DC]

If Judge Berman decides on sending it back for a rehearing, can he somehow craft a decision that agrees that per the CBA the Commish is generally entitled to be the arbiter, but in this particular case given the history and now entrenched positions the Brady case should go before some other arbiter?

 
My prediction is that Judge Berman gives the NFL a choice:
 
 
Give Kessler every single document he's requested relating to NFL staff's role in the Wells report, the right to call Pash as witness, and the right to question the Vincent delegation issue
 
OR
 
If the NFL refuses any of Kessler's requests, then Goodell has to recuse himself as arbiter due to conflict of interest.

 

[Ed Hillel]

If Berman remands back for a more equitable hearing, I suspect Goodell will have no part of the new one. That's assuming Berman doesn't also limit the punishment by ruling it must be in line with the soecifically bargained-for equipment violation standards.

 

[Harry Hooper]

Florio writes: 
 

But Adam Schefter’s report from Wednesday morning was accurate; as of Tuesday, when Brady took the day off to meet with the NFL, Brady was indeed willing to accept a short suspension (likely only one game) in order to end the case once and for all. 
 

 
Florio doesn't back this up with anything, though. He is also wrong about the timing:
 

After Wednesday’s hearing, which featured Judge Richard M. Berman aggressively pointing out the various flaw in the NFL’s position, Brady reportedly became less willing to accept a suspension of any duration.
 
Multiple reports emerging after the hearing indicated that Brady is not willing to accept any suspension.
 

 

[GregHarris]

Lester Munson reiterates on Le Betards show that the NFL can not lose this. Berman is just trying to bully the NFL into a settlement because he has no legal authority to vacate.

 

[Average Reds]

Lester Munson reiterates on Le Betards show that the NFL can not lose this. Berman is just trying to bully the NFL into a settlement because he has no legal authority to vacate.
 

 
Lester Munson is as close to a contra-indicator as we have for legal issues, so it's looking good for Team Brady.
 
I mean, Berman talked about scenarios that justified vacating the suspension from the bench yesterday and Munson is pretending that it didn't happen.  What a complete moron.

 

[Otis Foster]

 
Lester Munson is as close to a contra-indicator as we have for legal issues, so it's looking good for Team Brady.
 
I mean, Berman talked about scenarios that justified vacating the suspension from the bench yesterday and Munson is pretending that it didn't happen.  What a complete moron.

 
I agree re Munson. Read the disciplinary record.
 
There's been a lot of dialogue re how to read Berman. Conventional thinking is he's driving holes in RG's case. Maybe. Maybe he's also exploring potential weaknesses in what otherwise appears a pretty clear case of deference to the arbitrator. Often, judges will do this to get another view on a matter that still remains unresolved in the draft opinion.
 
If so, Nash put on a pretty weak performance. Maybe that reflects a fundamental weakness in the case.
 
A similar dialogue is going on in each side's conference room. Kessler's been around the block a few times. Nash, I don't know, some experience: https://www.akingump.com/en/lawyers-advisors/daniel-l-nash.html.
 
I think Brady and Kessler have a bright line, well though out: Hefty fine for scrapping the phone (Yee should check his E&O coverage); trash the Wells indictment; and maybe a 1 game suspension for non-cooperation, although I'm skeptical on that. If RG folds, they settle, if not, try the case. I'd take my chances on Berman. At worst, he'll defer to the CBA reluctantly, with a scathing repudiation of RG's behavior in dicta. I'm not sure he wants to make new law on this funky a case.

 

[weeba]

This aired last night at 12:30am.  I assume we'll see one about DFG in 2025
 
https://youtu.be/oT4RI1d6GdI
 
weird, didn't embed.

 

[drbretto]

 
Lester Munson is as close to a contra-indicator as we have for legal issues, so it's looking good for Team Brady.
 
I mean, Berman talked about scenarios that justified vacating the suspension from the bench yesterday and Munson is pretending that it didn't happen.  What a complete moron.

 
Wait, this explains everything. Munson must have been the lawyer that's advised Goodell this whole time!

 

[drbretto]

This aired last night at 12:30am.  I assume we'll see one about DFG in 2025
 
https://youtu.be/oT4RI1d6GdI
 
weird, didn't embed.

 
What was the original false story about?

 

[Average Reds]

 
I agree re Munson. Read the disciplinary record.
 
There's been a lot of dialogue re how to read Berman. Conventional thinking is he's driving holes in RG's case. Maybe. Maybe he's also exploring potential weaknesses in what otherwise appears a pretty clear case of deference to the arbitrator. Often, judges will do this to get another view on a matter that still remains unresolved in the draft opinion.
 
If so, Nash put on a pretty weak performance. Maybe that reflects a fundamental weakness in the case.
 
A similar dialogue is going on in each side's conference room. Kessler's been around the block a few times. Nash, I don't know, some experience: https://www.akingump.com/en/lawyers-advisors/daniel-l-nash.html.
 
I think Brady and Kessler have a bright line, well though out: Hefty fine for scrapping the phone (Yee should check his E&O coverage); trash the Wells indictment; and maybe a 1 game suspension for non-cooperation, although I'm skeptical on that. If RG folds, they settle, if not, try the case. I'd take my chances on Berman. At worst, he'll defer to the CBA reluctantly, with a scathing repudiation of RG's behavior in dicta. I'm not sure he wants to make new law on this funky a case.

 
Let me be clear - I'm not trying to read Berman and I have no idea what he's actually driving at in his questions other than my own ill-informed speculation.  But I cannot stand seeing/hearing it repeated again and again and again that as a matter of law, Berman has no grounds to vacate the suspension because deference to the arbitrator trumps everything. 
 
That's ridiculously false, as Berman himself indicated yesterday.

 

[AB in DC]

I would love to hear what someone like Steph Stradley or Michael McCann think of that guy.

 

[bankshot1]

Question for the lawyers, we layman hear the high deference that the NFL's decisions are legally entitled to, and that the NFL decision in DFG will be hard to over turn. But given the criticisms that Judge Berman has enumerated over the past 2 weeks, how much room is there between "high deference and "absolute deference"?
 
Is there a magic line (like Federal law and or accepted fairness impartiality in arbitration) that the NFL is not allowed to cross?

 

[weeba]

 
What was the original false story about?

 
They've reported recently that the Pats taped the Rams walkthrough during the Super Bowl.

 

[MuppetAsteriskTalk]

 
What was the original false story about?

 
I believe taping the Rams practices. Kind of lame they didn't even mention it in the apology.

 

[lithos2003]

 
They've reported recently that the Pats taped the Rams walkthrough during the Super Bowl.

Correct. Here's the story behind it:

http://boston.cbslocal.com/2015/08/20/espn-apologizes-to-patriots-for-sharing-false-spygate-story/

 

[MarcSullivaFan]

Question for the lawyers, we layman hear the high deference that the NFL's decisions are legally entitled to, and that the NFL decision in DFG will be hard to over turn. But given the criticisms that Judge Berman has enumerated over the past 2 weeks, how much room is there between "high deference and "absolute deference"?
 
Is there a magic line (like Federal law and or accepted fairness impartiality in arbitration) that the NFL is not allowed to cross?

The specific analysis and grounds for vacatur were discussed in detail early in this thread, so I'm not going to try to reconstruct them.

More generally, I can say that labor arbitration awards are regularly vacated. In fact, I believe Berman vacated one earlier this year (very different case). It is certainly a tough row to hoe, but it's not impossible. (I have colleagues in my office who have had awards vacated.)

Even the seminal Supreme Court case (Enterprise Wheel) that cemented the principle of deference to labor arbitration awards specifically notes that there are circumstances in which vacatur will be appropriate.

So yeah, it can happen.

Edit: Actually the detailed discussion of grounds for vacatur are discussed in the lawyer thread. Apologies for getting my threads tangled.

 

[ehaz]

I would love to hear what someone like Steph Stradley or Michael McCann think of that guy.

 
NBCSports on Munson. "ESPN needs to get a better legal expert"
 
Above the Law on Munson: "ESPN legal analyst does disservice to all mankind"

 

[Otis Foster]

 
Let me be clear - I'm not trying to read Berman and I have no idea what he's actually driving at in his questions other than my own ill-informed speculation.  But I cannot stand seeing/hearing it repeated again and again and again that as a matter of law, Berman has no grounds to vacate the suspension because deference to the arbitrator trumps everything. 
 
That's ridiculously false, as Berman himself indicated yesterday.

 
 
I'm not sure what you're responding to, but nowhere did I imply that an award is bulletproof. Rev/No Rev have repeatedly stated the ground for vacatur, as have others. I agree, I've been a spokesman for fundamental unfairness in all its glory from early on. (Citations available on request.) The 'new law' was a reference to applying established legal principles to the specific facts of this case. I just can't get all the way to fundamental unfairness, with the burden on TB.
 
That's quite different. If you disagree, so be it. Otherwise. try blowing off steam elsewhere.

 

[glennhoffmania]

 
Let me be clear - I'm not trying to read Berman and I have no idea what he's actually driving at in his questions other than my own ill-informed speculation.  But I cannot stand seeing/hearing it repeated again and again and again that as a matter of law, Berman has no grounds to vacate the suspension because deference to the arbitrator trumps everything. 
 
That's ridiculously false, as Berman himself indicated yesterday.

 
You said this in response to my post yesterday too but I think there's a miscommunication.  You're saying that there are situations in which a judge can vacate.  I don't think anyone is arguing with that.  That's different from saying that in this particular case there doesn't seem to be a valid reason to vacate.  That may not turn out to be correct, but you're making it too black and white.  No one (at least that I've heard or seen) has ever said that deference trumps all.  But that doesn't mean it won't turn out to be the decision in this case based on these specific facts.

 

[Average Reds]

 
 
I'm not sure what you're responding to, but nowhere did I imply that an award is bulletproof. Rev/No Rev have repeatedly stated the ground for vacatur, as have others. I agree, I've been a spokesman for fundamental unfairness in all its glory from early on. (Citations available on request.) The 'new law' was a reference to applying established legal principles to the specific facts of this case. I just can't get all the way to fundamental unfairness, with the burden on TB.
 
That's quite different. If you disagree, so be it. Otherwise. try blowing off steam elsewhere.

 
Sorry if this came across as aimed at you. (It was not.)
 
In your original response to me, you were careful to point out that Berman's questions/actions could be for any numb er of reasons and that it's foolish to try to read him one way or another.  My response was simply to clarify that I agree with you on that and that my rant was about the one specific point.  (That you were not making, to be clear.)
 
I'll be quiet now ... :whistling:

 

[Average Reds]

 
You said this in response to my post yesterday too but I think there's a miscommunication.  You're saying that there are situations in which a judge can vacate.  I don't think anyone is arguing with that.  That's different from saying that in this particular case there doesn't seem to be a valid reason to vacate.  That may not turn out to be correct, but you're making it too black and white.  No one (at least that I've heard or seen) has ever said that deference trumps all.  But that doesn't mean it won't turn out to be the decision in this case based on these specific facts.

 
OK fine. So why is it that there doesn't seem to be a valid reason in this case when even the judge is citing possible reasons to vacate from the bench?

 

[Section15Box113]

 
I believe taping the Rams practices. Kind of lame they didn't even mention it in the apology.

 
Not just "kind of lame."  Unacceptable.
 
For anyone who didn't watch the clip, here's what they said:
 

 
"On two occasions in recent weeks, SportsCenter incorrectly cited a 2002 report regarding the New England Patriots and Super Bowl XXXVI.  That story was found to be false and should not have been part of our reporting.  We apologize to the Patriots organization.  We'll be right back."

 
Ugh.  The apology/retraction absolutely should have stated what the retraction was about, not just that it related to SB XXXVI.  Anyone hearing the retraction should have immediately been able to understand what was being retracted.
 
Try this on for size: 
 
"On two occasions in recent weeks, SportsCenter cited an inaccurate report that the New England Patriots taped the Rams' walkthrough prior to Super Bowl XXXVI.  That report was false.  No taping of any Super Bowl walkthrough occurred and the media outlet that originally reported the story issued a retraction.  We regret the error and apologize to the entire Patriots organization."
 
Further proof of the lack of standards at the "Worldwide Leader."

 

[Doug Beerabelli]

The ESPN "crawl" has the latest as "judge hammers both sides for settlement," and the sportcenter report with Sal Pal and Shefty has Sal Pal repeating that and stating the judge mentions there were weaknesses in both cases.   Shefty did finally mention it appeared the judge leaned on the NFL harder in questioning , perhaps to move them toward a settlement.
 
ESPravdaNFL.

 

[drbretto]

 
I believe taping the Rams practices. Kind of lame they didn't even mention it in the apology.

 
That's kind of bullshit that they didn't. 

 

[Otis Foster]

 
Sorry if this came across as aimed at you. (It was not.)
 
In your original response to me, you were careful to point out that Berman's questions/actions could be for any numb er of reasons and that it's foolish to try to read him one way or another.  My response was simply to clarify that I agree with you on that and that my rant was about the one specific point.  (That you were not making, to be clear.)
 
I'll be quiet now ... :whistling:

 
 
Pax Vobiscum

 

[AB in DC]

 
 
Ugh.  The apology/retraction absolutely should have stated what the retraction was about, not just that it related to SB XXXVI.  Anyone hearing the retraction should have immediately been able to understand what was being retracted.
 
 

 
Absolutely wrong.  There have been a bunch of studies lately about correcting misinformation in the public eye.  They've all concluded that re-stating the incorrect information, even while saying it's incorrect, actually leads more people to believe the misinformation than otherwise.

 

[Myt1]

You said this in response to my post yesterday too but I think there's a miscommunication.  You're saying that there are situations in which a judge can vacate.  I don't think anyone is arguing with that. 

Munson basically is, and that's whose analysis AR is taking issue with. Munson occasionally festoons his meager legal analysis with a somewhat laughable version of Roger's decision, but it basically boils down to, "There's a CBA that allows Goodell to serve as the arbitrator. Goodell served as the arbitrator and rendered a decision. Courts are deferential to arbitrator's decisions. Ergo, Goodell will be confirmed."

All this talk about specific facts and nuance would have Lester shouting that real lawyers should get off his lawn, if he hadn't agreed to sell it off as part of the disciplinary proceedings.

AR's basically doing the opposite of saying this is black and white.

 

[Average Reds]

AR's basically doing the opposite of saying this is black and white.

 
 ... and doing a damn poor job of it.  Thank you for the assist.

 

[Don Buddin's GS]

Top headline from ESPravdaN/Boston with Richard Sherman's halfassed opinions on D-Gate:

http://espn.go.com/nfl/story/_/id/13473078/seattle-seahawks-richard-sherman-sympathizes-tom-brady-deflategate-fallout

 

[MuppetAsteriskTalk]

 
Absolutely wrong.  There have been a bunch of studies lately about correcting misinformation in the public eye.  They've all concluded that re-stating the incorrect information, even while saying it's incorrect, actually leads more people to believe the misinformation than otherwise.

 
Wow. Human mind is a funny thing. Goes to show how once the NFL shaped the story in the early days of the DG mess how hard it is to undo the damage. 

 

[Myt1]

 
 ... and doing a damn poor job of it.  Thank you for the assist.

There's no true altruism: I'm trying to line you up as a future client.

 

[Silverdude2167]

Top headline from ESPravdaN/Boston with Richard Sherman's halfassed opinions on D-Gate:

http://espn.go.com/nfl/story/_/id/13473078/seattle-seahawks-richard-sherman-sympathizes-tom-brady-deflategate-fallout

He actually makes a good point and is not talking about guilt or if deflating balls matter.

 

[glennhoffmania]

 
 ... and doing a damn poor job of it.  Thank you for the assist.

 
The black and white comment was in reference to your argument that anyone who says that Berman won't vacate means that he can't vacate, as if just because he may rule for Goodell means he has no choice but to do so.  No one is saying he can't.  Some of us are saying he probably won't.
 
I'll leave the legal analysis to the other thread and to those that practice in this area and know more about it than me.  My opinion is solely based on what I'm reading, the transcripts, etc.  Most people probably have a guess about whether Brady will win or lose.  Mine is no more valid than yours.  All I was saying was that I'll be pleasantly surprised if Brady wins at this point, and I think that Berman is pushing for a settlement because he thinks the NFL is acting like a bunch of assholes but he also thinks that it would be a stretch to vacate. 

 

[Myt1]

That's not his argument. And when you say "No one," you're wrong, as has been pointed out now, multiple times.

This thread would be better if we could stick to a single translation of misinterpreted posts. We've had three of AR's now.

AR, now, did you get that memo? See, we're putting the new cover sheet on all of the TPS reports now. I'll see that you get a copy of that memo.

 

[nighthob]

 
 
Pax Vobiscum

 
That is by far the funniest joke in Ivanhoe. If only Goodell would go Brian de Bois-Guilbert on us. Alas, that would require a conscience. He's more Reginald Front-de-Boeuf, who can not be moved by any plea.

 

[brandonchristensen]

Remember someone on the board with "sources" was reporting 8 games initially? Maybe that's where it's from.

 

[WayBackVazquez]

Question for the lawyers, we layman hear the high deference that the NFL's decisions are legally entitled to, and that the NFL decision in DFG will be hard to over turn. But given the criticisms that Judge Berman has enumerated over the past 2 weeks, how much room is there between "high deference and "absolute deference"?
 
Is there a magic line (like Federal law and or accepted fairness impartiality in arbitration) that the NFL is not allowed to cross?

 
I had to oppose one of these (not a labor case) a few years ago, and found a study that had the percentage (in reported decisions, which admittedly is not a full picture) of awards vacated at around 20%. Will try to look for it again later.

 

[Steve Dillard]

Can someone help me out.  The judge mentioned that cases have been vacated based on fundamental fairness and refusal to allow witnesses.   However, I thought I remembered that he mentioned the number of 18 such cases.  From the filings, I don't believe Kessler offered up that number.  If so, that means the judge and his clerks have found those, and determined they were significant enough to highlight at the hearing.
Does someone remember if the 18 number came from Kessler (during argument) or from Berman?

 

[bankshot1]

 
I had to oppose one of these (not a labor case) a few years ago, and found a study that had the percentage (in reported decisions, which admittedly is not a full picture) of awards vacated at around 20%. Will try to look for it again later.

 WBV-thanks I'm just trying to size the gap between "high" and "absolute" deference.
 
And as an aside as a layman, I have a hard time understanding how Berman could affirm an award with as many defects as the NFL decision appears to hold (facts, bias, procedural non-conformance to the CBA) that will also expand Goodell's ability to procedurally screw the NFLPA in the future.

 

[drbretto]

 
Absolutely wrong.  There have been a bunch of studies lately about correcting misinformation in the public eye.  They've all concluded that re-stating the incorrect information, even while saying it's incorrect, actually leads more people to believe the misinformation than otherwise.

 
That's fascinating to me. It almost makes sense in a "people just don't make any damn sense" sort of way.

 

[Smiling Joe Hesketh]

An interesting read about the Exponent evidence regarding the gauges in the Wells report:
 

The NFL insists that science alone cannot explain the Patriots’ pressure drop.
 
Therefore the ball attendant must have deflated them — and quarterback Tom Brady must have known.
 
Much depends on which gauge the referee actually used to measure the balls pre-game. The referee remembers using his longer-needled (LOGO) gauge.  But the “independent” investigator/consultants rejected the referee’s recollection.
 
Do the gauges resemble each other so much that the referee would mis-remember which he used?

 
THE SMOKING GUN
How much longer exactly is the longer needle?  See for yourself.   Examine the independent consultant’s own close-up: What do the rulers tell your eyes?
Look again.  (Yes, they shifted one ruler .2” to deflate the difference!)  The longer, LOGO gauge needle really measures TWICE AS LONG as the shorter one.
Would an experienced referee who used one of these gauges 24 times that day, mistake it for the other?
But wait!  There’s another trick in this optical illusion:  Are the needles both “slightly bent” as Exponent’s caption suggests?
Or did the “independent” investigator/consultants earn their millions by shooting a photograph specifically to eliminate the greater bend of the longer needle?  This further deflates the difference.  Look carefully.  The truth lurks in the shadow.

 
Jesus Christ, they deliberately moved the ruler to make the gauges appear similar. Remember, Andersen says he thought he used one gauge but the Wells report insisted he actually used the other.
 
Here's what the gauges looked like when not shot to seem straight:
 

 
You think Andersen wouldn't remember which one he used now?
 
The league office is LYING THROUGH THEIR TEETH.

 

[JokersWildJIMED]

The vast majority of arbitration awards are upheld because in the vast majority of instances the process is "fair" (e.g. due process, neutral arbitrator, etc.)  Thus, looking at percentages of arbitration awards vacated is both safe and lazy (e.g. Munson), but if such an approach is to be used then the proper percentage to examine would be the arbitration awards upheld / vacated from the NFL office under RG.    

 

[tims4wins]

Holy shit SJH

 

[Section15Box113]

 
Absolutely wrong.  There have been a bunch of studies lately about correcting misinformation in the public eye.  They've all concluded that re-stating the incorrect information, even while saying it's incorrect, actually leads more people to believe the misinformation than otherwise.

 
Can you point me to that research?  (My google-ninja moves failed me.) 
 
Genuinely curious, since it's completely counter-intuitive to me - and a sea-change from the old newspaper days. 
 
To me the ESPN retraction is so vague that it is useless.  Are they retracting a statement that the Patriot Super Bowl squad had only two Pro Bowlers (when they in fact had four)?  Or, from an uneducated fan's perspective, are they retracting a report that the tuck rule was valid, confirming that fan's belief that the rule was improperly applied and the Raiders (or Steelers) should have represented the AFC in SB36?
 
That retraction is so vague that it could literally mean whatever the viewer wanted it to.  Is that better than being specific and saying that the Patriots didn't tape the walkthrough? 
 
Maybe research shows it is.  But it results in less accountability for the media. 
 
And perhaps points to a larger problem that we're just not paying that much attention to anything - or are perhaps all too dumb to actually listen.
 
 
Obviously, not meant as a dig at you, AB, and not doubting that the studies exist.  As I said, genuinely curious.  But definitely troubled that research apparently shows that you can't combat incorrect information with facts due to the risk of reinforcing said incorrect information.  We're through the looking glass.

 

[drbretto]

 
 
The league office is LYING THROUGH THEIR TEETH.

 
Holy shit, that's infuriating. 

 

[Hoya81]

Holy shit SJH

It's true.

edit: corrected. Page 15 of the exponent report, 175-177 of the Wells.

View attachment 1251

 

[jimbobim]

Tony Dungy better be calling a stooge to "clarify" because the League has shown with Deflategate any concern raised by another team about the Patriots could plausibly spawn an investigation. What a piece of excrement... 
 
Tom E. Curran ‏@tomecurran  2m2 minutes ago
Tom E. Curran retweeted ProFootballTalk
Is this what Ted Wells would call #chatter ?
Tom E. Curran added,




ProFootballTalk @ProFootballTalk
Peyton Manning feared Patriots bugging visitors' locker room http://wp.me/p14QSB-9PvT 





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[JimBoSox9]

Don't both the rigged photo and the fair photo come from the Exponent report?

 

[Smiling Joe Hesketh]

Don't both the rigged photo and the fair photo come from the Exponent report?

 
Yes.