Did the NFL catch Brady & co. asleep at the switch with the "generally aware" thing?
Edit: And the "no independent investigation is required" thing.
Edit: And the "no independent investigation is required" thing.
Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only
- Thread starter WayBackVazquez
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Can somebody help me regarding point #3 from the NFL
I have to be missing something here.
Otherwise, it seems to defy logic. I interview you and find you credible therefore there is no penalty. However, If I interview you and find you to not be credible there will be a penalty. And because I don't find you credible I don't have to tell you what that penalty will be.
Are they saying that because Goodell found Brady to lack credibility, he is not required to notify him of potential penalties based on his perceived cooperation?
I have to be missing something here.
Otherwise, it seems to defy logic. I interview you and find you credible therefore there is no penalty. However, If I interview you and find you to not be credible there will be a penalty. And because I don't find you credible I don't have to tell you what that penalty will be.
I missed that conversation, but...wow. How can anyone with a straight face still call that "arbitration"?There is no Rev said:
Gambler7 said:
Guys, seriously, why are you posting these tweets in here? I just posted the actual direct quote from the brief on the last page.
Eddie Jurak said:
Again, no. From the NFLPA's brief:
it's hard for me to believe he wouldn't. Just like judges get to grant motions or raise issues themselves even if not argued by the parties (although they do so rarely). They have extremely broad powers.AB in DC said:
It's just that the arbitrator and the person initially issuing the discipline usually aren't both on the same side (or the same person
), so the change is rarely so transparently a correction based not on evidence but on trying to appeal-proof the decision.Edit: And any judge worth his salt would give the parties a chance to brief or respond to an issue he planned on raising sua sponte as the basis for his decision.
There is no Rev said:
That's the standard for an appellate court affirming a trial court. I don't know that it applies to an arbitrator affirming the initial discipline--and the NFLPA expressly argues it doesn't.
soxhop411 said:
Here's the argument that the NFL makes in its memo. It's pretty close to exactly how Brandt reports it: "Furthermore, Article 46 does not require an “independent” investigation prior to the imposition of discipline, and indeed it is commonplace for NFL personnel other than the Commissioner to investigate the problematic conduct."
In their answer/counterclaim, the NFLPA notes that both the league and Wells himself have touted the report as "independent". That fits with my general recollection or what Goodell said, but I'd like to see the language. Also, did Wells actually testify it was "independent." This could be a serious mis-step by the NFL. I get what they are trying to do here. Their argument is basically a "for argument's sake" argument -- they are saying, "the investigation was independent, but even if it weren't, it wouldn't matter because there is no requirement for it to be independent." But the 15 page limit makes it so it really doesn't come across like that.
If the press latches on to this, it's hard for them not to have a real field day here. It really comes across as though they were simply saying: "We were lying to the public about it being independent."
They are not even really trying to compete in the court of public opinion any more -- either they think they have that locked up or they don't care because their view is "so long as we win in court, the public will see it as vindication, so our mission here is to do whatever we need to do to win in court."
The more I think about this case, the odder the courts' toleration of the NFL sorta folding the arbitration stage into their own process and then trying to claim the authority and deference that "real" arbitrators get by virtue of skill sets and experience that Goodell simply does not have seems to me.WayBackVazquez said:
It's like shotgun rules of being an arbitrator.
Typically labor arbitrators will absolutely not affirm a discipline grievance on different grounds than those stated in the original discipline. In fact, if management upholds discipline at a later stage of the grievance process (that is, before the grievance proceeds to arbitation) on different or additional grounds than those on which the original discipline was premised, that is grounds for the arbitrator to sustain the grievance.WayBackVazquez said:
But the analytical framework of a typical labor arbitation over discharge/discipline is very different than what we have here. Typically the employer has the burden of showing by clear and convincing evidence that it had just cause for the discipline. Just cause consists of showing that (a) the employee violated the rule for which he was disciplined and (b) the penalty was appropriate under the CBA. Lack of notice and past practice essentially function as affirmative defenses. For example, the employer disciplines an employee pursuant to a work rule which it had the right to promulgate under the CBA, but it failed to post or distribute the rule, or the employer discharges an employee on the first offense whereas past practice has been that employees have always received a final warning before being disciplined for the rule violation.
I haven't read the memos yet, but from what I've read previously, the analysis employed in these Article 46 hearings is a different animal.
DennyDoyle'sBoil said:
That would seem to be what the NFL has embarked on. I would love to see Jon Lovitz doing his Liar routine with Goodell's whole approach to his justification cha-cha-cha.
Here is the problem from the League's standpoint. Even if one assumes that the basis for discipline can morph at the arbitration stage -- otherwise known as the appeal stage -- the morphing has to have some support.
We anticioated the morphing because "general awareness" is batshit crazy. But how do you get to something resembling actual culpability? RG's answer appears to be an adverse inference drawn from the phone business. But if you never warn of such an inference -- and that point is undisputed, RG conceded it -- then you have some good old fashioned fundamental fairness problems that, if perpetrated by a state actor, would be flat out violations of due process. Now this does not involve a state actor, of course, but that is a common thread linking the Rice case to the AP case to this one.
Eventually, things get so bad that they cry for reversal, and talented judges can plot many paths.
We anticioated the morphing because "general awareness" is batshit crazy. But how do you get to something resembling actual culpability? RG's answer appears to be an adverse inference drawn from the phone business. But if you never warn of such an inference -- and that point is undisputed, RG conceded it -- then you have some good old fashioned fundamental fairness problems that, if perpetrated by a state actor, would be flat out violations of due process. Now this does not involve a state actor, of course, but that is a common thread linking the Rice case to the AP case to this one.
Eventually, things get so bad that they cry for reversal, and talented judges can plot many paths.
MarcSullivaFan said:
But why would this be the case? Article 46 just says that there will be a hearing, and that the Commish shall appoint a hearing officer. It doesn't say anything about superseding comparable arbitration rules. isn't the NFLPA basically saying that appeal was not handled in the way that the CBA anticipated?
dcmissle said:
Agree with the basic analysis---this is why the argument has been morphing, and they are still stuck with the problem that they don't have the facts to support anything they can legitimately discipline for.
Have not touched labor law since law school, but it would surprise me if the enabling acts that allow for the CBA and the arbitration here don't have some form of due process requirement imputed.
Like I said, though, about my knowledge of labor law...
dcmissle said:
When you say phone business, are you referring to not turning over/destroying the phone, or he Brady-Jastreski phone contacts after the AFCCG? Roger likes to have it both ways, so I think he's placing a lot of his "actual culpability" determination on the mere existence of the Brady-Jastreski phone contacts after the AFCCG.
Maybe your notice observation applies in either case?
The very fact they keep tweaking their legal theory suggests that they don't have firm ground to stand on.
Speaking from very limited experience, but holy shit would I be terrified to argue the strengths of a legal theory that has evolved at least three times in 7 months.
Speaking from very limited experience, but holy shit would I be terrified to argue the strengths of a legal theory that has evolved at least three times in 7 months.
I don't think the NFL's response on the "generally aware" problem is that satisfying, and although I don't know the law it's really not that persuasive.
Consider three hypotheticals. One: Player is accused of punching a fan during a game. NFL hires an independent investigator, who listens to the player, listens to the fan, and listens to witnesses. He concludes it's more probable than not that the player punched the fan. The player appeals under the CBA. During the appeal, the NFL comes up with never before seen security tape that shows the player punching the fan. Goodell affirms the punishment, holding that (a) he agrees with the investigator's analysis, and (b) also the security tape confirms the punch.
Two: Player is accused of punching a fan. The NFL takes statements from the fan and, on the basis of those statements, punishes the player. On appeal, the fan recants and admits he was lying because he is really the fan of a rival team and hates the player, and security tape shows that the player did not punch the fan. However, in reviewing a year's worth of tape, it turns out the player did punch a fan in another game during half time. On the basis of that tape, Goodell upholds the suspension.
Three: Player is accused of looking sternly at a fan. The NFL conducts an investigation and concludes that, in fact, the player did look sternly at a fan and suspends him for four games. On the player's appeal, the NFL reviews video tape and discovers that later in the game, the player punched the fan. Goodell, on that ground, affirms the suspension. Assume for purposes of hypothetical three there is precedent that establishes as a matter of law that looking sternly at a fan cannot constitute conduct detrimental under the CBA.
The league is arguing that this is merely hypothetical one. The NFLPA is contending that this is closer to two or three. I don't think it fits perfectly in any of these. But, were I a judge, the question I would ask myself first is simply this: Is it true that players in the NFL do not have adequate notice that general awareness of another person's conduct can be "conduct detrimental." If my conclusion was, "no, that's not fair," and I further concluded the NFL was wrong about my authority to consider fundamental fairness in a motion to confirm or vacate, I would find that this is indeed like hypothetical number 3. The problem is not that the league simply added new evidence on top of old evidence that was sufficient for discipline. The problem is that the original basis for discipline, which was affirmed, was not an adequate basis for discipline in the first place. Accordingly, there never should have been an appeal to Goodell in the first place, and no opportunity for him to fix his original ruling with more evidence.
Consider three hypotheticals. One: Player is accused of punching a fan during a game. NFL hires an independent investigator, who listens to the player, listens to the fan, and listens to witnesses. He concludes it's more probable than not that the player punched the fan. The player appeals under the CBA. During the appeal, the NFL comes up with never before seen security tape that shows the player punching the fan. Goodell affirms the punishment, holding that (a) he agrees with the investigator's analysis, and (b) also the security tape confirms the punch.
Two: Player is accused of punching a fan. The NFL takes statements from the fan and, on the basis of those statements, punishes the player. On appeal, the fan recants and admits he was lying because he is really the fan of a rival team and hates the player, and security tape shows that the player did not punch the fan. However, in reviewing a year's worth of tape, it turns out the player did punch a fan in another game during half time. On the basis of that tape, Goodell upholds the suspension.
Three: Player is accused of looking sternly at a fan. The NFL conducts an investigation and concludes that, in fact, the player did look sternly at a fan and suspends him for four games. On the player's appeal, the NFL reviews video tape and discovers that later in the game, the player punched the fan. Goodell, on that ground, affirms the suspension. Assume for purposes of hypothetical three there is precedent that establishes as a matter of law that looking sternly at a fan cannot constitute conduct detrimental under the CBA.
The league is arguing that this is merely hypothetical one. The NFLPA is contending that this is closer to two or three. I don't think it fits perfectly in any of these. But, were I a judge, the question I would ask myself first is simply this: Is it true that players in the NFL do not have adequate notice that general awareness of another person's conduct can be "conduct detrimental." If my conclusion was, "no, that's not fair," and I further concluded the NFL was wrong about my authority to consider fundamental fairness in a motion to confirm or vacate, I would find that this is indeed like hypothetical number 3. The problem is not that the league simply added new evidence on top of old evidence that was sufficient for discipline. The problem is that the original basis for discipline, which was affirmed, was not an adequate basis for discipline in the first place. Accordingly, there never should have been an appeal to Goodell in the first place, and no opportunity for him to fix his original ruling with more evidence.
Maybe I'm missing something, but isn't it the case that there is no new evidence, only a frustration of Goodell's desire to obtain new evidence because of another non-violation of the rule (i.e., disposing of the phone)? So wouldn't your hypothetical 3 be more accurate if, instead of finding the film showing the punch, it turned out that the player's wife had film of ever second that the player was on the field but had thrown them in the dumpster before the arbitration hearing?
It applies to both. How do you appeal to RG from a point not made in the Vincent letter? You can't.Harry Hooper said:
Besides, Wells had all the evidence and never got beyond general awareness -- even while dotting the Is and crossing the Ts on such legal niceties as "more probable than not." Judge Berman damn well knows this, or will soon enough.
I knows of nothing evidentiary in the hearing before Goodell that bolsters the case for actual culpability. If I am wrong about that , please correct me.
I'm with you. And not only that, but because the new basis for punishment didn't come up until the official appeal ruling, the defendant never had the ability to appeal it!DennyDoyle said:
Just another example of a behavior that, if allowed, gives the commissioner the authority to do whatever he wants.
Again, like your post, this is a logical argument and not necessarily a legal one.
I've been wondering, doesn't the completely separate charge that Goodell levied after the "arbitration hearing" require, in essence a second appeal? Could the judge remand this case for a new arbitration hearing and require it to be before a neutral arbitrator based on the fact that Goodell charged Brady with actively conspiring to deflate balls during the AFCCG?DennyDoyle'sBoil said:
EDIT: I'm building on djbayko's point, I guess.
dcmissle said:
No, I feel the same way, and this is what I cannot believe isn't being talked about by national media. McNally's trip to the bathroom, the Dorito Dinks' texts, and the actual PSI measurements (even if interpreted in the light most unfavorable to Foxborough) do not provide any evidence of culpability by Brady. In fact the texts have more of an exculpatory bent with the discussion of 16 PSI in the Jets game and references to Brady wanting inflation at a legal 12.5. What is there, really, other than a sense by football guys like John Madden that no one would touch the balls without the QB's approval. Feelings aren't supposed to rout facts in evidence.
How likely is it that Judge Berman will ignore the Doty ruling, which the NFLPA says is binding? It does seem to address the issue here of switching the legal rationale in midstream.
http://stmedia.startribune.com/documents/Judge+Doty's+ruling+overturning+Peterson's+suspension.pdf
--Judge Doty ruling overturning Adrian Peterson discipline which Kessler is citing as relevant and binding precedent.
--Judge Doty ruling overturning Adrian Peterson discipline which Kessler is citing as relevant and binding precedent.
The NFL seems to have realized that a "general awareness" standard resulting in the equivalent of a PED violation under the Competitive Integrity policy was too contradictory( zero direct evidence v no question positive evidence) to pass the sniff test of the courts.
Therefore, Gooddell in an arrogant doubling down attempts to build the foundation of the Competitive Integrity violation out of the cell phone and texts. Deflation and Wells essentially become support beams.
Seemingly this puts RG in the position of repeating the Ray Rice mistake of changing his rationale and basically calling the player not credible at the appeal hearing. The procedural difference/result being Rice's penalty was increased while Brady's remained the same. Also with Rice RG increased his penalty based on new evidence. With Brady, RG dismissed any new evidence he didn't like.
Also seems odd that NFL has no problem claiming no independent arb is required in CBA while at the same time basing the arb award on non cooperation/obstruction re all Brady's personal cellphone messages which is not explicitly required by CBA. Feel much better with this process out of the League's office.
Therefore, Gooddell in an arrogant doubling down attempts to build the foundation of the Competitive Integrity violation out of the cell phone and texts. Deflation and Wells essentially become support beams.
Seemingly this puts RG in the position of repeating the Ray Rice mistake of changing his rationale and basically calling the player not credible at the appeal hearing. The procedural difference/result being Rice's penalty was increased while Brady's remained the same. Also with Rice RG increased his penalty based on new evidence. With Brady, RG dismissed any new evidence he didn't like.
Also seems odd that NFL has no problem claiming no independent arb is required in CBA while at the same time basing the arb award on non cooperation/obstruction re all Brady's personal cellphone messages which is not explicitly required by CBA. Feel much better with this process out of the League's office.
Roger thinks he's an Absolute Monarch, and I think a liberal judge will agree with Doty that he has to follow the CBA and not "impose his own brand of industrial justice." I'm optimistic.
And this is why I hate arbitration especially when the other side is driving selection of arbritrators.
NFL has a very high chance of winning simply based on an argument that amounts to "neener neener. We checked the boxes, and some even poorly, but Arbritration!!! Neener neener".
Even better is watching the NFL dropping all pretenses of the past 7 months about Wells, etc and knowing the NFL media is most likely going to let them get away with it.
Their brief is really a work of art the way they are thumbing their noses at the whole process and idea of Arbritration.
Also, I know it's been discussed ad nauseum it is not going to happen, but the NFL, for whatever reason, has decided they really want to flirt with the definition of actual malice the further this process goes.
NFL has a very high chance of winning simply based on an argument that amounts to "neener neener. We checked the boxes, and some even poorly, but Arbritration!!! Neener neener".
Even better is watching the NFL dropping all pretenses of the past 7 months about Wells, etc and knowing the NFL media is most likely going to let them get away with it.
Their brief is really a work of art the way they are thumbing their noses at the whole process and idea of Arbritration.
Also, I know it's been discussed ad nauseum it is not going to happen, but the NFL, for whatever reason, has decided they really want to flirt with the definition of actual malice the further this process goes.
How high of a chance do you think the NFL has of winning even after seeing the transcript and the other briefs filed?edmunddantes said:
ipol said:
Not sure if it matters, but I think the NFLPA pointed out that the Peterson ruling is in effect because the NFL did not file an injunction when they appealed.
(IANAL disclaimer)
What seems hard to fathom, given the NFL's lack of evidence, and evolving charges against Brady, evolving legal arguments and what appears to this observers untraIned eye as blatant unfairness, as it conducted a biased predetermined investigation, is that even if all the boxes are properly checked, that a Judge at any level would approve and ratify the NFL approach to arbitration.
and to the lawyers thank you for the discussion its been helpful in trying to size and understand the issues.
What seems hard to fathom, given the NFL's lack of evidence, and evolving charges against Brady, evolving legal arguments and what appears to this observers untraIned eye as blatant unfairness, as it conducted a biased predetermined investigation, is that even if all the boxes are properly checked, that a Judge at any level would approve and ratify the NFL approach to arbitration.
and to the lawyers thank you for the discussion its been helpful in trying to size and understand the issues.
To be completely honest, I have no clue.RedOctober3829 said:
I could sit here and lay down a ton of arguments as to why I think the NFLPA should win, and a lot of them would be good strong legal arguments.
On the other hand, the NFL has the ultimate weapon of Arbritration deference.
So much is tied up in what the mentality is of the judge you get to hear the case.
Does he give deference (some are hard asses about strictly following the law to the point of "it's a bad result but my hands are tied")? How much?
What does he think of the relative strengths of the parties involved?(many judges dislike seeing two unequal parties in power and sometimes will lean towards the arguments of the weaker side)
i could come up with great arguments on either side. And yet, the Arbritration deference would keep me up at night. I'd sleep better at night not worrying about the outcome if I was the NFL lawyers. (Well it would be an even better nights sleep if I wasn't being so obvious about how I'm stretching the bounds of Arbritration in my actions).
TL;DR version.
deference is the ultimate weapon, but NFL is doing their darnedest to make it obvious as the only part of their argument with any real weight. And still I'd lean 70-30 their favor (not on merits but the equivalent of home field advantage).
The pincite is wrong. The exceeded authority analysis starts on 14 but the meat is on 15-16. Henderson exceeded his authority by finding the disincline appropriate under *either* the old policy. But that wasn't the question presented in the Article 46 hearing. In other words, Doty found that Henderson exceeded his authority by affirming on basis other than that on which the original discipline was based: The "new" policy.WayBackVazquez said:
A lot of this is hard to parse because of the (intentionally?) confusing way the NFL's brief is written with respect to the initial suspension by Vincent vs. Goodell's decision to uphold the suspension. While the NFLPA differentiates between Vincent acting under Goodell's authority, and Goodell himself, the NFL only uses Vincent's name once, in a quote from the Award. The rest of the time, the NFL talks about "the Commissioner" being the one to suspend Brady, as well as "the Commissioner" being the one to hear the appeal. For instance:
The result is that when the NFL writes about the "generally aware" idea, it's hard to tell if they're talking about Vincent or Goodell:
Does "the Commissioner" here mean Vincent, or does it mean Goodell? By talking about the Commissioner "disciplin[ing]" and "suspend[ing]" Brady, the NFL is trying to suggest it means Vincent. The arbitration on the hand upheld the discipline/suspension.
In other words, the NFL is trying to make it sound like the arbitration award wasn't de novo, bur rather that Vincent initially suspended Brady for, in part, actively participating in the scheme, and thus the "exceeded the scope of authority" argument from Peterson is inapplicable.
The result is that when the NFL writes about the "generally aware" idea, it's hard to tell if they're talking about Vincent or Goodell:
Does "the Commissioner" here mean Vincent, or does it mean Goodell? By talking about the Commissioner "disciplin[ing]" and "suspend[ing]" Brady, the NFL is trying to suggest it means Vincent. The arbitration on the hand upheld the discipline/suspension.
In other words, the NFL is trying to make it sound like the arbitration award wasn't de novo, bur rather that Vincent initially suspended Brady for, in part, actively participating in the scheme, and thus the "exceeded the scope of authority" argument from Peterson is inapplicable.
The commissioner has the right to suspend players for conduct detrimental to the game, and Brady was on notice of this, as it's in the standard player contract.Ed Hillel said:
Under the CBA, only the Commissioner can punish for conduct detrimental. That was the first point in the appeal letter to Vincent - that Vincent did not have the authority to suspend Brady. So Goodell basically has to maintain that he was the one who levied the initial punishment against Brady, because otherwise it's an obvious violation of the CBA.bowiac said:
DePaso (in the letter to Vincent):
Goodell replied:
Oh, and Goodell reviewed his own delegation of authority, and guess what you guys? It was totally above-board. And could not be mentioned in Brady's appeal: "I note there has been a ruling that I cannot ask you about delegation issues, so I'm just noting that if not for that ruling, I would be asking now at this point about that." (Kessler)
Yeah, which is nowhere in Vincent's letter to Brady. He uses the exact same "at least generally aware" language.bowiac said:
Kessler pointed out:
So basically, Wells didn't go any further than "more probably than not generally aware," Goodell didn't use any information other than the Wells Report, and he still decided to punish for a greater infraction.
Even if you hate the Pats, this whole thing stinks like a rotten fish.
I assume the "inducements" reference is based on text messages about clothing and signed items?
The signed items part is total BS. Players sign items for pretty much anybody on the support staff that wants it.geoduck no quahog said:
Super Nomario said:
I guess I'd note that Vincent says "at least" generally aware, which I suppose might be important. Not sure whether Wells used the same language.
"At least" has to be considered meaningless in this case by any reasonable person. As Kessler put it, if they had more they would have said so. This isn't like someone saying "I'm not sure how many Super Bowls Tom Brady has played in, but it's at least 4."
Super Nomario said:
I think the NFL would say that for the appeal, Goodell had Brady's testimony which he found 'not credible' and that is additional evidence.
I'm not saying that works, or is credible, but I think that's their view.