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

[phrenile]

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.

"We reject Wackenhut's argument that an arbitrator has a duty to follow arbitral precedent and that failure to do so is reason to vacate an award" is the kind of dicta that sounds very broad when quoted out of context, that context being, "The role of the doctrine of stare decisis in arbitration is not raised by this case, however...."

 

[Reverend]

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?

It's a good question and it gets to the heart of what many people misunderstand about what's going on in the system, and not just in this case.

Sorry for the long answer, but the answer is an area of legal theory, really, not just a factual question. (And it speaks to the unfair malign meant if lawyers as well!)

So let me try to distill an entIre jurisprudential theory complete with it's own literature and its application here into a single post...

Building off of DrL's "no" (which was accurate, but I think the non-legally engaged are looking for some more explanation) is that preference for settlements in civil proceedings are based on a very well developed theory of social utility backig this area of law. The idea is that to do litigation In a civil case, by the very fact of the costs of litigation, there is an "economic surplus" that can then be negotiated over such that settlement is in the best interest of both parties, even if one party is clearly "right."

Think of it like this: the thing being litigated over has some value X, which may be known ahead of time or may be yet to be determined, as by a jury or something. Either way, there is a value, X. But once suits are filed, it will cost a total of Y in litigation fees, opportunity costs, etc. to work out a resolution. That Y is, from a social utility standpoint, a deadweight cost paid to attorneys and is, theoretically, unnecessary. (Yes, even the courts and legal minds think this way. )

Given that cost of Y, there is theoretically almost always a settlement point that benefits both sides in that they get to share the division of that economic surplus, once you discount for the risk/probability of winning or losing. So the costs of litigation itself usually causes there to be a theoretically optimal settlement range.

Because settlement in this view is socially optimal--nobody wants extra money to just go to attorneys (seriously)--judges adopt a pro-settlement stance without prejudice towards the parties for a willingness to settle. And, as per above and from anything people have heard on talk radio, this makes sense and has nothing to do with pride or perceived guilt and innocence.

This is the generic theory, though, where all things convert into money easily. There are exceptions where it doesn't really scan, though, and this case is likely one of them. Brady may have a stake that cannot be compensated renumeratively, and Goodell may have reasons that make losing preferable to being seen as buckling and he doesn't personally suffer the consequences of losing.

But despite the irregular nature of the case, it makes sense for the judge to play it by the book with respect to the process of encouraging a settlement, even if the usual incentives may not apply here. There's even a term for the idea, "mechanical jurisprudence," which invokes the idea that the judge should just be cranking an impartial machine that does it's thing. He's not doing what he's doing for this case, he's just operating the machine--if you think about it, we probably don't want judges tailoring the process to what they think is going on sin cases on a case by case basis.

So yeah, with the caveat that people are human, a good judge won't be drawing adverse inferences from either side's position in negotiating, specifiscllY because there are significant reasons for parties to settle independent of "guilt," "fault," "blame," etc. and, as such, such inference would be inappropriate.

Thank you for asking that, because this is an area where the public--and I know talk radio--has a tendency to run with some "common sense" notions that are fundamentally wrongheaded as compared to the very well thought out socially pragmatic approach adopted by our legal system. This case is a weird one, but the overall philosophy makes a lot of sense.

 

[kieckeredinthehead]

It also seems like if both sides collectively miscalculate their probability of winning, in an amount greater than the cost of litigation, then that would also prevent an agreement.

If we are arguing over $100, and our attorney fees are $1, and I think I have a 95% chance of winning, I won't accept less than $94. But if you think you have more than a 10% chance of winning, you won't give more than $89. I can see that the judge still wants to save the $1, but each party is at a standstill. And it therefore seems like embedded in the settlement negotiations there is information contained in how strong each party thinks their case is (not how strong the case actually is, but how strong they believe it to be), modified by the actual value of winning above and beyond the $4m fine or whatever it is.

(Edit: hope this doesn't come off as disagreeing, what you wrote is fucking interesting. I assume in most cases the attorney fees are a much larger percentage than the one I'm working on, and in any case the fact that you can't disentangle the probability of winning discount from the intangible benefits of winning still follows what you're saying, that settlement negotiations don't say a lot about the "truth" from either side)

 

[Reverend]

It also seems like if both sides collectively miscalculate their probability of winning, in an amount greater than the cost of litigation, then that would also prevent an agreement.
If we are arguing over $100, and our attorney fees are $1, and I think I have a 95% chance of winning, I won't accept less than $94. But if you think you have more than a 10% chance of winning, you won't give more than $89. I can see that the judge still wants to save the $1, but each party is at a standstill. And it therefore seems like embedded in the settlement negotiations there is information contained in how strong each party thinks their case is (not how strong the case actually is, but how strong they believe it to be), modified by the actual value of winning above and beyond the $4m fine or whatever it is.

There is a fairly substantial literature on the game theory economics of settlements that I feel quite confident in saying that you would enjoy immensely.

I thought about moving the settlement stuff I was addressing to the other #DFG thread in anticipation of such discussion, but decided the key point of the theory belonged here. If you want to have at it about the weirdness that the incentives can create, by all means, have at it--there's fun to be had there--but I would only ask you to quote-post it and then bring it over there.

You definitely have the flavor though.

Edit: And no offense taken at all. That you glommed right on to what is fascinating about this stuff makes me feel I conveyed what I intended. I feel all validated and shit.

 

[MarcSullivaFan]

 
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.

Good post.

I agree that Wackenhut is confusing as to whether it's talking about arbitral precedent between the parties, or arbitral precedent generally. I can tell you that generally, arbitrators view awards on similar issues under different CBAs between different parties as persuasive at most. In other words, industrial common law does not include the concept of state decisis when it comes to awards concerning a different CBA between different parties. For this reason I have to imagine that the Second Circuit is talking about precedent involving Wackenhut and its union specifically. Also, the case cited in the relevant paragraph--Connecticut Light and Power-seems to be talking about precedent between the parties:

"Although the Bornstein award has not been challenged in the present action, we believe it relevant to interpretation of the collective bargaining agreement. The reasons underlying judicial deference to arbitration awards are the arbitrator's superior "experience and competence," United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. at 582, 80 S.Ct. at 1352, and his or her selection by the parties. That superiority is vis-a-vis courts, however, not other arbitrators. Bornstein and Clark were each selected pursuant to procedures established by the parties, and each was empowered to decide identical grievances. While both may have "experience and competence" in interpreting the agreement superior to that of a judge, we perceive no reason to believe that one arbitrator is superior to the other. We conclude, therefore, that the validity of the Clark award must be determined in light of the reasoning of the subsequent Bornstein award."

 

[Section15Box113]

"The reasons underlying judicial deference to arbitration awards are the arbitrator's superior "experience and competence," United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. at 582, 80 S.Ct. at 1352, and his or her selection by the parties."

On selection, does the fact that the CBA allows Goodell to hear the appeal take precedence or would the judge consider the union's request for recusal?

Also, would "experience and competence" be conferred because Goodell is empowered to hear the case under the CBA or would such deference be reserved for professional arbitrators who are doing this day in and day out?

 

[ivanvamp]

On selection, does the fact that the CBA allows Goodell to hear the appeal take precedence or would the judge consider the union's request for recusal?

Also, would "experience and competence" be conferred because Goodell is empowered to hear the case under the CBA or would such deference be reserved for professional arbitrators who are doing this day in and day out?

 
And what about an arbitrator who has a track record now of having his decisions thrown out either by another independent reviewer or by the courts?  Is such a person "competent" if his decisions regularly get overruled?  Doesn't that suggest that his decisions tend to be.....bad ones?

 

[Leather]

It's a good question and it gets to the heart of what many people misunderstand about what's going on in the system, and not just in this case.

Sorry for the long answer, but the answer is an area of legal theory, really, not just a factual question. (And it speaks to the unfair malign meant if lawyers as well!)

So let me try to distill an entIre jurisprudential theory complete with it's own literature and its application here into a single post...

Building off of DrL's "no" (which was accurate, but I think the non-legally engaged are looking for some more explanation) is that preference for settlements in civil proceedings are based on a very well developed theory of social utility backig this area of law. The idea is that to do litigation In a civil case, by the very fact of the costs of litigation, there is an "economic surplus" that can then be negotiated over such that settlement is in the best interest of both parties, even if one party is clearly "right."
 

 
Just to add to this a smidge:
 
The reason why judges have routine settlement conferences, and encourage parties to settle, is because the foundation of our court system rests on an uneasy balance between fairness and efficiency.    At every step in the process of litigation, there are exit ramps for cases that probably don't have enough substance to be ejected from the Going to Trial Highway: motions to dismiss, summary judgment, judgment on the pleadings, etc...  Part of this is fairness to the parties that might be aggrieved by frivolous lawsuits, but it's equally so that the court system isn't overly burdened and can (in theory) spend more time on matters that require its attention, like criminal trials.   But, if we look past the formal structure of law, just because a person loses a motion for summary judgment doesn't mean that the prevailing party didn't do something wrong. Or that the balance of blame is/should be 100% on the loser and 0% on the winner.  It just means that the losing case didn't check enough boxes to be deemed worth the court system's time.
 
As Rev points out, this is a unique situation because it's not a trial, but typically the settlement conference with the judge is the final chance a party has to look at its cards and say "Do we really want to spin the wheel of justice with this hand?"   Every lawyer with litigation experience will say (and some have in this thread), over time you will win some cases you should have lost, and you will lose some cases you should have won.   There are no guarantees how your case will look to a group of strangers (or one stranger), no matter how many times a lawyer honed his/her arguments and prepped the witnesses.   Sometimes, shit just doesn't break right.   It's why lawyers often ask to speak to jury members after a trial to see where they went wrong, and how they can do better next time.
 
So settling is just as much for the benefit of the court system as a whole as it is for the parties.  That's why judges encourage it.

 

[Bleedred]

This thread has been incredibly instructive and helpful.  I think, however, that the case law discussion and stare decises nuances have officially flown over 98% of our heads and I'm a transactional lawyer (corporate/real estate) 17 years in!   Carry on.  

 

[bankshot1]

It's a good question and it gets to the heart of what many people misunderstand about what's going on in the system, and not just in this case.

Sorry for the long answer, but the answer is an area of legal theory, really, not just a factual question. (And it speaks to the unfair malign meant if lawyers as well!)

So let me try to distill an entIre jurisprudential theory complete with it's own literature and its application here into a single post...

Building off of DrL's "no" (which was accurate, but I think the non-legally engaged are looking for some more explanation) is that preference for settlements in civil proceedings are based on a very well developed theory of social utility backig this area of law. The idea is that to do litigation In a civil case, by the very fact of the costs of litigation, there is an "economic surplus" that can then be negotiated over such that settlement is in the best interest of both parties, even if one party is clearly "right."

Think of it like this: the thing being litigated over has some value X, which may be known ahead of time or may be yet to be determined, as by a jury or something. Either way, there is a value, X. But once suits are filed, it will cost a total of Y in litigation fees, opportunity costs, etc. to work out a resolution. That Y is, from a social utility standpoint, a deadweight cost paid to attorneys and is, theoretically, unnecessary. (Yes, even the courts and legal minds think this way. )

Given that cost of Y, there is theoretically almost always a settlement point that benefits both sides in that they get to share the division of that economic surplus, once you discount for the risk/probability of winning or losing. So the costs of litigation itself usually causes there to be a theoretically optimal settlement range.

Because settlement in this view is socially optimal--nobody wants extra money to just go to attorneys (seriously)--judges adopt a pro-settlement stance without prejudice towards the parties for a willingness to settle. And, as per above and from anything people have heard on talk radio, this makes sense and has nothing to do with pride or perceived guilt and innocence.

This is the generic theory, though, where all things convert into money easily. There are exceptions where it doesn't really scan, though, and this case is likely one of them. Brady may have a stake that cannot be compensated renumeratively, and Goodell may have reasons that make losing preferable to being seen as buckling and he doesn't personally suffer the consequences of losing.

But despite the irregular nature of the case, it makes sense for the judge to play it by the book with respect to the process of encouraging a settlement, even if the usual incentives may not apply here. There's even a term for the idea, "mechanical jurisprudence," which invokes the idea that the judge should just be cranking an impartial machine that does it's thing. He's not doing what he's doing for this case, he's just operating the machine--if you think about it, we probably don't want judges tailoring the process to what they think is going on sin cases on a case by case basis.

So yeah, with the caveat that people are human, a good judge won't be drawing adverse inferences from either side's position in negotiating, specifiscllY because there are significant reasons for parties to settle independent of "guilt," "fault," "blame," etc. and, as such, such inference would be inappropriate.

Thank you for asking that, because this is an area where the public--and I know talk radio--has a tendency to run with some "common sense" notions that are fundamentally wrongheaded as compared to the very well thought out socially pragmatic approach adopted by our legal system. This case is a weird one, but the overall philosophy makes a lot of sense.

Thanks for the answer-I understand the economic aspect-I once tried to explain it to my soon to be ex-wife that divorce is not a "zero-sum game" but rather an "negative sum game" where economic value gets extracted by the various legal players.And I was correct, sadly for me my negative sum was far greater than her positive sum.
:gonk:
My question was more a psychological one, if a bias gets created if a concession is seen (subconciously or otherwise) as a admission of some level of guilt, and not necessarily a rational economic decision.
.
And I think its hard to put aside that natural bias, but then again I'm not a Federal Judge.

 

[soxfan121]

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.

 
Just because Rev sleeps from time to time is no excuse for non-legal banter to end up in this thread. Please relocate to the DFG thread, thanks.

 

[amarshal2]

Question for the lawyers since this experience has taught me to consider the most pessimistic view.
 
What is the generally take away from Berman focusing on the underlying facts and NOT the procedures?  Why was there hardly any discussion about whether Goddell was biased or any of the other core arguments Kessler has made?  
 
1) Are we to read his willingness to go deeper into the facts as evidence he thinks the NFL is full of shit in an effort tot push them to settle...or
2) Is it (more) plausible that he thinks the NFL has the upper hand on the procedure stuff so he avoided it today to try and scare the NFL into settlement...perhaps he doesn't want to have to give them a victory they don't deserve?
 
Something else?
 
Thanks in advance.
 
edit: wutang's question also gets at the essence of my question

 

[wutang112878]

Another question, instead of focusing on the 'there is no direct evidence' question, should the big take away from the day be that Berman acknowledged that what Roger did does indeed have a basis in the CBA??  I'm petrified that we are overlooking that.

 

[PseuFighter]

Question -- assuming no settlement and one side is unhappy with the decision and we move on to appeals (all of which happens on or about 9/4, right?) -- what's the process like to ensure Brady can still play on 9/10? How does that play out?

 

[BroodsSexton]

Berman today hinted at the fact that this could take 2 years if they don't settle.  He would likely enjoin enforcement of any penalty in the interim.
 
As for the focus of the questioning, as others reported, this was not a legal argument.  This was a settlement conference, at which the Judge was probing around the facts of the underlying controversy (and related to the rules), both to force the parties to think about what is fair, and also to confront the weaknesses of their own case.  I don't think we can read much into it on the legal merits, other than Berman seems to have a good handle on the contours of the dispute, which will undoubtedly inform his legal analysis.

 

[RIrooter09]

Berman today hinted at the fact that this could take 2 years if they don't settle.  He would likely enjoin enforcement of any penalty in the interim.
 

 
I think most Pats fans would be ok with this.

 

[BroodsSexton]

I want to go back to the defamation claim. Suppose Brady sought limited relief, i.e., not damages, but only an injunction to preclude the NFL from making any statement to the effect that Brady knew about, or was involved in, a scheme to deflate footballs.
 
Could he avoid opening himself up to extensive discovery in that case?  Presumably he could prove irreparable/unquantifiable harm by means of a survey of public opinion concerning his reputation in connection with the NFL's prior statements (e.g., "Did the NFL's determination that it was more likely than not that Brady was generally aware of deflation have no effect on your view of his place in NFL history, some effect on your view of his place in NFL history, or a great deal of effect on your view of his place in NFL history?") If he's not seeking a quantum of damages, then is there any reason to go digging through his personal life?

 

[dcmissle]

Prior restraints are essentially per se unconstitutional. We are not in Germany

 

[BroodsSexton]

Prior restraints are essentially per se unconstitutional. We are not in Germany

 
So you can't get injunctive relief on a defamation claim? 

 

[Bleedred]

I want to go back to the defamation claim. Suppose Brady sought limited relief, i.e., not damages, but only an injunction to preclude the NFL from making any statement to the effect that Brady knew about, or was involved in, a scheme to deflate footballs.
 
Could he avoid opening himself up to extensive discovery in that case?  Presumably he could prove irreparable/unquantifiable harm by means of a survey of public opinion concerning his reputation in connection with the NFL's prior statements (e.g., "Did the NFL's determination that it was more likely than not that Brady was generally aware of deflation have no effect on your view of his place in NFL history, some effect on your view of his place in NFL history, or a great deal of effect on your view of his place in NFL history?") If he's not seeking a quantum of damages, then is there any reason to go digging through his personal life?

If we're going to go down the defamation avenue, why not just assume Brady is ok with the discovery?  He testified under oath that if he knew the NFL was going to punish him for withholding his phone, he would have turned it over, against the advice of counsel.  Thus, can't we assume Brady is ok with full blown discovery?  

 

[Silent Chief]

Huh, law school exam question.  Could the judge make that order?  First amendment is meant to stop the _government_ from stifling free speech.  Is the judge the government?  I suppose he is, just a different branch... but what if it is a mutually agreed upon negotiated resolution?   

 

[BroodsSexton]

I'll answer my own question.  
 
It appears that under New York law, injunctive relief on a defamation claim may be appropriate when there is "evidence of a sustained campaign to interfere with plaintiff's business."  LoPresti v. Florio, 71 A.D.3d 574, 575 (1st Dep't 2010). In LoPresti, the Court declined to find the grounds for such an injunction (which is admittedly only issued in unusual circumstances, and with a high standard).  But LoPresti traces its roots to Trojan Elec. & Machine Co. v. Heusinger, 162 A.D.2d 859 (3d Dep't 1990), which is more pertinent. 
 
In Trojan, after the plaintiff terminated a real estate contract of sale (allegedly for cause), the defendants "began picketing in front of [plaintiff's property] carrying placards and signs which plaintiffs allege contained misleading, false and defamatory matter, and sought to discourage potential purchasers from visiting the project in an attempt to coerce plaintiffs to refund their down payments."  Id. at 860.  The Court noted that "[w]hile equity will not intervene to restrain the publication of words on a mere showing of falsity, it may intervene where restraint becomes essential to the preservation of a business or other property rights threatened by tortious conduct in which the words are merely an instrument of and incidental to the conduct." Id.  The Court continued that "[a]n injunction will lie to restrain libel when the publication is made as part and parcel of a course of conduct deliberately carried on to further a fraudulent or unlawful purpose." Id.. It is necessary to consider whether the injunction would "redress a private wrong," or whether it would tend "to suppress public expression." Id.
 
I'll leave it to others to consider whether the facts of this case fall into those contours. It's an interesting thought experiment.

 

[RedOctober3829]

Does the fact that Berman went hard after the NFL mean anything?  I've heard that the party with the stronger case gets grilled the hardest in arbitration cases.  Is that correct?

 

[dcmissle]

Sure it means something. The issue is, what it means, with the obvious complexity that it could mean several things or some combination thereof. And some of those things are at odds with each other.

 

[Bleedred]

Sure it means something. The issue is, what it means, with the obvious complexity that it could mean several things or some combination thereof. And some of those things are at odds with each other.

Now that's lawyerspeak!  

 

[Myt1]

Truman would have asked for a no-armed lawyer.

 

[dcmissle]

Fair enough.

If Berman is giving the League a real hard time, it could be a signal to RG that he'd better settle the goddamned thing.

Or, he could be planning to rule for the NFL and is throwing difficult questions its way to get material to cover the soft spots in his opinion.

Or, it could be both.

Honestly, I don't know in this instance. Neither winning nor losing would surprise me if this does not settle.

 

[Leather]

Or it could mean that his heart wants to rule for Brady based on the obvious railroading going on here, but his head knows he can't, so he's putting the NFL through the ringer now to try and force a more favorable result for Brady.

 

[Myt1]

I concur. We don't know much.

 

[Ed Hillel]

It could mean a million things, but the fact that he was talking about the facts at all I take as a positive. There are justifiable legal ways to rule in favor of Brady here, and if he has misgivings about what is happening to Brady, the "he's human" element comes into play.

 

[bankshot1]

Or it could mean that his heart wants to rule for Brady based on the obvious railroading going on here, but his head knows he can't, so he's putting the NFL through the ringer now to try and force a more favorable result for Brady.

Why can't he remand/overturn in the absence of any evidence linking Brady to tampering?.
 
Why can't Federal rules about some level of fairness and impartiality in arbitration be applied if the Judge believes the NFL has in your words "railroaded" Brady in the NFL's arbitration/appeal process?

 

[Myt1]

He can.

This would be easier if you recognize that we're managing expectations. There's enough here for a perfectly vanilla decision affirming Goodell and there's enough here for Berman to write a scathing decision vacating the award that would probably withstand appellate review. Anyone who's saying different is selling something, and we're just pointing that out.

 

[Koufax]

It could mean a million things, but the fact that he was talking about the facts at all I take as a positive.

I initially took it as a positive, but now I take it as simply the best lever he has to browbeat the NFL into settling.
 
The facts favor Brady.  The law does not.  At best the law is a draw, with the CBA favoring the NFL and the law of the shop favoring Brady.  In this type of appeal, the law tends to be more important than the facts. It's too early to get excited. 

 

[Reverend]

Why can't he remand/overturn in the absence of any evidence linking Brady to tampering?.
 
Why can't Federal rules about some level of fairness and impartiality in arbitration be applied if the Judge believes the NFL has in your words "railroaded" Brady in the NFL's arbitration/appeal process?

 
As Myt1 said, he can. But he would have to believe in a railroading. Remember, it is within Goodell's authority to be just plain wrong without being overturned.
 
As to the larger issue of trying to read into the questions and the fact that so many were about the substance, remember what the goal of this hearing is: settlement. The goal of this hearing is not gathering new information for Berman--that may and will happen, but it's not the goal.
 
You know what motivates settlement? Uncertainty about the outcome on the part of both parties. If you consider today's questioning through that lens, it makes a lot of sense--and also indicates why it's difficult to read much into it.

 

[bankshot1]

He can.

This would be easier if you recognize that we're managing expectations. There's enough here for a perfectly vanilla decision affirming Goodell and there's enough here for Berman to write a scathing decision vacating the award that would probably withstand appellate review. Anyone who's saying different is selling something, and we're just pointing that out.

I was questioning the statement, "but his head knows he can't"  it sounded far too definitive  a conclusion reached about this case as we know it, the law as has been explained, or Judge Berman's rationals. Although I still find the an NFL slam dunk ruling hard to believe with today's admission there is no smoking gun/direct evidence of Brady's involvement with tampering. And my expectations are on the severe end no more than a 1 game suspension tied to non-cooperation.

 

[bowiac]

I take it as a positive. The browbeating as a way of expressing disapproval before saying "but unfortunately my hands are tied" is a viable theory, except there's basically no way Berman could think his hands are tied. If Berman wants to rule for Brady, it's really not that hard. He just needs to accept the Doty/Peterson precedents and move on with his life. It doesn't take a lot of creativity or wrangling by him. He could go the other way too. He can basically rule whichever way he wants and have a largely appeal-proof decision.
 
The judge giving your opposition a hard time is usually a good thing. It can go either way, but there's not much reason to overthink it at this stage.

 

[AB in DC]

It could mean a million things, but the fact that he was talking about the facts at all I take as a positive. There are justifiable legal ways to rule in favor of Brady here, and if he has misgivings about what is happening to Brady, the "he's human" element comes into play.

 
I agree with this.  There has been a lot of discussion about how the facts of the case don't matter any more, and it's all about the law and the CBA.  Hs interest in the facts can only be a plus since that's where the NFLPA's case is the strongest.  So it's a better outcome than if he was solely pressing both sides on CBA language, for example.

 

[Myt1]

I was questioning the statement, "but his head knows he can't"  it sounded far too definitive  a conclusion reached about this case as we know it, the law as has been explained, or Judge Berman's rationals.

The guy led with "Or it could mean . . . " It's hard to get any less definitive than that.

 

[Eddie Jurak]

 
As Myt1 said, he can. But he would have to believe in a railroading. Remember, it is within Goodell's authority to be just plain wrong without being overturned.

But a "show trial", a railroading is unquestionably NOT within Goodell's authority under 46, right? The PA cannot expect him to be a completely impartial arbitrator, if they wanted that they should have bargained for it, but they are entitled to more than a sham of a hearing. And Berman gets to decide whether they got that or not. Or am I wrong?

 

[joe dokes]

Have any fellow lawyers (or perhaps litigants) been involved in a "settlement conference" that was on the record and in open court?   To me, that seems to defeat the purpose. The usual form of "shuttle diplomacy" allows each side to speak freely about the strengths and weaknesses of their case and their drop-dead issues without the other present in a way that open court does not. 
 
Am I missing something here?

 

[bankshot1]

The guy led with "Or it could mean . . . " It's hard to get any less definitive than that.

The points/questions I was interested in were:
 
1) Why can't he remand/overturn in the absence of any evidence linking Brady to tampering?.

 
2) Why can't Federal rules about some level of fairness and impartiality in arbitration be applied if the Judge believes the NFL has in your words "railroaded" Brady in the NFL's arbitration/appeal process?
 
And the language drl used seemed to suggest his belief that Berman could not rule in that manner, and I wanted clarification.

 

[Reverend]

The points/questions I was interested in were:
 
1) Why can't he remand/overturn in the absence of any evidence linking Brady to tampering?.
 
2) Why can't Federal rules about some level of fairness and impartiality in arbitration be applied if the Judge believes the NFL has in your words "railroaded" Brady in the NFL's arbitration/appeal process?
 
And the language drl used seemed to suggest his belief that Berman could not rule in that manner, and I wanted clarification.

1) Because that's the law. Goodell's judgment can be utterly, demonstrably w4ong and yet still deferred to.

However, it is difficult to be THAT wrong, i.e. rule on no evidence for example, which raises if someone was so wrong, perhaps the process was somehow loaded or biased. Which brings us to 2):

2) Berman CAN vacate if he determines the process was unfair or the arbitrator was biased.

 

[BroodsSexton]

Have any fellow lawyers (or perhaps litigants) been involved in a "settlement conference" that was on the record and in open court?   To me, that seems to defeat the purpose. The usual form of "shuttle diplomacy" allows each side to speak freely about the strengths and weaknesses of their case and their drop-dead issues without the other present in a way that open court does not. 
 
Am I missing something here?

He may have had a closed session as well (or taken cues from the Magistrate, who has previously spoken with the parties), and decided that he would use public scrutiny to his advantage to put pressure on the parties. I have had settlement conferences in open court, and agree it is generally useless (as are pre-mediation "opening statements," which just remind the parties how much they hate each other). Clearly it wasn't going to settle on the record. This was about affecting settlement dynamics. Shrewd judge.

 

[BusRaker]

Doesn't Brady have some individual rights under Labor Law beyond what his union bargained for?  For example if my union AFSCME bargained with my employer (the mayor) to suspend me as his own discretion, how does that make it legal?  What other basic rights of mine can my union take away through shitty bargaining even when I vote against it?

 

[dcmissle]

He knew it would not settle today, and a good amount of work probably was done in the robing room.

This appears to be a strange hybrid oral argument/jawbone.

Berman rather plainly believes in transparency, at least in this case. Nothing sealed, and today's tutorial.

Again, I don't think you can infer his leaning from this, but it certainly paints him as legally progressive.

 

[joe dokes]

I have had settlement conferences in open court, and agree it is generally useless (as are pre-mediation "opening statements," which just remind the parties how much they hate each other). Clearly it wasn't going to settle on the record. This was about affecting settlement dynamics. Shrewd judge.
 

  
Yeah. I can see that. A bit of fear of God can help unconstipate things.  It just seemed odd to have a judge asking questions on the record in a scenario not attached to a trial, motion or particular argument.
 
 
Edit: or as dcmissile put it better:
 

This appears to be a strange hybrid oral argument/jawbone.
 

 

 

[Captaincoop]

1) Because that's the law. Goodell's judgment can be utterly, demonstrably w4ong and yet still deferred to.

However, it is difficult to be THAT wrong, i.e. rule on no evidence for example, which raises if someone was so wrong, perhaps the process was somehow loaded or biased. Which brings us to 2):

2) Berman CAN vacate if he determines the process was unfair or the arbitrator was biased.

 
Does anyone have any examples from case law of what types of actions by an arbitrator would rise to the level of demonstrating "bias" for the purpose of the court?  The ultimate question is - do any of Herr Roger's actions here even arguably rise to that level?

 

[BroodsSexton]

Yeah. I can see that. A bit of fear of God can help unconstipate things.  It just seemed odd to have a judge asking questions on the record in a scenario not attached to a trial, motion or particular argument.

Many judges won't even touch settlement discussions for exactly this reason--it creates potential bias when they get to their actual job of judging if they have been knee-deep on the muck of ancillary issues between the parties, as Berman was today. Some judges will send a case out to another judge or court-appointed mediator for settlement talks, but stay away from it themselves.

It is not, though, altogether uncommon, and in the New York courts, parties agree to have the judge get involved all the time--though generally off the record. It would be difficult to say to the judge you don't want to include him in the settlement discussion if he offers to mediate. Obviously it can create more pressure on the parties to ha e the judge free-wheeling through whatever issues attract his attention. This is a very hard case to settle. It's more than just money. Berman may have thought that a meaty, open hearing with pointed questions was the only hope of dislodging the parties.

 

[bowiac]

Does anyone have any examples from case law of what types of actions by an arbitrator would rise to the level of demonstrating "bias" for the purpose of the court?  The ultimate question is - do any of Herr Roger's actions here even arguably rise to that level?

 
Kessler has some examples...
 

The case law, including that in the Second Circuit, is that even when a League Commissioner has specifically been delegated to serve as arbitrator of parties’ disputes, the Commissioner may not arbitrate a particular dispute in which his own conduct and actions are called into question. See Morris, 575 N.Y.S.2d at 1016-17 (removing NFL Commissioner as arbitrator because of his “evident partiality and bias . . . with respect to this specific matter”); Erving v. Virginia Squires Basketball Club, 349 F. Supp. 716, 719 (E.D.N.Y. 1972) (disqualifying Commissioner from sitting as arbitrator due to his relationship to the specific dispute), aff’d, 468 F.2d 1064 (2d Cir. 1972); see also State ex rel. Hewitt v. Kerr, No. SC 93846, 2015 WL 2061986, at *10 (Mo. Apr. 28, 2015) (en banc) (examining facts of case and determining that NFL Commissioner’s “position of bias” required court to remove him as arbitrator). These courts analyzed the Commissioner’s fitness to serve as arbitrator in the specific facts of these cases and found him impermissibly evidently partial in each one despite being designated arbitrator in the relevant arbitration provisions. 

 
But I would say "no" - this is Brady's weakest argument (and why it went last). The crux of these argument are pretty meek: 1) part of Brady's appeal was Goodell improperly delegating the discipline to Vincent, so Goodell was inherently biased; 2) Goodell praised the Wells report in public, so he couldn't later back down. The first one might have some teeth, although I haven't seen much analysis of it. It feels "off" however.
 
EDIT - added links to the cases themselves if you want to read them however. 

 

[joe dokes]

My experience is the same regarding judges and mediation. I'd guess is that whatever level of involvement Berman has is with the explicit consent of the parties. He's not looking to create issues for appeal.

 

Obviously it can create more pressure on the parties to ha e the judge free-wheeling through whatever issues attract his attention. This is a very hard case to settle. It's more than just money. Berman may have thought that a meaty, open hearing with pointed questions was the only hope of dislodging the parties.          
 

 
All true. And the effect of the open hearing gets magnified by the fact that interested outsiders -- press, other players, other owners -- are more able to press their views on the parties directly without getting spun (as much) by leaks.
 
I like what he's trying to do. And I'm in no position to quibble if he thinks this is the best way to get to the (his) desired end -- settlement.  I would feel naked answering those questions today, though, without the endpoint or focus of a "normal" argument.