#DFG: Canceling the Noise

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


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Leather

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In the year 2525, If Deflategate is alive
If SoSH can survive, they may find
In the year 3535,
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nighthob

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The Big Red Kahuna

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This exact line / picture was posted approximately 3, 6 and 9 months ago in this thread. It was moderately funny the first time and less so each subsequent posting, to the point where it is now moved to pain territory.
 

johnmd20

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I remember back in the day when I was able to decide independently what i thought was funny. Life is so much better now that I can be told by Papelbon's Poutine what is funny to me or not. Life is so much simpler.
It's especially helpful when an avowed misanthrope like Poutine decides what is funny. That bar must be high.
 

soxhop411

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By next Monday, Tom Brady and the NFL Players Association almost definitely will file a petition for a rehearing of the federal appeal that resulted in the reinstatement of Brady’s four-game #Deflategate suspension. If the petition for rehearing is granted, Brady likely will be available for most if not all of the 2016 season as the full U.S. Court of Appeals for the Second Circuit takes up the issue.

If, on the other hand, the Second Circuit denies the petition, Brady will need to take swift and successful action to further delay the suspension pending an effort to persuade the U.S. Supreme Court to consider the case.

First, Brady would ask the Second Circuit for a stay of the suspension while an appeal to the U.S. Supreme Court is prepared and pursued. If that request is denied, Brady would present the question of whether the suspension will be stayed not to the full U.S. Supreme Court but to the lone Supreme Court justice assigned to the Second Circuit.

Currently, Justice Ruth Bader Ginsburg has the Second Circuit assignment. Which on the surface is good news for Brady, given that Justice Ginsburg was appointed to the Supreme Court by a Democratic president and has been part of the liberal/progressive voting block on the Court since joining it in 1993.

The background and overall philosophy, which suggests an inclination to side with labor over management, could make her more apt to allow Brady to keep playing while he throws one last Hail Mary pass aimed at overturning his suspension for good.

Bottom line? Even if the Second Circuit refuses to take any further action and the U.S. Supreme Court later refuses to consider the case at all, Justice Ginsburg becomes the key to keeping Brady on the field through issuance of the Supreme Court’s decision not to take up the case, which if she issues the stay means that Brady likely wouldn’t be suspended until 2017 at the earliest.
http://profootballtalk.nbcsports.com/2016/05/17/brady-could-still-delay-suspension-without-second-circuit-rehearing/
 

WayBackVazquez

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Better info is available on this site, and was several weeks ago. Florio is almost there.

Ginsburg could decide a stay application on her own, but could also refer it to the full court. And would be likely to do so if she were inclined to grant, I would think. And 2017 at the earliest is not quite right, either. Depending on when the petition for rehearing is denied, Brady would have 90 days to file his cert petition, but if he's granted a stay by either the Second Circuit or the Supreme Court, he'll need to think long and hard about when to do so. If he waits until the end of the period, he could find himself getting his suspension imposed anywhere in the mid to late part of the season. If he files early enough -- such that briefing is complete by September 9, the Court would consider it at their "long conference" on September 28. Which means if the court denies it then, he could, and I'd think would, start serving his suspension right away.

Another consideration is that--tinfoil hat theories aside--the league should have no interest in having its marquee player suspended during the playoffs or stretch run. And it certainly wouldn't want to subject itself to complaints of favoritism if it declined to impose the suspension during the playoffs. So I'd think if Brady expressed a desire to get the petition distributed to the Court by the long conference, Clement and the league would oblige by getting its brief in opposition filed early enough to do so.
 
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Bleedred

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Better info is available on this site, and was several weeks ago. Florio is almost there.

Another consideration is that--tinfoil hat theories aside--the league should have no interest in having its marquee player suspended during the playoffs or stretch run. And it certainly wouldn't want to subject itself to complaints of favoritism if it declined to impose the suspension during the playoffs. So I'd think if Brady expressed a desire to get the petition distributed to the Court by the long conference, Clement and the league would oblige by getting its brief in opposition filed early enough to do so.
The way Clement and the league obliged Brady and Olsen in their request for an extension to file for full panel consideration of the ruling of the 3 appellate judges?
 

TheoShmeo

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Another consideration is that--tinfoil hat theories aside--the league should have no interest in having its marquee player suspended during the playoffs or stretch run. And it certainly wouldn't want to subject itself to complaints of favoritism if it declined to impose the suspension during the playoffs. So I'd think if Brady expressed a desire to get the petition distributed to the Court by the long conference, Clement and the league would oblige by getting its brief in opposition filed early enough to do so.
That is how the league should think, I agree.

On the other hand, Goodell has been pretty consistent with his "I like and respect Tom but the rules apply to everyone equally" mantra. I could see them granting the NFLPA no quarter and letting the chips fall where they may timing-wise. That approach would probably play well with many of the owners and many fans who do not root for the Pats.

What the NFL should have wanted all along was some kind of adult resolution. Thinking RG might begin to think clearly and approach this like a real commissioner strikes me as a bit of a reach.

And I hope I am wrong.
 

WayBackVazquez

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That is how the league should think, I agree.

On the other hand, Goodell has been pretty consistent with his "I like and respect Tom but the rules apply to everyone equally" mantra. I could see them granting the NFLPA no quarter and letting the chips fall where they may timing-wise. That approach would probably play well with many of the owners and many fans who do not root for the Pats.
They wouldn't have to let the chips fall; they'd be in the driver's seat. It's very easy to get an extension of time to file a BIO - basically rubber-stamped. If the league wants a playoff suspension if cert is denied, they could nearly guarantee it.
 

WayBackVazquez

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That is how the league should think, I agree.

On the other hand, Goodell has been pretty consistent with his "I like and respect Tom but the rules apply to everyone equally" mantra. I could see them granting the NFLPA no quarter and letting the chips fall where they may timing-wise. That approach would probably play well with many of the owners and many fans who do not root for the Pats.

What the NFL should have wanted all along was some kind of adult resolution. Thinking RG might begin to think clearly and approach this like a real commissioner strikes me as a bit of a reach.

And I hope I am wrong.
Also, one could argue that filing a petition for certiorari on a yet-to-be-identified theory of cert-worthiness is not exactly being the adult in the room.
 

amarshal2

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They wouldn't have to let the chips fall; they'd be in the driver's seat. It's very easy to get an extension of time to file a BIO - basically rubber-stamped. If the league wants a playoff suspension if cert is denied, they could nearly guarantee it.
And why wouldn't the league want to add as a deterrent to anyone who dare appeals the likelihood that the league will do everything in its power to fuck you over more than you ever imagined was possible? Seems like their MO.
 

Saints Rest

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Better info is available on this site, and was several weeks ago. Florio is almost there.

Ginsburg could decide a stay application on her own, but could also refer it to the full court. And would be likely to do so if she were inclined to grant, I would think. And 2017 at the earliest is not quite right, either. Depending on when the petition for rehearing is denied, Brady would have 90 days to file his cert petition, but if he's granted a stay by either the Second Circuit or the Supreme Court, he'll need to think long and hard about when to do so. If he waits until the end of the period, he could find himself getting his suspension imposed anywhere in the mid to late part of the season. If he files early enough -- such that briefing is complete by September 9, the Court would consider it at their "long conference" on September 28. Which means if the court denies it then, he could, and I'd think would, start serving his suspension right away.

Another consideration is that--tinfoil hat theories aside--the league should have no interest in having its marquee player suspended during the playoffs or stretch run. And it certainly wouldn't want to subject itself to complaints of favoritism if it declined to impose the suspension during the playoffs. So I'd think if Brady expressed a desire to get the petition distributed to the Court by the long conference, Clement and the league would oblige by getting its brief in opposition filed early enough to do so.
Let's assume for a minute that Brady gets some sort of stay so he starts the season. Then he gets banged up, such that he would miss 2-4 games under normal circumstances (a sprain, let's say). Could he drop his appeal at that point and serve his suspension during games that he would have missed anyway due to injury? (IOW, the typical MLB appeals process)

I understand that dropping his fight at any time means giving in to the guilty verdict, but from a playing time management, this could likely be the safest course. But could the NFL postpone the start of the suspension until Brady is "healthy?"
 

DennyDoyle'sBoil

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The timing definitely stinks if the goal is trying to get this decided in a way that doesn't put critical games at risk. To get through the Super Bowl, you need to get to about January 15 for the cert petition to be distributed. Olson could get 60 day extension on the cert petition -- they are routinely granted. That would give him 5 months. Assuming the NFL would file a response, that gets us close, but not quite. And the NFL is not obligated to file a response. Best case scenario would be if the second circuit takes a couple of months to decide and deny the petition for rehearing. That, coupled with Olson taking the full 150 days, should get us close to safe. Of course, all of this assumes a stay -- I actually think a stay is possible here given the fact that once he's suspended you can't put the toothpaste back in the tube. I think, formally or informally, Ginsburg would refer a stay motion to the entire court. The informal way to do it would be to circulate it internally. Note that if she's inclined to deny it, she will definitely circulate it to the whole court to make sure there are not 4 who would grant the stay. (Why 4 not 5 is a complicated question -- my guess is that you'd only need 4 to get a stay here not 5.)

Let's assume for a minute that Brady gets some sort of stay so he starts the season. Then he gets banged up, such that he would miss 2-4 games under normal circumstances (a sprain, let's say). Could he drop his appeal at that point and serve his suspension during games that he would have missed anyway due to injury? (IOW, the typical MLB appeals process)
I was thinking about this during the season. I was sort of thinking that if Brady got hurt, you'd actually prefer that he had lost in the trial court, because then it would be his appeal, and he would have complete control over dropping it, and could simply do so and serve the suspension. That's essentially the position he's in now, so I do think that would work. Though, procedurally, it's a bit of a problem. There is nothing to drop. You have your time to file a cert petition. If you don't do it, you don't do it, but you can't really abandon something you've never filed. The procedural mechanism would have to be something like a voluntary motion to dissolve a stay with a representation that you do not intend to seek cert, which the Court would have to grant and could take some time. There may be another way, but it doesn't jump to mind. The other question, though, is whether there are some internal NFL rules that they could use to delay the start of the suspension and defeat Brady's play. The last issue is that it's not Brady's petition. It's the union's, and there might not be agreement on this issue between them. If the USSC grants a stay, that means they at least facially view there as being a potential certworthy issue and if you're the union, I'm not sure you want to give that up. In the end, I doubt they'd press the appeal over Brady's objection, but that could become a bit of a difficult situation. I guess they could always press the petition but dissolve the stay.
 

DennyDoyle'sBoil

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The timing definitely stinks if the goal is trying to get this decided in a way that doesn't put critical games at risk. To get through the Super Bowl, you need to get to about January 15 for the cert petition to be distributed. Olson could get 60 day extension on the cert petition -- they are routinely granted. That would give him 5 months. Assuming the NFL would file a response, that gets us close, but not quite. And the NFL is not obligated to file a response. Best case scenario would be if the second circuit takes a couple of months to decide and deny the petition for rehearing. That, coupled with Olson taking the full 150 days, should get us close to safe. Of course, all of this assumes a stay -- I actually think a stay is possible here given the fact that once he's suspended you can't put the toothpaste back in the tube. I think, formally or informally, Ginsburg would refer a stay motion to the entire court. The informal way to do it would be to circulate it internally. Note that if she's inclined to deny it, she will definitely circulate it to the whole court to make sure there are not 4 who would grant the stay. (Why 4 not 5 is a complicated question -- my guess is that you'd only need 4 to get a stay here not 5.)

Let's assume for a minute that Brady gets some sort of stay so he starts the season. Then he gets banged up, such that he would miss 2-4 games under normal circumstances (a sprain, let's say). Could he drop his appeal at that point and serve his suspension during games that he would have missed anyway due to injury? (IOW, the typical MLB appeals process)
I was thinking about this during the season. I was sort of thinking that if Brady got hurt, you'd actually prefer that he had lost in the trial court, because then it would be his appeal, and he would have complete control over dropping it, and could simply do so and serve the suspension. That's essentially the position he's in now, so I do think that would work. Though, procedurally, it's a bit of a problem. There is nothing to drop. You have your time to file a cert petition. If you don't do it, you don't do it, but you can't really abandon something you've never filed. The procedural mechanism would have to be something like a voluntary motion to dissolve a stay with a representation that you do not intend to seek cert, which the Court would have to grant and could take some time. There may be another way, but it doesn't jump to mind. The other question, though, is whether there are some internal NFL rules that they could use to delay the start of the suspension and defeat Brady's play. The last issue is that it's not Brady's petition. It's the union's, and there might not be agreement on this issue between them. If the USSC grants a stay, that means they at least facially view there as being a potential certworthy issue and if you're the union, I'm not sure you want to give that up. In the end, I doubt they'd press the appeal over Brady's objection, but that could become a bit of a difficult situation. I guess they could always press the petition but dissolve the stay.
 

WayBackVazquez

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The timing definitely stinks if the goal is trying to get this decided in a way that doesn't put critical games at risk. To get through the Super Bowl, you need to get to about January 15 for the cert petition to be distributed. Olson could get 60 day extension on the cert petition -- they are routinely granted. That would give him 5 months. Assuming the NFL would file a response, that gets us close, but not quite. And the NFL is not obligated to file a response. Best case scenario would be if the second circuit takes a couple of months to decide and deny the petition for rehearing. That, coupled with Olson taking the full 150 days, should get us close to safe. Of course, all of this assumes a stay -- I actually think a stay is possible here given the fact that once he's suspended you can't put the toothpaste back in the tube. I think, formally or informally, Ginsburg would refer a stay motion to the entire court. The informal way to do it would be to circulate it internally. Note that if she's inclined to deny it, she will definitely circulate it to the whole court to make sure there are not 4 who would grant the stay. (Why 4 not 5 is a complicated question -- my guess is that you'd only need 4 to get a stay here not 5.)
Would definitely need 5 for a stay. Majority is required, and a 4-4 vote results in a denial. See eg Byrne v. PBIC Inc.; Buckley v. Valeo; Streetman v. Lynaugh, etc.

Ginsburg finds good cause and grants extensions about 75% of the time. That's not the near zero number Scalia used to grant, but it's also not the 90+% of the rest of the Court other than Kennedy, either. Moreover, I think you overestimate the likelihood of a stay AND an extension. More often, a stay will be granted on the condition that the petition is filed timely, or even on a shortened schedule. A stay and an extension is asking too much, methinks.
 
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TheoShmeo

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They wouldn't have to let the chips fall; they'd be in the driver's seat. It's very easy to get an extension of time to file a BIO - basically rubber-stamped. If the league wants a playoff suspension if cert is denied, they could nearly guarantee it.
Understood. My point is simply that I do not see the NFL caring if a natural consequence of their actions at any point in time would be Tom missing the playoffs. They've already gone to war with their marquee player over a misdemeanor. If PR concerns guided them, they would have found a way to avoid that.
 

ifmanis5

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And why wouldn't the league want to add as a deterrent to anyone who dare appeals the likelihood that the league will do everything in its power to fuck you over more than you ever imagined was possible? Seems like their MO.
Spot on. Anyone expecting the NFL to act like grown ups at any point on this case has not been paying attention.
 

dcmissle

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If I'm on the Court, I don't allow the union and Brady to run the clock on the entire "17 season by asking for a stay then delaying a petition for cert. And if I'm Olson I certainly don't count on being able to get away with it. The Court knows well that the en banc papers can pretty easily and quickly be transformed into a cert petition.
 

DennyDoyle'sBoil

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Would definitely need 5 for a stay. Majority is required, and a 4-4 vote results in a denial. See eg Byrne v. PBIC Inc.; Buckley v. Valeo; Streetman v. Lynaugh, etc.

Ginsburg finds good cause and grants extensions about 75% of the time. That's not the near zero number Scalia used to grant, but it's also not the 90+% of the rest of the Court other than Kennedy, either. Moreover, I think you overestimate the likelihood of a stay AND an extension. More often, a stay will be granted on the condition that the petition is filed timely, or even on a shortened schedule. A stay and an extension is asking too much, methinks.
Yeah, it's possible that they won't even consider a stay seriously if the petition isn't actually first filed anyway. On the number for a stay, does the court no longer give courtesy fifths to stay if there are four to grant cert, or have they now limited the practice solely to capital cases?
 

WayBackVazquez

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I have only ever heard of that in relation to stays of execution, but in any case after getting the four votes for cert. I don't think that's the real concern here. If Ginsburg thought a cert grant was likely, she'd grant the stay application herself.

Honestly, if I'm advising Brady, I think the en banc petition is the end of the road. The likelihood of a cert grant and then a reversal is extremely small, and much smaller than the odds of the timing setting him up for a suspension at a much worse time than the beginning of the season.
 
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Rough Carrigan

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I apologize if this has already been asked somewhere in this gargantuan thread. What if Brady gets hurt in week 7 of the season. Someone rolls into his knee. I don't know which ligament injuries are the really bad ones and which ones players can get over in a month or so. But let's say it's the kind that a player can get over in a month.

Can he just drop the appeal and take the suspension at a time when he wouldn't be able to play anyway? I'm asking that in both NFL and court terms.
 

EvilEmpire

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I apologize if this has already been asked somewhere in this gargantuan thread. What if Brady gets hurt in week 7 of the season. Someone rolls into his knee. I don't know which ligament injuries are the really bad ones and which ones players can get over in a month or so. But let's say it's the kind that a player can get over in a month.

Can he just drop the appeal and take the suspension at a time when he wouldn't be able to play anyway? I'm asking that in both NFL and court terms.
Look up nine posts. Saints Rest and DDB just wrote about it on this page.
 

Hendu for Kutch

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It might not be ideal for the simple fact that you're not supposed to be at the team facilities at all during a suspension, if my memory is correct. You'd want him there getting treatment and having the injury monitored closely by the training staff. It's possible that there are exceptions built into the suspension rules for treating injuries, but I've never heard of any.
 

Papelbon's Poutine

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It might not be ideal for the simple fact that you're not supposed to be at the team facilities at all during a suspension, if my memory is correct. You'd want him there getting treatment and having the injury monitored closely by the training staff. It's possible that there are exceptions built into the suspension rules for treating injuries, but I've never heard of any.
Considering the player we are talking about - and also the fact he owns his own training facility across the street from the stadium - I'm pretty sure their would be measures taken and confidence bestowed to overcome any such hassles.
 

troparra

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Considering the player we are talking about - and also the fact he owns his own training facility across the street from the stadium - I'm pretty sure their would be measures taken and confidence bestowed to overcome any such hassles.
Goodell would come up with something to prevent this from happening. He can do whatever he wants, you know.
 

TheoShmeo

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Apologies if this has been discussed elsewhere.

I found Smith's remarks and Curran's later reporting on Tom's "generous" settlement offer to be interesting but not surprising.

It appears that he offered one game for lack of cooperation or cell phone destruction, and that RG insisted on an admission of underlying liability or throwing the glimmer twins under the bus, neither of which which Tom would not do.

As one of the relative few who in the poll above who would have encouraged Tom to accept a game (in my case, only if he did not have to admit involvement with or that there was in fact ball deflation), I am glad that Tom was willing to go there, assuming that's true. De-risking the four game possibility and putting an end to all this noise by accepting one game without an admission always seemed to me to be in Tom's best interest. Not that I did not understand the notion of giving no quarter whatsoever, as many advocated.

That RG insisted on getting his admission is not at all surprising. A real commissioner would have found a way to end this ridiculous embarrassment long ago. Sadly, we do not have one of those.
 

Eddie Jurak

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Such an admission - never mind the blackmail involved - immunizes Roger and the NFL against the charges that he and they would knowingly shaft a player because it suits him to do so.
 

Average Reds

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Such an admission - never mind the blackmail involved - immunizes Roger and the NFL against the charges that he and they would knowingly shaft a player because it suits him to do so.
This is precisely right.

We can project our desires any way we want, but the cold hard reality has always been that the circumstances that are necessary for a deal to be struck have never existed.

Once the league spent $5 million to launder their justification through the Wells Report, this became about the commissioner's power. Brady was never going to accept a settlement on Goodell's terms and Goodell was never going to be allowed to authorize a settlement on Brady's terms.
 

TheoShmeo

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Agreed that once RG spent all that money, and given the purpose of the exercise from inception, that settlement without a juicy admission was not realistic.

At the same time, I like the fact that Brady made a sensible offer. I also like that some of the Judges considering the en banc motion may become aware of that. Make no mistake, I remain quite negative about the chances of that motion being granted and do not mean to overstate the importance of this tidbit. But helpful is helpful, and anything that emphasizes Tom as reasonable and Roger as churlish strikes me as at least being potentially helpful, albeit at the extreme margins.
 
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Norm loves Vera

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Posting this video of comedian Jim Breuer, who went on SI and described a conversation he had with John Jastremski, while in Mexico for a comedy festival. He describes JJ as loyal to TB, but frustrated with the "organization" for ordering him to keep silent and they will take care of him. Only posting here as it is the first time anyone has gone public after talking to any of the Dorito Dinks, if it even was JJ.
 

AB in DC

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Apologies if already posted, but Steph Stradley's latest

http://www.stradleylaw.com/faqs-deflategate-second-circuit-rehearing/
I think she really nails it in this one: "The majority opinion bakes in a lot of “facts” in their ruling but I think, in part, what the amicus briefs are trying to do is demonstrate why the lack of notice and the changing of grounds against Brady at different levels truly matters and isn’t just lawyer tap dancing."

That, for me, crystallizes everything that bothered me about Kessler's work on this that I could never really explain. Obviously Kessler knew he couldn't argue the facts during this entire process, and he lasered in on deference issues. But I never felt that he clearly communicated how Brady never really did anything wrong here. It always seemed couched in technicalites, like "even if Brady did deflate footballs, Goodell was still wrong". But he never really connected Goodell's wrongness to Brady being almost certainly innocent of the underlying accusation.

Dan Goldberg made a better argument on fundamental fairness in 3 pages than Kessler did in 300 pages.
 

drbretto

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That's bothered me for months. The lawyers here, probably rightfully, keep explaining that the act isn't what's on trial here and I don't misunderstand that. But isn't the likelihood that no crime took place kind of relevant to the process being fucked up? It's still important to the case and it's always sounded dumb to me to try to argue it purely on the technicalities. You don't think if you can quickly show doubt in the outcome, it wouldn't help color the judges views on the rest of it?
 

amarshal2

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If Brady could have just avoided throwing that stupid pick I feel like our lives would have been totally different over the last 16 months.
I'll go with, "if only the morons on the sidelines knew that cold air reduces pressure." Both Vincent and Kensil spent enough time in the cold weather to know that tires deflate. The issue is that the league office is staffed full of conspiracy wielding morons with an agenda.
 

Shelterdog

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That's bothered me for months. The lawyers here, probably rightfully, keep explaining that the act isn't what's on trial here and I don't misunderstand that. But isn't the likelihood that no crime took place kind of relevant to the process being fucked up? It's still important to the case and it's always sounded dumb to me to try to argue it purely on the technicalities. You don't think if you can quickly show doubt in the outcome, it wouldn't help color the judges views on the rest of it?
Exactly how are you going to prove that conclusively?
 

drbretto

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Exactly how are you going to prove that conclusively?
You don't need to. Like everyone has said, that's not what's on trial. All you need to do is create doubt. And that's not that hard to do. Create doubt, you get them interested enough to see that the whole thing was fucked from the beginning on their own.
 

Shelterdog

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You don't need to. Like everyone has said, that's not what's on trial. All you need to do is create doubt. And that's not that hard to do. Create doubt, you get them interested enough to see that the whole thing was fucked from the beginning on their own.
Let me let you in on a secret. The Judges know there's doubt.
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