#DFG: Canceling the Noise

[scott bankheadcase]

Mr. Idiot Kravitz presenting the Straw Man that the every media member who doesn't believe Brady likes to cling to. 
 
“If he had come out early and said, ‘Look, we weren’t trying to do any funny business, it kind of happened that way. We made it low. Maybe we stepped over the line a little bit, it was not intentional. My bad. It won’t happen again.’ I think this thing would have been over in about 10 minutes,” he added. “I really do
 
I'm sorry Mr. Kravitz but like Mortenson insisting if he hadn't provided the PSI context for deflated, things would have been the same ,this position represents a willful ignorance of the realities of the story at the time. 
 
http://itiswhatitis.weei.com/sports/newengland/football/patriots/2015/08/13/bob-kravitz-on-dc-tom-brady-has-acted-like-a-guilty-person/

 
I actually disagree with you here. Brady SHOULDN'T have done this because it certainly looks like he didn't do anything, but if he HAD done this exactly as stated I don't think the penalty would be the same. RG has made a big deal about supposed lying by Brady and coverups, ect. These wouldn't be an issue if Brady has made a statement like that right away. 

 

[pappymojo]

Mr. Idiot Kravitz presenting the Straw Man that the every media member who doesn't believe Brady likes to cling to. 
 
“If he had come out early and said, ‘Look, we weren’t trying to do any funny business, it kind of happened that way. We made it low. Maybe we stepped over the line a little bit, it was not intentional. My bad. It won’t happen again.’ I think this thing would have been over in about 10 minutes,” he added. “I really do
 
I'm sorry Mr. Kravitz but like Mortenson insisting if he hadn't provided the PSI context for deflated, things would have been the same ,this position represents a willful ignorance of the realities of the story at the time. 
 
http://itiswhatitis.weei.com/sports/newengland/football/patriots/2015/08/13/bob-kravitz-on-dc-tom-brady-has-acted-like-a-guilty-person/

 
If he (Goodell) had come out early and said 'Look, we weren't trying to do any funny business, it kind of happened that way.  We misunderstood the impact of weather on footballs.  The numbers that were leaked to the press were not correct.  Maybe we were overzealous, it was not intentional.  My bad.  It won't happen again.' I think this thing would have been over in about 10 minutes.  I really do. 

 

[edmunddantes]

I will say this though, if Berman does rule in favor of the NFL, the NFLPA may as well just tear up the current CBA discipline section as it will be worthless. Now, all Goodell has to do is rule, "conduct detrimental", move the penalty out of the covered sections of the CBA, impose a penalty, arbitrate it himself, and it will continue to be deferred to in SDNY. 
 
This is the one thing that keeps me from seeing Berman just affirming the award. 
 
If Roger wins in SDNY, you may see a huge push for the NFLPA to go with the nuclear option during the next NFL lockout and de-certify and hit the anti-trust button again. Which will be even more fun (/sarcasm) than this current fiasco.

 

[Omar's Wacky Neighbor]

 
Max Stendahl ‏@MaxLaw360  6m6 minutes ago
Just went to Judge Berman's courtroom. Was told to leave -- there's a private settlement conference going on in the NFL-Brady case.
 

RECAP (compiled from several twitter accts):  Brady and Goodell not present.  Some lawyers waiting/seated at tables in the court room, other lawyers behind closed doors with Berman.

 

[AB in DC]

Re possible settlement conference today -- would the magistrate be typically using Judge Berman's courtroom, or is this a sign that Judge Berman himself is involved?

 

[RedOctober3829]

And they have left Berman's courtroom.
 

Max Stendahl ‏@MaxLaw360  3m3 minutes ago
About eight lawyers just emerged from Judge Berman's courtroom. They all refused to comment.
 

 

[soxhop411]

come on... this is not cool
 
Paul Pabst ‏@PaulPabst  22m22 minutes ago
Sketch artist Jane Rosenberg said she's getting tons of nasty emails from Patriots fans. "Hateful...cyber-bullying."

 

[singaporesoxfan]

 
I actually disagree with you here. Brady SHOULDN'T have done this because it certainly looks like he didn't do anything, but if he HAD done this exactly as stated I don't think the penalty would be the same. RG has made a big deal about supposed lying by Brady and coverups, ect. These wouldn't be an issue if Brady has made a statement like that right away. 

 
I both agree and disagree: Maybe it wouldn't have made a difference to what the NFL did in terms of punishment, but Brady's PR strategy in the initial stages (granted, he had more important things on his mind then) and the post-Superbowl period didn't do anything to help non-Pats fans' public perception. Since Brady's fight now is driven by his desire to preserve his reputation in the face of baseless allegations, it seems like a more aggressive, rather than reactive, PR strategy could have helped with that reputational impact at the start. Right now we've reached the "where do I go to get my reputation back?" part of the scandal: sadly, I doubt even a successful ruling in favor of Brady leads to total vindication. Yes, the hits to his reputation came about because there was a combination of biased anti-Patriots media, people operating in bad faith, and the lack of understanding of science - but that should all have been assumed when figuring out how to respond early on.

 

[Comfortably Lomb]

come on... this is not cool
 
Paul Pabst ‏@PaulPabst   [URL="https://twitter.com/PaulPabst/status/631846691969363968

https://twitter.com/PaulPabst/status/631846691969363968"]22m22

link to tweet minutes ago[/url]
Sketch artist Jane Rosenberg said she's getting tons of nasty emails from Patriots fans. "Hateful...cyber-bullying."

Fools. That sketch is awesome.

 

[rodderick]

come on... this is not cool
 
Paul Pabst ‏@PaulPabst  22m22 minutes ago
Sketch artist Jane Rosenberg said she's getting tons of nasty emails from Patriots fans. "Hateful...cyber-bullying."

 
Who the fuck would harrass this woman for a drawing?? Jesus christ, all she ended up doing was providing some entertainment in the middle of this mess, who's she hurting with that sketch?

 

[singaporesoxfan]

come on... this is not cool
 
Paul Pabst ‏@PaulPabst  22m22 minutes ago
Sketch artist Jane Rosenberg said she's getting tons of nasty emails from Patriots fans. "Hateful...cyber-bullying."

 
How ridiculous do you have to be to be upset that a courtroom sketch artist didn't fully capture your sense of Tom Brady's handsomeness?

 

[johnmd20]

Man, the internet is ridiculous sometimes. It's a sketch. People really need to stop firing out vitriol at the slightest provocation. You don't like the sketch? Fine. Don't email the artist.

 

[PBDWake]

Man, the internet is ridiculous sometimes. It's a sketch. People really need to stop firing out vitriol at the slightest provocation. You don't like the sketch? Fine. Don't email the artist.

 
Seriously. If people want stupid pictures of Brady looking silly, you just have to image search "Tom Brady Goat". I had a laugh at it and moved on.

 

[amarshal2]

This is a great interview of yet another clueless media member.
 
http://media.weei.com/a/108244424/chris-chase-didn-t-read-the-wells-report-8-13-15.htm

 
Parsed?

 
Q. Okay. Do you discuss the inflation level of the balls with Mr. Jastremski during the process when you are selecting the balls? 
A. Never. 
Q. Okay. Now, once you approve the footballs for the game, when is the next time you come into contact with the balls?  
A. On the field.
Q. During your whole career now, I want to be very clear about this, I am asking during your whole career, have you ever asked anyone from the Patriots to alter the footballs in any way after you've approved them? 
A. No.
 

 
There is NOTHING parsed about that.  It's not even close to Chris' characterization of this.

 

[singaporesoxfan]

Thinking about Kessler's statement that Brady could have complied better with the Wells investigation, I wonder if Brady will accept something like a 1-game suspension with no admission of guilt in deflating balls, but with something that says "I recognize I should have cooperated more fully with the NFL's investigation" (which he is free to qualify to the media - didn't deflate any balls, but received bad advice in terms of how to deal with the investigation, etc.).

 

[Myt1]

I was throwing out possible rationales for the Judge pushing settlement...not me.
 
It is possible that the Judge, when advocating settlement, could view the few moving pieces (games, money, admission of liability) as being such that reasonable adults could find common ground.
 
And I should emphasize that the other points I mentioned for Berman favoring settlement were just as, if not more, important.
 
I want Tom to settle because I want him to de-risk the 4 game potential.  I take your point that he might not care about that nearly as much as I think that he does.  I disagree but, as we have both acknowledged, we're both just speculating.
 
PS: My assumption is that they have not settled largely because Tom wont admit culpability (as he should not) and Goodell is not particularly motivated to settle.  If he settles, I suspect a large percentage of the rich, white guys who pay his blushworthy salary will be unamused, and will be a lot less hacked off if the Judge vacates.  "I took the wicked Brady to the mat boys; the Judge just got in wrong." 

I agree with you re: culpability admission and think it's probably a much bigger deal than games or money, to both sides (especially now that perjury is in play, if not expressly so). That's basically what I've been getting at all along. I think that Brady may equate a settlement that includes some suspension as an admission of culpability, too.

 

[AB in DC]

I actually feel better about my "Other" vote than I did before yesterday's hearing:
 
- Judge Berman is clearly interested in the underlying facts and trying to boil down all the complexities of the situation, rather than focusing strictly on the CBA provisions and legal precdents.
- He also hinted that cases like these often take two years.
 
I think it's very likely that Judge Berman will decide that there simply isnt enough in the appeals records to determine whether there was a violation of the CBA, and either (a) grant a preliminary injuction pending additional testimony, hearings, or whatever; or (b) vacate/remand back to the NFL for further hearings without the 4-hour time limit. 
 
The latter option would probably involve giving Goodell a choice between giving Kessler the "privileged" information he requested, or sending it to an independent arbitor to evaluate the NFL's refusal to do so alongside Brady's refusal to provide cell phone data.
 
 
Florio had a similar take last night, too

 

[dcdrew10]

Not surprising and it had been reported before (I think) or at least inferred, but per Florio: the NFL wanted Brady and the NFLPA to cave before they would even consider sitting down to talk settlement. The hubris seems par for the course on the NFL's part, but waving their dick in Brady's face is not going to do them any favors, especially when Berman says he want's an honest attempt at settlement. I know that many feel like the NFL is less concerned with the court case then they are with the optics, but they really must think they have nothing to lose.

 

[edmunddantes]

I don't think the NFLPA is going to concede a 1 game suspension for non-cooperation. 
 
They might concede more enchanced fine, but I highly doubt they are giving up a game. 

 

[Joshv02]

Re possible settlement conference today -- would the magistrate be typically using Judge Berman's courtroom, or is this a sign that Judge Berman himself is involved?

 
 
Minute Entry for proceedings held before Judge Richard M. Berman: 8/12/15Court holds settlement conference with parties in the robing room;Present for National Football League Management Council:Attorneys Daniel Nash and Stacey Eisenstein are present. Also present are: NFLCommissioner Roger Goodell, Jeffrey Pash, Gregg Levy and Adolpho Birch;Present for National Football League Players Association and Tom Brady:Attorneys Jeffrey Kessler and David Greenspan are present.Present for Tom Brady:Attorneys Donald Yee and Stephen Dubin are present.Also present for NFLPA: Tom DePas, Heather McPhee and DeMaurice Smith, Executive Director NFLPA. Also present is Tom Brady.Court holds oral argument in courtroom;Court Reporter Pamela Utter is present in courtroom.Settlement discussions continue after oral argument in robing room;Settlement discussions to continue tomorrow with counsel only in robing room.(CM) (Entered: 08/13/2015)
 

That's the docket entry entered today but for yesterday.  Certainly implies that its Berman today too.

 

[Harry Hooper]

I don't think the NFLPA is going to concede a 1 game suspension for non-cooperation. 
 
They might concede more enchanced fine, but I highly doubt they are giving up a game. 

 
That could very well be a sticking point, in terms of precedent. Double Favre's penalty fine to $100,000?

 

[joe dokes]

Re possible settlement conference today -- would the magistrate be typically using Judge Berman's courtroom, or is this a sign that Judge Berman himself is involved?
 

 
Especially if this was an impromptu get-together, it may just be that whatever room is available is the one they use. Or, even though the MagJudge is mediating, it's still Berman's case. It could mean something, but I doubt it.
 
Edit: nm: the docket entry sheds some light.

 

[Bleedred]

Not surprising and it had been reported before (I think) or at least inferred, but per Florio: the NFL wanted Brady and the NFLPA to cave before they would even consider sitting down to talk settlement. The hubris seems par for the course on the NFL's part, but waving their dick in Brady's face is not going to do them any favors, especially when Berman says he want's an honest attempt at settlement. I know that many feel like the NFL is less concerned with the court case then they are with the optics, but they really must think they have nothing to lose.

The NFL has nothing to lose.  If Brady wins, his suspension is vacated and then what?  What consequence does the NFL suffer other than embarrassment (yeah right)?  The money expended (that's chump change)?  No.  The NFL will go on and make another several billion dollars this year, Goodell will make $40 million, and while Brady will be able to claim vindication, he will forever be branded a cheater by the mouthbreathers and the Patriots will still lose $1 million and forfeit a 1st and 4th round pick in next year's draft. 

 

[tims4wins]

 
That could very well be a sticking point, in terms of precedent. Double Favre's penalty fine to $100,000?

 
Or $50K non-cooperation + $25K equipment violation = $75K

 

[Bleedred]

 
That could very well be a sticking point, in terms of precedent. Double Favre's penalty fine to $100,000?

The sticking point?  What makes anyone think the NFL is prepared to make any settlement?  I for one don't believe it.  I think they are going to a decision and have no intention whatsoever of settling for anything less than Brady's admission of guilt, which I sure as hell hope Brady will not agree (and think he won't, given the whole perjury angle).

 

[Bergs]

This is a great interview of yet another clueless media member.
 
http://media.weei.com/a/108244424/chris-chase-didn-t-read-the-wells-report-8-13-15.htm

 
Chris Chase appears to be a fairly massive dumbfuck.

 

[ivanvamp]

 
Or $50K non-cooperation + $25K equipment violation = $75K

 
WHAT EQUIPMENT VIOLATION!?!?!?!?!?
 
In all honesty, for real, there should be absolutely NO penalty whatsoever.  Brady was asked to turn over his personal phone.  He was not required to.  Wells made it clear it was not required.  He also gave no hint that failure to give the phone would result in any sort of penalty.  Brady's team DID, however, give a substantial amount of information, including other personal information (see: emails that got leaked), and they offered a way to get all the texts Brady sent to other NFL people *without* handing over his phone.  The NFL said no.  That's on them.  Wells admitted Brady was very cooperative.  

 

[Ralphwiggum]

 
WHAT EQUIPMENT VIOLATION!?!?!?!?!?
 
In all honesty, for real, there should be absolutely NO penalty whatsoever.  Brady was asked to turn over his personal phone.  He was not required to.  Wells made it clear it was not required.  He also gave no hint that failure to give the phone would result in any sort of penalty.  Brady's team DID, however, give a substantial amount of information, including other personal information (see: emails that got leaked), and they offered a way to get all the texts Brady sent to other NFL people *without* handing over his phone.  The NFL said no.  That's on them.  Wells admitted Brady was very cooperative.  

 
We're taking about terms on which the parties might reach middle ground.  If Brady's position in settlement discussions is I'm not even accepting a fine, that's not a reasonable position that the parties could land on, even if you believe the above.
 
Any result here where Brady misses zero games and pays a fine for something minor is a complete win for Brady and the Pats.

 

[bankshot1]

Mr. Idiot Kravitz presenting the Straw Man that the every media member who doesn't believe Brady likes to cling to. 
 
“If he had come out early and said, ‘Look, we weren’t trying to do any funny business, it kind of happened that way. We made it low. Maybe we stepped over the line a little bit, it was not intentional. My bad. It won’t happen again.’ I think this thing would have been over in about 10 minutes,” he added. “I really do
 
I'm sorry Mr. Kravitz but like Mortenson insisting if he hadn't provided the PSI context for deflated, things would have been the same ,this position represents a willful ignorance of the realities of the story at the time. 
 
http://itiswhatitis.weei.com/sports/newengland/football/patriots/2015/08/13/bob-kravitz-on-dc-tom-brady-has-acted-like-a-guilty-person/

Sure: We caught you, you're fucked" -Mike Kensil (paraphrase)

 

[dcmissle]

Thinking about Kessler's statement that Brady could have complied better with the Wells investigation, I wonder if Brady will accept something like a 1-game suspension with no admission of guilt in deflating balls, but with something that says "I recognize I should have cooperated more fully with the NFL's investigation" (which he is free to qualify to the media - didn't deflate any balls, but received bad advice in terms of how to deal with the investigation, etc.).

The concession was commanded by common sense.

Some of us noted this weeks ago, but then were confronted by others just a bit less livid than the crowd angered by the courtroom artist.

Seeing that Yee was in attendance and reasonably can always be expected to be in attendance, I just hope they have him gagged like Anthony Hopkins in Silence of the Lambs

 

[tims4wins]

Ivan is right though, the equipment violation would be on the Pats, not Brady, for letting the balls get out of the refs eyesight (and would of course be total BS).

 

[drbretto]

If Berman was going to rule that he can't overturn anything because of the agree upon language in the CBA, wouldn't he have just done that in the beginning? Or does he have to hear everything out first?

 

[MuppetAsteriskTalk]

The NFL has nothing to lose.  If Brady wins, his suspension is vacated and then what?  What consequence does the NFL suffer other than embarrassment (yeah right)?  The money expended (that's chump change)?  No.  The NFL will go on and make another several billion dollars this year, Goodell will make $40 million, and while Brady will be able to claim vindication, he will forever be branded a cheater by the mouthbreathers and the Patriots will still lose $1 million and forfeit a 1st and 4th round pick in next year's draft. 

 
Don't they risk Judge Berman making a ruling against them that sets further precedence limiting their ability to manage discipline situations? And they also risk further PR hits if more open courtroom questions are asked and maybe even further discovery if Judge Berman decides to ignore the request for an expedited ruling and decides he needs discovery. Seems like the NFL has plenty at risk.

 

[ivanvamp]

 
We're taking about terms on which the parties might reach middle ground.  If Brady's position in settlement discussions is I'm not even accepting a fine, that's not a position even if you believe the above.
 
Any result here where Brady misses zero games and pays a fine for something minor is a complete win for Brady and the Pats.

 
I hear you.  But nobody - NOBODY - has even come close to establishing that anything besides mother nature "tampered" with the footballs.  And Brady was basically as cooperative as he could be without turning over his personal phone - something he was neither required to do, nor was told was unacceptable by Wells.  
 
So I get what you're saying, but it's basically this.  You are driving down the road and don't actually do anything wrong.  An overzealous cop trying to make a name for himself arrests you and you get charged with crimes that would land you in jail for a couple of years.  They offer, as a settlement, that you take two weeks in prison and a $25,000 fine.  I get that the alternative may be much, much worse, but the point is that you didn't DO ANYTHING, and so settling for this still is a single minute in jail and $25,000 more than you should have paid.

 

[PC Drunken Friar]

I don't think I saw this posted anywhere, but I think it's a good summation of why Brady cannot settle on anything that admits guilt.
 
http://sports.yahoo.com/news/this-is-why-tom-brady-can-t-surrender-under-nfl-s-strict-settlement-terms-230207113.html

I am pretty sure this is 100% false. Brady did not give testimony before a judge.

 

[edmunddantes]

The thing they do have to lose is that SDNY will have a controlling case in a venue that almost always will become the default venue for appeals even if NFL tries another preemptive file in a different jurisdiction to get away from what the NFL perceives to be an unfavorable court.

 

[Myt1]

You can absolutely 100% be charged with perjury for testimony that is not before a judge.

Edit: I'm not handicapping the possibility of it happening, but the issue exists.

 

[Stitch01]

The concession was commanded by common sense.

Some of us noted this weeks ago, but then were confronted by others just a bit less livid than the crowd angered by the courtroom artist.

Seeing that Yee was in attendance and reasonably can always be expected to be in attendance, I just hope they have him gagged like Anthony Hopkins in Silence of the Lambs

Conceding this in the setting Kessler did yesterday is very, very, very, very, very different from saying Brady actually fucked up or did something wrong.

 

[Bleedred]

I am pretty sure this is 100% false. Brady did not give testimony before a judge.

I thought that he testified under oath in a precedural hearing that is now admitted as evidence in a federal court case and is on the record in that case.   Other lawyers...would it be perjury if Brady accepted guilt now?
 
Edit:  Myt confirmed my suspicion.  Thanks

 

[Myt1]

Stitch, it's different. It's just not very, very, very, very different.

Brady did screw up. It's not fatal, but I don't think there's a practitioner here who's going to argue with a straight face that it was a good move to destroy the phone.

 

[PaulinMyrBch]

He gave sworn testimony at the hearing with Goodell. On the record and under oath, albeit from the court reporter. If he changes course on the record of the federal case, its perjury...technically. You'd have to find a prosecutor interested in that case. 
 
But here is the NFL's big problem at this point. They believe he cheated. They believe he is lying about his involvement. So if he admits the Wells report is accurate, the NFL now believes that he's a cheater, a liar, not cooperative with the investigation, and now lying under oath obstructing the process. No way the NFL reduces the 4, at that point they probably would feel he deserves 8 games and they would likely leave it at 4 and agree not to punish him further. 

 

[RedOctober3829]

Lawyers only will have to be present next Wednesday for the next settlement conference.
 
 

Andrew Brandt ‏@adbrandt  5s5 seconds ago
Per court order today, parties will meet again in conference Wednesday. Principals - Brady and Goodell - not required to attend.
 

 

[dcmissle]

Conceding this in the setting Kessler did yesterday is very, very, very, very, very different from saying Brady actually fucked up or did something wrong.

No Yee did, and pity Brady for thinking Yee could represent him adequately in the beginning stages of this. If you want to argue the phone issue was handled well, knock yourself out.

 

[Myt1]

The thing they do have to lose is that SDNY will have a controlling case in a venue that almost always will become the default venue for appeals even if NFL tries another preemptive file in a different jurisdiction to get away from what the NFL perceives to be an unfavorable court.

District Court decisions aren't strictly controlling on other District Court judges.

 

[Stitch01]

Meh, if it wasn't the phone it would have been something else, fix was pretty much in on this one.

 

[RedOctober3829]

Michael McCann mentioned something this morning on SiriusXM's "Morning Men" that I haven't heard before.  I don't know that it is true either.  He said that even if Berman vacates this suspension that the NFL can go ahead and try to suspend him under different pretenses.  Would this be true and if true what else could the NFL suspend him for?  That would be ridiculous.

 

[jsinger121]

 

Jason La Canfora ‏@JasonLaCanfora  20m20 minutes ago
There are no further settlement talks scheduled for today in Brady case. NFL continues to insist on guilt admission I'm told

 
 
The NFL just doesn't get it. If they continue to take that stand I think they will lose this case as they have no evidence.

 

[Myt1]

We're thinking about it less as an error in terms of Goodell's decision than as an issue and a bad fact in the reasonably anticipated litigation.

And if you may have to challenge a labor arbitrator's findings later on, it's galacticly stupid to give him another hook to hang his hat on, notwithstanding the fact that he's going to build a crooked coatrack anyway.

 

[Van Everyman]

Ok so one question:


Why did the NFLPA not question Kensil during the appeal? Were they not allowed to? I know they did w Vincent. Seems like having Kensil as well would have been an important way of marking that the League had no idea what it was doing and was headed toward an arbitrary and/or capricious outcome.

 

[dcmissle]

I am not arguing for a second that the outcome before RG would have been better. The present posture before Berman would have been a bit better