#DFG: Canceling the Noise

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


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joe dokes

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One point from the article on something that I might have missed.  Wetzel writes: "that the NFL didn't provide attorney notes to the NFLPA in violation of federal standards...."
 
I recall that the NFL did not provide Wells' interview notes (or other rationale behind the findings in the Wells Report), simply letting the report stand on its own.  I also recall that the PA had asked that these notes be released.
 
My question is: was this, in fact, a breach of federal standards? 
 
And if so, what specific standard was breached and what does that standard require? 
 
If he's referring to standards that apply to litigation .... an expert witnesses' communications with the trial counsel that retained him are protected except for those that identify information that the lawyer provided and the expert considered or identify assumptions that the attorney provided and the expert relied on in forming opinions.
 
If he's referring to arbitration, then its probably along WBV's fundamental fairness line.
 

Section15Box113

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joe dokes said:
If he's referring to standards that apply to litigation .... an expert witnesses' communications with the trial counsel that retained him are protected except for those that identify information that the lawyer provided and the expert considered or identify assumptions that the attorney provided and relied on in forming opinions.
 
If he's referring to arbitration, then its probably along WBV's fundamental fairness line.
Thanks, JD.
 

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geoduck no quahog said:
Why didn't the NFL want Pash to testify under oath? Is there an innocent explanation? There are certainly plenty of non-innocent ones, which we'll never know.
 
An even more innocent but practical explanation is that if you're Paul, Weiss and Covington and Burling you go out of your way to make sure the guy who signs off on your bills doesn't have to go through the unpleasantness of cross examination (and the tedium of prep).
 
I'd bet a nickel that the real answer is that Pash was the go-between between Goodell/other NFL senior management and the Paul, Weiss team and that Goodell absolutely knew and approved that the report was naming Brady before the report was issued.
 

Otis Foster

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Slight digression...in my jurisdiction's courts, both draft expert opinions and those that were prepared but never used are discoverable. That's state court, not federal.
 

WayBackVazquez

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Bleedred said:
I asked before, but does anyone know if today's hearing transcripts will be released to the public?
 
They probably won't be put on the docket, but they should have been transcribed by a court reporter, and anyone would be able to order a transcript. I would assume somebody in the media will do so.
 

Archer1979

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Punchado said:
Sounds more to me like this "leak" was made up by the NFL.  
 
But it was Adam Schefter that broke that one.  He's been anything but an NFL-shill since this broke back in January.
 

dcmissle

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Don't worry about Pash; a win is a win.

Also, the Berman opinion, if favorable, likely will rest on several grounds. And even if it doesn't, you as the party supporting the judgment may raise any argument on appeal that supports the judgment, even if rejected below, as long as it was raised below. So, for example, if you raise arguments 1 through 5, lose on the first 4 but win on 5, you may re-argue 1 through 4 on appeal. You should, however, be very disciplined about doing so and re-raise only strong arguments.
 

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Eddie Jurak said:
The Jeff Pash thing worries me a bit - if Berman vacates on that ground won't the NFL just stage another farce of a hearing, let Pash testify, and up hold the suspension anyway?
 
I asked this in the legal thread and didn't get an answer....
 
If Berman does send this back to arbitration then he can attach "stipulations" to that hearing about what the arbiter can and cannot do.  Obviously these stipulations will be grounded within the language of the CBA and what the union is arguing for now.  What I am curious about is if he can also stipulate exactly who the arbiter will be or force both sides to agree together on who the arbiter will be?
 
Besides that fact that this saga would not just go away, this being forced to a truly neutral arbiter would seem like a win for team Brady.
 

Punchado

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Archer1979 said:
 
But it was Adam Schefter that broke that one.  He's been anything but an NFL-shill since this broke back in January.
I know, but something about it doesn't seem right.  Why would the union suddenly decide it's okay for a player to be suspended for "non-coorperation"?  Seems very dangerous to give something that big away.  I could understand them agreeing to a fine as a good faith offer but this alone would be a huge win for the NFL in terms of future discipline.  It also came just moments before Zolack's interview where he said that Brady was pissed and unwilling to budge at all.  Even if we look at it just as a PR move it makes no sense for Brady. Because no one cares if he's being "reasonable."  Does the judge even care?  Would it truly effect his ruling if he saw that Brady was willing to take a game?  I guess the lawyers here would know better (and there seems to be a difference of opinion on the matter) but I think he takes a PR hit for making that offer.  The NFL however gets a little boost from it because the story (and there was a headline up on the Huffington Post about that report -- and only that report) says that Brady is willing to admit that he did something wrong.  I don't doubt that Schefter had good sources I just can't understand the logic of it from Brady's side. 
 

dcmissle

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I asked this in the legal thread and didn't get an answer....
 
If Berman does send this back to arbitration then he can attach "stipulations" to that hearing about what the arbiter can and cannot do.  Obviously these stipulations will be grounded within the language of the CBA and what the union is arguing for now.  What I am curious about is if he can also stipulate exactly who the arbiter will be or force both sides to agree together on who the arbiter will be?
 
Besides that fact that this saga would not just go away, this being forced to a truly neutral arbiter would seem like a win for team Brady.
He would not be giving them an owner's manual. At most there would be a specification of things the League can/cannot do, and that list likely would be very short.
 

MuppetAsteriskTalk

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Punchado said:
I know, but something about it doesn't seem right.  Why would the union suddenly decide it's okay for a player to be suspended for "non-coorperation"?  Seems very dangerous to give something that big away.  I could understand them agreeing to a fine as a good faith offer but this alone would be a huge win for the NFL in terms of future discipline.  It also came just moments before Zolack's interview where he said that Brady was pissed and unwilling to budge at all.  Even if we look at it just as a PR move it makes no sense for Brady. Because no one cares if he's being "reasonable."  Does the judge even care?  Would it truly effect his ruling if he saw that Brady was willing to take a game?  I guess the lawyers here would know better (and there seems to be a difference of opinion on the matter) but I think he takes a PR hit for making that offer.  The NFL however gets a little boost from it because the story (and there was a headline up on the Huffington Post about that report -- and only that report) says that Brady is willing to admit that he did something wrong.  I don't doubt that Schefter had good sources I just can't understand the logic of it from Brady's side. 
 
Team Brady doesn't need to leak anything to the press in order for Judge Berman to be informed of where they're at.
 
I think your skepticism is likely spot on. Something smelled funny about that leak from the get go, and ESPN/NFL shouldn't enjoy the benefit of the doubt here.   
 

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dcmissle said:
He would not be giving them an owner's manual. At most there would be a specification of things the League can/cannot do, and that list likely would be very short.
 
Should I read into this that it's safe to assume that if a second arbitration hearing happens then it is more probable then not that Goodell will again be the arbiter?
 

WayBackVazquez

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( . ) ( . ) and (_!_) said:
 
Should I read into this that it's safe to assume that if a second arbitration hearing happens then it is more probable then not that Goodell will again be the arbiter?
 
No. If the case gets remanded for a rehearing, that means Brady would have lost on notice. (Because that can't be remedied.) So it likely means it would be getting vacated and remanded on either: (1) fundamental fairness, and among the fundamentally unfair parts of the process as argued by the NFLPA is that Goodell refused to hear Brady's argument about Vincent doling out the initial discipline under the CBA. Seems likely the Judge would want to have that heard by someone else as a threshold matter; or (2) Goodell was evidently partial, in which case the Judge would obviously want it reheard by someone else.
 

Archer1979

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Punchado said:
I know, but something about it doesn't seem right.  Why would the union suddenly decide it's okay for a player to be suspended for "non-coorperation"?  Seems very dangerous to give something that big away.  I could understand them agreeing to a fine as a good faith offer but this alone would be a huge win for the NFL in terms of future discipline.  It also came just moments before Zolack's interview where he said that Brady was pissed and unwilling to budge at all.  Even if we look at it just as a PR move it makes no sense for Brady. Because no one cares if he's being "reasonable."  Does the judge even care?  Would it truly effect his ruling if he saw that Brady was willing to take a game?  I guess the lawyers here would know better (and there seems to be a difference of opinion on the matter) but I think he takes a PR hit for making that offer.  The NFL however gets a little boost from it because the story (and there was a headline up on the Huffington Post about that report -- and only that report) says that Brady is willing to admit that he did something wrong.  I don't doubt that Schefter had good sources I just can't understand the logic of it from Brady's side. 
 
Totally my guess, but I'm looking at it in the context of the aftermath of yesterday's settlement hearing.  We really don't know what the posturing of the Court was other than they are heavily pushing toward a settlement.  Up to this point, the only thing that Brady's team has been willing to offer is money.  Taking that next step toward accepting a one game suspension may have been the only club left in the bag.  Meanwhile, the NFL doesn't appear to be budging at all.  
 
Today's hearing might be the Court's reaction to the NFL's stance as well.  I'm not convinced that Judge Berman is going to vacate, but he's at least putting it into the NFL's frontal lobe that its a distinct possibility.
 

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Otis Foster said:
Slight digression...in my jurisdiction's courts, both draft expert opinions and those that were prepared but never used are discoverable. That's state court, not federal.
 
Federal Rule 26(b)(4) was amended in 2010 to make draft expert reports (as well as most communications between counsel and the expert) protected from discovery.  Ends all the games that were played to avoid draft reports having to be turned over. 
 

Bleedred

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It's so amusing reading the yahoo feed, where no less than 4 different outlets are linked to (huffingpost, business insider, comcast sportsnet and yahoo itself) with articles describing a tough day for the NFL, and then going over to ESPN/NFL and reading the wire service report that is so blase about today's hearing you'd think the judge didn't take much interest.  Not linking to ESPN.
 

DennyDoyle'sBoil

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This from Wetzel's argument stands out to me.
 
 
Berman also focused on how the NFL came up with the four-game standard, drilling Nash over and over about where this number came from, how much of it was about non-cooperation and how much for the footballs.
 
Some judges like to use oral arguments to obtain concessions that they can then use, because those are much harder to successfully appeal.  One possible interpretation of this is that Berman feels he might have something to work with on the footballs, but that reversing the NFL for a non-cooperation punishment is more difficult.  Pushing the NFL to say "one for non-cooperation, three for footballs" would have given him something to work with either in an opinion or in settlement talks.  The NFL didn't make that rookie mistake.  But that doesn't mean they didn't goof.  Hard to say until seeing a transcript.
 
But basically, it kind of goes like this.  Having this exactly situation in oral argument is not uncommon for an appellate lawyer.  You're defending what happened in the lower court (analogous here) and the judge asks questions that sound as though he's skeptical of one basis for what the lower court did, but maybe not the other.  He tries a divide and conquer argument -- maybe to get you to make a concession that makes it easier for him to parse out the two and say that one was error.  This is a difficult spot -- it forces you to decide whether to try to save the entire judgment below or risk sacrificing half of it.  
 
Bring it back to the position Nash was in, he needs to decide whether to try to save half or to go for the whole enchilada, knowing that if you guess wrong, you'll get hoisted on your own petard.  (Ok, that's enough metaphors.)  Clearly his marching orders are to save the whole thing. So, you can't give an answer like, "two for cooperation and two for footballs," because then you've essentially given the judge a roadmap for reversing at least two games.  In this case, if you want to go for the whole enchilada, there is a subtle way you have to argue it.  Here, what Nash would want to do is argue that 4 games would have been appropriate for either violation.  "Commissioner had authority, and would have been well within his discretion to give four games alone for non-cooperation or for the footballs, or in fact even more for either."  Now, that answer may cause more difficult questioning, but at least you've avoided a concession that can be used against you.  If the judge ain't buying it, he ain't buying it, but at least you haven't made it easier on him to write an appeal-proof decision.  The wrong choice would be to argue that it's a combination.  That is, you don't want to say something that the judge can say amounts to you saying, "you can't separate them, and it was 4 games for the totality."  If that's what you say, it makes it easy on the judge -- he can say, "well, I would have affirmed on lack of cooperation, but the NFL acknowledged at oral argument that the total punishment was based on both, and since they refuse to separate them, the error infects the entire decision, and it must be reversed in total."
 
It's not clear whether Nash went with the either approach or the combination approach -- from some other tweets or reports on the argument it sounds like he did at least try to take the better path.  There was a report that he suggested at one point that some in the league thought it should be 8 games, which would support the "discretion to give 4 games on either" answer.  But without seeing the transcript it's hard to say.
 
Anyway, Berman could just be playing with the NFL.  It all could mean nothing.  But reading this line of questioning as trying to draw out a concession that's at least partially favorable to Brady/NFLPA sure doesn't seem a stretch to me.  And that's ultimately good news, because judges only try to draw concessions from the side they want to make lose.
 
Other than that bit of tea leaf reading, the only other thing that I'd add about today's proceedings as reported so far is that every second of the two hours not talking about Brady's phone are good seconds, and it sounds like there wasn't a lot of that.
 

RedOctober3829

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If Tom Brady's appeal of his four-game suspension is not settled and federal judge has not yet ruled on the case, an NFL source tells ESPN's Sal Paolantonio that Brady's suspension will start on Saturday, Sept. 5. That's the day NFL teams must reduce their rosters to a maxium of 53 players by 4 p.m. ET. What is not known, according to the source, is how the litigation will affect the Patriots' final roster. U.S District Court Judge Richard M. Berman said Wednesday during a hearing on Brady's appeal, that barring a settlement, he hopes to rule by Sept. 4, but that is a quick turnaround for him. Both the NFL and NFLPA have asked the judge to rule by that date, which is six days before the Patriots' season-opener against the Steelers. This means that it's possible that as of Sept. 5, Brady will be barred from entering Gillette Stadium if his case is not decided.
 
https://www.facebook.com/AdamSchefter/posts/1007650559287585
 
Then we have this from Florio.  If no ruling by 9/4, expect to see Berman to issue a temporary injunction.
 
 
ProFootballTalk ‏@ProFootballTalk  34s34 seconds ago
If Judge Berman doesn't rule by September 4, look for him to issue an injunction allowing Brady to play until a decision is made.
 
 

edmunddantes

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I'm not really worried about the turnaround. 
 
As people have noted, I would bet dollars to doughnuts the opinion from Berman is about 95+% written. He probably  has yet to see any surprises that derail it. It's just a matter of going back massaging some language, change a sentence or two based on arguments, maybe move some stuff around, otherwise all the heavy lifting is done. He will probably hit that September 4th deadline (barring an insane surprise out of nowhere).
 
The rest I think was posturing. He spent a lot of time trying to peg the "I don't have to rush this if I don't want to" as additional settling leverage vs "I can't get this ruling out on your time schedule"
 
Edit - what he's really hoping for is that the NFL (it appears they are the straggler here) finally take him up on his offer to settle. All of it seems to point to "hey... you guys (both Brady and NFL) should really really settle this. No I mean really really settle this. It's going to be best."
 

WayBackVazquez

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RedOctober3829 said:
 
To piggyback on your post edmunddantes,
 
 
 
 
That's not going to happen. He's not King Solomon; he doesn't need to declare his judgment in front of the people. He'll issue a written order.
 
I was saying this to Rev a couple of weeks ago -- the media ran with the parties' request that this be finished by Sept. 4, and the initial order setting conferences as though that would be the end of it. I was not at all surprised that Judge Berman added another date to the calendar, and I still would not be surprised if he asks for some testimony.
 

RedOctober3829

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WayBackVazquez said:
 
That's not going to happen. He's not King Solomon; he doesn't need to declare his judgment in front of the people. He'll issue a written order.
 
I was saying this to Rev a couple of weeks ago -- the media ran with the parties' request that this be finished by Sept. 4, and the initial order setting conferences as though that would be the end of it. I was not at all surprised that Judge Berman added another date to the calendar, and I still would not be surprised if he asks for some testimony.
If he drags it out past 9/4, is it because he needed to hear from other parties to determine if RG did not demonstrate fundamental fairness or some other part of the process?  
 

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I think it highly likely that we'll get a ruling by the promised deadline. If not, there is no doubt in my mind the court will enter a preliminary injunction.

I must add that ESPN's Pravda quality is very amusing. If the price of oil were higher, Putin might try to buy the outfit.
 

WayBackVazquez

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RedOctober3829 said:
If he drags it out past 9/4, is it because he needed to hear from other parties to determine if RG did not demonstrate fundamental fairness or some other part of the process?  
 
I would guess that any additional argument or testimony from here on out (including on 8/31) will be very specifically requested by the judge. I have always thought that the only testimony that would be useful would be from Goodell, and if Berman was seriously considering vacating on evident partiality grounds, he may want to hear from him first.
 
I still think there's a better than average chance the ruling comes by 9/4, and agree that he would almost certainly issue a TRO if not. (EDIT: agree with dcmissile there)
 

RedOctober3829

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WayBackVazquez said:
 
I would guess that any additional argument or testimony from here on out (including on 8/31) will be very specifically requested by the judge. I have always thought that the only testimony that would be useful would be from Goodell, and if Berman was seriously considering vacating on evident partiality grounds, he may want to hear from him first.
 
I still think there's a better than average chance the ruling comes by 9/4, and agree that he would almost certainly issue a TRO if not. (EDIT: agree with dcmissile there)
If NFLPA loses, will they have time to get an injunction before Week 1 when they to go to appeal the decision?
 

Eddie Jurak

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WayBackVazquez said:
 
I would guess that any additional argument or testimony from here on out (including on 8/31) will be very specifically requested by the judge. I have always thought that the only testimony that would be useful would be from Goodell, and if Berman was seriously considering vacating on evident partiality grounds, he may want to hear from him first.
 
I still think there's a better than average chance the ruling comes by 9/4, and agree that he would almost certainly issue a TRO if not.
If Berman hinted at that, might it convince the NFL to settle on terms acceptable to Brady? Can't imagine the league wanting Mr. "Not solution A or solution B but solution C" testifying under oath.
 

WayBackVazquez

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RedOctober3829 said:
If NFLPA loses, will they have time to get an injunction before Week 1 when they to go to appeal the decision?
 
Federal courts tend to be very good about responding to emergency requests for injunctive relief. Not to say it would be granted, but I suspect it would be heard.
 

DennyDoyle'sBoil

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Kessler's cross-motion, which was filed after the parties had already agreed to the streamlined request for the case to be heard, mentioned the September 4 date and the possible need for injunctive relief.
 
It will be interesting whether Kessler now feels the need to file that motion, given that we know 8/31 is the earliest possible date for a ruling.  I think what he'll probably do is have it in the can, ready to go, in case it's early September and he needs it.
 
Puts the team in a bit of a bind.  How much do you prepare each of your QBs?  Getting the go ahead to let Brady play September 3 is not an ideal situation.
 
I wouldn't be surprised if there are more discussions between the NFL and the NFLPA about whether there might be a compromise to avoid a P.I. ruling.  Maybe an agreement to postpone the suspension to week 3 or something, if needed to give Berman a chance to rule.  I suspect we'll hear more about this before 8/31 in some way or other.
 

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Section15Box113 said:
Sounds about right.

He simply didn't get due process.

(And here I was looking for chapter and verse from statutes and case law. For something we all learned in pre-K....)
 
Not exactly. WBV was giving the legal term of trade, one that came up in the legal thread. For example, courts have interpreted 9 U.S. Code §10(a)(3) to mean that violations of "fundamental fairness" allow for a court to consider vacating an arbitration ruling--and, if I'm not mistaken and in keeping with WBV's more recent posts, open it to an evidentiary review.
 
9 U.S. Code §10
 
(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
 
So the rule is grounded in statute--it's not just a general feeling or something.
 

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WayBackVazquez said:
 
I would guess that any additional argument or testimony from here on out (including on 8/31) will be very specifically requested by the judge. I have always thought that the only testimony that would be useful would be from Goodell, and if Berman was seriously considering vacating on evident partiality grounds, he may want to hear from him first.
 
I still think there's a better than average chance the ruling comes by 9/4, and agree that he would almost certainly issue a TRO if not. (EDIT: agree with dcmissile there)
 
Can you imagine Berman asking for testimony from Pash given today's comments?   

I suspect he won't because it would lead to an immediate appeal to 2nd circuit on privilege, which is a delay wholly contrary to Berman's apparent goals.  However, suggesting he wants to explore Pash's role would (I suspect) terrify the NFL, too.
 

WayBackVazquez

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PedroKsBambino said:
 
Can you imagine Berman asking for testimony from Pash given today's comments?   
 
Frankly, no. The issue re Pash is whether refusing to put him on the stand violated the obligation of fundamental fairness. If so, it may be grounds for vacatur and to order him made available to testify at the rehearing. But nothing he has to say should be particularly relevant to the proceedings here.
 

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WayBackVazquez said:
 
Frankly, no. The issue re Pash is whether refusing to put him on the stand violated the obligation of fundamental fairness. If so, it may be grounds for vacatur and to order him made available to testify at the rehearing. But nothing he has to say should be particularly relevant to the proceedings here.
 
I think that's the process issue.  I can imagine Berman being concerned about relevance of excluding Pash---there is no showing here that he actually had relevant info on the current record (I don't doubt he did, and maybe Berman feels it is simply a per se problem here)
 
Seems like Pash is also the person with the best information on Goodell's state of mind and approach to the decision.   Perhaps that is not admissable in this context as to bias, but sure seems relevant here.  Perhaps that is the meaning of 'evident bias' here...
 

Harry Hooper

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If Judge Berman decides on sending it back for a rehearing, can he somehow craft a decision that agrees that per the CBA the Commish is generally entitled to be the arbiter, but in this particular case given the history and now entrenched positions the Brady case should go before some other arbiter?
 

PedroKsBambino

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Harry Hooper said:
If Judge Berman decides on sending it back for a rehearing, can he somehow craft a decision that agrees that per the CBA the Commish is generally entitled to be the arbiter, but in this particular case given the history and now entrenched positions the Brady case should go before some other arbiter?
 
I'd imagine a finding of evident bias would make it very difficult for Goodell to rehear the case on remand, wouldn't it?   If nothing else, NFL lawyers would prevail on him that it is taunting Berman (and thus courting trouble) to even try to do so
 

Eddie Jurak

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PedroKsBambino said:
 
I'd imagine a finding of evident bias would make it very difficult for Goodell to rehear the case on remand, wouldn't it?   If nothing else, NFL lawyers would prevail on him that it is taunting Berman (and thus courting trouble) to even try to do so
"I put my evident bias aside, reheard the appeal with a fresh set of ears, and found that my original biased decision was correct."  
 

DennyDoyle'sBoil

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One reason that Berman may have been asking about Pash is that it potentially gives him a hook or a pressure point under subsection (a)(3) of the statute for vacating arbitration awards, which, among other things, gives courts the power to vacate for "refusing to hear evidence pertinent and material to the controversy."  (Rev posted the entire section a few posts above.)
 
Most courts -- including the Second Circuit -- hold that not every refusal to hear evidence is grounds to vacate an award.  In fact, most courts tends to read the language right out of section (a)(3) interpreting it to mean that the exclusion of the evidence must have worked fundamental unfairness (so, really, it's the same standard).  There's a subtle difference, though, between asking "was the proceeding in its entirety fundamentally unfair" and "did the exclusion of the evidence render the proceeding fundamentally unfair"?  It's a bit of an ivory towerish point, but for evidentiary error, the Second Circuit will look at things like whether there was a way to get the evidence in some other way, and it has to be shown to be really relevant.  Still, there is definitely a plain language hook in the statute for excluding evidence, and so the judge's questions about Pash are certainly not a bad sign.  
 
I think whether or not Pash's testimony would or wouldn't be relevant depends on whether you believe that fairness dictates Brady should have been permitted to argue to the arbitrator that the underlying process was flawed.  I actually think there is some traction here. The point I'd try to make is that Brady (like the public) was misled about Wells' independence, and as a result, among other things, he walked into a trap on the "cooperation" problem with respect to his phone.  He should have been allowed to explore this to argue it to the arbitrator, and part of the independence argument turned on the extent to which the league's general counsel edited and commented on the report.
 
You either believe that Wells' independence is or is not relevant, but if you believe it is relevant, then knowing what Pash said or didn't about the draft is significant.
 

garzooma

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PedroKsBambino said:
 
Can you imagine Berman asking for testimony from Pash given today's comments?   
I suspect he won't because it would lead to an immediate appeal to 2nd circuit on privilege, which is a delay wholly contrary to Berman's apparent goals.  However, suggesting he wants to explore Pash's role would (I suspect) terrify the NFL, too.
Is there a role for Kraft to play here?  If Berman is letting on that he suspects that Pash was illicitly conveying instructions to undermine the fairness of the Wells investigation, in contradiction to what Goodell told Kraft and the rest of the owners he was doing, is this something Kraft can get the other owners to do something about?  The other owners might be happy to see the Patriots screwed over, but they might not be so happy about having their employees lying to them.
 

RedOctober3829

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Ian Rapaport reports that Brady is willing to pay a huge fine even forfeiting game checks just to get the situation over. He is willing to admit he should've cooperated better with RG and Ted Wells but not going to admit to any wrongdoing.
 

dcmissle

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RedOctober3829 said:
Ian Rapaport reports that Brady is willing to pay a huge fine even forfeiting game checks just to get the situation over. He is willing to admit he should've cooperated better with RG and Ted Wells but not going to admit to any wrongdoing.
Assume for a minute this is true. Which presents two hurdles -- the reporter's reliability, and whether he or she is being played in this instance -- but let's just assume it.

TB and the Union could not be better positioned before Berman given the League's approach. No wonder the judge told him to stay home today.

The pressure will continue to ratchet on the League. If Berman rules for TB, he will sleep very soundly.

If I'm representing the League in these circumstances, I get to Berman long before now and tell him, sorry Judge, this is the case that can't settle. I put the best lipstick on it I can find because the League's positioning is infuriating to most judges who expect good faith.
 

baghdadjamie

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First I have seen someone say the report that Brady was willing to accept a 1 game suspension is false. I may have missed a post if this was already discussed here so don't fucking kill me mods.
 
http://www.bostonherald.com/sports/patriots_nfl/new_england_patriots/2015/08/guregian_tom_brady_is_winning_so_why_should_he
 
"So, why on earth would the Super Bowl MVP agree to accept a one-game suspension as part of a settlement with the NFL? That Brady might do so - albeit with no admission of guilt - was the gist of several reports that surfaced Wednesday, which the Herald later refuted as being false."
 

lambeau

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So Jeff Howe in WVa and Tom E Curran as well as Rapoport emphatically have Brady camp denials that he'll accept any suspension; Curran: "Why, when Berman is treating NFL like they're treating Brady?"
 

Eddie Jurak

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garzooma said:
Is there a role for Kraft to play here?  If Berman is letting on that he suspects that Pash was illicitly conveying instructions to undermine the fairness of the Wells investigation, in contradiction to what Goodell told Kraft and the rest of the owners he was doing, is this something Kraft can get the other owners to do something about?  The other owners might be happy to see the Patriots screwed over, but they might not be so happy about having their employees lying to them.
No.  
 

PedroKsBambino

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baghdadjamie said:
First I have see someone say that the report that Brady was willing to accept a 1 game suspension. I may have missed a post if this was already discussed here so don't fucking kill me mods.
 
http://www.bostonherald.com/sports/patriots_nfl/new_england_patriots/2015/08/guregian_tom_brady_is_winning_so_why_should_he
 
"So, why on earth would the Super Bowl MVP agree to accept a one-game suspension as part of a settlement with the NFL? That Brady might do so - albeit with no admission of guilt - was the gist of several reports that surfaced Wednesday, which the Herald later refuted as being false."
 
The thread consensus, I think we can say, is that there is no reason to believe that report is accurate, and that other reports (and Brady's apparent litigation position) suggest he wouldn't take a suspension.
 
Obviously, none of us really knows.
 

pappymojo

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DennyDoyle'sBoil said:
This from Wetzel's argument stands out to me.
 
 
Some judges like to use oral arguments to obtain concessions that they can then use, because those are much harder to successfully appeal.  One possible interpretation of this is that Berman feels he might have something to work with on the footballs, but that reversing the NFL for a non-cooperation punishment is more difficult.  Pushing the NFL to say "one for non-cooperation, three for footballs" would have given him something to work with either in an opinion or in settlement talks.  The NFL didn't make that rookie mistake.  But that doesn't mean they didn't goof.  Hard to say until seeing a transcript.
 
But basically, it kind of goes like this.  Having this exactly situation in oral argument is not uncommon for an appellate lawyer.  You're defending what happened in the lower court (analogous here) and the judge asks questions that sound as though he's skeptical of one basis for what the lower court did, but maybe not the other.  He tries a divide and conquer argument -- maybe to get you to make a concession that makes it easier for him to parse out the two and say that one was error.  This is a difficult spot -- it forces you to decide whether to try to save the entire judgment below or risk sacrificing half of it.  
 
Bring it back to the position Nash was in, he needs to decide whether to try to save half or to go for the whole enchilada, knowing that if you guess wrong, you'll get hoisted on your own petard.  (Ok, that's enough metaphors.)  Clearly his marching orders are to save the whole thing. So, you can't give an answer like, "two for cooperation and two for footballs," because then you've essentially given the judge a roadmap for reversing at least two games.  In this case, if you want to go for the whole enchilada, there is a subtle way you have to argue it.  Here, what Nash would want to do is argue that 4 games would have been appropriate for either violation.  "Commissioner had authority, and would have been well within his discretion to give four games alone for non-cooperation or for the footballs, or in fact even more for either."  Now, that answer may cause more difficult questioning, but at least you've avoided a concession that can be used against you.  If the judge ain't buying it, he ain't buying it, but at least you haven't made it easier on him to write an appeal-proof decision.  The wrong choice would be to argue that it's a combination.  That is, you don't want to say something that the judge can say amounts to you saying, "you can't separate them, and it was 4 games for the totality."  If that's what you say, it makes it easy on the judge -- he can say, "well, I would have affirmed on lack of cooperation, but the NFL acknowledged at oral argument that the total punishment was based on both, and since they refuse to separate them, the error infects the entire decision, and it must be reversed in total."
 
It's not clear whether Nash went with the either approach or the combination approach -- from some other tweets or reports on the argument it sounds like he did at least try to take the better path.  There was a report that he suggested at one point that some in the league thought it should be 8 games, which would support the "discretion to give 4 games on either" answer.  But without seeing the transcript it's hard to say.
 
Anyway, Berman could just be playing with the NFL.  It all could mean nothing.  But reading this line of questioning as trying to draw out a concession that's at least partially favorable to Brady/NFLPA sure doesn't seem a stretch to me.  And that's ultimately good news, because judges only try to draw concessions from the side they want to make lose.
 
Other than that bit of tea leaf reading, the only other thing that I'd add about today's proceedings as reported so far is that every second of the two hours not talking about Brady's phone are good seconds, and it sounds like there wasn't a lot of that.
On this statement about some in the NFL thinking it should have been four for each violation, would that suggest bias on the part of the arbiter? Who in the NFL felt that way and were they conveying those thoughts to Goodell?
 

Reverend

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Harry Hooper said:
If Judge Berman decides on sending it back for a rehearing, can he somehow craft a decision that agrees that per the CBA the Commish is generally entitled to be the arbiter, but in this particular case given the history and now entrenched positions the Brady case should go before some other arbiter?
 
I believe this post addresses exactly that.
 
 
DennyDoyle'sBoil said:
I think whether or not Pash's testimony would or wouldn't be relevant depends on whether you believe that fairness dictates Brady should have been permitted to argue to the arbitrator that the underlying process was flawed.  I actually think there is some traction here. The point I'd try to make is that Brady (like the public) was misled about Wells' independence, and as a result, among other things, he walked into a trap on the "cooperation" problem with respect to his phone.  He should have been allowed to explore this to argue it to the arbitrator, and part of the independence argument turned on the extent to which the league's general counsel edited and commented on the report.
 
You either believe that Wells' independence is or is not relevant, but if you believe it is relevant, then knowing what Pash said or didn't about the draft is significant.
 
I think the Wells testimony from the arbitration hearing where Wells makes such a big deal about how the Brady's non-cooperation was like the biggest deal he'd ever seen in all his years of lawyering yet he somehow hid that reaction from Brady was a really, really bad look for him in this regard.
 
 
RedOctober3829 said:
Ian Rapaport reports that Brady is willing to pay a huge fine even forfeiting game checks just to get the situation over. He is willing to admit he should've cooperated better with RG and Ted Wells but not going to admit to any wrongdoing.
 
This reminds me of Socrates telling the Athenian jury that while he really is obviously innocent, he'd be happy to pay a fine with Plato's money to end things.
 
That's right.
 

E5 Yaz

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There is no Rev said:
This reminds me of Socrates telling the Athenian jury that while he really is obviously innocent, he'd be happy to pay a fine with Plato's money to end things.
 
Was Plato married to a supermodel?
 

bowiac

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pappymojo said:
On this statement about some in the NFL thinking it should have been four for each violation, would that suggest bias on the part of the arbiter? Who in the NFL felt that way and were they conveying those thoughts to Goodell?
I would assume, that in the universe Nash is describing, the eight game suspension was being considered at the Vincent stage of this debacle, not the Goodell stage.