Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only
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dcmissle said:
But how is that even quantifiable. As we've covered in this thread, there really isn't a lot of space for these two parties to work out a deal. There are probably only about a half-dozen plausible options (1 game, 2 games, 3, games - admission of wrong doing or not), and if none of them are appealing to one or both parties, where do you go?
Judges can't force a settlement. Berman's job isn't to be mediator. If he just sticks both in a room and tells them to work out a deal, he's basically abdicating his responsibility to, you know, judge.
I think this is all part of his routine and nothing more.
Of course he will rule if necessary. Judges have tons of discretion in pushing settlement, or not.
For better or worse we shall see, but Berman obviously has been hot on the settlement trail from the beginning.
The pressure is likely to amplify. Pats fans should not go wobbly when that happens.
For better or worse we shall see, but Berman obviously has been hot on the settlement trail from the beginning.
The pressure is likely to amplify. Pats fans should not go wobbly when that happens.
Not sure if this would make it in front of Berman, but the NFLPA PR guy is feeling chirpy today.
https://twitter.com/GeorgeAtallah/status/631113243541508096
Nothing really wrong. It's a joke, but why do anything to put yourself on the radar.
Just stay quiet. ( I know it's like telling water to stay dry. PR guys. SMH)
https://twitter.com/GeorgeAtallah/status/631113243541508096
Nothing really wrong. It's a joke, but why do anything to put yourself on the radar.
Just stay quiet. ( I know it's like telling water to stay dry. PR guys. SMH)
drleather2001 said:
From a non-lawyer, I have a question. Is it likely the judge will be more hostile if they don't settle? I'm actually curious as to the logistics of it. I feel like if I were a judge pushing settlement in an arbitration dispute where the actions meriting discipline were agreed upon (Brady fucked up, but you went too far), I'd be hostile towards the side I thought was holding up the settlement. But in a situation like this, where one side is protesting that he even did the action you're punishing him for, I feel like I couldn't reasonably expect a settlement.
I think he'll show less patience toward any party to whom he indicated (however implicitly) he believes has a weak case, or who is being unjustifiably obstinate. He might be a little less likely to sustain a borderline objection, or grant a continuance, or the like. He might also use it as an excuse to add some withering dicta.
But I don't think it would ultimately affect how he'd rule. He's really giving any party with a bullshit argument to have a "Come to Jesus" moment and spare themselves the cost and humility of getting called out in his courtroom. We, of course, have no way of knowing if he thinks either the NFL or NFLA/Brady have a lousy argument, or if this is just par for the course with him. Perhaps he uses these conferences to also get a better grip on how the oral arguments will go so he can better anticipate what types of objections to expect, and to get a feel for the primary attorneys. Who knows.
But I don't think it would ultimately affect how he'd rule. He's really giving any party with a bullshit argument to have a "Come to Jesus" moment and spare themselves the cost and humility of getting called out in his courtroom. We, of course, have no way of knowing if he thinks either the NFL or NFLA/Brady have a lousy argument, or if this is just par for the course with him. Perhaps he uses these conferences to also get a better grip on how the oral arguments will go so he can better anticipate what types of objections to expect, and to get a feel for the primary attorneys. Who knows.
drleather2001 said:
True, in theory.
In practice, though: in courtrooms across the country right now, judges (or their law clerks) are telling gaggles of attorneys: "You guys take this out into the hallway and come back with a short form order I can sign, or I'm going to rule and none of you are going to like it."
I agree with dcm - judges have near-total discretion to push settlement, and some do, and some don't. In the New York State court system, there was a trial judge in Kings County (Brooklyn) who never, ever sat on the bench. He had a conference room table in the well in front of the bench, and he would always have counsel and the parties sit around the table and he would schmooze and cajole towards settlement, in an avuncular, jolly-grandpa kind of way. He would write down a number on a slip of paper, fold it, hand it to one lawyer, and say "Would this do it for you?" and then write another number down, hand it to opposing counsel, and say, "How about you, would you take this?"
One day, he took the jolly-grandpa act too far and grabbed his secretary's ass, and he's now feeding pigeons in the park, so there's that.
I don't see where there's room to do something like that here. If money were the issue, you can always twist arms to have someone pay more money or take less money. Harder to split the baby here.
No. The vast majority of judges are professional.PBDWake said:
But the judge is very likely to bring clarity to how he is likely to rule. It may be very subtle, but it will be clear.
Nobody is likely to be able to claim with any credibility that he was blindsided by the ruling when it comes, if it comes
Since we can now read the Hardy appeal letter, it is incredible.
Even in the face of the Peterson opinion by Judge Doty, Henderson takes the position that the CBA allows the Commissioner to provide any punishment whatsoever and, therefore, he is now bound to the 2 games that was previously the limit (by customer, not necessarily policy). Providing no backup for the position whatsoever, he simply writes “However, ten games is simply too much, in my view, of an increase over prior cases without notice such as was done [after the Hardy offense took place].” So, even though Judge Doty wrote that “It is undisputed that under the previous Policy, first-time domestic violence offenders faced a likely maximum suspension of two games,” and in failing to consistently apply the prior policy in Petersen “Henderson simply disregarded the law of the shop and in doing so failed to meet his duty under the CBA.”
Yet, in Hardy, Henderson does basically the same thing.
I can’t imagine the hubris.
edit: Christ - Petersen opinion by Doty.
Even in the face of the Peterson opinion by Judge Doty, Henderson takes the position that the CBA allows the Commissioner to provide any punishment whatsoever and, therefore, he is now bound to the 2 games that was previously the limit (by customer, not necessarily policy). Providing no backup for the position whatsoever, he simply writes “However, ten games is simply too much, in my view, of an increase over prior cases without notice such as was done [after the Hardy offense took place].” So, even though Judge Doty wrote that “It is undisputed that under the previous Policy, first-time domestic violence offenders faced a likely maximum suspension of two games,” and in failing to consistently apply the prior policy in Petersen “Henderson simply disregarded the law of the shop and in doing so failed to meet his duty under the CBA.”
Yet, in Hardy, Henderson does basically the same thing.
I can’t imagine the hubris.
edit: Christ - Petersen opinion by Doty.
OilCanShotTupac said:
Exactly. Which means one of three things:
1) Berman's just doing what he always does and following his routine pre-trial procedure, and tomorrow will say "Welp, I guess I'll see you in court."
2) He thinks the NFL's case is shit and he's trying to get them to back down; or
3) He thinks Brady's case is shit and he's trying to get him to back down.
And we have no way of knowing which of those three it is.
And Hardy has yet to appeal it back to Doty.Joshv02 said:
I'm wondering why at this point. It seems like a pretty strong slap in the face to Doty's order, but Hardy/NFLPA have been laying low.
Maybe waiting to see outcome of Brady case? Not sure why if true.
That note increases the informal pressure on the attorneys to at least appear reasonable--the lawyers are not stupid, nor are they inclined to cross a sitting federal judge. But it actually decreases the formal pressure on the parties. Recall that the judge's first reaction was to *order* the parties to start settlement talks amongst themselves. This is merely a "request" that recognizes that some good faith settlement talks have already happened. So both sides know that they can say no without violating an order.
Tl;dr: The conversation in the robing room will probably be:
"I tried real hard, your honor, but my client wants a ruling on this one."
"Yep, mine too."
"OK, then, counsel."
Tl;dr: The conversation in the robing room will probably be:
"I tried real hard, your honor, but my client wants a ruling on this one."
"Yep, mine too."
"OK, then, counsel."
edmunddantes said:
Since Hardy knows that he's going to serve two games no matter what, there is time for Hardy (and the NFLPA) to make the ultimate decision here. But given the clear language of Doty's earlier ruling, it's difficult for me to believe that the NFLPA will allow Henderson's ruling in the appeal to stand.
Since the Brady case is on an expedited timetable, my guess is that the NFLPA wants to see how it plays out before deciding their next steps with Hardy. And given how unsympathetic Hardy is as a human being, this makes some sense. (No need to confuse the cases in the mind of the public or give the NFL a chance to lump the two together.)
Joshv02 said:
"he is now bound to the 2 games that was previously the limit" Is that supposed to read "not bound"?
This writer maintains the CBA is not a "magic wand" that Goodell/NFL can use to excuse all manner of fact-invention:
http://www.footballbyfootball.com/column/myth-busted-cba-is-no-magic-wand-for-roger-goodell
"By now you've probably heard about Article 46 of the NFL's collective bargaining agreement, and how it allows Commissioner Roger Goodell to serve as the judge and jury on player discipline issues. Here it is in all it's ambiguous glory (p. 204-206). Somehow the popular narrative has taken Article 46 and deduced that somehow Goodell can then do whatever he wants. That's a Carl Lewis leap that's simply not supported by any court decision. To think that, much like Roger Goodell, you simply have to make stuff up."
http://www.footballbyfootball.com/column/myth-busted-cba-is-no-magic-wand-for-roger-goodell
"By now you've probably heard about Article 46 of the NFL's collective bargaining agreement, and how it allows Commissioner Roger Goodell to serve as the judge and jury on player discipline issues. Here it is in all it's ambiguous glory (p. 204-206). Somehow the popular narrative has taken Article 46 and deduced that somehow Goodell can then do whatever he wants. That's a Carl Lewis leap that's simply not supported by any court decision. To think that, much like Roger Goodell, you simply have to make stuff up."
Koufax said:
Except this quote - "Or the page describing four-game suspensions for being generally aware of something that simple science says didn't happen" - which (based on what I've read on this thread and not the actual briefs) is an incorrect characterization of the NFL's argument.
txexile said:
The following may be of interest:
"1. Essential personal qualifications of an arbitrator include honesty, integrity,
impartiality and general competence in labor relations matters.
An arbitrator must demonstrate ability to exercise these personal qualities
faithfully and with good judgment, both in procedural matters and in
substantive decisions....
2....
D. Personal Relationships with the Parties
1. An arbitrator must make every reasonable effort to conform to arrangements
required by an administrative agency or mutually desired by the parties
regarding communications and personal relationships with the parties.
2...
.
3. An arbitrator shall not engage in conduct that would compromise or appear to
compromise the arbitrator’s impartiality...
B. Required Disclosures
1....
2....
3. An arbitrator must not permit personal relationships to affect decisionmaking.
Prior to acceptance of an appointment, an arbitrator must disclose to the parties
or to the administrative agency involved any close personal relationship or other
circumstance, in addition to those specifically mentioned earlier in this section,
which might reasonably raise a question as to the arbitrator's impartiality.
D. Personal Relationships with the Parties
1. An arbitrator must make every reasonable effort to conform to arrangements
required by an administrative agency or mutually desired by the parties
regarding communications and personal relationships with the parties.
a. Only an "arm'slength" relationship may be acceptable to the parties in some
arbitration arrangements or may be required by the rules of an administrative
agency. The arbitrator should then have no contact of consequence with
representatives of either party while handling a case without the other party's
presence or consent.
b. In other situations, both parties may want communications and personal
relationships to be less formal. It is then appropriate for the arbitrator to
respond accordingly...."
and so on.
CODE OF PROFESSIONAL RESPONSIBILITY FOR
ARBITRATORS OF LABORMANAGEMENT
DISPUTES
This is a sampling of the ethical code for AAA appointed labor arbitrators. Granted RG operates from a different platform, but I just don't see how he escapes from the implied duty of good faith and fair dealing that exists at least in the common law. In that view, the AAA standards (quite similar to the JAMS standards in essence) may represent a template of what is expected from RG.
Again, this is relevant to how Kessler can escape from the underlying question: Isn't this a plain vanilla arbitration that the court should defer to?
PS: I'm still holding out for two giraffes, but would consider one giraffe and two zebras if it comes to that.
Edit: Link - http://tinyurl.com/nc37r54
I don't know if Chatham gets any assistance in writing his columns but they do sound a lot like Chatham's voice on the air. Meaning that Chatham generally comes off as substantially more knowledgeable and precise than most other commentators. He is also quite passionate in general and all the more so when it comes to this issue. So even if he is getting help from an editorial perspective, I think we are reading his unadulterated views.
And Wade is right. He is a little behind on what the NFL is now saying...which is that Brady was much more hands on that the prior "generally aware" nonsense.
And Wade is right. He is a little behind on what the NFL is now saying...which is that Brady was much more hands on that the prior "generally aware" nonsense.
I suspect Chatham writes this stuff, but is benefited from an aggressive editor. He has enough bad sentences that his inexperience as a persuasive writer shines though, but also some excellent quips and sharp wit, and I suspect some of that is editing. Just a guess though.
I finally got around to reading the NFLPA summary submitted last Friday. There was a point made by Kessler/the NFLPA that either didn't exist before or one that I missed in the fairness and consistency section:
In my layman's opinion, this is an excellent point. Even if Berman grants Goddell's grasp at precedent with the performance enhancing drugs 4 game suspension analogy as semi-legitimate, this point alone should have convinced any neutral arbitrator that there should be no punishment in this case.
https://nflpaweb.blob.core.windows.net/media/Default/PDFs/Media%20Resources/August%207.pdf p.12
In my layman's opinion, this is an excellent point. Even if Berman grants Goddell's grasp at precedent with the performance enhancing drugs 4 game suspension analogy as semi-legitimate, this point alone should have convinced any neutral arbitrator that there should be no punishment in this case.
Otis Foster said:
But do these principles have any legal standing, or is it just a kind of "best practices" that is aspired toward but never entirely reached?
At the risk of beating a dead horse, I've been saying for weeks now that the appeal (a.k.a. Article 46 hearing) looks nothing like an arbitration by the ordinary meaning of the term, but none of the lawyers here seem to agree with me. I mean, Article 46 doesn't even use the word "arbitration". But both the NFLPA and the NFL refer to it that way. So I'm obviously missing something.
Well, I (and I think others) may have misunderstood Berman's prior order. I had viewed that order as essentially setting up two settlement conferences over which he was going to preside. It now instead seems like these are just status conferences during which he'll take the parties' temperature re: settlement based on their efforts to date. Thoughts?
Edit: McCann and others are continuing to maintain that these conferences are going to involve settlement negotiations/mediation work by Berman. I guess we'll see.
In any event, I don't think any settlement is in the offing unless Berman tells Brady and the NFLPA that his ruling will say that Goodell has carte blanche to do whatever he wants under the CBA, so they'd better think hard about taking their medicine to avoid having that kind of ruling on the books. Goodell's posturing strongly suggests that the NFL would rather go to the Second Circuit than give an inch, and I don't see that they have anything to lose here (as drleather and OCST and OtisF have more or less said).
Edit2: Sorry Otis!
Edit: McCann and others are continuing to maintain that these conferences are going to involve settlement negotiations/mediation work by Berman. I guess we'll see.
In any event, I don't think any settlement is in the offing unless Berman tells Brady and the NFLPA that his ruling will say that Goodell has carte blanche to do whatever he wants under the CBA, so they'd better think hard about taking their medicine to avoid having that kind of ruling on the books. Goodell's posturing strongly suggests that the NFL would rather go to the Second Circuit than give an inch, and I don't see that they have anything to lose here (as drleather and OCST and OtisF have more or less said).
Edit2: Sorry Otis!
I've made that point several times in this thread. Search for "grievance procedure."AB in DC said:
I've also tried to make the same point on several occasions.
It's not quantum mechanics. RG is paid to stand his ground. It is impossible for him to go back to the other owners with anything less than a 100% rollover by TB. If you lose at the 2d Circuit and the Supremes reject a petition for cert, so be it.
I finally read the NFL Management Council's memorandum of law in opposition to the motion to Vacate. The sum and substance of their argument, in most instances, is that Goodell has the authority to review all of the evidence, what to exclude, what to credit as credible, etc and the NFLPA's arguments are sour grapes because that's what the CBA permits so tough shit (I'm of course dumbing this down).
I do have a question though for the legal folks who have a motion practice. On page 4 of the NFL's memo, they note that one of the examples of Brady not cooperating was that "Brady failed to inform the investigators that he had destroyed his cellphone containing the relevant evidence, and ""offered no explanation"" for doing so. Award at 1-2, 12." But isn't this false and a potential blunder in the NFL memo? I mean, it's one thing to say you don't credit Brady's explanation that he recycles his phones as a matter of course; that he got rid of the phone on the advice of counsel; and;/or that he got rid of it once Ted Wells explicitly stated that he is not required to hand it over (Wells - "I made clear that I didn't want to take access to your phone. Mr. Yee can do it. I did not, as Mr. Kesler said -- I want to be clear -- I did not tell Mr. Brady at any time that he would be subject to punishment for not giving -- not turning over documents. I did not say anything like that." Transcript p.336, lines 17-23.
Thus, given the above, how does the NFL maintain that Brady "offered no explanation" when the hearing transcripts are replete with explanations? I'm confused.
I do have a question though for the legal folks who have a motion practice. On page 4 of the NFL's memo, they note that one of the examples of Brady not cooperating was that "Brady failed to inform the investigators that he had destroyed his cellphone containing the relevant evidence, and ""offered no explanation"" for doing so. Award at 1-2, 12." But isn't this false and a potential blunder in the NFL memo? I mean, it's one thing to say you don't credit Brady's explanation that he recycles his phones as a matter of course; that he got rid of the phone on the advice of counsel; and;/or that he got rid of it once Ted Wells explicitly stated that he is not required to hand it over (Wells - "I made clear that I didn't want to take access to your phone. Mr. Yee can do it. I did not, as Mr. Kesler said -- I want to be clear -- I did not tell Mr. Brady at any time that he would be subject to punishment for not giving -- not turning over documents. I did not say anything like that." Transcript p.336, lines 17-23.
Thus, given the above, how does the NFL maintain that Brady "offered no explanation" when the hearing transcripts are replete with explanations? I'm confused.
IIRC, he's saying that Brady didn't give the investigators an explanation, right? Not that he didn't provide one when he testified at the hearing?
Edit: don't have it handy.
Edit: don't have it handy.
If that's the distinction, how is it meaningful? i.e. RG had the explanation from the testimony before upholding the Award, which could inform his decision to uphold it. In fact, on page 4 of the NFL's memorandum, RG's lawyers note about RG's finding that Brady failed to cooperate "That conclusion was reinforced by the revelation at the hearing that, on the eve of meeting with investigators, Brady directed that his cell phone be destroyed, causing the permanent loss of potentially relevant evidence with knowledge that the evidence had been sought in the investigation" (my emphasis) Thus, I ask again, while RG could elect to not find Brady credible, why the statement in the memorandum that no explanation was offered? It just seems patently false and unnecessary.Myt1 said:
MarcSullivaFan said:
Search only turned up one result, and it doesn't really address my point -- the Article 46 hearing really isn't functioning as an arbitration in the first place. it's substituting for an arbitration, I guess, by the way the CBA reads, but that shouldn't automatically entitle it to the deference normally shown to neutral arbitrations.
I believ you're right in that it refers to the investigators. But, with that said, he originally told them he wouldn't be turning over the phone to them around Feb. 18th. The Wells interview took place on March 6th. Do we know if Wells explicitly asked for an explanation as to why he would not turn his phone over? If he didn't does that change the circumstances at all?Myt1 said:
I'm just wondering if this is another instance of not asking for something as an attempt to paint it in a negative light after the fact. Similar to when the NFL attorneys asked Brady to acknowledge that he texted JJ 3 times on the morning of Feb. 7th, but then seemingly had no interest in asking him what they were about even though they had him testify in under oath at the time.
amarshal2 said:
I think the NFL would argue that the drug testing protocol was specifically negotiated to balance competing interests, while the competitive integrity policy reflects no such negotiation and trade-offs, and was left to the discretion of the commissioner by mutual agreement of the parties. In other words, the drug policy is relevant to the drug policy, not to other things.
What about the fact that Goodell specifically compared it to the drug policy though? That is his comparison for the 4 games
Does it at least support the fairness argument that had there been a policy on football equipment violations then there would have been a negotiation about what testing looked like to avoid punishing QBs for playing in cold weather games with uncertain gauge usage?PedroKsBambino said:
Essentially, was anybody punished for PEDs prior to collectively bargained testing standards? I'd wager not.
Edit: I feel like I just re-articulated kesslers point so, yeah, I probably didn't add much in this reply. Just feels obviously wrong to me.
So was the policy with regard to footballs. Maybe not with regard to the pressure of footballs, but certainly the policy with regard to preparation of game day footballs.PedroKsBambino said:
Eddie Jurak said:
Yes, but that's why the NFL is arguing a different policy is what was violated.
Don't get me wrong---I think it's all horsewash and the NFL is completely full of it. But I do think this particular angle is not all that powerful for NFLPA
To what extent does a Judge see a side's willingness to negotiate as a sign of weakness or an admission they did something wrong? Is it better strategy to hold your ground or make a modest concession (Brady moves from no penalty to a modest fine) to show the Judge you are trying to be reasonable? If Brady says he can take a 1 game hit for non-cooperation does that become the new base-line in the Judge's mind, if there is no settlement?
No. The judge is not looking to come up with a "fair" punishment, or one that will be amenable to one or both parties. He will rule on whether the NFL had the authority to punish Brady at all, or if they followed an incorrect procedure. It's basically all or nothing.bankshot1 said:
The judge doesn't read into settlement proposals like that, either. What is an acceptable loss to one party rests on more than the strength of their case. You might have the strongest case in the world but be willing to cut a deal for any number of reasons, including time, cost, not wanting to put someone through the stress of trial, or the off chance that something goes horribly wrong (key witness dies, for instance). Judges know this.
After reading that, tomorrow's lunchtime reading is that Wackenhut case. The NFLs brief reads like that case is the reason they raced to file in NYC--they seem to think it is a Peterson killer.phrenile said:
Joe D Reid said:
I don't think Wackenhut is very helpful here.
Wackenhut is a private security company. It provided security at a Con Ed facility. Con Ed asked one of the security officers (Coelho) a question about vandalism and decided his answer was not fitting for a security guard at its facility. As a result, it told Wackenhut it lost confidence in Coelho, and Wackenhut fired him. Coelho's union invoked arbitration. The arbitrator ruled substantially in the union's favor, and rejected an argument by Wackenhut that it could fire its employees based on requests from their clients (in this case Con Ed).
In the Second Circuit, Wackenhut argued that the arbitrator should have followed "arbitral precedent." In other words, there must have been some prior arbitrations in which the issue came up whether an employee could be fired at a client's request, and Wackenhut was arguing the arbitrator in its case was bound to follow the prior precedent.
The portion of the Wackenhut opinion on which the NFL places very heavy reliance is one paragraph. The Second Circuit expressed skepticism that such a thing as "arbitral precedent" that must be followed. The key issue, according to the court, is whether the arbitrator's decision draws its essence from the CBA, and this can be the case whether or not the arbitrator follows past precedents.
There are a number of reasons why I think Wackenhut doesn't get them very far here:
1) The portion of the opinion is pure dicta. (For the non lawyers, "dicta" refers to parts of opinions that are more like ruminations than holdings. Lower courts and the same court is only required to follow those parts of opinions that are actually necessary to the decision. They are not obligated to follow parts that are observations that are not necessary to the holding.) The Second Circuit carefully included express language to make clear it was not making a holding with respect to the role of arbitral precedent: "The role of the doctrine of stare decisis in arbitration awards is not raised by this case." The court went on to say that the two prior arbitration precedents on which Wackenhut was relying would not be helpful to it, even if the arbitrator had been bound to follow them. (One, because it was not raised by Wackenhut in the arbitration and thus it had waived or lost its right to rely on it, and the second because it was distinguishable in that the employer had fired for its own reasons not based on a client request.)
2) The court does not give very much detail about what the prior precedents were that Wackenhut was saying the arbitrator should have followed. By its use of the term "stare decisis" it's likely that these were just random other arbitration awards that involved a different CBA and even a different union. In the Brady case, the NFLPA is arguing far more than just mere stare decisis -- or that prior arbitration decisions involving other parties are persuasive here. It is arguing that recent, prior decisions between these very parties -- the NFL Council and the NFLPA -- establish the "law of the shop," and that "law of the shop" became part of the CBA for purposes of determining whether an arbitration award derives its essence from the CBA. I do not read anything from Wackenhut as casting doubt on the principle of law of the shop. Nor, do I think it could. The notion of the law of the shop comes from Supreme Court precedent, which the Second Circuit cannot overrule even if it wanted to. The Supreme Court has clearly held that "industrial common law," or "past practices of the industry and the shop" actually constitute part of the CBA and are part of the law the arbitrator is to apply. United Steelworkers v. Warrior & Gulf, 363 U.S. 574 (1960). Indeed, the Supreme Court has made it clear that "the processing of disputes through the grievance machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement." Id.
Now, will Berman view the "law of the shop" as robustly as Doty did in Peterson? Dunno. There may well be Second Circuit law on the issue. But I don't think Wackenhut in the remotest sense undermines the doctrine of law of the shop, nor could it, and the NFL seems to be urging it to be read as doing so. So, while it very well may be the case that arbitrators have discretion to decide what weight to be given to other arbitration awards in the "stare decisis" sense, and federal courts can't second guess that, I think it's a very significant stretch to argue that courts have no role to play in identifying the law of the shop and deciding whether arbitrators complied with it.
Of greater concern, though, is a case from the Supreme Court also cited by the NFL -- WR Grace and Co., 461 U.S. 757. It holds that when an arbitrator construes the CBA as not requiring him to follow prior precedents, then that decision itself must be reviewed under the great deference given to arbitrators. I haven't read Goodell's decision carefully enough to say whether he made a holding that the CBA itself permits him to disregard Peterson. I don't think that's what he's saying. And it would be really hard for him to say that, because there really isn't very much at all in the CBA that would allow him to say that. But that would give Berman a hook if he were inclined to support the NFL's arguments on this issue. As noted, though, it's really hard to square such a decision with the notion of "law of the shop.' Maybe the labor lawyers can chime in on whether my description above about the extent to which the law of the shop -- including prior arbitrations -- puts a gloss on the CBA is correct.
bankshot1 said:
I would put the likelihood that the judge doesn't yet know what way he's going to rule if he's required to do so at approaching zero percent. At a minimum, he has an extraordinarily strong leaning and probably has for at least a week -- and it has been solidified one way or the other by the parties' briefs. Could stuff in settlement discussions change his mind? Theoretically. Could stuff at oral argument change his mind? Theoretically. But the reality is this: The judge as we all sit here debating these issues probably knows what he's going to do and isn't likely to change his mind.
At this point, all the things we're debating -- whether he will hold it against a party if they are difficult in settlement, whether he would get annoyed by Roger's press conference, etc. -- probably turn on what he's already decided. If he get annoyed by the side he thinks should lose, it will be confirmation bias of what he's already pretty much decided. If the side he favors does something stupid, he will likely rationalize it away, unless it's so stupid that he actually has to change his view.