Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only

WayBackVazquez

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So ivanvamp can get all his info in one place, I will update the first post in this thread with facts related to the case(s) attempting to affirm or vacate the arbitration award confirming Brady's suspension. Happy to take suggestions on things that should be added/edited.
 
Where is the legal case situated?
 
The NFL Management Council filed its case in the U.S. District Court for the Southern District of New York on July 28http://www.nysd.uscourts.gov/. The case has been assigned to Senior (Senior in this context means of retirement age, and on a reduced schedule) Judge Richard Berman and Magistrate Judge James Francis.

 
The NFLPA filed in the District of Minnesota on July 29. The case was assigned to Judge Richard Kyle and Magistrate Hildy Bowbeer. on July 30, Judge Kyle ruled that based on the first-filed rule (see below), the case will proceed in the Southern District of New York before Judge Berman.
 
Who is representing the NFL?
 
The NFL is being represented by the law firm of Akin Gumphttps://www.akingump.com/en/index.html, and the lead lawyer is Robert H. Pees.
 
Who is representing the NFLPA?
 
The players association is being represented by Jeffrey Kessler of Winston & Strawn. Local counsel in Minnesota is Barbara Berens of Berens & Miller.
 
Why does the NFL get to file a lawsuit when it "won" the appeal?
 
Under the law, Goodell's decision was an arbitration award. The NFL has filed a motion to confirm that arbitration award in federal court, which is totally non-controversial and authorized by Section 301 of the Labor Management Relations Act, 29 U.S.C. §§ 185 et seqhttps://www.law.cornell.edu/uscode/text/29/185.
 
Why did the NFL file in New York?
 
The NFL has suffered various defeats in other jurisdictions, particularly in the District of Minnesota before Judge David Dotyhttps://en.wikipedia.org/wiki/David_S._Doty, most recently having its arbitration award in the Adrian Peterson case vacated. The NFL likely would rather not appear before Judge Doty in this case.
 
Why should the NFL's case trump Brady/NFLPA's just because it filed first?
 
Because "first-to-file"http://definitions.uslegal.com/f/first-to-file-rule/ is the general rule in this country in circumstances like this, which occur routinely in the legal system.
 
Is there any way around the first-to-file rule.
 
Yes. The rule is not wholly inflexible. Generally, in the Second Circuit, if a court decides that the first filer is in actuality the true defendant, and the filing was merely an anticipatory attempt at forum shopping, the second filer may get its chosen forum. See Emplrs. Ins. v. Fox Entm't Group, Inchttp://caselaw.findlaw.com/us-2nd-circuit/1325191.html.http://caselaw.findlaw.com/us-2nd-circuit/1325191.html, 522 F.3d 271, 275 (2d Cir. N.Y. 2008). The NFLPA would have argued this is one of the cases in which first-to-file should not apply. However, preempting any such argument, Judge Kyle ruled sua sponte (on his own initiative) that the rule is applicable here, and this case should proceed in New York before Judge Berman.
 
Why can Brady be sued in New York? He's not from New York.
 
Brady is not named as a party in the NFL's complaint. Under the law, in situations where a union employee is represented by the union in an arbitration, that player does not have standing to confirm or vacate the award. The correct party is the NFLPA.
 
How long will this process take?
 
Always tough to predict. The Peterson case, for example, was decided in just about 2.5 months. But Judge Doty in that case granted a request for an expedited schedule. This case will also have preliminary briefing on whether the case should be decided in the S.D.N.Y., or whereever the NFLPA files its dueling case (likely D.MN).
 
Is there any chance Brady can play football while this plays out?
 
Yes, the NFLPA will request a preliminary injunction requiring the league to permit Brady to play while the award is being considered. In considering whether to grant a Preliminary Injunction, the court balances the moving party's "likelihood of success on the merits," meaning its likelihood of winning the case, with the harms each party would face if the preliminary injunction is granted. In this case, it is fairly clear that Brady would suffer irreparable harm if the PI is not granted, while the league will suffer little to no harm if it is. As to the success on the merits, that is a determination the judge will make.
 
What are the possible outcomes?
 
The NFL is seeking to confirm Goodell's ruling. So if the league wins, it will have a federal judgment validating Brady's suspension. Brady can then appeal either to the Eighth Circuit Court of Appeals if the case is ultimately decided in Minnesota, or to the Second Circuit Court of Appeals, if the SDNY decides the case.
 
If Brady wins, the court will decide that the award must be vacated, and his case will be "remanded" back to the arbitrator, in the case Goodell, to correct whatever procedural errors the court finds. Of course, if one of those errors is found to be Goodell serving as the arbitrator, another arbitrator would need to be appointed. It is possible that the court may find that the errors made are uncorrectable, in which case the matter would be effectively dead. The NFL would have the same rights to appeal to either the Eighth or Second Circuit Court of Appeals.
 
Finally, the District Court also has the power to "modify" Goodell's ruling. So it could, for example find that the "law of the shop" in the NFL requires only a $50,000 penalty for interfering with an investigation. This is the least likely of the outcomes in light of courts' reluctance to interfere with arbitral decisions.
 
OMG, will this case go all the way to the Supreme Court?!!?!!!?!11?
 
The general standards for certiorari are herehttps://www.law.cornell.edu/rules/supct/rule_10. Tl;dr: probably not.
 

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WayBackVazquez said:
Why can Brady be sued in New York? He's not from New York.
 
Brady is not named as a party in the NFL's complaint. Under the law, in situations where a union employee is represented by the union in an arbitration, that player does not have standing to confirm or vacate the award. The correct party is the NFLPA.
 
 
 
What defines from?  Brady owns an apartment in Manhattan which he lives in part of the year.  Is it just primary residence?
 

Mooch

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Regarding "forum shopping" under your first-to-file rule, how strong is the NFLPA case here? It seems like most (all?) prior cases involving league punishment have fallen under Doty's jurisdiction per the old CBA.
 

WayBackVazquez

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TomRicardo said:
 
What defines from?  Brady owns an apartment in Manhattan which he lives in part of the year.  Is it just primary residence?
 
Well, as noted in the answer, it doesn't really matter in this case since Brady is not a party. But the question of personal jurisdiction takes up about a month of the first year of law school. In short, your "domicile" is the place where you intend to reside indefinitely, and this is one of the bases for personal jurisdiction. There are others, but as I say, they really don't matter here because he's not a party.
 

drbretto

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How has this whole saga gone on this long and not one person has mentioned that the NFL is being defended by a man named Mr. Pees?
 

WayBackVazquez

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Mooch said:
Regarding "forum shopping" under your first-to-file rule, how strong is the NFLPA case here? It seems like most (all?) prior cases involving league punishment have fallen under Doty's jurisdiction per the old CBA.
 
Tough to say. I think the fact that the NFL Management Committee seemingly had access to, or at least knowledge of the impending decision is likely to be more foul-smelling than just simply the fact that the league has previously lost in D.MN. "Forum-shopping" in and of itself is not wholly verboten - a party has a right to file in an appropriate jurisdiction of its choosing. It's only when the choice is the result of manipulation or deception that there's a problem.
 
Ultimately, the decision will be made by Judge Berman, so the league at least wins in that sense.
 

nolasoxfan

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pedroia'sboys said:
@JimTrotter_NFL: The NFLPA will file its Brady appeal in Minnesota and is working to do so by as early as today, per source.
So, to play devil’s advocate, isn’t this just a case of the NFLPA “forum shopping”?
 

Joshv02

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Great stuff. Thanks. I'm biased.  
WayBackVazquez said:
Why does the NFL get to file a lawsuit when it "won" the appeal?
 
Under the law, Goodell's decision was an arbitration award. The NFL has filed a motion to confirm that arbitration award in federal court, which is totally non-controversial and authorized by Section 301 of the Labor Management Relations Act, 29 U.S.C. §§ 185 et seq.
 
Its not clear that a non-monitary award would be confirmed.  Usually, you confirm an arbitration award so that you can reduce it to judgment and enforce it (for example, attaching property).  So, we'll see.
 
 

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https://twitter.com/RMFifthCircuit/status/626459184653938689
 

WayBackVazquez

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nolasoxfan said:
So, to play devil’s advocate, isn’t this just a case of the NFLPA “forum shopping”?
 
Another special circumstance is “where forum shopping alone motivated the choice of the situs for the first suit.”  William Gluckin & Co. v. Int'l Playtex Corp., 407 F.2d 177, 178 (2d Cir.1969) (emphasis added). This does not mean that any evidence of forum shopping will suffice.   Any lawyer who files a case on behalf of a client must consider which of the available fora might yield some advantage to his client, and thus, to that degree, engages in “forum shopping.”   Rather, the first-filing plaintiff must engage in some manipulative or deceptive behavior, or the ties between the litigation and the first forum must be so tenuous or de minimis that a full “balance of convenience” analysis would not be necessary to determine that the second forum is more appropriate than the first.   
 
 
From Emplrs. Ins., the case cited and linked in the first post. Please use the links.
 

Myt1

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Totally. Generally speaking, the aggrieved party is allowed to forum shop, to a certain extent.

Honestly, from a forum non conveniens standpoint, filing this case in Minnesota makes the least sense to me. But I can't remember to what degree that court may have retained jurisdiction after the CBA issues.
 

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I'd like to publicly thank WayBackVazquez for starting this thread and initiating it with such a well-organized, informative post full of relevant resources.
 
It will be defended with extreme prejudice. :)
 

SoxJox

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IANAL, but would like to know: what are the elements of applicable law that the NFLPA must prove against the League, and what are the potential remedies?  Do we know yet what they are actually seeking?
 

Reverend

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WBV--possible addition to the opening post: something on possible/expected outcomes out of court. Like, to explain to people who are confused about what happens in court that the judge, if not affirming the NFL's ruling, almost certainly won't settle the case in some final way but vacate and remand with instructions. Do you have a good resource explaining that in your bag of tricks, by any chance? Just a thought.
 

ifmanis5

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What's the mechanism for Judge assignments? Who/what decides the judge that will hear the NFL case in NY for example? Is it based on who's available or some kind of lottery?
 

WayBackVazquez

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I'm having major problems with the editor. Crazy added links, and potentially lost material in the original post. I wonder if a Sumner might be able to look at it.
 

WayBackVazquez

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ifmanis5 said:
What's the mechanism for Judge assignments? Who/what decides the judge that will hear the NFL case in NY for example? Is it based on who's available or some kind of lottery?
 
Spinning of a wheel, and pulling of a card with a Judge's name on it. No, seriously.
 

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WayBackVazquez said:
 
Spinning of a wheel, and pulling of a card with a Judge's name on it. No, seriously.
True. IIRC though, the SDNY had a somewhat secret process though which judges could select certain cases based on a "related case" rule. Essentially, some judges handled most cases with a common legal issue to ensure uniform decisions. I believe that rule was abolished long before I started practicing.
 

bowiac

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Bongorific said:
True. IIRC though, the SDNY had a somewhat secret process though which judges could select certain cases based on a "related case" rule. Essentially, some judges handled most cases with a common legal issue to ensure uniform decisions. I believe that rule was abolished long before I started practicing.
As has recently been the subject of a petition for cert, some courts and judges routinely flaunt/disregard random selection procedures.
 

dcmissle

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Reported "expedited schedule" does not surprise me given his senior status. Some judges can have a full case load; most do not. Many judges on senior status are out of the criminal wheel entirely. I do not know what this judge's situation is, but he could well have a pretty clear deck. Which could be good, or bad, for TB and the NEPs
 

CaptainLaddie

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dcmissle said:
Reported "expedited schedule" does not surprise me given his senior status. Some judges can have a full case load; most do not. Many judges on senior status are out of the criminal wheel entirely. I do not know what this judge's situation is, but he could well have a pretty clear deck. Which could be good, or bad, for TB and the NEPs
So what you're saying is that we know nothing?
 

DJnVa

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Florio said that since the NFLPA has until August 13th to response in NY that if Doty agrees to hear case prior to that, Berman may step aside.
 
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dcmissle said:
Reported "expedited schedule" does not surprise me given his senior status. Some judges can have a full case load; most do not. Many judges on senior status are out of the criminal wheel entirely. I do not know what this judge's situation is, but he could well have a pretty clear deck. Which could be good, or bad, for TB and the NEPs
 
I'll take my chances with a judge with a clear deck and the time to get into the details. Sounds like a good situation to me.
 

dcmissle

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So what you're saying is that we know nothing?
I know this much. Berman was a Clinton appointee and has a reputation as a liberal. I defend business cases. Had one before him some time ago and was treated fairly. He goes by the law, but I think his reputation is not off the mark and I was leery of it going in. If I'm TB or the union, I not crushed by this draw. If I am the NFL, I almost certainly could have done better.

Now is he an avid Jets fan? Hell if I know.
 

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How has this whole saga gone on this long and not one person has mentioned that the NFL is being defended by a man named Mr. Pees?
Hush, child. (And it was, on page 8 of the megathread.)
 

Myt1

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Given all of the other considerations of what goes into making a given district court a proper forum, but obviously accepting that we don't know everything about the judge or the case, would you run the risk of alienating him by trying to have the are heard in Minnesota?

That's kind of a lousy question, I know. But my off the cuff reaction is, "Screw it, we can win anywhere," (whether I believe it or not) and I stick around if I'm the NFLPA.
 

CaptainLaddie

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dcmissle said:
I know this much. Berman was a Clinton appointee and has a reputation as a liberal. I defend business cases. Had one before him some time ago and was treated fairly. He goes by the law, but I think his reputation is not off the mark and I was leery of it going in. If I'm TB or the union, I not crushed by this draw. If I am the NFL, I almost certainly could have done better.

Now is he an avid Jets fan? Hell if I know.
That's really interesting info.  Thank you.
 

HomeBrew1901

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Myt1 said:
Given all of the other considerations of what goes into making a given district court a proper forum, but obviously accepting that we don't know everything about the judge or the case, would you run the risk of alienating him by trying to have the are heard in Minnesota?

That's kind of a lousy question, I know. But my off the cuff reaction is, "Screw it, we can win anywhere," (whether I believe it or not) and I stick around if I'm the NFLPA.
From my extremely limited understanding what can Brady expect?
Best case 0 Games
Worst Case - 4 games
 
Anything in between?
 
I know this has deeper consequences for the NFLPA and Goodell but what could happen with Brady?

 
 

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I have heard many mention (including "lawyers" like Roger (insert joke here) Cusak) that now that this is a legal proceeding, the case is entirely about bargained labor practices and, as such, most judges are hesitant to get involved and overturn RG's ruling.  This makes sense, on its own, but considering that every similar decision made by in recent years by RG that has reached this stage was overturned, statements like this don't match up. 
 
Said another way, do the past rulings against the NFL/Goodell for unfair labor practices factor into this at all? 
 

wade boggs chicken dinner

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SoxJox said:
IANAL, but would like to know: what are the elements of applicable law that the NFLPA must prove against the League, and what are the potential remedies?  Do we know yet what they are actually seeking?
 
Not my area of law, but here's a law review article that discusses arbitration and standards for overturning.  http://pegasus.rutgers.edu/~rcrlj/articlespdf/sposito.pdf
 
Basically, Brady will argue that there is a procedural defect - i.e., Goodell was biased.  (It's my understanding that MASN is using basically the same argument to overturn the MLB award to the Nationals).  Other than that, the standards for overturning are pretty high, like gross and serious error or failure to adhere to the four corners of the contract..
 

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If I were bored, I'd run a westlaw search on Berman's opinions and "collective bargaining," though this is likely a sui generis situation. Anyone have time?
 

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HomeBrew1901 said:
From my extremely limited understanding what can Brady expect?
Best case 0 Games
Worst Case - 4 games
 
Anything in between?
 
I know this has deeper consequences for the NFLPA and Goodell but what could happen with Brady?

 
 
WBV was good enough to add an explanation of possible outcomes to the opening post:
WayBackVazquez said:
[SIZE=10pt]What are the possible outcomes?[/SIZE]
 
[SIZE=10pt]The NFL is seeking to confirm Goodell's ruling. So if the league wins, it will have a federal judgment validating Brady's suspension. Brady can then appeal either to the Eighth Circuit Court of Appeals if the case is ultimately decided in Minnesota, or to the Second Circuit Court of Appeals, if the SDNY decides the case.[/SIZE]
 
[SIZE=10pt]If Brady wins, the court will decide that the award must be vacated, and his case will be "remanded" back to the arbitrator, in the case Goodell, to correct whatever procedural errors the court finds. Of course, if one of those errors is found to be Goodell serving as the arbitrator, another arbitrator would need to be appointed. It is possible that the court may find that the errors made are uncorrectable, in which case the matter would be effectively dead. The NFL would have the same rights to appeal to either the Eighth or Second Circuit Court of Appeals.[/SIZE]
 
If Brady wins, it's remanded and, if it's not for what is an uncorrectable error, it returns to the NFL arbiter (Goodell, unless the court instructs that it can't be Goodell) who issues a new ruling on appeal consistent with the findings of the court (e.g. If it says the penalty was too harsh due to the law of the shop, the arbiter issues a new punishment based on the instructions inherent in the ruling.)
 
Then, depending on what the punishment is, we can do this all over again. :)
 

WayBackVazquez

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HomeBrew1901 said:
From my extremely limited understanding what can Brady expect?
Best case 0 Games
Worst Case - 4 games
 
Anything in between?
 
 
Yes, theoretically, the District Court has the power to "modify" Goodell's ruling. So it could, for examplefind that the "law of the shop" in the NFL requires only a $50,000 penalty for interfering with an investigation.
 
But I find that outcome much less likely than vacating and remanding or confirming in full.
 

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wade boggs chicken dinner said:
 
Not my area of law, but here's a law review article that discusses arbitration and standards for overturning.  http://sonsofsamhorn.net/topic/90569-the-accused-brady-case-legal-issues-only/
 
Basically, Brady will argue that there is a procedural defect - i.e., Goodell was biased.  (It's my understanding that MASN is using basically the same argument to overturn the MLB award to the Nationals).  Other than that, the standards for overturning are pretty high, like gross and serious error or failure to adhere to the four corners of the contract..
 
That link isn't working for me.

To the extent anyone has insights on whether it can be overturned on whether Goodell was biased I think they'd be particularly interesting given who clear it is that the NFL is going after Brady with both barrels.
 

wade boggs chicken dinner

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For those who are interested in the technical issues, it would be worthwhile to read Doty's decision in the Peterson case.  In that case, the NFLPA asked for the vacation of the arbitration on any one of four grounds:  "[SIZE=11pt](1) the award violates the essence of the CBA; (2) Henderson exceeded his authority by deciding the matter based on the hypothetical question of whether Peterson’s punishment was permissible under the old Policy; (3) the award was fundamentally unfair given the retroactive application of the New Policy and the procedural irregularities in the pre-discipline process; and (4) Henderson was an evidently partial arbitrator[/SIZE]".  Henderson, as you may recall, worked for the NFL for something like two decades.
 
Note that Doty ruled for Peterson because (i) applying the new discipline policy retroactively meant that the award "failed to draw its essence" from the CBA, and (ii) opining that the punishment was consistent with the prior policy exceeded his authority (i.e., it was not part of the arbitrable issues).  He did not rule, however, on the partiality issue.
 

Joshv02

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And in the Peterson case, recall that the judge send the case back to Henderson. Who, despite the clear ruling from the District Court, then again retroactively applied the new policy to the Greg Hardy case.

Also, recall that Troy Vincent expressly told Peterson that the new policy would not apply to him. They then went and did exactly what Vincent said they wouldn't do.

The NFL is run by a bunch of lying liars who lie a lot. If I'm them, I definitely do not want to be in front of Judge Doty.
 

zenter

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IANAFF (I'm not a football fan... nor a lawyer) but I'm curious about how burden of proof works in these cases?
 
Assuming NFL's first-filer status is upheld, what are they trying to prove about NFLPA/Brady?
Assuming NFLPA's first-filer status is upheld, what specifically are they trying to prove? That Goodell was outside the CBA (or some good faith interpretation thereof) in the execution of the penalty or something deeper/bigger?
 
Are we talking "preponderance of evidence" or a stricter standard of proof?
 

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Myt1 said:
Given all of the other considerations of what goes into making a given district court a proper forum, but obviously accepting that we don't know everything about the judge or the case, would you run the risk of alienating him by trying to have the are heard in Minnesota?

That's kind of a lousy question, I know. But my off the cuff reaction is, "Screw it, we can win anywhere," (whether I believe it or not) and I stick around if I'm the NFLPA.
I think it's a very reasonable step to take if the union believes they have a better chance in MN. I would think/hope a judge isn't going to have his feathers ruffled where his venue was filed in first only because the filing party had unique knowledge of when the matter would become ripe.
 

WayBackVazquez

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zenter said:
IANAFF (I'm not a football fan... nor a lawyer) but I'm curious about how burden of proof works in these cases?
 
Assuming NFL's first-filer status is upheld, what are they trying to prove about NFLPA/Brady?
Assuming NFLPA's first-filer status is upheld, what specifically are they trying to prove? That Goodell was outside the CBA (or some good faith interpretation thereof) in the execution of the penalty or something deeper/bigger?
 
Are we talking "preponderance of evidence" or a stricter standard of proof?
 
Burden of proof is on the party trying to vacate. So, NFLPA in either forum.
 

wade boggs chicken dinner

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Shelterdog said:
 
To the extent anyone has insights on whether it can be overturned on whether Goodell was biased I think they'd be particularly interesting given who clear it is that the NFL is going after Brady with both barrels.
 
Since you seem to be interested in law review articles, here is one - http://scholarship.shu.edu/cgi/viewcontent.cgi?article=1033&context=circuit_review - that discusses the "evident partiality" standard that the 2nd Circuit uses in, well, excruciating detail.
 
There is a case - Morris v New York Football Giants (1991) - that prohibited a commissioner (Tagliabue in that case) from being an arbitrator in a contract dispute based on his "past advocacy" in opposition to the players' position.  That case is used in every motion seeking the removal of the arbitrator in the NFL context.
 
This time I'll double check the link
 

djbayko

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WayBackVazquez said:
 
Burden of proof is on the party trying to vacate. So, NFLPA in either forum.
That makes logical sense, but it's still a bit weird. So basically, if Brady's team was never going to file a petition, they don't present a case, and essentially a default judgement to affirm the decision is entered by the judge?