#DFG: Canceling the Noise

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


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Omar's Wacky Neighbor

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nighthob said:
They actually don't know. It was found in the earliest rulebook anyone could find, which was from the depression era. The NFL wasn't as thorough documenting the whys and wherefores as MLB, though it is as hidebound. During the whole George Brett fiasco they were able to look at the history of the pine tar rule and find that it was implemented during WWI as a cost-saving measure. The NFL isn't sure why the air pressure rule was implemented, but thanks to the shitshow that's Ballghazi they're doubling down.
 
 
 
 
Thanks, that's what I thought:  back when the Bears were playing indoors.
 
As to WHY there's a rule, my own belief is that they wanted to add legitimacy to the rules, and the best/easiest way to accomplish that was to quantify as much as they could.  I picture a dozen owners sitting around in a conference room:  someone tossed a ball around the room, asked how it felt, everyone said OK/it's good, they measured it at somewhere around 13 psi, they added a half psi on either side, and voila:  the magic range as an actual number.
 

Ed Hillel

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joe dokes said:
A judge might take that stuff into consideration, but as legal issues, if the neighbor's house has no doors you still can't steal his stuff;
There might be some use as to the league's "concern" about "integrity" insofar as it informed the penalty.
 
The difference here being that the league's "admission" their procedures were not up to snuff puts to question whether anyone actually deflated the footballs, as they didn't have procedures in place to accurately measure them.
 

nighthob

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Omar's Wacky Neighbor said:
As to WHY there's a rule, my own belief is that they wanted to add legitimacy to the rules, and the best/easiest way to accomplish that was to quantify as much as they could.  I picture a dozen owners sitting around in a conference room:  someone tossed a ball around the room, asked how it felt, everyone said OK/it's good, they measured it at somewhere around 13 psi, they added a half psi on either side, and voila:  the magic range as an actual number.
Yeah, I'm fairly certain that most of the traditional NFL rules came about this way. They just didn't document the process the way that MLB did with their rule changes. It was easy for the commissioner's office to research the pine tar rule during the Brett fiasco and see that it wasn't a competitive advantage thing so much as a "make the balls last longer by keeping pine tar from getting on them" kinda thing and then just overrule the umpire's decision. The NFL doesn't know why 13psi was chosen as the base, and rather than either expanding the range (e.g. 13psi +/- 1) or admitting the influence of atmospheric conditions and picking a sensible inflationary range (e.g. 10-16psi) they've decided to double down on the importance of the purely arbitrary number.
 

Omar's Wacky Neighbor

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nighthob said:
 The NFL doesn't know why 13psi was chosen as the base, and rather than either expanding the range (e.g. 13psi +/- 1) or admitting the influence of atmospheric conditions and picking a sensible inflationary range (e.g. 10-16psi) they've decided to double down on the importance of the purely arbitrary number.
Hope you don't mind that I read that in John Facenda's voice
 

joe dokes

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The difference here being that the league's "admission" their procedures were not up to snuff puts to question whether anyone actually deflated the footballs, as they didn't have procedures in place to accurately measure them.
 
 
That depends on whether and to what extent a federal judge applies Rule 407 -- which generally prohibits evidence of subsequent remedial measures.  The typical situation is hiring a guy to shovel the walk *after* someone slips and falls is not evidence that you should have hired a guy sooner. (It *is* admissible if you argue that the sidewalk isn't your problem.).  Its not precisely the same, but just as in practice (if not the literal reading of the rule) settlement discussions *usually* don't come in at trial, actions later taken by the defendant *usually* don't come in.
 
Taking your point literally, changing the procedures would rarely be considered an *admission*.  But  judges have wide latitude in interpreting the rules of evidence and reversals on appeal for that reason alone are relatively rare.
 

RedOctober3829

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The attempt to find a solution to the Tom Brady suspension appeal is no longer a one-sided effort.
Sources have told FOX Sports the NFL Players Association and the NFL have had an open line of communication in recent days regarding a potential settlement of Brady's four-game ban for his alleged role in the Deflategate scandal. This follows reports from last week that stated the NFLPA's proposal was ignored by the league office.
That seems to have been the case for a while, though now it's possible the sides could be making an earnest effort to work toward a solution.
With the clock ticking toward the Thursday start of the New England Patriots' training camp, the communication suggests NFL commissioner Roger Goodell and his legal team would welcome a resolution that would include Brady and the NFLPA agreeing to forgo a lawsuit that could drag in to the regular season.
Tuesday will mark five weeks since Goodell heard Brady's appeal in Manhattan. A source said Brady has become frustrated with the lack of a decision from Goodell. Surely the Patriots would also like to know whether it will be Brady or Jimmy Garoppolo under center when they open the season Sept. 10 against the Pittsburgh Steelers.
It's likely the NFL would still want Brady to serve some sort of suspension, while Brady's camp and the union would only accept a fine. Brady has staunchly maintained his innocence privately (and hasn't said much publicly), so it remains unlikely he would accept any settlement that includes sitting out any games.
 
http://www.foxsports.com/nfl/story/nflpa-nfl-new-england-patriots-tom-brady-appeal-deflategate-settlement-mike-garafolo-072715
 

Corsi

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The attempt to find a solution to the Tom Brady suspension appeal is no longer a one-sided effort.
 
Sources have told FOX Sports the NFL Players Association and the NFL have had an open line of communication in recent days regarding a potential settlement of Brady's four-game ban for his alleged role in the Deflategate scandal. This follows reports from last week that stated the NFLPA's proposal was ignored by the league office.
 
That seems to have been the case for a while, though now it's possible the sides could be making an earnest effort to work toward a solution.
 
With the clock ticking toward the Thursday start of the New England Patriots' training camp, the communication suggests NFL commissioner Roger Goodell and his legal team would welcome a resolution that would include Brady and the NFLPA agreeing to forgo a lawsuit that could drag in to the regular season.
 
Tuesday will mark five weeks since Goodell heard Brady's appeal in Manhattan. A source said Brady has become frustrated with the lack of a decision from Goodell. Surely the Patriots would also like to know whether it will be Brady or Jimmy Garoppolo under center when they open the season Sept. 10 against the Pittsburgh Steelers.
 
It's likely the NFL would still want Brady to serve some sort of suspension, while Brady's camp and the union would only accept a fine. Brady has staunchly maintained his innocence privately (and hasn't said much publicly), so it remains unlikely he would accept any settlement that includes sitting out any games.
 
The impending start of camp has led many to believe this will be the week Goodell finally announces his decision. Though it might seem unlikely a settlement would preclude that announcement, it is clear both sides are at least trying to make it happen.
 
http://www.foxsports.com/nfl/story/nflpa-nfl-new-england-patriots-tom-brady-appeal-deflategate-settlement-mike-garafolo-072715
 

TheoShmeo

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If I was arguing for the NFL, I would emphasize that doing things better now is not an admission that there was not a violation in this case.  "The Pats/Brady violated the rules; we now have better procedures in place to catch future offenders.  You can't blame us for working to improve a system that the Patriots exploited."
 
In short, I hear Seifert's argument but I think it can be effectively deflected.  I know what Ed Hillell is saying but the NFL had a proof problem even before the new procedures.  And my understanding, in any event, is that Brady's argument is going to be more process than scientific/factually based, so I don't know how much the proof angle is going to be pursued in court.  My understanding may not be accurate, however.
 
Separately, Florio said on WEEI last week on Merloni et al's show that he assumed (and it was unclear if it was based on logic or something he actually knew) that Goodell heard from a variety of owners on DG and that he was more likely in listening than conversational mode.  I love the idea of impeaching the process by showing who called him and when and potentially deposing owners on what the conversations were about.  Somehow it doesn't seem likely to occur but damn, that could embarrass and inconvenience a lot of people who would be then incentivized to have this mess go away.  Even the prospect of same would be powerful. 
 

DJnVa

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Yet still NOTHING that says Brady would accept even a game.
 
Is it just good leak avoidance on his side, or is the league caving to outside pressure?
 

drbretto

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GeorgeCostanza said:
I'd love to one day see a Christopher Guest style mockumentary of this entire farce. Him and Levy wouldn't even need to take much artistic license with the story either. Larry Miller in a ginger wig playing Roger. Ed Beagley Jr as Jim Irsay. Eugene Levy as Ted Wells.
 
"7 Months in Hell"
 

dcmissle

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I'd there is effort on both sides, it likely means that the NFL is moving. And if it's moving, the let's-depose-some-owners gambit almost certainly is a big factor.

This is no secret -- we discussed it over the weekend before the Florio story and after the Sal Pal story. And it's potentially a BFD.

Only a lunatic likes to be deposed, and that's regardless whether their truthful answers will be harmful or not. It's a pain in the ass and time consuming. You have precious little control when you are the witness. Now put these owners with their egos and schedules in a no-win situation where they have no control. And if they are put to the choice of lying under oath or giving harmful testimony, then it gets even better.

The owners will not forgive RG if owners are put in this spot. Even if their own efforts to "pressure" prompted this, they will blame Goodell.

I view the Florio article as a shot across the bow to Goodell that this is precisely what the union plans to do.
 

lambeau

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I'm thinking there is a growing realization by the NFL and the owners that their somewhat tyrannical disciplinary process could get blown out of the water in court (being so corrupt that although
it was a labor agreement, it is grossly unfair). Yet swallowing all four games is hard to do. A dilemma delicious to contemplate. I'm guessing Brady's not budging. The NFLPA wants this in court.
 Tagliabue, Brbara Jones, and Henderson were designated to keep things out of court--and Peterson was obvious and narrow. So has the system ever really been tested?
 

dcdrew10

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lambeau said:
I'm thinking there is a growing realization by the NFL and the owners that their somewhat tyrannical disciplinary process could get blown out of the water in court (being so corrupt that although
it was a labor agreement, it is grossly unfair). Yet swallowing all four games is hard to do. A dilemma delicious to contemplate. I'm guessing Brady's not budging. The NFLPA wants this in court.
 Tagliabue, Brbara Jones, and Henderson were designated to keep things out of court--and Peterson was obvious and narrow. So has the system ever really been tested?
 
What separates Brady/Ballghazi from punishments like Bountygate, Vick, Rothlisberger, Hardy, Peterson, etc is Brady never admitted guilt, no firsthand witness saw him order the balls deflated after they were tested by the refs and there was no conviction in a court of law or conclusive video evidence. That's why Brady should go to court. The NFL can't prove anything other than they think "it's more probable than not" that he had something to do with it.
 

Bleedred

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dcmissle said:
I'd there is effort on both sides, it likely means that the NFL is moving. And if it's moving, the let's-depose-some-owners gambit almost certainly is a big factor.

This is no secret -- we discussed it over the weekend before the Florio story and after the Sal Pal story. And it's potentially a BFD.

Only a lunatic likes to be deposed, and that's regardless whether their truthful answers will be harmful or not. It's a pain in the ass and time consuming. You have precious little control when you are the witness. Now put these owners with their egos and schedules in a no-win situation where they have no control. And if they are put to the choice of lying under oath or giving harmful testimony, then it gets even better.

The owners will not forgive RG if owners are put in this spot. Even if their own efforts to "pressure" prompted this, they will blame Goodell.

I view the Florio article as a shot across the bow to Goodell that this is precisely what the union plans to do.
If NFL Owner communications came to light in discovery, one of the likely affects would be to expose Kraft too, which would be fascinating.  I wonder how he tried to finesse the situation with Goodell, browbeat, plead, etc., if at all.   And it wouldn't bother me one bit if it embarrassed Kraft, so long as the NFL got its comeuppance.     
 

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It really doesn't take THAT much creativity to see how this scanda eventually leads to the NFL imploding. Chances are obviously astronomically small, but it's kind of fun to ponder.
 

simplyeric

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I still think it ends up being the cash equivalent of a 2-game suspension for non-cooperation, his guilt dismissed by Goodell on "looked me in the eye, I can tell his soul is pure" grounds.
 
Brady/NFLPA then takes it to court, but the scope of the court process is much more limited because it's "just money", which should (?) avoid entangling the other owners.
 
Fine gets vacated/returned to NFL due to lack of precedent/"law of shop", and Brady ultimately pays $100k or so for non-cooperation only.
 
zero suspension served, general (of not complete) exoneration of malfeasance, some fine upheld.
 

bankshot1

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dcmissle said:
I'd there is effort on both sides, it likely means that the NFL is moving. And if it's moving, the let's-depose-some-owners gambit almost certainly is a big factor.

This is no secret -- we discussed it over the weekend before the Florio story and after the Sal Pal story. And it's potentially a BFD.

Only a lunatic likes to be deposed, and that's regardless whether their truthful answers will be harmful or not. It's a pain in the ass and time consuming. You have precious little control when you are the witness. Now put these owners with their egos and schedules in a no-win situation where they have no control. And if they are put to the choice of lying under oath or giving harmful testimony, then it gets even better.

The owners will not forgive RG if owners are put in this spot. Even if their own efforts to "pressure" prompted this, they will blame Goodell.

I view the Florio article as a shot across the bow to Goodell that this is precisely what the union plans to do.
(IANAL) I understand that if the issue of the neutrality of the arbitrator is central to the appeal, new evidence could be required, BUT under what conditions in an appeal, is or can discovery of new evidence or depositions be ordered? Is discovery or depositions typical in an appeal?
 

BellhornsBiatch

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While trotting out the other 31 owners for testimony, or having their communications subject to discovery is exciting, I'd like to see what else turns up in documents about the referees/officials that were swapping in balls so they could sell them later as game-used balls. I wonder how long the NFL knew it was going on before they realized their own actions were potentially impacting the integrity of a game. And I wonder if a court looks at the disparity between how the NFL dealt with that problem versus the Patriots' balls, and just decides there's no way the NFL's aribitration process is neutral.
 

kartvelo

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dcdrew10 said:
 
What separates Brady/Ballghazi from punishments like Bountygate, Vick, Rothlisberger, Hardy, Peterson, etc is Brady never admitted guilt, no firsthand witness saw him order the balls deflated after they were tested by the refs and there was no conviction in a court of law or conclusive video evidence. That's why Brady should go to court. The NFL can't prove anything other than they think "it's more probable than not" that he had something to do with it.
And "it" never happened.
 

koufax32

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simplyeric said:
I still think it ends up being the cash equivalent of a 2-game suspension for non-cooperation, his guilt dismissed by Goodell on "looked me in the eye, I can tell his soul is pure" grounds.
 
Brady/NFLPA then takes it to court, but the scope of the court process is much more limited because it's "just money", which should (?) avoid entangling the other owners.
 
Fine gets vacated/returned to NFL due to lack of precedent/"law of shop", and Brady ultimately pays $100k or so for non-cooperation only.
 
zero suspension served, general (of not complete) exoneration of malfeasance, some fine upheld.
So the fine would randomly be doubled from previous precedent? A judge would even laugh that off.

I see more and more people proposing these middle ground compromises. In what universe/legal system would this be fair and in accordance with labor laws? There is no such thing as middle ground where a very strong case couldn't be made that something wrong is occurring. This is why it is important to remember that union $ is flowing into this too. It removes the temptation of Brady to capitulate and pay a $100k fine in lieu of $150k in legal fees or the like.
Burn it down Tom. Burn it all down.
 
simplyeric said:
Brady/NFLPA then takes it to court, but the scope of the court process is much more limited because it's "just money", which should (?) avoid entangling the other owners.
IANAL, but I don't believe that a fine versus a suspension changes the scope. A sports commissioner must remain independent of the owners--it is an unusual situation in which the commissioner must remain autonomous and independent of the owners who hired him/her. If team owners exert pressure on the commissioner, this would violate Brady's due process.
 
I'm basing this on a somewhat old (1994) Marquette law journal but it seems quite relevant: http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1142&context=sportslaw.  
 

koufax32

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So now my new wet dream from this is that it goes to court, ownership communication becomes available in discovery, the Ravens and Colts owners are asked to clarify damaging statements and in the process perjure themselves as does RG. All end up losing their positions/are forced to sell and end up serving light sentences in a white collar, minimum security prison. Meanwhile, Brady gets no punishment and the Patriots go on to win another Superbowl.

I'm gonna step out for a few minutes. I'll, uhh, I'll be right back.
 

MarcSullivaFan

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koufax32 said:
So the fine would randomly be doubled from previous precedent? A judge would even laugh that off.

I see more and more people proposing these middle ground compromises. In what universe/legal system would this be fair and in accordance with labor laws? There is no such thing as middle ground where a very strong case couldn't be made that something wrong is occurring. This is why it is important to remember that union $ is flowing into this too. It removes the temptation of Brady to capitulate and pay a $100k fine in lieu of $150k in legal fees or the like.
Burn it down Tom. Burn it all down.
There is lots of actual information in this thread about potential outcomes if it ends up in federal court. Wish casting legal theories is not moving the conversation forward. I'm not trying to pick on you, but we've had way way too much of this and the noise is drowning out useful information.
 

joe dokes

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 I think an independent arbiter or a judge would demand that the NFL demonstrate that anything wrong happened at all in the first place
 
 
I think there's a layer that's missing to this. Goodell hired an investigator who gave Goodell his findings. I don't think Goodell is required to get a second opinion. So its not so much that the NFL would have to demonstrate that something wrong happened, its that the NFL would have to show that it had some quantum of  evidence that something happened. Brady's hurdle on this point is considerably higher than on the procedural stuff  (who imposed the penalty) or the punishment/law of the shop stuff.
 
If there's evidence that Goodell cooked the books with Wells, that's a different issue.
 

RedOctober3829

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Tremendous article by Dan Wetzel.
 
Here's the opening snippet.
 
 
Over the weekend Mike Pereira, the former vice president of officiating for the NFL and current Fox Sports analyst, detailed that the league will use "new procedures" for how the inflation levels of footballs will be "prepared and monitored."
There will be more footballs used – 12 primary, 12 backup. Each will be numbered. All footballs will be set to 13 pounds per square inch before the game and then measured again afterward. At select games, the primary balls will be measured and removed at halftime and the second half will be played with the backups.
The story has been framed as the NFL doing a better job securing its game balls – a long overdue development. However, this is way more than that. This is a science experiment, allowing the league to begin to[SIZE=15.0000009536743px] understand how weather, game use and other factors impact the inflation level (if at all) of footballs.[/SIZE]
Commissioning a real study is one of the most responsible and professional things the league office has done in the deflate-gate scandal.
It's also potentially self-destructive for the NFL.
 
 
 
http://sports.yahoo.com/news/nfl-s-first-sound-move-since-deflate-gate-could-make-its-punishment-of-tom-brady--pats-look-laughable-183355728.html
 

MuppetAsteriskTalk

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joe dokes said:
 
I think there's a layer that's missing to this. Goodell hired an investigator who gave Goodell his findings. I don't think Goodell is required to get a second opinion. So its not so much that the NFL would have to demonstrate that something wrong happened, its that the NFL would have to show that it had some quantum of  evidence that something happened. Brady's hurdle on this point is considerably higher than on the procedural stuff  (who imposed the penalty) or the punishment/law of the shop stuff.
 
If there's evidence that Goodell cooked the books with Wells, that's a different issue.
 
Isn't the fact that Wells said he found no evidence of wrongdoing on behalf of NFL officials but then later said he he didn't even look into it at least enough to suggest a cover up on behalf of the NFL? Can't Brady's team argue that he's being scapegoated?
 

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ivanvamp said:
 
It is a fantasy that a judge would tell the NFL they need to issue Brady an apology. 
 
It is not a fantasy to suggest that the NFL hasn't demonstrated at all that (a) the Patriots illegally deflating footballs actually happened, and (b) that Brady himself was actually involved in illegally deflating footballs.  Moreover, the penalty they issued WAS insane for the alleged violation.  
You're right that the penalty is an issue. But the sufficiency of the evidence isn't part of the review. The NFL does not have to "prove" its case against Brady on a petition to vacate.
 

CoffeeNerdness

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It would be great if CBS or Fox had an on-field, real time PSI report. They could open up sponsorship opportunities (The Powerade PSI Report) and have their goofy sideline announcers breathlessly relay the dropping PSI on a cold day in Green Bay.

"I tell you what, Moose, the PSI is dropping faster than a plate of mozzarella sticks at the post game buffet." **cue Moose Johnston overlaughs**
 

ifmanis5

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RedOctober3829 said:
Another aspect of the new rules that hasn't been brought up: they are still going to let the teams prepare their own footballs the same way as before.  You would think if the league wanted to take any sort of chance of teams screwing with the balls away they wouldn't let this go on anymore.
That would anger Peyton. Off the table.
 

drbretto

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ivanvamp said:
 
I believe you, but it is nonetheless hard for me to believe.  
 
Don't worry, you're not the only one. The idea that at this point, whether or not the crime even happened in the first place isn't even RELEVANT anymore just boggles the mind. Intellectually, I get it. I have read, and believe the people who are saying that's the case. But... I mean, jesus fuck, world. Does the truth really mean nothing here? It's just a lawyer nerd fight at this point.
 

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RedOctober3829 said:
 
As discussed in the new procedure thread the only way this becomes "destructive" is if the dates are truly choosen at random.  More probable than not the NFL "randomly" chooses a lot of dome games and games in San Diego.  Doubt we see any bitterly cold or extremely hot/humid games among those tested.
 

pappymojo

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RedOctober3829 said:
Tremendous article by Dan Wetzel.
 
Here's the opening snippet.
 


...
Commissioning a real study is one of the most responsible and professional things the league office has done in the deflate-gate scandal.
It's also potentially self-destructive for the NFL.
 
 
http://sports.yahoo.com/news/nfl-s-first-sound-move-since-deflate-gate-could-make-its-punishment-of-tom-brady--pats-look-laughable-183355728.html
 
The NFL hasn't commissioned a real study.  It's just more slight of hand and the media fails to question it.
 

Reverend

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ivanvamp said:
 
I believe you, but it is nonetheless hard for me to believe.  I mean, isn't it kind of a major issue whether or not anything illegal ACTUALLY happened?  When Tagliabue ruled as an independent arbiter on the Bountygate case, he did address the fact that improprieties did, in fact, occur.  
 
I guess I just don't understand how a judge ruling on this case wouldn't consider if, in fact, anything illegal actually happened.  If he is convinced, for example, that nothing at ALL happened, how could he say that the penalty is justified?
 
To clarify, Tagliabue ruled as an independent appeals arbiter within the NFL's own disciplinary process. In that role, yes, he looked at what the factual findings were and could consider them--that's part of that role's function.
 
That has nothing to do with what goes on in federal court, which is a procedural review of how the NFL's process went, i.e. Did the NFL commit any procedural violations of its own process.
 
When people talk about these things, they often smush all the different aspects and roles together into one, undifferentiated, "What's happening to Brady?" or "What's happening to Vilma?" but the roles and rules applied at each point must be applied with much greater precision to understand what is going on.
 

pappymojo

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There is no Rev said:
 
To clarify, Tagliabue ruled as an independent appeals arbiter within the NFL's own disciplinary process. In that role, yes, he looked at what the factual findings were and could consider them--that's part of that role's function.
 
That has nothing to do with what goes on in federal court, which is a procedural review of how the NFL's process went, i.e. Did the NFL commit any procedural violations of its own process.
 
When people talk about these things, they often smush all the different aspects and roles together into one, undifferentiated, "What's happening to Brady?" or "What's happening to Vilma?" but the roles and rules applied at each point must be applied with much greater precision to understand what is going on.
 
Is there no room to argue that Goodell failed in his role as arbiter if his decision doesn't review the 'factual findings' of the Wells report? 
 

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ivanvamp said:
 
Do I have your permission to respond to this post?
 
Sure, if it's a specific question--which is why I responded to the Tagliabue questions.
 
We're just trying to keep things focused on discrete, answerable questions and away from general rants of frustration.
 
 
pappymojo said:
 
Is there no room to argue that Goodell failed in his role as arbiter if his decision doesn't review the 'factual findings' of the Wells report? 
 
Hopefully someone who actually practices law can answer this more authoritatively but I'm gonna say, based on my understanding, no.

If Brady could show that at some point in the process evidence was improperly excluded--particularly if due to bias--then he might have a claim to force a review of evidence within the light of the new evidence, but I would expect the court to just vacate and remand with instructions for the arbiter to do so.
 
Just to clarify, even in life-or-death criminal proceedings, appellate judges do not review jury verdicts but rather police process.
 

dcmissle

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bankshot1 said:
(IANAL) I understand that if the issue of the neutrality of the arbitrator is central to the appeal, new evidence could be required, BUT under what conditions in an appeal, is or can discovery of new evidence or depositions be ordered? Is discovery or depositions typical in an appeal?
It is not usual, but here a pivotal issue relates to the impartiality of RG and thus the fairness of the process.

As indicated here this past weekend, this entire process has been rather formal and this is incompatible with ex parte communications by not disinterested non-parties -- other owners -- with RG. If this happened, it by definition preceded RG's decision and arguably tainted the result.

I will point to an analogy now not because it directly governs -- it doesn't -- but because the principle is the same. Suppose there was some kind of commercial beef between the NFL and TB that was governed by the rules of the American Arbitration Association. An arbitrator or panel of arbitrators was then assigned to the case. Now suppose that other NFL owners had separate communications with the arbitrator (or panel) about the merits of the case.

I would feel very confident about having that arbitration award vacated under the Federal Arbitration Act, which generally is very protective of arbitration awards. And I would feel even more confident getting discovery from a federal judge on whether those ex parte communications occurred and, if so, what their content was. (For this reason, arbitration panels can be insane sticklers for observing appropriate process, even more so than trial courts).

This analogy is not perfect, but it is illustrative. I know NFL owners think they are deities. But they have no right to weigh in on the merits of this TB dispute while a decision is being made. And RG has no right to ask them.

edits necessitated by sucky phone typing skills. Sorry
 

lambeau

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The Wetzel article is excellent; I have to think a judge would notice the balls can't be put back in play at halftime if measured because the NFL can't come up with a cold weather legal range.
 

lexrageorge

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ivanvamp said:
 
I believe you, but it is nonetheless hard for me to believe.  I mean, isn't it kind of a major issue whether or not anything illegal ACTUALLY happened?  When Tagliabue ruled as an independent arbiter on the Bountygate case, he did address the fact that improprieties did, in fact, occur.  
 
I guess I just don't understand how a judge ruling on this case wouldn't consider if, in fact, anything illegal actually happened.  If he is convinced, for example, that nothing at ALL happened, how could he say that the penalty is justified?
Not remotely close to being a lawyer (NRCTBAL?), but I think the issue is that when two parties agree to an arbitration process, those parties agree to forgo certain legal rights when it comes to appealing to the court system.  Brady is part of the NFLPA, and both the NFLPA and NFL agreed to waive certain legal rights when they agreed to the CBA.  
 
So, my guess is that it would have to be something really egregious for the courts to get involved in the facts of the case.  For example, the NFL suspended Brady for being generally aware of using deflated footballs, but the sideline and halftime measurements indicated that all balls were within spec, and there were no text messages referencing "the deflator".  Basically, it's up to the NFL to decide the level of evidence needed to punish one of their players (as long as it's above zero), and which evidence to consider.  
 
Yeah, it sucks that Exponent will get away with an egregious case of scientific misconduct.  But, in the grand scheme of things from the court's perspective, that report is just not that big of a deal; instead, it's considered "good enough". 
 

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ivanvamp said:
But here's the thing:  Brady will be filing a lawsuit.  The NFL procedure will be finished when Goodell issues his appeal ruling.  This is not like an appellate court dealing with a previous verdict.  This will be a lawsuit filed by Brady and the NFLPA.  
 
You can file a lawsuit for just about ANYTHING these days.  Why does Brady's lawsuit have to be on procedural grounds only?  Why can't the lawsuit be on the merits, that he's being wrongfully suspended for something that did not even happen?  
 
I think the bolded is where your misunderstanding is. You cannot just file a lawsuit for anything--that's how people talk, but it's not so. There has to be a specific legal claim, here about a grievance. That grievance is specifically that he was treated unfairly by the NFL disciplinary process in violation of what is: 1) agreed to in the CBA; and 2) the law of the shop with respect to said treatment.
 
Going to federal court here isn't just some free form suing of the league. It's a contention that his treatment constituted some sort of violation as per above. As such, the court reviews the process to see if their was any such violation. In that way, it is analogous to an appellate court.
 
In effect, it is legitimate for the league to be wrong about the evidence, just like a jury can be wrong or mistaken about evidence, as long as everything was done by the book. What Brady is trying to show is that things were not done by the book.
 

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joe dokes said:
That depends on whether and to what extent a federal judge applies Rule 407 -- which generally prohibits evidence of subsequent remedial measures.  The typical situation is hiring a guy to shovel the walk *after* someone slips and falls is not evidence that you should have hired a guy sooner. (It *is* admissible if you argue that the sidewalk isn't your problem.).  Its not precisely the same, but just as in practice (if not the literal reading of the rule) settlement discussions *usually* don't come in at trial, actions later taken by the defendant *usually* don't come in.
 
Taking your point literally, changing the procedures would rarely be considered an *admission*.  But  judges have wide latitude in interpreting the rules of evidence and reversals on appeal for that reason alone are relatively rare.
I'll start out by saying that I agree with JD's conclusion. But what makes me giggle a bit is that the policy reason behind the rule is pretty simple: you don't want Party A not to have the walkway shoveled because they are worried about Party B bringing it up as evidence that they were initially deficient. Because, in the meantime, parties C-Z might slip and fall.

It's a little tough to see how the same policy considerations apply here, in light of the new policy.
 

MuellerMen

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Michael McCann's incisive take on the NFLPA's probable arguments if the case goes to Federal Court (some of which have been extensively discussed in this thread). The bit I found most satisfying, because it actually mentions the leaks for the first time in any column discussing possible legal arguments, is this:
 
 
Brady would also seem likely to highlight false—and highly damaging—leaks from purported “league sources” to selected journalists in the days that followed the AFC Championship Game. If those “league sources” were in fact league officials, Goodell would be responsible for his subordinates leaking information to media. All of these factors suggest that Goodell has been too conflicted in Brady’s appeal to fairly evaluate Brady’s arguments.
 
More recent reporting highlights other evidence that Goodell has been anything but a detached and neutral observer. Multiple media reports indicate that owners of rival teams—including Indianapolis Colts owner Jim Irsay and Baltimore Ravens owner Steve Bisciotti—have aggressively pressured Goodell to sustain Brady’s four-game suspension. Rival ownership groups are far from unbiased: they presumably want to see Brady sit in order to gain a competitive advantage over the Patriots. While Bisciotti has already denied these reports and while it is unclear what impact any post-appeal lobbying has played in Goodell’s reasoning, it is worth remembering that Goodell works for the 32 ownership groups. If some of his bosses are pressuring him to make a particular decision, it is plausible that Goodell’s ability to be fair has already been irreparably compromised. If so, Brady would have a good argument that the law of shop has been violated.
 
He also discusses the NFL's possible defense.
 
http://www.si.com/nfl/2015/07/27/tom-brady-nflpa-deflategate-suspension-federal-court
 
Edit: spelling
 

ivanvamp

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There is no Rev said:
 
I think the bolded is where your misunderstanding is. You cannot just file a lawsuit for anything--that's how people talk, but it's not so. There has to be a specific legal claim, here about a grievance. That grievance is specifically that he was treated unfairly by the NFL disciplinary process in violation of what is: 1) agreed to in the CBA; and 2) the law of the shop with respect to said treatment.
 
Going to federal court here isn't just some free form suing of the league. It's a contention that his treatment constituted some sort of violation as per above. As such, the court reviews the process to see if their was any such violation. In that way, it is analogous to an appellate court.
 
In effect, it is legitimate for the league to be wrong about the evidence, just like a jury can be wrong or mistaken about evidence, as long as everything was done by the book. What Brady is trying to show is that things were not done by the book.
 
Ok fair enough.  Thanks.
 

pappymojo

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Myt1 said:
I'll start out by saying that I agree with JD's conclusion. But what makes me giggle a bit is that the policy reason behind the rule is pretty simple: you don't want Party A not to have the walkway shoveled because they are worried about Party B bringing it up as evidence that they were initially deficient. Because, in the meantime, parties C-Z might slip and fall.

It's a little tough to see how the same policy considerations apply here, in light of the new policy.
 
The NFL doesn't want Aaron Rodgers to get in trouble?
 

ivanvamp

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dcmissle said:
ivan ... I'm going to follow up on Rev's efforts here, because you seem to be genuinely trying.
 
Here is Judge Doty's decision in the AP case.  Read page 10 very carefully (under Standard of Review):
 
http://a.espncdn.com/pdf/2015/0226/DotyPetersonruling.pdf
 
Same deal in this case if it goes to court. 
 
To quote the relevant words from this:
 
 
[SIZE=12pt]“The federal labor laws ‘reflect a decided preference for private settlement of labor disputes.’” Id. (quoting United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 37 (1987)). Therefore, “as long as the arbitrator is even arguably construing or applying the [CBA] and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” Misco, 484 U.S. at 38."[/SIZE]
 
This is very helpful.  Thanks.  What this tells me is that Goodell could issue any punishment he wants to a team for anything he wants and the team has absolutely no recourse, even if there's no real evidence anything happened.  
 
And he can issue any penalty he wants to a player, even with virtually no evidence at all that any wrongdoing occurred, and the only recourse a player has is an appeal, which, if Goodell wants, would be heard by....Goodell.  And then after that, the player can only take it to court not on the merits of the case but on the *process* only.  That is, if Goodell followed proper procedure, even if there is no evidence that a player did anything wrong, the player is screwed.
 

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ivanvamp said:
That's fine, but it seemed like you were disinterested in talking with me about this at all.  I understand that I don't understand all of this, but I've been one of the most fact-filled and reasonable and thorough posters during this entire saga.  I think I recognize when I don't get something.
 
I'm really trying to understand this and not waste peoples' time.  I appreciate the answer to the Tagliabue question.  That was helpful.
But here's the thing:  Brady will be filing a lawsuit.  The NFL procedure will be finished when Goodell issues his appeal ruling.  This is not like an appellate court dealing with a previous verdict.  This will be a lawsuit filed by Brady and the NFLPA.  
 
You can file a lawsuit for just about ANYTHING these days.  Why does Brady's lawsuit have to be on procedural grounds only?  Why can't the lawsuit be on the merits, that he's being wrongfully suspended for something that did not even happen?  
In a nutshell, the issue is about a standard of review.

Once there has been an arbitration, a federal court does not review that decision de novo. It reviews it in a much more limited fashion, under the Federal Arbitration Act. 9 U.S.C s. 10-11. The policy reason for this is to provide some finality in arbitral awards.

MSF can talk about federal labor law specifics (I haven't briefed this sort of stuff for a few years, and even then only ancilarily) because the FAA doesn't strictly control, but that's the gist. The Federal District Courts are courts of limited subject matter jurisdiction and can only exercise it to the extent granted by Congress. To give you an idea of how restrictive that can be, the Supreme Court has ruled that parties can't, by agreement, expand the District Court's review jurisdiction to matters beyond those I've cited.
 

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ivanvamp said:
 
To quote the relevant words from this:
 
 
[SIZE=12pt]“The federal labor laws ‘reflect a decided preference for private settlement of labor disputes.’” Id. (quoting United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 37 (1987)). Therefore, “as long as the arbitrator is even arguably construing or applying the [CBA] and acting within the scope of his authority, that a court is convinced he committed serious error does not suffice to overturn his decision.” Misco, 484 U.S. at 38."[/SIZE]
 
This is very helpful.  Thanks.  What this tells me is that Goodell could issue any punishment he wants to a team for anything he wants and the team has absolutely no recourse, even if there's no real evidence anything happened.
 
And he can issue any penalty he wants to a player, even with virtually no evidence at all that any wrongdoing occurred, and the only recourse a player has is an appeal, which, if Goodell wants, would be heard by....Goodell.  And then after that, the player can only take it to court not on the merits of the case but on the *process* only.  That is, if Goodell followed proper procedure, even if there is no evidence that a player did anything wrong, the player is screwed.
 
Not exactly. What that says is that he is allowed mistakes within the scope of his authority as arbitrator. He cannot violate the scope of his authority though, and that's where the nature of review of the process comes in.
 
For example, a punishment wildly in excess of the "law of the shop" would be a violation of his authority. As per some of the NFLPA's communications, delegating the initial disciplinary role to Vincent may well be a violation of his authority. As per the more recent discussion of the owners, allowing the introduction of bias and failing to base his decision on the case itself but for other ends and purposes could be seen as a violation of his authority--or perhaps more properly an eroding of its legitimate basis.
 
So this is about separating what is done from how it is done. The jurisprudential consideration that, in my experience, people have the most difficulty grasping is that the legal system isn't an attempt to guarantee truth. Rather, it's to provide a process for closing cases, and we try to make it as just as possible--in large measure because if it is insufficiently just, then people cease to respect it and may, indeed, reject it which leads to either revolt or reform (or both :) ).
 
It is taken for granted that mistakes will be made. Which is why the process is reviewed to make sure people are at least doing the best they can. From the point of the view of the law, though, if the players in the NFL want a more accurate or fairer truth assessment system, they should bargain for a better one in their CBA.
 
Frankly, when we step back a bit, most of us would agree that we wouldn't want judges to be able to tear apart all sorts of working private agreements just based on what he or she thought was fair or not.
 

ivanvamp

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Jul 18, 2005
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There is no Rev said:
 
Not exactly. What that says is that he is allowed mistakes within the scope of his authority as arbitrator. He cannot violate the scope of his authority though, and that's where the nature of review of the process comes in.
 
For example, a punishment wildly in excess of the "law of the shop" would be a violation of his authority. As per some of the NFLPA's communications, delegating the initial disciplinary role to Vincent may well be a violation of his authority. As per the more recent discussion of the owners, allowing the introduction of bias and failing to base his decision on the case itself but for other ends and purposes could be seen as a violation of his authority--or perhaps more properly an eroding of its legitimate basis.
 
So this is about separating what is done from how it is done. The jurisprudential consideration that, in my experience, people have the most difficulty grasping is that the egal system isn't an attempt to guarantee truth. Rather, it's to provide a process for closing cases, and we try to make it as just as possible--in large measure because if it is insufficiently just, then people cease to respect it and may, indeed, reject it which leads to either revolt or reform (or both :) ).
 
The part that you're responding to here was this:  "Goodell could issue any punishment he wants to a team for anything he wants and the team has absolutely no recourse, even if there's no real evidence anything happened."
 
So the "law of the shop" is irrelevant, as is the NFLPA, when it comes to punishments related to the team.  
 
I do get that the ruling that I cited (thanks to dcmissle) would apply to a player taking a ruling to court and not a team, so what I should have said was that this whole episode is telling me....XYZ.