#DFG: Canceling the Noise
- Thread starter nattysez
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And I think we need to stop referring to the appeal as an appeal. It is nothing like an appeal in any format. Apparently its just a hearing and a chance for the player to be heard in a forum where he has an advocate, prepared and controlled. But lets stop using the A word and start calling it what it is. A hearing, full of evidence, old and new.
Reminds me of the Three Stooges drilling a hole in the bottom of their boat to let the water out.......NortheasternPJ said:
DrewDawg said:
When he issues his decision upholding the suspension, it's going to be very very heavily lawyered to be as bulletproof as possible. That's why he wants to decide the case -- so he can control it. He can't control a neutral.
A question for the lawyers: When Goodell claims he is not a necessary, nor appropriate witness, isn't he already prejudging the process, and certain issues that could be germane to the appeal?
bankshot1 said:
There you go, attempting to use common sense. You keep forgetting that Commisar Goodell is the keeper and arbiter of common sense. Small minds like yours and mine shouldn't try to function above our station in life -- we simply offend the protector of the integrity of the game when we do so.
This matters about as much as a pimple on Goodell's ass but, strangely enough, I feel better after watching PTI's discussion on the upcoming appeal. Wilbon is still a dick and continued with his "Goodell wants to get back in bed with Kraft" illogic, but Kornheiser's take is something I could live with as a national opinion. Which was, essentially, that Goodell is acting as judge, jury, and executioner, that the punishment for "gamesmanship" (I think at one point he likened it to watering the basepaths) is ridiculously out of proportion, and that all Goodell and the NFL really care about is how they're perceived, not justice or "integrity of the game", which last Kornheiser specifically called out as something the NFL trots out at their convenience.
Frankly, coming from the guy who was high-fiving Shula on MNF in mistaken anticipation of a loss to the Ravens in 2007, I expected a lot worse.
Frankly, coming from the guy who was high-fiving Shula on MNF in mistaken anticipation of a loss to the Ravens in 2007, I expected a lot worse.
So now Felger and other mediots are literally making up hypothetical offenses in order to gin up faux outrage. SHOULD FANS BE UPSET IF BRADY ACCEPTS GOODELL'S PUNISHMENT?!? Yo, nitwits, if Brady wanted to meekly accept his punishment, he could have done that already.
CaptainLaddie said:
Yes. It's not too hard to find references to that game and discussions of TK yukking it up with their invited guest, Shula, who was openly (and vocally) rooting for the Patriots to lose, to the point that he slapped Kornheiser on the back when the Ravens scored to go up in the 4Q (noted by Kornheiser himself in the broadcast).
While I can't find a reference to the high-five incident, I have a clear memory of a shot of the booth that was taken soon after that where Kornheiser leaned back and high-fived Shula. Could be "reconstructed memory" syndrome, and perhaps it didn't happen, but certainly there are multiple descriptions of Kornheiser rooting against the Pats in that game.
All that being said, the real problem that night was Shula, not Kornheiser, and I was only referencing it to indicate that Kornheiser has not gone out of his way in the past to give the Pats the benefit of the doubt.
Here's a link to a Deadspin article about the game and the broadcast. I think that the memories of some folks are being unduly influenced by recent events.
http://deadspin.com/329602/the-best-mnf-game-in-many-a-moon
It's no secret that on the rare occasions that a team reaches late November/December without a loss, Shula (along with members of the '72 team) roots for the opponent of that undefeated team. (Hell, in '85 the retired Dolphins openly celebrated when the Bears lost.) But as the description here makes clear, it wasn't quite the one-sided spite-fest that it's being described as now.
None of this means Shula isn't a tremendous douchebag.
http://deadspin.com/329602/the-best-mnf-game-in-many-a-moon
It's no secret that on the rare occasions that a team reaches late November/December without a loss, Shula (along with members of the '72 team) roots for the opponent of that undefeated team. (Hell, in '85 the retired Dolphins openly celebrated when the Bears lost.) But as the description here makes clear, it wasn't quite the one-sided spite-fest that it's being described as now.
None of this means Shula isn't a tremendous douchebag.
Either Goodell is setting this up to cut Brady's suspension in half after the appeal, to try to make himself and the NFL's discipline process look more fair and open minded to most of the public, or he is doubling down in order to publicly slam Brady again.
Based on everything he has ever done, I'd guess he wants to double down and try to slam Brady again. He and the league would probably be better off if he went for the first option, though.
Based on everything he has ever done, I'd guess he wants to double down and try to slam Brady again. He and the league would probably be better off if he went for the first option, though.
Rusty13 said:
If you look at it as dispassionately as possible, although Brady, et al. were interviewed by Wells, et al., there was no adversarial process involved in the investigation and punishment decision. It sounds like this "appeal" is that.
That said, Goodell went to the mat defending and relying on Wells's stuff. "I am not wedded to its conclusions or the punishment" seems a bit unrealistic. OTOH--The difference in procedures would give a more able Commissioner the room needed to say "the additional evidence I heard on appeal leads me to conclude [something somewhat different and impose some lesser discipline]. I doubt that Goodell is that able Commissioner.
Procedurally -- who decided what -- I doubt the NFLPA has much to work with. Its best argument in court -- assuming Goddell doesn't do some sort of 180 -- is that even assuming the Wells investigation can be accepted at face value, the punishment is the very definition of arbitrary and capricious. That's not to say that the accuracy of the report won't be challenged, but it's very difficult to get a court to say that a labor decider "got the evidence wrong." The punishment -- and the "law of the shop" -- is a legal, rather than factual, attack that courts are much more receptive to.
Have there been other NFL suspensions overturned in court when the appeal was not successful? I can see a ruling where the NFL might pay him his salary during the suspension but they can still force him to sit out....Since the suspension isn't a legal issue, I am struggling to see how a court can reverse this...
This exact scenario happened less than 4 months ago with Adrian Peterson.Padaiyappa said:
http://mobile.nytimes.com/2015/02/27/sports/football/adrian-petersons-suspension-is-overturned.html?referrer=&_r=0
Padaiyappa said:
It becomes a legal issue -- as opposed to a factual one -- where the suspension is seriously at odds with past practices that form the "law of the shop," which is the labor relations analog to caselaw providing the framework for judicial decisions.
epraz said:
The suspension will be reduced and positioned as a result of being uncooperative with the league investigation (in the league's view), not due to Brady's knowledge or culpability. Goodell can say that Brady's explanation convinced him that Brady didn't order the Code Red, nor that he knew about any (alleged) post-measurement ball shenanigans; but Goodell will state that all the resulting appeals and penalties could have been avoided had Brady "cooperated" originally. The team/Kraft has taken the bullet for the actions of employees, and Brady will get to say "I'm not guilty", even though preserving his innocence via the legal process will result in enough of a hassle to the NFL to give him a game or two for being a pain in its ass.
Brady is not going to accept a suspension if Goodell revises his findings to say that he didn't do anything. And the "law of the shop" means he won't have to. (See Favre, Brett for an explanation.)Dick Pole Upside said:
Goodell is going to hang his hat on Brady not turning over his personnel cell phone? Yikes.Dick Pole Upside said:
Do I have this correct?
1. Wells report and Exponent's science provides the foundation for the punishment of 4 games; team loses a first and a 5th, and $1 million fine. It's like the trial court.
2. Brady appeal to be heard by Goodell, at which, unlike a legal appeal, Goodell can consider new evidence of Brady's innocence.
3. If Goodell chooses to reduce but not eliminate the suspension, Brady's only recourse is to sue in federal court asserting that the punishment is arbitrary and capricious, based on past punishments handed down by the commissioner. But any revisiting of the merits of the Wells Report and the Exponent "science" is barred from being considered.
If I have any of this wrong, can someone explain?
1. Wells report and Exponent's science provides the foundation for the punishment of 4 games; team loses a first and a 5th, and $1 million fine. It's like the trial court.
2. Brady appeal to be heard by Goodell, at which, unlike a legal appeal, Goodell can consider new evidence of Brady's innocence.
3. If Goodell chooses to reduce but not eliminate the suspension, Brady's only recourse is to sue in federal court asserting that the punishment is arbitrary and capricious, based on past punishments handed down by the commissioner. But any revisiting of the merits of the Wells Report and the Exponent "science" is barred from being considered.
If I have any of this wrong, can someone explain?
Three is incorrect. See the NFLPA notices as regards the case, their court argument is going to be that:
- The NFL screwed up the procedures as outlined in the CBA (and I don't see that Goodell's new position changes that any, because I was under the impression that when Goodell assigns punishment the appeal is supposed to be heard by the official, league chosen, arbitrator, but I may be wrong about that).
- That the judgment violates the existing employment standards as practised under the CBA.
- That the justification for the extraordinary punishment is a report that actually doesn't prove that a violation occurred at all, and therefore can't be used as justification for setting aside existing precedent for refusing to surrender his federally guaranteed labor rights. (Employers can't demand that you turn over private third party communications en masse, though where civil violations occur, as in the Favre case, the scope of what an employer can demand broadens. However, in this particular instance all the NFL is entitled to is what they already have, his work related emails to the men accused of conspiring to keep the footballs at the low end of the legal limit.)
Other have more labor law experience than I, but....Bleedred said:
The revisiting of the report isn't entirely off limits. Close to it, though. This is a bit hyperbolic (and probably does not track the exact standard of review), but the evidence underlying Goodell's finding that balls were deflated after the ref-spection would, IMO, have to be even closer to fictional than it is to be flipped or be considered insufficient. NFLPA would have to show that the deflation conclusion could not possibly be correct. Not just competing evidence, or another possibility. A shorthand way to look at it might be that while the "fact" of deflation needed to be proved "more probably than not" (a preponderance), the NFL PA would face a much higher burden of proof to debunk it. These aren't perfect analogies, but I'm trying to avoid too much law-speak. Also, a fraud along the way ---- like proof that the NFL instructed Wells to reach that conclusion -- would be in play.
But you have it about right. This doesn't mean the NFLPA won't go after "the science" with more science. Just my .02 that it's not their best argument.
nighthob said:
Not according to this:
from post: http://sonsofsamhorn.net/topic/89451-dg-pointless-show-of-integrity/?p=6069484
There are two different issues here and I think you're conflating them, there's a petition to the court for immediate relief, and then any ensuing lawsuit against the NFL. In the petition for relief they're asking the courts to issue a restraining order preventing the suspension from going into effect pending a full judicial review. In that petition there won't be a full vetting of the Wells report, they're simply laying out the argument that report does not justify the setting aside of NFL precedent for refusing to turn over full cell phone records. (EDIT: I'm assuming that the NFL is retreating to this position, but if the NFL is asserting that Brady violated the integrity of the game and that that's the basis for the unprecedented punishment then the fact that the report doesn't prove that the integrity of the game was violated is actually germane.)joe dokes said:
Now, if the NFL is stupid enough to fight back, then the whole thing goes to trial, and in an actual trial there would be a full vetting/disembowelment of the report. But if the NFL is smart they'll accept the initial setting aside of the penalty and let it go. Because then their mudflinging sticks. If the NFL does pursue this the communications between Vincent, Kensil, and the Colts & Ravens officials will go into the public record, and then general news outlets will be interested about a story where a major sports league conspired with two of its franchises against a third. And those news outlets aren't going to just ignore the story to do the NFL a solid.
Question: can the Favre precedent still be used for "law of the shop" purposes if it occurred under the prior CBA?
The law of the shop is just how the employer and the union have dealt with issues historically. New union deals happen in industry all the time, but the new deals, unless they specifically address how issues are handled, don't change the existing precedents. For example, as part of the next CBA the NFL could demand that no communications of a player be considered private, and if the NFLPA agreed to that reform, then the existing shop law would be set aside for the new CBA procedures. But in this case the NFLPA didn't negotiate away their members' privacy rights, so the existing precedent holds and the NFL would need to justify its setting aside of standing precedent.
nighthob said:
If there is currently pending a court filing on behalf of Tom Brady, then I am unaware of it. I was off the grid for awhile last week, so its quite possible. Is there really?
I think the privacy rights argument probably loses over the fact that the NFL (claims to have) offered Brady pretty significant safeguards. It wasn't just "give us your phone, we'll get it back to you when we're done with it." Again. not to say it wont be argued, but it's not the strongest argument.
The petition can't be filed until there's a need for immediate relief and that can't happen until after the NFL affirms that he's going to be suspended for four games. But rest assured that the NFLPA's lawyers are working away crossing the Ts and dotting the Is and that it will be filed the day after the Artless Roger affirms the punishment.joe dokes said:
If your employer came to you and said, "Joe, we suspect you've been telling off colour jokes about our great company to your friends and family and we want to look through your texts and emails to confirm this," no matter how many safeguards they offered you they wouldn't be entitled to those communications unless you were making them via a company phone/tablet/computer/email account. Private third party communications are yours and yours alone. A court can certainly order you to turn over emails, texts, etc. within a specific scope, but that's because they're the government. The last time I checked the NFL wasn't the government (though we all know that it will be one day when Monday Night Punishment becomes the law of the land).joe dokes said:
This "if your employer came to you" argument is not very strong. Instead, the two questions are much more simple: (a) does the CBA (including the NFL-PA's prior course of conduct under the CBA) require Brady to cooperate, and (b) if yes to (a), does that cooperation require turning over emails/phone records/etc. (i.e., what is the scope of the requirement).
The contract defines the duty and scope of duty.
The contract defines the duty and scope of duty.
nighthob said:
I think that if an employer came to an employee to see his phone because they had info that he was using that very phone to show pictures of female employees in the bathroom at work....1)the employee could refuse; 2) the employee could get disciplined for not cooperating with the investigation; and 3) if the employer thought the info upon which the requst for the phone was credible, the employee could get fired for the pictures even though the employer never saw tham; 4) the employee would sue; 5) the employee would lose.
I also think you have misstated the relationship between a request for injunctive relief and the underlying lawsuit. But that's a longer post than I want to make. Suffice it to say, I dont think I "conflated" anything. I also think the Wells report issue is separate from the phone issue.
And this, too, since most contractual employment relationships require such cooperation from employees:
That's not an "argument". It was an example. The law guarantees you, as an individual, privacy rights. And unless your union negotiates those privacy rights away, then they remain in tact. That was the entire point of the remark. Unless the CBA dictates otherwise then the established precedent holds sway, and if Brady voluntarily surrenders his privacy rights as part of an official NFL proceeding then that becomes part of the shop law. Which is why Brady and the NFLPA are digging in on this.Joshv02 said:
nighthob said:
The bolded, as a general proposition is certainly correct. As specific to individual employee-employer relationships, it is so broad as to be meaningless.
I dont know about the NFL precedent you're speaking of. But I doubt its correct that if Brady voluntarily gave up his phone when asked, that that would have any precedential value at all in so far as Goodell's next target is concerned.
I'm not sure if this was accidental but you've just chosen, as an example, an actual criminal case, which I think we can all grant is a separate matter entirely (and I actually said as much). In this actual case, we've seen that the NFL was unable to compel a player to turn over private third party communications where there was a sexual harassment case involved (and settled for fining the player $50k). In a situation where there are neither criminal nor civil infractions involved (which would actually correspond to the current situation), the odds of an employer getting access to your home phone records or emails so that they can see if there's anything there they can sanction you for, are pretty close to zero.joe dokes said:
Unless the CBA waives players' privacy rights or Brady's employment contract specifically says that he has no right to private communications with non-NFL people on his private phones, computers, etc. then there's not much that can be done. They can certainly punish him in line with existing precedent and let him fight it out from there. But the existing precedent in this case, which involved a sexual harassment lawsuit, is a $50k fine.joe dokes said:
There are huge differences between non-contracted employees not working in a union shop and union employees in a closed shop. In a non-contractual situation employers can and do let employees go all the time. But they generally don't fire them on grounds where those employees can use available channels to challenge the discharge. Bob's Wicked Pisser Engineering may suspect that Joe is telling off colour jokes about his office to his friends and may even want to fire him for doing it. But generally (in states with protective labor laws) they'll just lay him off as a means of getting rid of him. Telling him that he's required to surrender 25% of his salary for refusing to let them go through his non-workplace communications to third parties? That one isn't going to fly.joe dokes said:
nighthob said:
What are you talking about? I didn't say anything about a criminal case. It might also be one, but so what? Its an employer workplace investigation.Regardless, short of subpoena power accompanying civil litiagtion, the employer CANNOT COMPEL the employee to run over his phone. On this we agree. But the employee can be sanctioned for not doing so. The NFL cannot MAKE Tom Brady turn over his phone. Or wear only approved NFL clothing. Or show up for post-game press conferences.
As for the precedential value of the fine. I thought there is pretty much universal agreement that that is the most likely area of success in a court action to vacate Goodell's likely affirmance of his own decision. And this is true for both the "lack of cooperation" AND even the more substantive ball stuff
You gave an example of am employee doing nothing worng (telling jokes about the company). Well, no shit that there's little in the way of sanctionable behavior. But if the company is investigating workplace misconduct -- a somewhat more analogous situation to Brady's -- its a different story.nighthob said:
I'm done. I think we practice in different jurisdictions.
So who issued the penalty on Brady? Was it Vincent?
From Goodell: “I want to express my appreciation to Ted Wells and his colleagues for performing a thorough and independent investigation, the findings and conclusions of which are set forth in today’s comprehensive report. As with other recent matters involving violations of competitive rules, Troy Vincent and his team will consider what steps to take in light of the report, both with respect to possible disciplinary action and to any changes in protocols that are necessary to avoid future incidents of this type. At the same time, we will continue our efforts vigorously to protect the integrity of the game and promote fair play at all times.”
Phil Perry of csnne.com said: “It was Vincent who wrote to Brady informing him of his suspension, not Goodell. And Goodell admitted that it was Vincent and his team that determined the severity of the punishment.”
Gary Myers of the NYTimes said: "Goodell set himself up perfectly by allowing Troy Vincent,http://www.nydailynews.com/sports/football/myers-tom-brady-roger-goodell-play-article-1.2233396 the executive VP of football operations, to make the decision on all the Patriots’ penalties. Goodell then authorized them. This puts Goodell in a position where he can claim he’s not ruling on his own ruling. He’s ruling on Vincent’s ruling."
So if it was Vincent, then that allows Goodell to truly be an independent arbiter during the appeal. But it is also a violation of the CBA, as we saw a few weeks ago. So then….was it really Goodell who issued the ruling?
Goodell, in his letter to the NFLPA: “There can be no dispute that this is an appeal of Commissioner discipline: As the letter signed by Mr. Vincent explains in its first sentence, ‘The Commissioner has authorized me to inform you of the discipline that, pursuant to his authority under Article 46 of the CBA, has been imposed upon you ... .’ I did not delegate my disciplinary authority to Mr. Vincent; I concurred in his recommendation and authorized him to communicate to Mr. Brady the discipline imposed under my authority as Commissioner.”
So it was Goodell who issued the ruling. Ok, fine. Then he obviously is not an independent arbiter at the appeal. He's in the position of being both prosecuting attorney and judge in the same case. How, then, can he have the gall to say that he hasn't prejudged this issue?
Goodell: “Nor have I "prejudged" this appeal. I have publicly expressed my appreciation to Mr. Wells and his colleagues for their thorough and independent work. But that does not mean that I am wedded to their conclusions or to their assessment of the facts. Nor does it mean that, after considering the evidence and argument presented during the appeal, I may not reach a different conclusion about Mr. Brady's conduct or the discipline imposed. That is true even though the initial discipline decision was reached after extensive discussion and in reliance on the critical importance of protecting the integrity of the game. As I have said publicly, I very much look forward to hearing from Mr. Brady and to considering any new information or evidence that he may bring to my attention. My mind is open; there has been no "prejudgment" and no bias that warrants recusal.”
Of COURSE he has! He's the one (apparently) who judged it in the first case!
Someone please tell me that any half-decent lawyer will tear this guy to shreds in the inevitable Brady vs. Goodell lawsuit.
From Goodell: “I want to express my appreciation to Ted Wells and his colleagues for performing a thorough and independent investigation, the findings and conclusions of which are set forth in today’s comprehensive report. As with other recent matters involving violations of competitive rules, Troy Vincent and his team will consider what steps to take in light of the report, both with respect to possible disciplinary action and to any changes in protocols that are necessary to avoid future incidents of this type. At the same time, we will continue our efforts vigorously to protect the integrity of the game and promote fair play at all times.”
Phil Perry of csnne.com said: “It was Vincent who wrote to Brady informing him of his suspension, not Goodell. And Goodell admitted that it was Vincent and his team that determined the severity of the punishment.”
Gary Myers of the NYTimes said: "Goodell set himself up perfectly by allowing Troy Vincent,http://www.nydailynews.com/sports/football/myers-tom-brady-roger-goodell-play-article-1.2233396 the executive VP of football operations, to make the decision on all the Patriots’ penalties. Goodell then authorized them. This puts Goodell in a position where he can claim he’s not ruling on his own ruling. He’s ruling on Vincent’s ruling."
So if it was Vincent, then that allows Goodell to truly be an independent arbiter during the appeal. But it is also a violation of the CBA, as we saw a few weeks ago. So then….was it really Goodell who issued the ruling?
Goodell, in his letter to the NFLPA: “There can be no dispute that this is an appeal of Commissioner discipline: As the letter signed by Mr. Vincent explains in its first sentence, ‘The Commissioner has authorized me to inform you of the discipline that, pursuant to his authority under Article 46 of the CBA, has been imposed upon you ... .’ I did not delegate my disciplinary authority to Mr. Vincent; I concurred in his recommendation and authorized him to communicate to Mr. Brady the discipline imposed under my authority as Commissioner.”
So it was Goodell who issued the ruling. Ok, fine. Then he obviously is not an independent arbiter at the appeal. He's in the position of being both prosecuting attorney and judge in the same case. How, then, can he have the gall to say that he hasn't prejudged this issue?
Goodell: “Nor have I "prejudged" this appeal. I have publicly expressed my appreciation to Mr. Wells and his colleagues for their thorough and independent work. But that does not mean that I am wedded to their conclusions or to their assessment of the facts. Nor does it mean that, after considering the evidence and argument presented during the appeal, I may not reach a different conclusion about Mr. Brady's conduct or the discipline imposed. That is true even though the initial discipline decision was reached after extensive discussion and in reliance on the critical importance of protecting the integrity of the game. As I have said publicly, I very much look forward to hearing from Mr. Brady and to considering any new information or evidence that he may bring to my attention. My mind is open; there has been no "prejudgment" and no bias that warrants recusal.”
Of COURSE he has! He's the one (apparently) who judged it in the first case!
Someone please tell me that any half-decent lawyer will tear this guy to shreds in the inevitable Brady vs. Goodell lawsuit.
We've all had a chuckle or two at both the "thoroughness" and the "independence" of the Wells Report. I'm curious, though, would it behoove Brady's case to have his own advocacy paper produced as evidence?
No. Vincent could impose the discipline, but with Goodell's authority. Thus not necessarily inconsistentDrewDawg said:
It's also not really the part that's all that important. Even if they win that argument, the case gets remanded back to Goodell, and he writes his own punishment letter. Then he hears the appeal again. The crucial arguments pertain to Wells Report's logical weaknesses and the inconsistency in Sheriff's punishments.