Any thoughts on why Doty wouldn't have taken this, given his past experience?WayBackVazquez said:
Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only
- Thread starter WayBackVazquez
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NFLPA's filing in Minnesota includes a request for a preliminary injunction or expedited schedule.
I think it is helpful to view the scope of review with common sense -- rational basis with teeth.wade boggs chicken dinner said:
Absent some glaring procedural unfairness that shocks the conscience, the decision is presumptively correct and likely to be upheld. RG is entitled to get it wrong; the court will not fly speck his ruling and engage in anything approaching de novo review.
But there is some substantive reasonableness component. Suppose, hypothetically, that RG found it more likely than not that Jake Bequette was "aware" of improper deflation -- and then suspended him for 16 games. There is no way that decision is upheld. The court would struggle as mightily as it must to find some basis for overturning it, and that reversal almost certainly would be affirmed on appeal.
Now suppose,on the other hand, TB turned over a text message he sent to the ball guys right before the AFC Championship -- and suppose that message said, "goddammit, do what you must but those balls had better be no more than 11.5 psi."
A four- game suspension probably would be uoheld on those facts, and it wouldn't much matter that the maximum penalty in the Vikings game was a $25,000 fine -- or that the evidence of actual deflation was sketchy. You tried to cheat in a CCG. A court probably would work really hard to uphold that penalty -- and probably would be affirmed.
Now I would submit that this case is closer to the former than the latter -- but it is obviously in between.
Filings were made under seal to comply with confidentiality agreements with the league.
(Sorry for the Twitter-like updates. Just reading everything now.)
(Sorry for the Twitter-like updates. Just reading everything now.)
Motion to seal/file redacted versions says Goodell's opinion ignored evidence and just "rehashed the Wells Report."
Also found a typo already in my 30-second skim. :smith:
Also found a typo already in my 30-second skim. :smith:
Echoing this question, if the NFL keeps violating the CBA, can courts impose penalties or oversight? (Not that it's at the point now, or if Brady wins, but just in theory? And do past violations of the CBA matter at all?)Sox and Rocks said:
Kind of like a RICO thing, 'cause they keep breaking the agreement?
Thanks, WBV, for the updates. And the answers... Can you help me understand - specifically, what is the NFLPA trying to prove? Does everything roll up to "NFL violated CBA/arbitration rules"? Or is there something else?
WayBackVazquez said:
I'm going to take a guess that you've worked in an Amlaw 25 firm your entire career, amirite?
zenter said:
We'll know a lot better in a couple of hours when we read the NFLPA's first brief. But in general terms, they need to prove that the process was fundamentally unfair, didn't follow the rules contained in the CBA, or its own precedent. It's a pretty damned high bar.
Yeah, I was wondering the same.dcmissle said:
I'm imagining lawyers for both sides racing to do diligence on the assigned judges and gain intelligence on the likelihood of re-assignment so they can hold/withdraw their complaints as necessary, before the other side has made its decision.
Shelterdog said:
Awesome if intentional.
Plus, I'd change it to say only the good ones find them in their own work. It's always easy finding typos in other people's stuff.
Kyle is 78, appointed by GHWB, also on senior status.djbayko said:
I doubt he is radical right -- but he may not be Clinton left like J Berman.
And I am stereotyping here -- but what if he is an old school, wholesome Midwestern kind of guy who thinks that evidence spoiliation is wicked stuff.
Be careful what you wish for -- you may get it.
dcmissle said:
Posted this in the other thread, and ALWAYS take these with a giant heaping of sodium, but the robingroom reviews have him very pro-big business.
WayBackVazquez said:
Does this cover all of the issues cited above: "(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 Petersons 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"
#2 pretty clearly doesn't apply, but #4 would seem to be obviously true...
mwonow said:
I wouldn't hang my hat too hard on the Peterson ruling, since (1) it's still subject to appeal in the Eighth Circuit; and (2) seems very likely we're getting a different district court judge here.
And remember, even Doty didn't rule Henderson was not impartial.
https://twitter.com/BobMcGovernJr/status/626512624373661696
Apparently had recused himself from the 2011 Antitrust suit against NFL.
Apparently had recused himself from the 2011 Antitrust suit against NFL.
Well, I'm guessing that since this judge is 78 years old, and it's past 5pm in the Twin Cities, we're not getting a ruling on the motion to file under seal tonight. Meaning we won't get to read the redacted version of the NFLPA's brief until tomorrow.
Shelterdog said:
Better a typo than accidentally filing a redline showing all of your final edits (as opposing counsel did recently in a case I'm working on).
“@AlbertBreer: From Brady suit: ”The purportedly independent Wells Report was edited by Pash, the NFL’s General Counsel, before its public release.“”
“@MikeGarafolo: 4 allegations of Brady suit
1. No advance notice of punishment
2. Not fair and consistent punishment
3. Unfair appeal
4. Goodell partial”
If this is true would this be a big positive for the NFLPA?
“@MikeGarafolo: 4 allegations of Brady suit
1. No advance notice of punishment
2. Not fair and consistent punishment
3. Unfair appeal
4. Goodell partial”
If this is true would this be a big positive for the NFLPA?
RedOctober3829 said:
A good deal. Read the case cited in the first post.
soxhop411 said:
These were all addressed in Goodell's opinion. Not really any surprises.
BusRaker said:
It doesn't sound like from what Ive read that general incompetency would carry the day. It's also not really general bias, it has to be more specific than that.
Doesn't hurt the evident partiality argument.
I'm super busy with paying legal work today so I haven't been able to respond as I'd like to.
One key point: There is virtually no precedent in the world of labor law that I'm aware of for a court to defer to an abritrator who is also a member of management and who is the person who issued the discipline in the first place.
The closest you get to this nonsense are joint management/labor boards that decide disputes under multi employer CBAs. They often turn into kangaroo courts where every case is decided on the basis of behind the scenes horse trading. In other words, if you're a little fish on the management side, prepare to be fucked. Or if you're on the union side and not in good graces with the regional council. But even in those circumstances you have both labor and management on the panel--i.e., at least the pretense of a balanced process.
So, if there ever was a case in which you might succeed on evident partiality, it's this one.
Edit: I'm going to go on record and say that it's getting vacated.
I'm super busy with paying legal work today so I haven't been able to respond as I'd like to.
One key point: There is virtually no precedent in the world of labor law that I'm aware of for a court to defer to an abritrator who is also a member of management and who is the person who issued the discipline in the first place.
The closest you get to this nonsense are joint management/labor boards that decide disputes under multi employer CBAs. They often turn into kangaroo courts where every case is decided on the basis of behind the scenes horse trading. In other words, if you're a little fish on the management side, prepare to be fucked. Or if you're on the union side and not in good graces with the regional council. But even in those circumstances you have both labor and management on the panel--i.e., at least the pretense of a balanced process.
So, if there ever was a case in which you might succeed on evident partiality, it's this one.
Edit: I'm going to go on record and say that it's getting vacated.
John Dowd (from Rose, Dykstra, and Steinbrenner) had a pretty decisive take on the advance notice of punishment issue, that Tom was not warned failure to produce texts would be considered obstruction--"simply no notice...
I told Rose's lawyers that I would draw an adverse inference if the bank records were not produced." He called making this a new charge on appeal "a gross violation of fundamental fairness and due process." He said this was done because the Wells report content was so weak: "What theyre doing is crazy." Pretty experienced guy.
http://www.foxbusiness.com/industries/2015/07/29/pete-roses-investigator-says-tom-brady-was-ambushed-by-goodell/
I told Rose's lawyers that I would draw an adverse inference if the bank records were not produced." He called making this a new charge on appeal "a gross violation of fundamental fairness and due process." He said this was done because the Wells report content was so weak: "What theyre doing is crazy." Pretty experienced guy.
http://www.foxbusiness.com/industries/2015/07/29/pete-roses-investigator-says-tom-brady-was-ambushed-by-goodell/
MarcSullivaFan said:
Well, the alternative is to say the CBA (or at least Article 46) is void. It's hard to argue the appeal provision is unconscionable when you're talking about a contentiously-negotiated agreement where each side was represented by elite counsel.
I suppose I should know this, but what happens operationally if the award is vacated? Is that the end of the matter or what has to be done to get rid of the suspension altogether?
Marciano490 said:
First post, bro. See also Peterson (citing U.S. Postal Serv. v. Am. Postal Workers Union, AFL-CIO, 907 F. Supp. 2d 986, 995 (D. Minn. 2012) (holding that the appropriate remedy on vacatur is to remand the case for further arbitration proceedings consistent with the CBA).).
PA released the full petition here:
https://nflpaweb.blob.core.windows.net/media/Default/PDFs/Media%20Resources/7.29.15%20petition%20to%20vacate.pdf
https://nflpaweb.blob.core.windows.net/media/Default/PDFs/Media%20Resources/7.29.15%20petition%20to%20vacate.pdf
First thing that jumped out at me was this, from p.3cshea said:
(emphasis mine)
This is the 1st i've heard of this particular detail. so punishments for equipment tampering, even those designed to gain a competitive advantage have been collectively bargained. Therefore Goodell compares this matter with steroids?
Seems shady and rather flimsy to me
Just as a point of craft, I enjoy how they refer to the Wells investigation as the "Wells-Pash Investigation".
EDIT: Although the more I read, the less impressed I am by the writing. The time pressure likely made it impossible, but this could have used another pass. There are too many sentences and paragraphs with multiple propositions.
EDIT: Although the more I read, the less impressed I am by the writing. The time pressure likely made it impossible, but this could have used another pass. There are too many sentences and paragraphs with multiple propositions.
With the caveat that I know nothing of labor law, the evident partiality argument (pg 50-52) does not strike me as a strong one. It hinges of the fact that 1) Goodell delegated the initial discipline to Vincent; and 2) a public statement Goodell made supporting the Wells report, which "locked him in." Even giving full weight to the cases cited by the NFLPA, they don't have much support there for that being enough to vacate.
I don't see why he would. The Reggie White case settled over 20 years ago and the firm involved (even if any lawyers he worked with are still active) doesn't represent the NFLPA or NFL anymore, so there wouldn't appear to be any concern.CaptainLaddie said:
Is it typical to respond to, in this case the Goodell decision, in about 24 hours? It seems quick/rushed to digest a decision that was crafted over weeks, and to consider the appropriate strategy to respond with. Is there another phase, or future NFLPA motions to come? Does the NFL now respond to this with its own motion?
