#DFG: Canceling the Noise

[canderson]

NPR's Frank Deford has a story that basically calls for Goddell to be fired following this case.
 

 
 
In an odd way, the longer and more tangled that what has been called "deflategate" goes on, the more it becomes about the commissioner of the National Football League, Roger Goodell, than it does about Tom Brady, whom Goodell suspended for four games — deeming him guilty of having some part in deflating footballs in a playoff.

 
http://www.npr.org/2015/08/12/431675644/deford-when-deflategate-dust-settles-put-goodell-out-to-pasture 

 

[m0ckduck]

But the NFL has never argued this.  I'm not sure why.

 
Well, because the NFL was playing the court of public opinion and not to the chambers of law. It's much easier to sell the public on, 'Something illegal probably happened and Brady probably knew about it', since this notion EXACTLY mirrors public sentiment at the time the report was issued. Turning it into 'Brady definitely knew his footballs were being deflated and was obligated to inform the NFL" introduces a tone of faux-certainty that comes across as more creepy and Orwellian. 
 
p.s. fantastically informative post-- don't mean to brush it aside with this comment

 

[E5 Yaz]

Stephen Brown ‏@PPVSRB  1h1 hour ago
Court reporters discussing how Berman's skepticism shouldn't be mistaken for how he would rule. Law regarding CBAs is big hurdle for Brady

 

[JayMags71]

http://www.sbnation.com/lookit/2015/8/12/9143813/tom-brady-courtroom-sketch-memes-photoshops-patriots-nfl
 
https://twitter.com/BrianMFloyd/status/631521466505424896
https://twitter.com/iamHectorDiaz/status/631526002099908609/photo/1

 

[twothousandone]

Brady was disciplined for conduct detrimental to the league.  Awareness, and worse general awareness, is not any kind of conduct.

That's the decision Brady appealed. The arbitrator looked at the evidence, heard some testimony, and decided that the punishment was appropriate because not only was Brady, indeed, generally aware, he also decided that Brady had actively participated in the scheme. The NFL says the CBA permits the arbitrator to make such a determination.

The NFL's tactic, instead, was to try to "fix" the problem with "generally aware" by having the Commissioner make findings that Brady actually went beyond general awareness.

The arbitrator decided that, based on the record and the additional evidence and testimony that came during the appeal hearing. The NFL was a party in the dispute, but they did not "fix" the problem with their case. The arbitrator did.

You're a lawyer, I'm not, so I'm unlikely to win this battle, but there's Goodell the arbitrator and there's the NFL, with Goodell as commissioner. Aren't they different actors in this play, as outlined in the CBA?

 

[ObstructedView]

 
Stephen Brown ‏@PPVSRB  1h1 hour ago
Court reporters discussing how Berman's skepticism shouldn't be mistaken for how he would rule. Law regarding CBAs is big hurdle for Brady
 

Ding-ding. Some of the media parsing of the questioning is reminding me of the tea-leaf-reading that goes on among the press during Supreme Court oral arguments. Except in this case much of it is being done by sports hacks instead of journalists who at least approximate legal experts.

 

[genoasalami]

 
Stephen Brown ‏@PPVSRB  1h1 hour ago
Court reporters discussing how Berman's skepticism shouldn't be mistaken for how he would rule. Law regarding CBAs is big hurdle for Brady
 

 
Exactly ...he can spend hours shaking his head at the procedures in play and the ridiculousness of the Wells report and then simply rule .."ya I have serious doubts here on the suspension, but it is not this courts role to change or overturn the CBA" He did his job today ..scare the parties into thinking .."Uhh Ohh ..we better settle" I would not take much from his line of questioning...and if I am the NFL ..I would not settle ...roll the dice that the judge is doing just that ..blowing smoke - then ruling that it is not the Federal Court's job to interfere on an agreed on CBA between two parties...deal with it during your next bargaining session..

 

[Bongorific]

So now we're turning to court reporters for legal analysis?

 

[MuppetAsteriskTalk]

 
Exactly ...he can spend hours shaking his head at the procedures in play and the ridiculousness of the Wells report and then simply rule .."ya I have serious doubts here on the suspension, but it is not this courts role to change or overturn the CBA" He did his job today ..scare the parties into thinking .."Uhh Ohh ..we better settle" I would not take much from his line of questioning...and if I am the NFL ..I would not settle ...roll the dice that the judge is doing just that ..blowing smoke - then ruling that it is not the Federal Court's job to interfere on an agreed on CBA between two parties...deal with it during your next bargaining session..

 
Sure the CBA says Goodell can act as arbitrator. But does it say he can make shit up and lie and punish with no evidence? I doubt the CBA gives the commish the opportunity to do whatever he wants without regard for fairness and the law of the shop. Otherwise Rice and Peterson wouldn't have had a case, right?

 

[Gambler7]

https://twitter.com/dkaplanSBJ/status/631552245927034880

 

[CaptainLaddie]

So now we're turning to court reporters for legal analysis?

 

No, we're turning to weathermen.

 

[geoduck no quahog]

 
Well, I think facially people understand the problem with the term "generally aware" in this context, even if they've thought about it or not.  Brady was disciplined for conduct detrimental to the league.  Awareness, and worse general awareness, is not any kind of conduct.  It's a state of mind.  How can you be punished for engaging in detrimental conduct, solely for knowing something?
 
Generally thought crime is not a crime.  Knowing something is not, under any system of law or punishment, grounds for punishment, and it especially cannot be if the thing you're punished for specifically is for "conduct".  For the lawyers, there is the mens rea (your state of mind) and your actus reus (the actual criminal act).  General awareness only goes to mens rea, not actus reus, and even for the non-lawyers if they can't articulate why that's a problem, they have an intuitive sense that it's unfair.
 
Now, what Wells probably meant, and what the NFL could have said, is that being aware of something is conduct detrimental when that awareness gives you a duty to do something.  Being aware that, on your watch, footballs are being deflated below the legal limit, the NFL could have said, gives rise to a duty to put a stop to it, and by not doing so, you're as guilty as if you'd done it yourself.  That is, your crime is not one of commission, but one of omission, and in fact failing to act, when you have a duty to act, can be punished under the law.  To go back to lawyer speak, it's sufficient actus reus.  
 
But the NFL has never argued this.  I'm not sure why.  It seems like the much better way to go.  And, even with respect to what a putz Wells was here and how wired this process is, if you could open his brain, or put him on a lie detector, I think this is close to what he actually concluded, right or wrong, whether he articulated it well or not.  
 
The NFL's tactic, instead, was to try to "fix" the problem with "generally aware" by having the Commissioner make findings that Brady actually went beyond general awareness.  Will this be a winning strategy?  Maybe.  It gave Brady a procedural fairness argument it didn't need to give him, and set him up for good argument.  Berman's question gives us some hope that he's not buying the argument that Wells' basis for punishment is irrelevant if Goodell fixed it -- he seems to think, at least for sake of argument, that the "general awareness" standard employed by Wells is somehow relevant to the case.  

 
DDB,
 
Do you think a upholding that standard opens up a pandora's box for the NFL and every NFL employee? "More likely than not that 'so-and-so' was generally aware of 'something' that was detrimental to the integrity of the game..." could be extended almost without limit.

 

[genoasalami]

 
No, we're turning to weathermen.

 
and a pretty impressive east coast trough for this time of year.

 

[joe dokes]

Do you think a upholding that standard opens up a pandora's box for the NFL and every NFL employee? "More likely than not that 'so-and-so' was generally aware of 'something' that was detrimental to the integrity of the game..." could be extended almost without limit.
 

 
"More likely than not" is a perfectly acceptable standard borrowed from civil litigation.
 
 "Generally aware" is bullshit, IMO, and can do exactly what you suggest.  In fact, if I were a dogged NFL reporter, every time a player gets suspended, I would ask the Commissioner or whatever league lackey is pushed out front whether there's any investigation as to the "general awareness" of a particular player's transgression. And "why not"? every time they say "no."
 
And then my credentials would get revoked. I'd get famous. Could write a book and make some real money.  Thanks Rog!

 

[DennyDoyle'sBoil]

That's the decision Brady appealed. The arbitrator looked at the evidence, heard some testimony, and decided that the punishment was appropriate because not only was Brady, indeed, generally aware, he also decided that Brady had actively participated in the scheme. The NFL says the CBA permits the arbitrator to make such a determination.

The arbitrator decided that, based on the record and the additional evidence and testimony that came during the appeal hearing. The NFL was a party in the dispute, but they did not "fix" the problem with their case. The arbitrator did.

You're a lawyer, I'm not, so I'm unlikely to win this battle, but there's Goodell the arbitrator and there's the NFL, with Goodell as commissioner. Aren't they different actors in this play, as outlined in the CBA?

 
I don't think you're necessarily wrong -- I don't think the NFLPA's argument that this constitutes a Peterson like change in punishment is necessarily correct.  A few days ago in the legal thread, I laid out three hypotheticals about a player being disciplined for punching a fan.  The idea was to try to tease out the question whether this really constituted new conduct as opposed to just new evidence for the originally noticed conduct.  
 
Not an obvious answer here, and the NFL has good arguments to make -- the point I was trying to make is that the NFL really seems to have given Brady an argument they didn't need to give him, because of the "general awareness" problem.

 

[simplyeric]

https://twitter.com/dkaplanSBJ/status/631552245927034880

 
Does this new tidbit tell us anything?

 

[DennyDoyle'sBoil]

 
DDB,
 
Do you think a upholding that standard opens up a pandora's box for the NFL and every NFL employee? "More likely than not that 'so-and-so' was generally aware of 'something' that was detrimental to the integrity of the game..." could be extended almost without limit.

 
Yeah, I mean, were I a player, I wouldn't love a standard that said if I was generally aware of something, that I could be punished, and the only way to get out of that punishment would be to file an appeal before Goodell, at which point Goodell could then say, "based on what we've learned in the appeal that we made you file by accusing you of bullshit general awareness, we're now finding you were more than generally aware and that's why you're being punished."
 
But I think most players and others view these all as one-offs with their own facts -- I don't doubt that every player understands that if Rog wants to get you, he's gonna get you.  And they probably don't think too much more about it than that, and I'm sure opinions about whether or not Brady has been railroaded are going to run the spectrum.  The NFLPA surely cares -- and they'll go into the next CBA having learned a great deal.  My guess is that they will make a big deal about removing the commissioner's discretion to hear appeals, and that will kind of become a big issue.
 
In the end, what the NFL may ultimately lose here is that I think this case is one the NFLPA feels strongly about, and so they gave themselves a difficult roadblock for the next CBA.

 

[soxhop411]

“@jorgearangure: ”Tell Tom Brady I’m Sorry.“ @joe_swide chats with the deflategate courtroom sketch artist https://t.co/vo2nUu2wlf

 

[Number7]

So ESPN survey says most NFL players don't think the Patriots cheated?  Why then have they not been able to find them for the past 7 months of broadcasts?
 
Sorry I put this in the wrong thread previously...

 

[Jed Zeppelin]

What is the reasoning behind the continued existence of courtroom sketches? Remnant of a bygone era? Surprisingly strong courtroom sketch artist union?

 

[soxhop411]

“@LynchieWCVB: It’s 4:12 pm Brady and Goodell still inside with Judge Berman. How do we read that?”

 

[RedOctober3829]

 

Gary Myers ‏@garymyersNYDN  35s36 seconds ago
Brady settlement talks expected to be over for today in 10-15 minutes. Be shocking if agreement is reached but you never know.

 
No agreement will be reached today IMO.  I don't think either side is going to budge.

 

[ElcaballitoMVP]

 
Does this new tidbit tell us anything?

 
Not much. The NFL was trying to make it look like Brady "destroyed" the old phone the day of the meeting with Wells, and I think Kessler was clarifying that wasn't accurate. And the whole phone thing has been a distraction by the NFL anyway, which makes me angry that I'm asking myself "why did Brady get rid of the old phone one day and then activate his new phone the day he met with Wells? Who waits to activate a new phone?". Seems like an odd thing to do, esp since he's preparing to meet with Wells and would want to be in touch with his people (not to mention those close to him). But then I have to remind myself that those questions don't have anything to do with deflated footballs. 

 

[MuppetAsteriskTalk]

What is the reasoning behind the continued existence of courtroom sketches? Remnant of a bygone era? Surprisingly strong courtroom sketch artist union?

 
I think it's because cameras are not allowed in some cases.

 

[Shelterdog]

 
I don't think you're necessarily wrong -- I don't think the NFLPA's argument that this constitutes a Peterson like change in punishment is necessarily correct.  A few days ago in the legal thread, I laid out three hypotheticals about a player being disciplined for punching a fan.  The idea was to try to tease out the question whether this really constituted new conduct as opposed to just new evidence for the originally noticed conduct.  
 
Not an obvious answer here, and the NFL has good arguments to make -- the point I was trying to make is that the NFL really seems to have given Brady an argument they didn't need to give him, because of the "general awareness" problem.

 
My pet theory is that there was some big time sophistry with the general awareness because they wanted a standard that was elastic enough to cover the fact pattern of Brady telling his guys to do whatever it takes to get the balls to some target PSI after the Jets game, Brady riding the shit out of them, the ball boys carrying out the needle scheme after telling Brady that they have it covered but not telling him about the needles scheme, Brady learning that they were actually deflating the fucking balls post referee check in the series of calls right after the AFCCG, and then Brady lying to protect  his reputation. 

 

[MuppetAsteriskTalk]

 
Not much. The NFL was trying to make it look like Brady "destroyed" the old phone the day of the meeting with Wells, and I think Kessler was clarifying that wasn't accurate. And the whole phone thing has been a distraction by the NFL anyway, which makes me angry that I'm asking myself "why did Brady get rid of the old phone one day and then activate his new phone the day he met with Wells? Who waits to activate a new phone?". Seems like an odd thing to do, esp since he's preparing to meet with Wells and would want to be in touch with his people (not to mention those close to him). But then I have to remind myself that those questions don't have anything to do with deflated footballs. 

 
I was thinking he activated the new phone the day of the meeting with Wells then got rid of the old one some time later? 

 

[E5 Yaz]

“@LynchieWCVB: It’s 4:12 pm Brady and Goodell still inside with Judge Berman. How do we read that?”

 
They might be "still inside," but in three separate rooms

 

[RedOctober3829]

 

Stephen Brown ‏@PPVSRB  22s23 seconds ago
Rumor is that cars to pick up Goodell and Brady held up in traffic, delaying their departures from court.
 

 

[gingerbreadmann]

What is the reasoning behind the continued existence of courtroom sketches? Remnant of a bygone era? Surprisingly strong courtroom sketch artist union?

 

 
We owe it all to Jan Erik Eckland.

 

[Myt1]

This case has made ESPN lose what little English proficiency it had. The title on the opening page is "Judge puts sides on defensive in Brady hearing" and the title of the click-through article is "Deflategate court adjourns with judge yet to decide on Brady settlement case."

This is like a bad video game translation from the 8 bit era.

 

[singaporesoxfan]

Stephen Brown ‏@PPVSRB  22s23 seconds ago
Rumor is that cars to pick up Goodell and Brady held up in traffic, delaying their departures from court.

 
(TOM and ROGER stand awkwardly together next to each other as they wait for their cars.)
 
TOM: Um... nice weather we're having.
 
ROGER: Don't try that! You're going to tell me the heat will expand the air!
 
TOM: Um... no. Just making conversation. It's okay, I'll just check my phone.
 
ROGER: Is that an iPhone 6? Sweet! When did you get that?
 
TOM: Um, yeah. That's what I've been trying to tell you! I needed an upgrade so I got rid of my old phone.
 
ROGER: Who does that? That's preposterous. (Pulls out ringing Motorola flip-phone) Yes, hello? What do you mean you're still in traffic? Can't you just slide your car in between all the other cars? What do you mean you can't break the law? The law clearly says I get to make the decisions! What do you mean you can't break the laws of physics? Listen, you get here or I'll see you in the court of physics!

 

[Ferm Sheller]

 

 
We owe it all to Jan Erik Eckland.

I'll bite. He doesn't seem to exist on the internet outside the four corners of your post.

 

[dstunbound]

 

 
We owe it all to Jan Erik Eckland.

 
nailed it

 

[gingerbreadmann]

I'll bite. He doesn't seem to exist on the internet outside the four corners of your post.

 
It was a more or less throwaway joke that turned out to be (IMO) far and away the funniest few minutes of HBO's Andy Samberg tennis special "7 Days in Hell" which came out about a month ago. I highly recommend watching it if only for this part. I don't think I'll ever see a courtroom sketch for the rest of my life and not think back to it.
 
The first few paragraphs in this review put it nicely if you care to delve deeper.

 

[Spelunker]

I'll bite. He doesn't seem to exist on the internet outside the four corners of your post.

 
 
http://www.pastemagazine.com/articles/2015/07/seven-days-in-hell-is-a-rare-comedic-masterpiece-f.html
 

The Swedish courtroom sketches were just magnificent,” says Will Forte, in his role as a foppish tennis historian. Inexplicably, this kicks off a digressive two-minute segment about the man who started the Swedish avant-garde courtroom sketch movement, “Jan Erik Eckland.” The narrative that had been established to that point, about the seven-day Wimbledon match between Williams and his rival Charles Poole, falls by the wayside as experts like John McEnroe expound on Eckland’s brilliant work, which “inspired courtroom artists all over the world, and began a renaissance of courtroom sketching.”

 

[Corsi]

Stephen Brown ‏@PPVSRB  22s23 seconds ago
Tom Brady cracked a smile as he left the courthouse. #DeflateGate

 

[Ferm Sheller]

 
It was a more or less throwaway joke that turned out to be (IMO) far and away the funniest few minutes of HBO's Andy Samberg tennis special "7 Days in Hell" which came out about a month ago. I highly recommend watching it if only for this part. I don't think I'll ever see a courtroom sketch for the rest of my life and not think back to it.
 
The first few paragraphs in this review put it nicely if you care to delve deeper.

Ah, thanks. Good stuff.

 

[Harry Hooper]

 
https://twitter.com/JimArmstrongWBZ/status/631515290040463360

 
 
Apparently, Brady comes from Cardassia Prime in the eyes of this artist.

 

[jsinger121]

Ian Rapoport ‏@RapSheet  3m3 minutes ago
De Smith: “We won’t be making a formal statement other than to say we had a productive day in court. We’ll get back to work on the issue.”

 

[Harry Hooper]

 
I've avoided that particular thread because it looked like trollbait from the start.  I imagine I'm not alone.  But the question is, if they were doing it, why not against the NJY?  And if you claim it only started after that, why not against IND?  The deflator text is from last May.  The timeline is a mess, and the only two instances where we have any evidence, it strongly points to nothing happening.
 
 
This never made sense to me.  If Brady liked the ball deflated so much, why didn't he include that in the request for loosening of ball prep rules?  I have a hard time seeing someone approving all the things they now allow with the balls but being outraged at the idea of expanding the air pressure range to 12-14.  It's not like he brought that idea up and it was rejected.  I have a hard time believing he wouldn't even ask about including something supposedly so important to him.

 
 
Somewhere a few months back there's a reference to Brady telling the equipment guys to show the officials the rule book and also setting the balls up at 12.5, not because that's Brady preferred level of inflation but to avoid the overinflation Jets-type scenario of about 16 PSI. Brady's true football psi preference is something like.12.9-13.2

 

[E5 Yaz]

Apparently, Brady comes from Cardassia Prime in the eyes of this artist.

 
"Cardassian rule may have been oppressive, but at least it was simple." -- Odo

 

[Harry Hooper]

 
Does this new tidbit tell us anything?

 
It tells us that Daniel Kaplan doesn't read closely and falls for the NFL's tactics. Note that the NFL wrote "on or about" the very day to cast Brady's behavior in the most negative light. If it were the very day, they would have used that specific language.

 

[AbbyNoho]

 
 
Apparently, Brady comes from Cardassia Prime in the eyes of this artist.

 
I think he looks beautiful. 

 

[crystalline]

<p><span style="color:rgb(41,47,51);"><span style="font-family:Arial;"><span style="background-color:rgb(245,248,250);">
Ian Rapoport ‏@RapSheet  3m3
link to tweet minutes ago
De Smith: We wont be making a formal statement other than to say we had a productive day in court. Well get back to work on the issue.

"We worked hard in court today. I thought we made some good points. The other team has some good attorneys and they made some good points too. We're on to the next hearing."


De Smith has learned from the master.

 

[jacklamabe65]

Not a good day for the NFL apologists.

 .@bkravitz: "the NFL needs to accept a settlement in this case, or it’s going to end up with zero suspension and a lot of egg on its face."
 

 

[Captaincoop]

If it accepts a settlement it is also going to end up with zero suspension.

 

[tims4wins]

If it accepts a settlement it is also going to end up with zero suspension.

Exactly. And it seems like in the opinion of quite a few prominent national media members, the egg is already on the NFL's face.

 

[E5 Yaz]

Exactly. And it seems like in the opinion of quite a few prominent national media members, the egg is already on the NFL's face.

 
And they don't care a bit. Ratings won't suffer and the money will keep rolling in. This is about the commissioner's power to mete out discipline. Everything else is sideshow.

 

[tims4wins]

 
And they don't care a bit. Ratings won't suffer and the money will keep rolling in. This is about the commissioner's power to mete out discipline. Everything else is sideshow.

Don't disagree a bit. Which is why the NFL won't settle.

Read somewhere Goodell is 0 for his last 4 - Peterson, Rice, Hardy, bounty. This may well make 0 for 5 and no one seems to give a shit.

 

[Jed Zeppelin]

Exactly. And it seems like in the opinion of quite a few prominent national media members, the egg is already on the NFL's face.

Every new media member that changes their tune on this just reinforces how harmful the early false leaks were. This is how reasonable people should have responded to this sham from the beginning, but never had the chance because it was easier to just trust Mort than do all the legwork required to learn about the IGL, the history of ball prep, the lax response to previous infractions and so on.