#DFG: Canceling the Noise

[Otis Foster]

Exactly.
 
If it was the lawyers saying "Do X" and they turned out to be wrong not once, not twice, but three times, then the NFL would have shit-canned them for one of the other dozen top-flight firms in NYC.
 
It's clear that the NFL is saying "Damn the torpedoes!" at every juncture, regardless of whatever they may or may not be told by their lawyers.   In fact, those same lawyers almost certainly have a lot of "What is our client thinking?" closed-door discussions over a bourbon at 9:00 PM.

....and writing lots of memos to the file.

 

[Bongorific]

We should just put a ban on posting Munson articles.

 

[Bleedred]

Lester Munson bringing it again!

Wow, Berman took the case!?
Berman looks bad!
Convincing evidence!
Berman cannot vacate under American law!
And more!

http://espn.go.com/espn/otl/story/_/id/13479971/fooled-judge-deflategate-case-nfl-win-end-new-england-patriots-tom-bradyOn
 
One 

just one of the most recent comments at the bottom of that article:
 
"Lester, the next time you cite the Garvey opinion, have whatever paralegal at the NFL picked the quotes for you actually read the entire opinion, particularly the part that states "It is only when the arbitrator strays from interpretation and application of the agreement and effectively 'dispense his own brand of industrial justice' that his decision may be unenforceable. Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960). Berman could very well find that Goodell strayed here both in the interpretation of what he could do under the agreement (the suspension based on a provision that applied to teams, not players), and his completely baffling refusal to allow Brady's lawyers to view the evidence underlying the findings of the Wells report and apply attorney/client privelege to Pash and refusing to allow his tesimony regarding his input on a document which Gooddell relied upon completely to make his initial decision and decision in the arbitration hearing.
I know the NFL pays ESPN - and consequently, you - to side with them on these issues. But for the love of God, if you're going to act like a lawyer on even an infotainment website, do your homework"

 

[JayMags71]

I'm swimming against the tide here. I know bashing Lester Munson is rather popular, but he's not necessarily wrong here. Many of the lawyers on this board have made this same point:

In this case, recognizing that the NFL has convincing evidence and significant legal precedents on its side, Berman knows the only way he can produce a settlement is to show the league that there is a possibility it could lose a case that it should win. That is why he devoted most of a hearing Wednesday to picking apart the Goodell opinion and the league's legal position.

 

[nighthob]

Well, aside from the convincing evidence part. Not even the NFL is pretending that they have evidence in court.

 

[dcmissle]

What Munson is up to could not be more clear, particularly in light of his platform.

It is evident to NFL counsel, but within the League it has not registered that the entire game changed the day the complaints were filed in federal court.

This kind of stuff just doesn't matter anymore. A brilliant PR blitzkrieg left the NEP and TB hanging by their thumbs in some god forsaken warehouse, but when the judge issues a writ of habeas corpus all the propaganda in the world won't put off the federal marshals.

 

[AB in DC]

We should just put a ban on posting Munson articles.

Unless someone finds a real lawyer tearing this guy's articles to shreds again.

 

[lambeau]

So it's not much of win for TB12 if the case goes back to Roger to be cleaned up. How far-fetched is the home-run of a neutral arbiter being mandated--any legal basis for that?

 

[Alcohol&Overcalls]

Maybe your experience of representation are different from mine but find it hard to believe that good, experienced counsel could sit across from their client and counsel them on this course of action.  Sure, there is the possibility that that they said "Well Rodger, we understand your position and we think its flat out stupid" and he insisted they go along with it it, but I have to believe there was a general consensus that this would work.  
 

 
It's still the thought of many that it WILL work in this case. 
 
Both sides have strong arguments. Good, experienced counsel isn't going to turn down $1000/hr work that puts the firm and its attorneys squarely in the limelight representing perhaps the most popular sports entity in the universe if they can even straight-face a sound argument, and here, the NFL has much more than that (and probably did in the others, too, even while losing).

 

[dcmissle]

I'm swimming against the tide here. I know bashing Lester Munson is rather popular, but he's not necessarily wrong here. Many of the lawyers on this board have made this same point:

I made this point yesterday as a cautionary note, but he still is a shill for the League, and here is why:

1. He refuses to acknowledge other, perhaps more compelling explanations for the judge's behavior.

2. He refuses to explain why Berman might be so motivated if Munson is right. Think about this:

If the law is so clear -- if the NFL's case is a slam dunk -- why is Berman push settlement so strongly? Just rule already. Judges do not get cash bonuses for settlement; one way or another, his docket will be clear of this case soon enough.

There are only two reasons that explain the settlement push -- the law isn't that clear; Berman is outraged because the NFL has behaved like lawless thugs. Munson is contra the former and refuses to engage the latter.

 

[Myt1]

I'm swimming against the tide here. I know bashing Lester Munson is rather popular, but he's not necessarily wrong here. Many of the lawyers on this board have made this same point:

Yeah. The NFL does have a strong case, if only because the NFLPA agreed specifically to have their grievances arbitrated by a scorpion and we should pause a bit before giving them relief when he does scorpion things.

But the funny thing is that he quite unself-consciously does what he accuses Kessler of doing in his brief: begging the question and ratcheting up the rhetoric.

Two different audiences, sure. Two different formats, even. But it's sort of incongruous to ding someone for hyperbole when you yourself are characterizing the Goodell report--which is riddled with painfully obvious departures from reality--as strong.

If the NFL's position were as strong as Munson thinks it is, he wouldn't have to resort to that sort of credibility-killing bolstering.

And if the NFL thought their position was as strong as Munson says it is, they wouldn't have had their PR arm at ESPN make him do it or run any of the other nonsense they've run lately.

 

[edmunddantes]

So reading the transcript. Pg 28.
 

 
We don't know what the Colts' balls would be if you tested them this way. They never tested all the Colts' balls, they tested four of them. We know a Colts ball official took one of the balls, the so-called twelfth ball, and by the way, violated the rule by tampering with the ball during the game. He wasn't disciplined.

 
Kessler brings up the Colts measuring the ball themselves was illegal. No punishment.
 
I know facts aren't the basis for this part of the process, but happy to finally see it get acknowledged in the legal part of this case. 

 

[Captaincoop]

When you're paranoid that your partner is doing something unsavory, it's probably because you are doing it.
 
I bet the Colts are doing exactly what they're accusing the Patriots of doing.

I was about to make this exact point. Absolutely agree with your premise.

 

[edmunddantes]

Here's another good part where Berman does get a little testy with Kessler, but goes basically "aren't you going to get to the part I really care about"
 
Pg 29

 
The third ground, I want to talk briefly about evident partiality. And this ground, your Honor, their basis argument is that well, we agreed to the Commissioner, and he is inherently biased, so stop crying about it.
 
The Court: That's not what he said. Aren't you going to talk about the notes and Mr. Nash or not?
 
Mr Kessler: Yes, you're right. I will come back to fundamental fairness. I want to argue first about evident partiality.

 

[joe dokes]

Maybe your experience of representation are different from mine but find it hard to believe that good, experienced counsel could sit across from their client and counsel them on this course of action.  Sure, there is the possibility that that they said "Well Rodger, we understand your position and we think its flat out stupid" and he insisted they go along with it it, but I have to believe there was a general consensus that this would work.  I truly believe his counsel misread the landscape and made some critical errors.  
 
Say what you will about what goes on behind closed doors, but they were intimately involved in the writing/drafting of the Wells Report and initial discipline decision, as well the commissioners final judgment.  I firmly believe they needed to anticipate the legal issues raised by the NFLPA and countered them preemptively from the beginning, which they completely failed to do.  
 
I really don't think you can dispute that their legal team handled this poorly - which includes the involved of Pash in the editing of the report, and to questioning at the hearing.  
 

 
I do dispute it.
 
One issue is that you're lumping all "their lawyers" together.  There's the in-house people like Pash. And there are the others (out-house?) doing various other things..  The ones arguing in court were not likely the same ones advising/writing on the Wells report or discipline.  
 
The consensus of the litigators could easily have been "Roger, your chances are 50-50 at best of success in federal court." Is that bad advice? Or if they said 30-70 against? As I said above, unless I know what the advice was, I can't say it was "bad advice."  The lawyers might have said, "this is one you should settle."
 
And the 0-4 is truly meaningless. Was it even the same lawyers?  Are the hundreds of discipline cases that never made it to court "victories"?
 
I'm far from "lawyers can do no wrong," but we know that Goodell is a PR-conscious, Peter-principled Chauncy Gardner and we know that they NFL hires good lawyers.  I'll go with Goodell as being the more likely cause of the cock-up (if that happens).

 

[RG33]

We should just put a ban on posting Munson articles.

Lester is an idiot. And a former lawyer. And someone who was shady with his clients and commingled client settlement funds. The guy is a hack.

http://articles.chicagotribune.com/1991-04-17/news/9102040136_1_settlement-check-lawyer-disciplinary-supreme-court

 

[jacklamabe65]

Stephanie Stradley:  “I don’t know what Judge Berman’s stylistic preferences are but if I went to law school, got awesome grades, worked worked worked, went through the process to get named as a federal court judge, decided many actually important cases, and then was asked to make a decision in a case that should have been settled that is this profoundly dumb, I would torch the NFL in flames that would make hades look like a refrigerator.”
 

 
LOL  :buddy:

 

[JayMags71]

Yeah. The NFL does have a strong case, if only because the NFLPA agreed specifically to have their grievances arbitrated by a scorpion and we should pause a bit before giving them relief when he does scorpion things.

But the funny thing is that he quite unself-consciously does what he accuses Kessler of doing in his brief: begging the question and ratcheting up the rhetoric.

Two different audiences, sure. Two different formats, even. But it's sort of incongruous to ding someone for hyperbole when you yourself are characterizing the Goodell report--which is riddled with painfully obvious departures from reality--as strong.

If the NFL's position were as strong as Munson thinks it is, he wouldn't have to resort to that sort of credibility-killing bolstering.

And if the NFL thought their position was as strong as Munson says it is, they wouldn't have had their PR arm at ESPN make him do it or run any of the other nonsense they've run lately.

 
 

I made this point yesterday as a cautionary note, but he still is a shill for the League, and here is why:

1. He refuses to acknowledge other, perhaps more compelling explanations for the judge's behavior.

2. He refuses to explain why Berman might be so motivated if Munson is right. Think about this:

If the law is so clear -- if the NFL's case is a slam dunk -- why is Berman push settlement so strongly? Just rule already. Judges do not get cash bonuses for settlement; one way or another, his docket will be clear of this case soon enough.

There are only two reasons that explain the settlement push -- the law isn't that clear; Berman is outraged because the NFL has behaved like lawless thugs. Munson is contra the former and refuses to engage the latter.

 
Yeah, I should have been more precise in my language. I'm not putting Munson next to Emile Zola here. I was just trying to make the point that the passage I quoted was one of the pair of times of day that Munson was kinda-sorta correct. Thus, not the best example to hang one's hat on to call him an idiot.
 
Apologies for the pedantry.

 

[JayMags71]

Lester is an idiot. And a former lawyer. And someone who was shady with his clients and commingled client settlement funds. The guy is a hack.

http://articles.chicagotribune.com/1991-04-17/news/9102040136_1_settlement-check-lawyer-disciplinary-supreme-court

Somewhere, Laurence J. Peter sees Lester Munson bloviating on TV, and smiles. "Right, again!"

 

[Myt1]

I was less disagreeing with you than agreeing and then giving a, "But he still just can't help himself" headshake.

 

[edmunddantes]

And I will note (perfectly legal), but slimy as all hell that Nash keeps dumping the "Brady says he didn't know McNally thing" even though it's been well documented that was a nickname/face I see versus I know the guy thing. 
 
You can see what Nash is trying to do. Color the judge (who he hopes isn't up to speed on that aspect) that Brady lied about not knowing McNally and thus Brady's other testimony is just not credible. 

 

[joe dokes]

I'm swimming against the tide here. I know bashing Lester Munson is rather popular, but he's not necessarily wrong here. Many of the lawyers on this board have made this same point:
Quote
 

In this case, recognizing that the NFL has convincing evidence and significant legal precedents on its side, Berman knows the only way he can produce a settlement is to show the league that there is a possibility it could lose a case that it should win. That is why he devoted most of a hearing Wednesday to picking apart the Goodell opinion and the league's legal position.

 
In a vacuum that is a correct statement.
 
But Munson ignores the many other reasons why -- as have been pointed out here -- Berman might be pushing for a settlement.  Munson begs the question by starting with the premise that there's no way, no how that Berman could vacate consistently with American law. From that, he concludes that the settlement push is for that reason and that reason alone. 
 
He's worse than a first-year law student.
 

 

 

[Otis Foster]

 
I do dispute it.
 
One issue is that you're lumping all "their lawyers" together.  There's the in-house people like Pash. And there are the others (out-house?) doing various other things..  The ones arguing in court were not likely the same ones advising/writing on the Wells report or discipline.  
 
The consensus of the litigators could easily have been "Roger, your chances are 50-50 at best of success in federal court." Is that bad advice? Or if they said 30-70 against? As I said above, unless I know what the advice was, I can't say it was "bad advice."  The lawyers might have said, "this is one you should settle."
 
And the 0-4 is truly meaningless. Was it even the same lawyers?  Are the hundreds of discipline cases that never made it to court "victories"?
 
I'm far from "lawyers can do no wrong," but we know that Goodell is a PR-conscious, Peter-principled Chauncy Gardner and we know that they NFL hires good lawyers.  I'll go with Goodell as being the more likely cause of the cock-up (if that happens).

 
IIRC, Akin Gump were not involved until the NFL filed its Motion to Confirm. PW of course handled the so-called investigation and appeared at counsel table during the show trial that RG put on, and Pash and the in-house group left their fingerprints at every junction.
 
I'm not sure that Akin (if it was the adviser) had much of a choice. It couldn't let TB challenge the award in Minn. and decided to take the lottery in SDNY. I'm not sure where else it could logically file and avoid a venue challenge in the first-to-file tussle. They just wound up with a judge who wouldn't let them go without a grilling.
 
For me, the mistake occurred much earlier, with the sloppy process - announcing that Wells was 'independent', letting Vincent handle the initial investigation that was supposed to be done by RG, etc. They took their own sweet time fumbling around without the necessary forward thinking  re where they could be challenged. This was all in house.
 
Occam whispers in my ear that they just never expected the detailed ferocity with which TB and Kessler would go after their flawed process. 
 
Just sloppy.

 

[OCST]

 
IIRC, Akin Gump were not involved until the NFL filed its Motion to Confirm. PW of course handled the so-called investigation and appeared at counsel table during the show trial that RG put on, and Pash and the in-house group left their fingerprints at every junction.
 
I'm not sure that Akin (if it was the adviser) had much of a choice. It couldn't let TB challenge the award in Minn. and decided to take the lottery in SDNY. I'm not sure where else it could logically file and avoid a venue challenge in the first-to-file tussle. They just wound up with a judge who wouldn't let them go without a grilling.
 
For me, the mistake occurred much earlier, with the sloppy process - announcing that Wells was 'independent', letting Vincent handle the initial investigation that was supposed to be done by RG, etc. They took their own sweet time fumbling around without the necessary forward thinking  re where they could be challenged. This was all in house.
 
Occam whispers in my ear that they just never expected the detailed ferocity with which TB and Kessler would go after their flawed process. 
 
Just sloppy.

 
Occam tells me that they are completely blinded by their own fucking arrogance and thought themselves above reproach.  I guess it amounts to the same thing.

 

[edmunddantes]

And here is the full comment on Pash, and I think is the tipping off "If I have to anchor this somewhere, I'm looking really hard at Pash denial"
 

 
STart with Nash...
 
...But, ultimately under the law, the decision as to -- and I think the cases are quite clear about this, the decisions are clear that the arbitrator has the discretion to make judgments about whether something is cumulative or not cumulative. and again here, though --
 
The Court: You know, it's interesting, because under the law arbitrators don't have the authority to make decisions that testimony is going to be cumulative unless they specify in what respect they would be cumulative. They cannot just conclude oh, well, we can't have him because his testimony is cumulative. That's my understanding of what the cases say. 
 
Some case have been -- some arbitration awards have been, I believe, vacated precisely because an arbitrator mad a finding that testimony would be cumulative and didn't specify in what respects it would be cumulative. I ask you who else but Mr. Pash could have given testimony about whether or not his edit or what his edits were about or how extensive they really were or if he was trying to support Mr. Goodell or any other things that an edit could cover, who else could have possibly give that testimony except Mr. Pash?
 
Mr Nash: Your Honor, Mr. Wells was asked about this. 
 
The Court: I know he gave his answer, you know, Harvard trained, you always have some comments. Frankly, I didn't find that answer very enlightening. I think he said it's a thick report, and a Harvard trained lawyer, as Mr. Pash is, would always have something to say, but I don't know what that means.
 
Mr. Nash: This goes back to our fundamental point about the CBA. There's nothing that prevents someone from the league office from being involved in the underlying investigation.
 
The Court: I didn't say he couldn't be involved, I'm talking about the cases which say that even though this is not Federal District Court and governed by the Federal Rules of Civil Procedure, there are some basic procedures of fairness that have to be followed, and one of them often is that you have to allow someone to make their case by calling witnesses, and I'm just trying to figure out what the big objection was in calling Mr. Pash. I submit to you that it's not sufficient to say or conclude without specifying that his testimony would have been cumulative.
Mr. Nash: And not relevant to the core facts. We..
 

 
It goes on with Nah getting into "those were cases where all witnesses denied", but Berman is definitely not happy about this part of it. Especially if you want to look at this from the angle of "I want to confirm the award, but I need a good way to sidestep these sets of cases that seem pretty clear to me that denying witness cumulative without specificity is bad"
 
I think this is the part he is struggling with if he was to rule in the NFL favor. He's arguing with Nash to give him something he can use to "cure" what he sees as a problem, and Nash really doesn't have anything to throw him.

 

[edmunddantes]

So having read the thing in full. 
 
Stylistically (nothing on his legal ability) I can't stand Nash's presentation. "lots of cases" "some cases" "somebody even said, maybe Scalia" 
 
Ugh. If you have ones you want to point to. Call them out. If you want to drive home a point about someone of authority said something. Remember who said it and exactly what they said. 
 
Kessler usually reference a case name or specific names when first introducing his point or support. Then switches to "the cases" or generalities.

 

[crystalline]

Can't you hold Wells responsible for "at least generally aware"? Would the litigators here, if hired to write a similar report, have used language they knew to be so at risk in a lawsuit? (I'm just echoing the lawyer claims above that they knew "generally aware" was going to be a problem the first time they read it.)

And in hindsight it seems Wells shouldn't have allowed his client to claim he was independent if he was not. And he shouldn't have consented to a live-coached press conference in which he claimed independence. I wonder if that will prove to be a mistake that impacts his future ability to bring in business.

 
Occam whispers in my ear that they just never expected the detailed ferocity with which TB and Kessler would go after their flawed process. 
 

It seems ridiculous that smart people would have failed to anticipate Brady's response. The NFLPA hired Kessler last time, and he won. The PA fought Bountygate, Peterson, and Rice. Did the NFL think they could keep doing the same thing and get a different outcome? Brady makes a suit even more likely - he is the single worst choice of player to railroad. Any of us here would have given at least 50-50 odds Brady would sue. And in fact many here were hoping for Goodell to confirm his four game suspension, because that meant Brady would almost certainly sue. How could Ted Wells have failed to plan for that risk?

 

[Omar's Wacky Neighbor]

 
God, no. I never understood why people think this is a great line to trot out as a "victory line." Did Billy Batts win that arguement? Yes. Did saying "Get your shine box" get him killed? Yes. It's the ultimate win the battle to lose the war act.

Who said anything about "victory".  It's a line of absolute disrespect.

 

[Gash Prex]

Lester seems to be trying to get the message out early that if the NFL loses its because of a crazy rogue judge and this will be overturned.  I never bought into the mouthpiece of the NFL conspiracy but that article is so poor its hard to fathom.  It can only be that the league wanted that message out there and Lester is an easy target.  

 

[nighthob]

Can't you hold Wells responsible for "at least generally aware"? Would the litigators here, if hired to write a similar report, have used language they knew to be so at risk in a lawsuit? (I'm just echoing the lawyer claims above that they knew "generally aware" was going to be a problem the first time they read it.)

And in hindsight it seems Wells shouldn't have allowed his client to claim he was independent if he was not. And he shouldn't have consented to a live-coached press conference in which he claimed independence. I wonder if that will prove to be a mistake that impacts his future ability to bring in business.

It seems ridiculous that smart people would have failed to anticipate Brady's response. The NFLPA hired Kessler last time, and he won. The PA fought Bountygate, Peterson, and Rice. Did the NFL think they could keep doing the same thing and get a different outcome? Brady makes a suit even more likely - he is the single worst choice of player to railroad. Any of us here would have given at least 50-50 odds Brady would sue. And in fact many here were hoping for Goodell to confirm his four game suspension, because that meant Brady would almost certainly sue. How could Ted Wells have failed to plan for that risk?

 
I said right after Goodell blew this thing to the high heavens with his initial punishment that I didn't think Wells or Exponent were ready for the level of scrutiny they were going to get. Wells' previous gig involved railroading Richie Incognito and no one cared because it involved a cause du jour. So he probably went into this thinking that the NFL would use the work to punish the Patriots and because it was the Patriots no one but New England fans would care and the story would go away. Unfortunately for him Goodell made this a capitol offense and and everyone's work got more scrutiny than they were anticipating.

 

[edmunddantes]

And it turned out there wasn't a whole lot to tag onto the Patriots.
 
Maybe someone in the in house legal department (maybe Pash who was lead in last CBA) saw an opportunity to also knock on some collateral damage on the arbitrator issue that they've slowly seen being chipped away by the NFLPA. It comes up during Nash's argument in front of Berman "they've been trying to re-negotiate this through the courts. They've lost on it. They keep wanting to do it"
 
Maybe they thought they'd get an easy win with the right judge. 

 

[OCST]

Lester seems to be trying to get the message out early that if the NFL loses its because of a crazy rogue judge and this will be overturned.  I never bought into the mouthpiece of the NFL conspiracy but that article is so poor its hard to fathom.  It can only be that the league wanted that message out there and Lester is an easy target.  

 
I'm stunned that the NFL couldn't find a better mouthpiece than Munson.  I mean, the guy's got disciplinary problems.  Thurman Munson would be better.
 
On a tangentially related note, Stephanie Stradley is a thousand kinds of awesomeness and I'm developing a lawyer-crush on her.

 

[Bongorific]

I said it at the time of his report and again at his press conference, I think Wells lost his firm money with this issue. But in that specific instance, I think he did the best he could with what he had.

He at least lost the NFL as a client. That's a good paying client.

 

[Gash Prex]

 
I'm stunned that the NFL couldn't find a better mouthpiece than Munson.  I mean, the guy's got disciplinary problems.  Thurman Munson would be better.
 
On a tangentially related note, Stephanie Stradley is a thousand kinds of awesomeness and I'm developing a lawyer-crush on her.

 
yes but the headline on ESPN, where most people get their sports new is now "Munson thinks NFL will beat Brady", "Don't be Fooled" and "Deflategate wackinesss all part of Judge's plan" 
 
Its also unconscionable the way ESPN has covered the substantive legal reporting on the hearings - trying to make it seem like everything is going according to plan.  When its started becoming clear it wasn't, now we have this insane story by Munson trying to change the narrative.  
 
I haven't seen one critical article on ESPN about any of the way in which the NFL handled this issue.  

 

[LogansDad]

 
I'm stunned that the NFL couldn't find a better mouthpiece than Munson.  I mean, the guy's got disciplinary problems.  Thurman Munson would be better.
 
On a tangentially related note, Stephanie Stradley is a thousand kinds of awesomeness and I'm developing a lawyer-crush on her.

Hmmm, Houston.... that's not too far, wonder if she's interested in a recently divorced, close to retiring Air Force SNCO.

 

[AB in DC]

Lester seems to be trying to get the message out early that if the NFL loses its because of a crazy rogue judge and this will be overturned.  I never bought into the mouthpiece of the NFL conspiracy but that article is so poor its hard to fathom.  It can only be that the league wanted that message out there and Lester is an easy target.  

 
No, it could be simply that he is a flat-out terrible writer who puts zero thought into his work.  Probably his boss said "hey this thing came up in the hearing Wednesday, we need you to write an article on it" but he's so damn lazy that he writes the equivalent of a bad message board post and passes it off as a professional legal opinion.  
 
The only mystery here is why ESPN keeps this buffoon on the payroll.

 

[AB in DC]

 

 
I'm sure that there were like 47 conference calls and 25 meetings about whether to use "at least generally aware" or some other standard and came to a consensual result  One possibility is that the client wanted them to name Brady and that's as far as Wells was willing to go.  Another is that they purposefully used a very low standard in an attempt to expand the NFL's power. In any event there's just about no chance that the Wells report included that report by accident.

 

Well, remember, who the NFL really wanted them to name was Belichick.  And Wells knew he couldn't make that fly, so he says "I can't give you Belichick, but I can give you Brady instead".

 

[dcmissle]

If Judge Berman lobs a hand grenade into the NFL tent in this matter, it will likely be a very painful, embarrassing and bitter experience for Ted Wells. Like falling on your face 5 yards from the finish line in the 100.

He has had a nice career. The NY bar circles he populates are distinguished, filled with smart and accomplished lawyers and judges.

It wouldn't be just the reversal. It would be more the manner in which Berman would be likely to write it, a detailed chronology of a manifestly unfair process, implicating the law firm and specifically the conduct of one of Wells' partners. And this wouldn't be from some quirky judge in Minneapolis. It would be from Hogwarts, the Southern District of New York.

He would recover, of course, but this would be no small blip.

 

[AB in DC]

 
I mean, what the fuck?  Could this be an honest mistake made by Pash before the Judge? 

 
You're forgetting, whether Goodell or Pash or Nash got anything wrong is beside the point.  Goodell has the authority to do whatever he wants, and nothing else matters.
 
 
[edit: Sorry, I just read through the Wednesday transcript, so I'm feeling especially cranky right now.]

 

[Gash Prex]

I keep waiting for the Judge to ask the question of the NFL "Could the Commissioner have suspended Brady indefinitely (or 16 games etc....)" whatever horrible hypo you could imagine under the CBA as they keep arguing for unlimited deference, because I am not sure how they answer anything other than "yes"  
 
I will admit to not practicing arbitration law so maybe I'm missing something, but the logical extension of the NFL's argument seems limitless under the current CBA.  

 

[dcmissle]

I keep waiting for the Judge to ask the question of the NFL "Could the Commissioner have suspended Brady indefinitely (or 16 games etc....)" whatever horrible hypo you could imagine under the CBA as they keep arguing for unlimited deference, because I am not sure how they answer anything other than "yes"  
 
I will admit to not practicing arbitration law so maybe I'm missing something, but the logical extension of the NFL's argument seems limitless under the current CBA.  

Or my hypothetical -- Jake Bequette gets 4 games for being "generally aware" of inflated footballs. This is the big problem with the position that there are no substantive limitations on what RG metes out, and with the associated contention that "law of the shop" may be blithely ignored.

It is no answer to say, "well that is not this case, Judge."

Thoughtful and sensible people are not going to buy this if there is any way out.

Again, I think TB wins because Judge will be loathe to turn an 800 pound renegade gorilla into an 8000 pound one.

This, by the way, is why facts matter greatly, even to appellate judges. The old Fourth Circuit is dead.

 

[dcdrew10]

In a somewhat related note, MLB and MLBPA announced a joint domestic violence, child abuse, and sexual assault policy:

 
The terms of the policy, in their entirety, follow. In short, however, the policy has a dual treatment and intervention program along with a disciplinary program.
 
The treatment and intervention part will include the creation of a Joint Policy Board which will be responsible for evaluating a player and supervising the treatment of a player if treatment is deemed appropriate. If the player does not adhere to a treatment program, he will be subject to discipline.
 
Discipline will not carry a minimum or maximum penalty, but rather the Commissioner can issue the discipline “he believes is appropriate in light of the severity of the conduct.” Discipline will not be contingent on whether the player pleads guilty or is found guilty of a crime. A player can appeal discipline to an arbitration panel. A team cannot discipline a player unless the Commissioner delegates that power to the team.

 
It's amazing what can be done when two sides work together and one isn't desperate to rule 100% with an iron fist. This is the kind of policy the NFL should ahve had in place years ago. If the NFL leadership wasn't so focused on crushing the PA they might have avoided a lot of embarrassment. Hopefully the league learns from MLB the way it learned from the NFL.

 

[PedroKsBambino]

 
I said right after Goodell blew this thing to the high heavens with his initial punishment that I didn't think Wells or Exponent were ready for the level of scrutiny they were going to get. Wells' previous gig involved railroading Richie Incognito and no one cared because it involved a cause du jour. So he probably went into this thinking that the NFL would use the work to punish the Patriots and because it was the Patriots no one but New England fans would care and the story would go away. Unfortunately for him Goodell made this a capitol offense and and everyone's work got more scrutiny than they were anticipating.

 
A number of us said right away that Goodell had picked on perhaps the single worst target in the NFL, given the attention to reputation, persistence, and money.   I think that has proven out---where the public thought "hey, Incognito...that's the jerk teams keep dumping, right? I guess he really is that bad" here the baseline was different.  And the ferocity of the response is as well.
 
I agree with those who said the NFL wasn't prepared for the scrutiny that ended up happening here; I also think they completely misunderstood how Brady would react.    

 

[edmunddantes]

In some respects, I think they misunderstood how the Patriots and Belichick would react. Last time it was Bill getting up there and saying "Yes I did it. I saw the memo.I interpreted it to mean X not Y."
 
As much as we chide them for not being more forceful, here the Patriots, Belichick, and Brady were fairly voracious in their denials of doing anything. This didn't happen in Spygate. The Patriots and Bill took their lumps and moved on in Spygate. Partially because they had to (no union, NFL bylaws) and partially because Bill knew he was dancing in a gray area. He copped to it from the beginning.
 
I think the NFL thought they had a similar situation. Easy kill. Hell we may even get a good crack and nailing down this independent arbitrator thing that has been cropping up recently. 
 
Legally, they thought they probably had another slam dunk. "Done in a couple of days" "ummm... we're bringing in Wells" "He'll be done in a week or two" "Ummm... it's now 5 months later here's the report"
 
I think if we ever saw the privileged notes, there was probably a lot of massaging and lawyering to try and make this work. Sunk cost fallacy. We've come this far, spent $X and Y hours. Let's keep pushing it. What's the worse that happens? We lose independent arbitrator grounds? We've already lost that a couple of times. What's one more going to hurt? 

 

[AB in DC]

 
I agree with those who said the NFL wasn't prepared for the scrutiny that ended up happening here; I also think they completely misunderstood how Brady would react.    

 
And the reason why is that they decided Brady was guilty before actually seeing the evidence, so of course he would accept that he get caught cheating.

 

[Ed Hillel]

Or my hypothetical -- Jake Bequette gets 4 games for being "generally aware" of inflated footballs. This is the big problem with the position that there are no substantive limitations on what RG metes out, and with the associated contention that "law of the shop" may be blithely ignored.

 
The idea that the NFLPA and NFL agreed to give Goodell the power Goodell claims he has here seems completely illogical. The binding agreement between the two sides also included many specifically bargained-for rules. Who is going to read the CBA in its entirety and think that Goodell has the power to ignore other rules governed by the CBA in using his Article 46 powers? It makes no sense, and it's clear the NFLPA never would have agreed to it if that had been the case.
 
I think an even better hypo is to ask if Goodell had the power to suspend the first player who violated the PED policy under the new CBA for 10 games (obviously, there's a "law of the shop" issue now, hence asking about the first player to do it). Could Goodell have used his Article 46 power to override the PED policy? That seems absurd to me, and I certainly do not think a reasonable interpretation of the CBA would allow for that. So why can he do it for an equipment violation, which, like the PED policy, was bargained for? This also ignores the law of the shop on this issue, in which we have at least 3 examples (Jets 2009, Favre, Ghost) that run counter to Goodell's edict here.

 

[AB in DC]

Unless someone finds a real lawyer tearing this guy's articles to shreds again.

 
Speaking of which:
http://profootballtalk.nbcsports.com/2015/08/21/espn-legal-analyst-declares-nfl-will-win-brady-case/
 
 

During 18 years of practicing law, clients routinely would ask me, “Will we win the case?”
And I routinely would say, “I don’t know.”
And if they’d press for more details or express any uncertainty about my uncertainty, I’d say this, “Anyone who tells you that they know how a case will turn out is lying or uninformed.” (I typically used a much stronger word than “uninformed.”)
Regarding the Tom Brady suspension, ESPN legal analyst Lester Munson has been lying or uninformed for more than three months now.

 
Florio is very polite about it, and has always been reluctant to criticize other lawyers, but he makes it very clear what he thinks of the ESPN guy.

 

[WayBackVazquez]

Florio is very polite about it, and has always been reluctant to criticize other lawyers, but he makes it very clear what he thinks of the ESPN guy.

 
I wouldn't really say that pointing out that someone was suspended from the practice of law is "polite." Don't get me wrong, Munson is an absolute hack, and I have been saying so for literally years. I'm glad Florio's using his larger audience to call attention to how bad this guy is, and how absurd it is that a company like ESPN that has its pick among the top lawyers in the country, uses a guy with Munson's lack of legal acumen and his disciplinary record. I just wouldn't say he was polite to do so.

 

[JayMags71]

Well, he's polite in the sense that the article's title isn't "Lester Munson is a fucking dunce" like, say, Deadspin would.

 

[dcmissle]

He's professional. The piece was hard hitting but fair. We will easily be able to count one one hand the people who will emerge from this mess with their reputations enhanced. Florio will probably top that short list.