#DFG: Canceling the Noise

[Average Reds]

Berman couldn't grant an injunction for week 5?  Or from game 1 through week 5?

Of course he could. But the current punishment has Brady suspended through 4 games, and Mara is right to point out that it's a conflict of interest for him (or any owner, really) to negotiate that down.

This is the conundrum for Berman. Goodell is really the only party to negotiate and he won't do so in good faith. The owners are hopelessly conflicted and will not get involved. So Berman is going to be forced to take action.

My hope is that he grants an injunction, extends the process and continues to torture the NFL until they cry uncle. But that's probably a pipe dream at this point.

 

[allstonite]

For the first time in this saga, red lights have turned on in 31 owners' offices. They want no part of any direct involvement in this shit in any capacity. I guarantee it.

 
Yup. I don't think he'll lose his job over this but they're selling Goodell out now on this. In the words of Don Draper "that's what the money is for"
 
I'm almost at the point where I would give my next paycheck for discovery on the NFL side.

 

[Leather]

I just find it disconcerting that Berman is so unbending in his urging for a settlement. Enough of that shit, just make a ruling and get on with it.

My optimistic hypothesis is that this is all a method of probing what he suspects is going on: that the deck was always stacked against Brady from the get go, and the direction isn't just coming from Goodell but the league bosses as well, and this is all laying the groundwork for a "Have you all no decency" type Order.

 

[Bergs]

 
Yup. I don't think he'll lose his job over this but they're selling Goodell out now on this. In the words of Don Draper "that's what the money is for"
 
I'm almost at the point where I would give my next paycheck for discovery on the NFL side.

I was about to say something very similar. I want the league in flames at this point.

 

[tims4wins]

DCM - you seem extremely pleased by this development - would you now say odds are firmly in Brady's favor for this getting vacated (or settled at no admission of guilt with either fine or one game suspension for non cooperation)?

 

[dcdrew10]

He wouldn't - it would be calling bullshit on him.
 
Kind of ironic that one of the few owners who has had significant success against the Belichick-era Patriots is leading the charge against them.  

It's not a charge against Belichick, it's a chess match against Kraft for the seat at the head of the owners' table.

 

[E5 Yaz]

Without a settlement, isn't whatever Berman rules headed for a stay attempt and further appeals?

 

[Eddie Jurak]

Of course he could. But the current punishment has Brady suspended through 4 games, and Mara is right to point out that it's a conflict of interest for him (or any owner, really) to negotiate that down.

This is the conundrum for Berman. Goodell is really the only party to negotiate and he won't do so in good faith. The owners are hopelessly conflicted and will not get involved. So Berman is going to be forced to take action.

My hope is that he grants an injunction, extends the process and continues to torture the NFL until they cry uncle. But that's probably a pipe dream at this point.

1. Brady is currently suspended for games 1, 2, 3, and 4 (in week 5, against NFC east opponent).  That's the default scenario.
 
2. Berman (reportedly) asks Mara to get involved in settlement talks.
 
3. Mara (reportedly) declines because of a conflict of interest. Since the default is that Brady will miss the week 5 game, Mara helping broker a settlement that puts Brady back on the field advantages the Giants.
 
 
4. Hypothetical Berman: In the interests of reaching a settlement that it equitable to both sides, I'm not going to allow Brady to serve his suspension in week 5.  Even if I ultimately uphold, he can serve his suspension in 4 other games.  Now, Mr. Mara, that your conflict of interest is gone, please help resolve this.

 

[WayBackVazquez]

Without a settlement, isn't whatever Berman rules headed for a stay attempt and further appeals?

If the NFL loses, the league would never be granted a stay.

 

[Steve Dillard]

Berman has concluded that Goodell is too conflicted to make decisions for the NFL. That is a function of the unique system where the arbitrator is the person representing one of the parties to the arbitration.

If Berman sees it in those terms, Goodell's "partiality" is already decided.

 

[E5 Yaz]

If the NFL loses, the league would never be granted a stay.

 
I suppose I should have said a stay OR an appeal

 

[dcmissle]

DCM - you seem extremely pleased by this development - would you now say odds are firmly in Brady's favor for this getting vacated (or settled at no admission of guilt with either fine or one game suspension for non cooperation)?

I am on record that I think we will win, and this nudges me a bit further in that direction, but not much.

We easily could lose. Almost everything Judge Berman has done is consistent with a belief that an injustice has been done that Berman dearly wants to mitigate, but if push comes to shove the law requires him to rule for the NFL.

 

[PedroKsBambino]

For the first time in this saga, red lights have turned on in 31 owners' offices. They want no part of any direct involvement in this shit in any capacity. I guarantee it.

 
I agree.  I think the pressure on RG to make this go away just shot up.  And Berman surely knows exactly what pressure he is causing right now.  Berman has sussed things out so well that it makes me wonder if he has gotten info from somewhere about the pressure points.   Has he had a session with Nash/Levy without RG/Pash?   Surely, NFLPA knows enough to tell him what buttons to push if he asks them "so, if I believed the owners need to pressure RG who would I need to get to care?"

 

[WayBackVazquez]

I suppose I should have said a stay OR an appeal

Well, probably. I mean, that's how litigation often works. You may as well curse the sun for setting as bemoan the fact that appeals tend to follow trial court judgments.

 

[E5 Yaz]

Well, probably. I mean, that's how litigation often works. You may as well curse the sun for setting as bemoan the fact that appeals tend to follow trial court judgments.

 
Absolutely. I was just reading a few posts to that point that seemed to suggest / hope that this all ends with Berman's ruling. Which we all know isn't the case.

 

[PedroKsBambino]

Berman has concluded that Goodell is too conflicted to make decisions for the NFL. That is a function of the unique system where the arbitrator is the person representing one of the parties to the arbitration.

If Berman sees it in those terms, Goodell's "partiality" is already decided.

 
This is a very good point.

 

[Reverend]

DCM - you seem extremely pleased by this development - would you now say odds are firmly in Brady's favor for this getting vacated (or settled at no admission of guilt with either fine or one game suspension for non cooperation)?

 
Vacated? Vacated?
 
You're thinking small, son. I mean, I don't have it in me to even dream of hoping that this is true, but if it is, the fantasy is 33 phones sitting on Berman's desk. (I figure he'd want Vincent's too.)
 
Will it happen? No. But the very idea of a pissed off federal judge going for discovery into owners communications to determine Goodell's partiality is basically deflategate porn.

 

[Average Reds]

1. Brady is currently suspended for games 1, 2, 3, and 4 (in week 5, against NFC east opponent).  That's the default scenario.
 
2. Berman (reportedly) asks Mara to get involved in settlement talks.
 
3. Mara (reportedly) declines because of a conflict of interest. Since the default is that Brady will miss the week 5 game, Mara helping broker a settlement that puts Brady back on the field advantages the Giants.
 
 
4. Hypothetical Berman: In the interests of reaching a settlement that it equitable to both sides, I'm not going to allow Brady to serve his suspension in week 5.  Even if I ultimately uphold, he can serve his suspension in 4 other games.  Now, Mr. Mara, that your conflict of interest is gone, please help resolve this.

I would be amused if he did this, but I think that's a bit much to hope for.

I'm with (dr)leather in thinking that Berman is simply trying to make it excrutiatingly clear to anyone with a brain that the punishment is this case was a farce, which will make it more difficult for the NFL to contest his eventual ruling.

 

[J.McG]

I'm sure his CLE credits are all up to date, and were all in labor law and alternative dispute resolution, too!

Based on his background and experience, both in law and practical football matters, Mara would seemingly be the ideal owner for Berman to hear from on this. Not to mention he's local, so there's no excuse for him not to make himself available, should Berman require it.

From Mara's Giants bio;

He joined the Giants in 1991 as General Counsel and later added the title of Executive Vice President and Chief Operating Officer. [...] Mara is the chairman of the NFL Management Council Executive Committee and he played an important role in negotiating a new collective bargaining agreement with the NFLPA. He also has served for 14 years on the influential NFL Competition Committee, which studies all aspects of the game and recommends rules and policy changes to NFL clubs, as well as the league’s Health and Safety Committee and the Committee on Workplace Diversity.
[...]
Mara earned his law degree from Fordham University in 1979 and then began his career as an attorney with the New York law firm of Vedder, Price, Kaufman, Kammholz and Day, specializing in labor and employment law and litigation. Two years later he moved to the Manhattan firm of Shea & Gould, where he practiced until joining the Giants.

http://www.giants.com/team/staff/john-mara/15eb23ae-ef4f-4fb6-87f9-265a7cc8c5e4

 

[dcmissle]

 
I agree.  I think the pressure on RG to make this go away just shot up.  And Berman surely knows exactly what pressure he is causing right now.  Berman has sussed things out so well that it makes me wonder if he has gotten info from somewhere about the pressure points.   Has he had a session with Nash/Levy without RG/Pash?   Surely, NFLPA knows enough to tell him what buttons to push if he asks them "so, if I believed the owners need to pressure RG who would I need to get to care?"

Judge Berman could ORDER Mara, a group of owners, or the whole NFL Management Council to appear in court.

Now that's bad enough. These individuals deep inside regard themselves as above the law and the sorts of indignities that the rest of us mortals must bear. (And they showed that by signing off on wasting Berman's time).

But that's not the half of it. What will the court do when they get there? Could he order one or more of them to take an oath? If he does, WTF are they going to do -- run upstairs and ask the 2nd Circuit for a writ of mandamus?

Do I think that would happen? Without notice, no. But this is the kind of stuff that will have them staring at ceilings.

 

[Average Reds]

Vacated? Vacated?
 
You're thinking small, son. I mean, I don't have it in me to even dream of hoping that this is true, but if it is, the fantasy is 33 phones sitting on Berman's desk. (I figure he'd want Vincent's too.)
 
Will it happen? No. But the very idea of a pissed off federal judge going for discovery into owners communications to determine Goodell's partiality is basically deflategate porn.

This is the dream scenario. I only have the slightest hope that it will come true, but that light in the distance does seem to be getting a bit brighter.

Edit: Actually, DCM outlines another dream scenario in the post above mine. You legal nerds really need to stop getting me worked up like this.

 

[tims4wins]

 
Vacated? Vacated?
 
You're thinking small, son. I mean, I don't have it in me to even dream of hoping that this is true, but if it is, the fantasy is 33 phones sitting on Berman's desk. (I figure he'd want Vincent's too.)
 
Will it happen? No. But the very idea of a pissed off federal judge going for discovery into owners communications to determine Goodell's partiality is basically deflategate porn.

The thought makes me giddy

 

[Gambler7]

Did Mortensen already change the story? He was just on ESPN and said the NFL rejected the idea as they stated it is the commissioners domain. Then the league informed Mara of its decision out of courtesy.

 

[E5 Yaz]

Did Mortensen already change the story? He was just on ESPN and said the NFL rejected the idea as they stated it is the commissioners domain. Then the league informed Mara of its decision out of courtesy.

 
Roger's PR monitors work 26 hours a day

 

[AB in DC]

I still don't get it.  I could see Berman asking Mara to testify as head of the Competition Committee.  But why should Mara be the one to broker a settlement?
 
I think this is Judge Berman realizing that Goodell can't make a deal without pissing off the owners, but if he needs to go over Goodell's head, it should be to the Management Council.

 

[PBDWake]

Berman has concluded that Goodell is too conflicted to make decisions for the NFL. That is a function of the unique system where the arbitrator is the person representing one of the parties to the arbitration.

If Berman sees it in those terms, Goodell's "partiality" is already decided.

 
I don't know that that's what he means, because the implications are huge. If this is what he's signaling, and IANAL, so take everything with a grain of salt, I would not be surprised if you saw a titanic shift in the NFL's position. Thinking about it rationally, if one of the basics of his decision is that Goodell's job as representative to owners of rival franchises compromises his impartiality as arbiter, then logically, the NFLPA should be able to use that as a platform to remove all subjective discipline from Goodell's plate altogether. After all, any suspension decision, be it on decision or appeal, will always generate more favor among owners by stern discipline than a delicate touch. If Goodell thought that, at the very least, Berman had a good chance at vacating his decision citing that as a reason, he'd have to be very concerned about losing his position as arbiter, and that very thought should move him off of his no settlement position. Which may be exactly the reaction Berman is trying to provoke.

 

[dcmissle]

Yes, but the judge knows better. And he is the only one who counts at this point. That was the wonderful aspect of gettin this into court.

 

[Average Reds]

Did Mortensen already change the story? He was just on ESPN and said the NFL rejected the idea as they stated it is the commissioners domain. Then the league informed Mara of its decision out of courtesy.

I honestly thought that Mort's credibility had already hit rock bottom. I was wrong.

 

[bankshot1]

I still don't get it.  I could see Berman asking Mara to testify as head of the Competition Committee.  But why should Mara be the one to broker a settlement?
 
I think this is Judge Berman realizing that Goodell can't make a deal without pissing off the owners, but if he needs to go over Goodell's head, it should be to the Management Council.

If Berman has realized that Goodell can not act independent of the owner's wishes, doesn't that blow-up any pretense that he is can function as a neutral arbitrator, and he has not functioned as a neutral arbirator?

 

[PedroKsBambino]

I still don't get it.  I could see Berman asking Mara to testify as head of the Competition Committee.  But why should Mara be the one to broker a settlement?
 
I think this is Judge Berman realizing that Goodell can't make a deal without pissing off the owners, but if he needs to go over Goodell's head, it should be to the Management Council.

 
I think it's one of two things, or perhaps a combination.

Easy to imagine RG has represented that he can't budge because he has to answer to owners who have strong feelings here, and Goodell needs to respect his bosses on that.   Berman effectively is saying to that "OK, I'll go straight to them" and in this scenario, he wants Mara involved to surface Mara's views, and so he can speak directly to Mara about the situation (while putting pressure on Mara, both reputationally and because once he's in that courtroom the judge has a lot of ability to make him feel pain)
 
And/or

Berman has decided RG doesn't really have the intelligence to understand the situation or the juice to execute a settlement in the range that it will take to get Brady to say yes.  And so he's searching for someone with those things, starting with the closest the NFL org chart has to someone 'over' RG

 

[AB in DC]

But why prod Mara specifically?  Because he's local?

 

[PBDWake]

But why prod Mara specifically?  Because he's local?

 
Head of the Competition Committee, Been a voice on league discipline in the past, tenure, stature, locality, as close to removed from direct effect as you're likely going to find... He's as logical an owner as any to go to with this sort of request. Who else would you go to?

 

[Ed Hillel]

Did Mortensen already change the story? He was just on ESPN and said the NFL rejected the idea as they stated it is the commissioners domain. Then the league informed Mara of its decision out of courtesy.

I'm pretty sure Goodell can't unilaterally make that decision for Mara...

 

[PedroKsBambino]

I'm pretty sure Goodell can't unilaterally make that decision for Mara...

 
We know that he can impose a penalty of a 1st round pick, a 4th round pick, and a million dollar fine if he doesn't agree to do it, though

 

[PBDWake]

As an aside, my favorite new dream is that Roger now views this with even more offense than all the "Assistant Commissioner" cracks made about Bob Kraft, resulting in the Giants organization being thrown under a bus as vengeance for "Senior Commissioner Mara" articles currently being written. And when they get out from under the tires, there's finally enough support to exterminate the Ginger Plague

 

[RedOctober3829]

But why prod Mara specifically?  Because he's local?

Him being a lawyer probably has a lot to do with it. He may be thought of as able to knock some sense into RG and tell him he needs to settle.

 

[Bergs]

 
We know that he can impose a penalty of a 1st round pick, a 4th round pick, and a million dollar fine if he doesn't agree to do it, though

well played

 

[E5 Yaz]

There's also the possibility that something else is going on at the same time: That the NFL leak to Mort was laying the groundwork for claiming that Berman was over-injecting himself in the case, to discredit his eventual ruling.
 
Although whether that makes a legal difference, I haven't a clue

 

[Eddie Jurak]

Did Mortensen already change the story?.

You mean, instead of waiting 6 months before changing it?

 

[Dropkick Izzy]

 

[AB in DC]

 
Head of the Competition Committee, Been a voice on league discipline in the past, tenure, stature, locality, as close to removed from direct effect as you're likely going to find... He's as logical an owner as any to go to with this sort of request. Who else would you go to?

 
I was going to say the NFL Management Council, which directly represents the owners in cases like these.
 
Then I found this on Google: http://www.giants.com/news-and-blogs/article-1/John-Mara-Named-Chairman-of-NFLs-Management-Council-Executive-Committee/088708e6-0c97-45b8-9fc1-125d7a3ddaa5
 
 
If he's still Chairman, then that totally explains it.

 

[LuckyBen]

There's also the possibility that something else is going on at the same time: That the NFL leak to Mort was laying the groundwork for claiming that Berman was over-injecting himself in the case, to discredit his eventual ruling.
 
Although whether that makes a legal difference, I haven't a clue

If Mort truly did change his "report", that change obviously had to come from the NFL so there was something that they didn't like about the initial report. The question is, how does the NFL get the reporters to change their tune so quickly. It's like the reporters either don't know or don't care that they are losing their credibility.

 

[Gambler7]

https://twitter.com/mortreport/status/634540686717620225

 

[PedroKsBambino]

Wait until Berman asks the parties to submit legal memoranda on whether any antitrust issues are implicated by the conduct of the hearing and the appeal...that will ruin some weekends at Akin and Covington.

 

[J.McG]

Did Mortensen already change the story? He was just on ESPN and said the NFL rejected the idea as they stated it is the commissioners domain. Then the league informed Mara of its decision out of courtesy.

Glad I wasn't the only one who picked up on that. Is the league office already pressuring him to change his story? His published piece on ESPN-dot-com doesn't mention this "courtesy" nonsense anywhere, in fact he makes it fairly clear that Mara cited the conflict of interest and refused the request himself.

This new report sounds far more troubling for the NFL than Mara politely refusing the judge's request personally, no?

 

[AB in DC]

https://twitter.com/mortreport/status/634540686717620225

 
Who is "the league" here?

 

[OCST]

someone other than RG.
 
which is exactly the signal that hizzoner has picked up - Rog is not calling the shots.

 

[dcmissle]

<p>
link to tweet

https://twitter.com/mortreport/status/634540686717620225
link
link to tweet to tweet

"big dicks don't scare ya cause you been a ho too long"

-- Digital Underground

 

[DennyDoyle'sBoil]

The question I have is how did the press get this? Who are the sources here and what is their motivation?

This, if true, should not have gotten out. But I can't figure out why either side would benefit.

The other interesting question is why did Berman decide this was an option or request worth making? That one seems easier to speculate about. Mediators call bluffs. They put you in an uncomfortable position where you try to get out of jail by minimizing your own responsibility and pretend they would be reasonable if only their hands weren't tied.

So commonly, a party getting pressured will say, "what you're saying makes sense and I would but the insurance company won't let me." To which the mediator will say, "get them on the phone." And then will say, ""your insured wants to settle but says you won't let him."

So, one way to interpret this is that the judge has been working Goodell over, and instead of holding firm, Rog broke and said something like, "well, I would your honor but I have the owners to answer to." To which the judge says, "who, what's the problem?" And eventually, "ok, let's get them involved."

A key principle of mediation is that you get people with authority to settle in the room. If Goodell is hiding behind the owners, Berman wouldn't like that, and this rings of bluff calling to me. Now, Berman can have another run at Goodell. "So who is in charge here? Is it you?" And Rog is trapped. "Ok, then don't worry about the owners. You agreed my proposal was reasonable before we went down this road."

 

[Jed Zeppelin]

Who else would you go to?

Anybody outside the NFL? I don't think anybody under the league umbrella right now is qualified to be involved in this. It's not as if the Competition Committee doesn't have a history of pushing rules to benefit a particular member's team in response to its trouble beating another.