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

PedroKsBambino

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Kenny F'ing Powers said:
 
You guys are looking too hard into this. The NFL filed because they were trying to beat the PA to the punch and wanted the ball in their court. It was a legal tactic and nobody is going to look much deeper than that.
 
The NFL filed to confirm the arbitration award.  They filed in NYC to pick the venue for that issue to be decided, but those are two distinct things.
 
I do not think there is much of a chance the judge will be annoyed by the NFL position on review.  He may well disagree with it, but their filing was pursuant to the way appeals of an arbitration award go to federal courts, and the judge knows this.
 

WayBackVazquez

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ivanvamp said:
 
It seems to me that if they're saying the court has no authority to overturn the decision, it can't have the authority to validate it, either.  Because if it has the authority to validate it, it has the authority to actually *sit in judgment* over it.  It's not sitting in judgment if you can only judge one way.  
 
You're really misunderstanding the issue here. Courts are bound by binding precedent and are obligated to apply valid laws. The NFL is arguing that Judge Berman is bound by statutory law and by binding precedent to confirm the award. This is different from saying Judge Berman does not have authority to vacate the award. The union is saying merely that do so would constitute reversible error. 
 
Imagine a case being brought before an appellate court where the appellate judge is only allowed by law to rule one way and not the other.  It makes no sense.
 
 
But it happens all the time. When there is clear Supreme Court precedent (or for that matter, controlling circuit precedent) on an issue of law, the Court of Appeals is bound to follow that precedent. Again, that's not saying the court cannot rule contrary to that precedent; only that it would be an error of law subject to reversal.
 

HowBoutDemSox

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Something tangentially related that has been bugging me since the NFL filed its complaint seeking to affirm the award, but how does that cause of action past constitutional muster from a "Cases and Controversies" standpoint, applying Lujan? Unless the party that lost the arbitration is actively resisting adhering to the award, doesn't the plaintiff lack the requisite concrete harm (to say nothing of causation or redressability) required under Article III standing jurisprudence?
 

WayBackVazquez

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HowBoutDemSox said:
Something tangentially related that has been bugging me since the NFL filed its complaint seeking to affirm the award, but how does that cause of action past constitutional muster from a "Cases and Controversies" standpoint, applying Lujan? Unless the party that lost the arbitration is actively resisting adhering to the award, doesn't the plaintiff lack the requisite concrete harm (to say nothing of causation or redressability) required under Article III standing jurisprudence?
 
Not sure what you mean. Congress passed the FAA and the NLRA, and expressly created claims to confirm, vacate, or modify.
 

Omar's Wacky Neighbor

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WayBackVazquez said:
 
You're really misunderstanding the issue here. Courts are bound by binding precedent and are obligated to apply valid laws. The NFL is arguing that Judge Berman is bound by statutory law and by binding precedent to confirm the award. This is different from saying Judge Berman does not have authority to vacate the award. The union is saying merely that do so would constitute reversible error. 
 
Put another way: the NFL is claiming to Berman that it's mutually agreed upon in the CBA that 2+2=5 (RG has carte blanche and the final say in almost all matters NFL).  Now, whether 2+2=5 in the real common-sense world is not the issue  (there's no real proof against Brady, the punishment is well beyond precedent, Goodell shouldnt be judge/jury/executioner, if presented in criminal court it would never pass the smell test, etc.).  What the NFL is saying is at issue is that both the NFL AND THE NFL-PA agreed of their own free will in writing that 2+2=5, so it's not in Berman's scope of responsibility to say "waitaminit, 2+2 is actually 4, not 5"  even tho Berman and half the country knows it is.  NFL-PA waived their right in the CBA to now say that 2+2=4.
 

HowBoutDemSox

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WayBackVazquez said:
 
Not sure what you mean. Congress passed the FAA and the NLRA, and expressly created claims to confirm, vacate, or modify.
Apologies if I wasn't articulating the question properly. Congress can, and here, certainly has, created the right of action. But, as a matter of constitutional law (derived from the phrase "Cases and Controversies" in Article III), the plaintiff still needs to have standing to bring a cause in federal court, even if Congress has created a claim via statute. The leading case on standing is Lujan v. Defenders of Wildlife, where SCOTUS articulated the test for having standing to sue, which requires that there be a "harm" that the plaintiff has suffered and is asking the federal court to redress. What, from that perspective, is the "harm" the NFL, or any plaintiff in this kind of case, is asserting? I would understand if the NFLPA was in some way contesting the arbitral award, or, in another hypothetical case with a monetary component, if the side that lost in arbitration wasn't paying what was owed, but it seems like here, when it filed in SDNY, the NFL didn't have a "harm," in the Lujan sense, that they needed a federal court to redress, and Congress' creation of a cause of action doesn't get them around that requirement, which is constitutional in nature.
 

WayBackVazquez

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HowBoutDemSox said:
Apologies if I wasn't articulating the question properly. Congress can, and here, certainly has, created the right of action. But, as a matter of constitutional law (derived from the phrase "Cases and Controversies" in Article III), the plaintiff still needs to have standing to bring a cause in federal court, even if Congress has created a claim via statute. The leading case on standing is Lujan v. Defenders of Wildlife, where SCOTUS articulated the test for having standing to sue, which requires that there be a "harm" that the plaintiff has suffered and is asking the federal court to redress. What, from that perspective, is the "harm" the NFL, or any plaintiff in this kind of case, is asserting? I would understand if the NFLPA was in some way contesting the arbitral award, or, in another hypothetical case with a monetary component, if the side that lost in arbitration wasn't paying what was owed, but it seems like here, when it filed in SDNY, the NFL didn't have a "harm," in the Lujan sense, that they needed a federal court to redress, and Congress' creation of a cause of action doesn't get them around that requirement, which is constitutional in nature.
 
Yes, I see what you mean.
 

DennyDoyle'sBoil

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I think there is a significant unresolved (at the Supreme Court level at least) question whether motion to compel arbitration awards do present Cases or Controversies in the absence of some live dispute that makes the need for confirmation necessary.  (For example, refusal to comply or pay, necessitating a judgment.)  There is a case right now pending before the Supreme Court (to be argued next term) that may have some impact on the question.  It's the Spokeo csae, which essentially asks whether a mere violation of a statute without any injury in fact is sufficient under Lujan, etc.
 
There is no doubt here that the NFLPA's cross-petition to vacate does create a case or controversy, though.  So, as the case is presently situated, the court has jurisdiction.  As I understand the question, though, it's whether the NFLPA could have moved to dismiss the NFL's complaint on jurisdictional grounds, to overcome the first-filed problem and maybe filed in Minnesota.  Interesting thought.    
 

Koufax

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TheoShmeo said:
Assuming no settlement and no change in the schedule, at the September 4 oral argument, which themes would you emphasize the most for Brady and the NFLPA if you were in Kessler's shoes?
 
 
 
While I would lead with the notice argument, I would be sorely tempted to weave into the argument the fact that the conclusion that the balls were in fact underinflated rests upon a presumption of which gauge Walt Anderson used; and that the NFL chose to presume  - without explanation -- that he used the one that fit the guilty verdict even though Anderson said he thought that he used the other one.  This suggests bias, supports the characterization of the NFL's decision-making as a kangaroo court and evinces a fundamental disregard for fair dealing and due process.  While the analysis starts with a question of fact, which the court has minimal authority to challenge, it builds into a question of law, one that may get the judge's juices flowing.
 

HowBoutDemSox

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DennyDoyle'sBoil said:
I think there is a significant unresolved (at the Supreme Court level at least) question whether motion to compel arbitration awards do present Cases or Controversies in the absence of some live dispute that makes the need for confirmation necessary.  (For example, refusal to comply or pay, necessitating a judgment.)  There is a case right now pending before the Supreme Court (to be argued next term) that may have some impact on the question.  It's the Spokeo csae, which essentially asks whether a mere violation of a statute without any injury in fact is sufficient under Lujan, etc.
 
There is no doubt here that the NFLPA's cross-petition to vacate does create a case or controversy, though.  So, as the case is presently situated, the court has jurisdiction.  As I understand the question, though, it's whether the NFLPA could have moved to dismiss the NFL's complaint on jurisdictional grounds, to overcome the first-filed problem and maybe filed in Minnesota.  Interesting thought.    
Yup, that was my thinking, and thanks for the explanation. Curious to see how the Court comes down on the case this term.
 

Eddie Jurak

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Koufax said:
 
While I would lead with the notice argument, I would be sorely tempted to weave into the argument the fact that the conclusion that the balls were in fact underinflated rests upon a presumption of which gauge Walt Anderson used; and that the NFL chose to presume  - without explanation -- that he used the one that fit the guilty verdict even though Anderson said he thought that he used the other one.  This suggests bias, supports the characterization of the NFL's decision-making as a kangaroo court and evinces a fundamental disregard for fair dealing and due process.  While the analysis starts with a question of fact, which the court has minimal authority to challenge, it builds into a question of law, one that may get the judge's juices flowing.
Doesn't the finding also rest on the assumption that Anderson brought each ball to exactly 12.5 psi with absolute precision? If this were a proceeding where evidence was gathered, I'd want to bring in Anderson, hand him whichever gauge he was supposed to have used, and ask him to do his thing. Too bad we are past all that.
 

natpastime162

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Omar's Wacky Neighbor said:
Put another way: the NFL is claiming to Berman that it's mutually agreed upon in the CBA that 2+2=5 (RG has carte blanche and the final say in almost all matters NFL).  Now, whether 2+2=5 in the real common-sense world is not the issue  (there's no real proof against Brady, the punishment is well beyond precedent, Goodell shouldnt be judge/jury/executioner, if presented in criminal court it would never pass the smell test, etc.).  What the NFL is saying is at issue is that both the NFL AND THE NFL-PA agreed of their own free will in writing that 2+2=5, so it's not in Berman's scope of responsibility to say "waitaminit, 2+2 is actually 4, not 5"  even tho Berman and half the country knows it is.  NFL-PA waived their right in the CBA to now say that 2+2=4.
 
Is the NFLPA arguing that, or rather, instead of evidence being 2 + 2 = 5, Goodel is saying that it is 2 + 3 = 5?  Basically, he isn't using good evidence to come to a bad conclusion, rather he is using bad (misrepresented) evidence to come to a bad conclusion.
 

allstonite

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I've kept up with the threads for the most part and I have a question I don't think has been brought up yet. Please forgive me if I missed it. I know Brady has a high hurdle to climb to get the suspension vacated because of the way the CBA is written. But I also know that Federal judges have a ton of power and are also human. Would Judge Berman be more likely to rule in Brady's favor because he sees the precedent it would set for future player discipline in the NFL?
 
In this case Roger served as judge, jury and executioner, had a completely one sided "independent" investigation done, reviewed the appeal of his own ruling, created and manipulated evidence to paint Brady in the worst light possible. Basically Brady had to prove a negative beyond any reasonable doubt and had no power to stop this. Berman could see that if he rules in the NFL's favor this would only give Goodell more power and now legal precedent that he could theoretically suspend anyone for anything regardless of how much evidence there is. Could Berman use this as an excuse to check Goodell's power?
 

Myt1

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Sure. He's human. A compelling fairness narrative certainly doesn't hurt, notwithstanding the CBA.
 

lambeau

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I take solace in DCM's contention that all else being equal, judges prefer doing the right thing. So the law being equivocal, justice may prevail.
Others may think  the Dreyfus case was more important, but my faith in the justice system is on trial here.
 

Otis Foster

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DennyDoyle'sBoil said:
I think there is a significant unresolved (at the Supreme Court level at least) question whether motion to compel arbitration awards do present Cases or Controversies in the absence of some live dispute that makes the need for confirmation necessary.  (For example, refusal to comply or pay, necessitating a judgment.)  There is a case right now pending before the Supreme Court (to be argued next term) that may have some impact on the question.  It's the Spokeo csae, which essentially asks whether a mere violation of a statute without any injury in fact is sufficient under Lujan, etc.
 
There is no doubt here that the NFLPA's cross-petition to vacate does create a case or controversy, though.  So, as the case is presently situated, the court has jurisdiction.  As I understand the question, though, it's whether the NFLPA could have moved to dismiss the NFL's complaint on jurisdictional grounds, to overcome the first-filed problem and maybe filed in Minnesota.  Interesting thought.    
 
Wouldn't then the PA have refrained from filing in Minn. while it's jurisdictional motion in NY was pending? And even assuming the SDNY moved quickly on the jurisdictional motion and vacated the award, wouldn't the NFL have moved for a stay and appealed the matter to the 2d Circuit?
 
Assuming the SDNY granted the stay, all the while, the arbitration award and Brady's suspension would  have been in force, wouldn't it? The essence of this proceeding at this time is speedy resolution, and the NFL could have thwarted that by playing out the process. (I wonder if they'd grant a stay. The suspension can be served at any time. If they stay was granted, the matter would be moot before the 2d Circuit got to the case.)
 
(Apologies if I've misstated anything, I'm purely a corporate lawyer but have found the discussion intellectually challenging.)
 

TheoShmeo

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I do not think Berman will concern himself all that much with Goodell's power as applied to cases in the future.
 
I think he will rule in Brady's favor, notwithstanding the deference provided by the terms of the CBA, if he thinks the sum total of Goodell's behavior takes him outside the bounds of the CBA.  Meaning he will say to himself "could Goodell have ruled this way based on the evidence if he was being at the lowest level of fair and objective?"  If the answer to that is no, I think he will go Tom's way.  Make no mistake, he will address legal hooks -- such as the lack of notice, etc. -- in the process, but I think the overall stink level around the Sheriff will play a huge role in this if Tom is to win it.
 
I just don't think it will be so much around level setting Goodell.  That's for the owners (by firing him) or the players (by negotiating a better CBA).  I could be wrong but my take is that Berman will view a long term fix as beyond his purview.  He will deal with what's before him in the same way that many judges say that I am deciding this case on its terms and will leave for the legislature a larger fix.
 

Otis Foster

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TheoShmeo said:
I do not think Berman will concern himself all that much with Goodell's power as applied to cases in the future.
 
I think he will rule in Brady's favor, notwithstanding the deference provided by the terms of the CBA, if he thinks the sum total of Goodell's behavior takes him outside the bounds of the CBA.  Meaning he will say to himself "could Goodell have ruled this way based on the evidence if he was being at the lowest level of fair and objective?"  If the answer to that is no, I think he will go Tom's way.  Make no mistake, he will address legal hooks -- such as the lack of notice, etc. -- in the process, but I think the overall stink level around the Sheriff will play a huge role in this if Tom is to win it.
 
I just don't think it will be so much around level setting Goodell.  That's for the owners (by firing him) or the players (by negotiating a better CBA or insisting that Goodell).
 
This makes sense. I believe that the neutrality of an arbitrator is one of the few points of attack against an award. If so, the question then is: Does there need to be direct evidence of a lack of neutrality, or is cumulative indirect evidence sufficient? Can the NFL simply put all of these screw-ups down to incompetence?
 
That would be truly weird: Sustaining an award against a neutrality challenge on the basis of the arbitrator's ineptness. 
 

joe dokes

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This makes sense. I believe that the neutrality of an arbitrator is one of the few points of attack against an award. If so, the question then is: Does there need to be direct evidence of a lack of neutrality, or is cumulative indirect evidence sufficient? Can the NFL simply put all of these screw-ups down to incompetence?
 
That would be truly weird: Sustaining an award against a neutrality challenge on the basis of the arbitrator's ineptness. 
 
I think there's enough for Berman to write a solid opinion vacating the award with respect to *any* of the legal grounds for vacating awards. (There's probably more for him to write a solid one affirming it though).
 
The NFL can claim whatever it wants. There's doesn;t have to be direct evidence of anything. Ultimately, the Judge has to make the normative judgment as to whether something was a "mistake" or was the likely and/or intended result of a fatally flawed and contrary-to-the-CBA process.
 

Omar's Wacky Neighbor

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natpastime162 said:
 
Is the NFLPA arguing that, or rather, instead of evidence being 2 + 2 = 5, Goodel is saying that it is 2 + 3 = 5?  Basically, he isn't using good evidence to come to a bad conclusion, rather he is using bad (misrepresented) evidence to come to a bad conclusion.
Sorry if I was unclear. I wasnt referring to 2+2=4 as a matter of stringing together several points or issues to reach a logical conclusion.  I meant is as the the CBA allowing for RG to totally ignore the laws of math, natural science, gravity, etc. whenever it is to his pleasing or it serves his needs.
 

dcmissle

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TB reportedly will be in attendance this week. Smart move. The judge knows you care but show it. This pressures RG to show too, even though attendance voluntary, and you want him there if you are team Brady.
 

TomTerrific

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lambeau said:
Others may think  the Dreyfus case was more important, but my faith in the justice system is on trial here.
You know, if "J'Accuse!" were written today, someone would immediately leak to Stephen A. Smith that Zola had accepted money from the Kraft Group
 

Padaiyappa

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Could Judge Berman have McNally/Jastremski come to court to speak to him? I think that could greatly help bring an end to this either way...I know that the court is there to analyze whether the labor process is fair but their testimony could justify if this really was a witch hunt by the NFL or a Patriots coverup....Apologies if this is a recurring topic and i just haven't kept up with the thread.
 

Otis Foster

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Padaiyappa said:
Could Judge Berman have McNally/Jastremski come to court to speak to him? I think that could greatly help bring an end to this either way...I know that the court is there to analyze whether the labor process is fair but their testimony could justify if this really was a witch hunt by the NFL or a Patriots coverup....Apologies if this is a recurring topic and i just haven't kept up with the thread.
 
I don't believe this is an evidentiary hearing, its for arguments on pending motions.
 

TheoShmeo

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Correct, Otis.
 
The NFLPA/Brady and the NFL agreed that Judge Berman would only make a decision based on existing evidence in the record, not new evidence.  Berman cannot on his own demand that one side or the other produce new witnesses or new evidence.
 

djbayko

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Otis Foster said:
 
I don't believe this is an evidentiary hearing, its for arguments on pending motions.
I don't know how that would put an end to things, even if it were. Is Berman going to employ the old "Goodell look 'em in the eye" technique and determine it's the only evidence he needs? Case closed.
 

Section15Box113

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TheoShmeo said:
Correct, Otis.
 
The NFLPA/Brady and the NFL agreed that Judge Berman would only make a decision based on existing evidence in the record, not new evidence.  Berman cannot on his own demand that one side or the other produce new witnesses or new evidence.
But we'd heard speculation that Berman might hear testimony from witnesses that have previously testified. Someone in the last week had wondered if Wells might be called. Was this based on ether?

If not - and given the twists this has already taken in the same courtroom last week - any chance we might see a Wells (or a Brady) called given that they'll both be in attendance and testified during the appeal?

Seems unlikely that anyone would testify (given "no new discovery" and so forth) and, if he has anything to hide or could even get tripped up on some minor point, seems less likely that Team Brady would want TB12 up there (even if he's been truthful).

Are odds of testimony as close to 0% as they seem?
 

TheoShmeo

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I don't think it's impossible that we would get new evidence.  Berman might make his need for that clear to the parties in chambers and they might agree to open the process up.  But it would take something like that, a real change from the current process, for new evidence to come in.  And before new evidence would come in, there would normally be a round of discovery, which would take some time.
 
Given the existing rules of the road and the desire on all sides to get a decision by September 4, I don't think it will happen. 
 

WayBackVazquez

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TheoShmeo said:
Correct, Otis.
 
The NFLPA/Brady and the NFL agreed that Judge Berman would only make a decision based on existing evidence in the record, not new evidence.  Berman cannot on his own demand that one side or the other produce new witnesses or new evidence.
 
Of course he can. One of the few instances in which an arbitrator can be called as a witness in a confirmation/vacatur proceeding is when there are allegations of evident partiality like we have here. And Berman could absolutely decide sua sponte to permit questioning of Goodell. Or to question him himself. The fact that the parties agreed no additional discovery is needed means little here. Parties stipulate to things all the time that judges reject.
 

Myt1

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Section15Box113 said:
But we'd heard speculation that Berman might hear testimony from witnesses that have previously testified. Someone in the last week had wondered if Wells might be called. Was this based on ether?

If not - and given the twists this has already taken in the same courtroom last week - any chance we might see a Wells (or a Brady) called given that they'll both be in attendance and testified during the appeal?

Seems unlikely that anyone would testify (given "no new discovery" and so forth) and, if he has anything to hide or could even get tripped up on some minor point, seems less likely that Team Brady would want TB12 up there (even if he's been truthful).

Are odds of testimony as close to 0% as they seem?
Probably in the neighborhood. I don't know why he couldn't order it on his own, regardless of what the parties say. I just largely doubt that he would, given the current posture.

Edit: What WBV said.
 

Otis Foster

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WayBackVazquez said:
 
Of course he can. One of the few instances in which an arbitrator can be called as a witness in a confirmation/vacatur proceeding is when there are allegations of evident partiality like we have here. And Berman could absolutely decide sua sponte to permit questioning of Goodell. Or to question him himself. The fact that the parties agreed no additional discovery is needed means little here. Parties stipulate to things all the time that judges reject.
 
I don't disagree. I should have said that ostensibly this is non-evidentiary. It's Berman's courtroom and he sets the rules (within reason).
 

Myt1

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Otis Foster said:
 
I don't disagree. I should have said that ostensibly this is non-evidentiary. It's Berman's courtroom and he sets the rules (within reason).
He's not disagreeing with you. Just cleaning up the chaff.
 

TheoShmeo

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That's probably right, WBV.  That said, I would be surprised if Berman does that given the parties agreed otherwise, he has given no indication until now that he is going to require evidence, doing that would likely lead to some discovery, and the parties, including the Judge, seem committed to the September 4 time frame.
 
But yeah, my post was wrong.
 

Doctor G

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If Berman has serious doubts about the integrity of the arbitration hearing,he could call Reisner.
 

Harry Hooper

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Doctor G said:
If Berman has serious doubts about the integrity of the arbitration hearing,he could call Reisner.
 
And perhaps Pash over the "independent" Wells investigation. If Wells really had a mandate to write an indictment for the NFL and not an independent probe, it could expose in high relief the lack of cross-examination and discarding of potentially exculpatory evidence for Brady.
 
Addendum: Still, I can't put much stock in Sal's saying witnesses will be called tomorrow.
 

PedroKsBambino

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Given Reisner's history in SDNY (AUSA, SEC, headed criminal section, then at PW) from 1990 on in various roles it's quite possible Berman already has some opinion on him (having been a SDNY judge since 1998).  We'll never know what it is, and since Reisner was in private practice for some of the time Berman was on the bench and a supervisory role for other parts it is possible Berman hasn't formed a view...but he also may have and this is the kind of situation where that might matter a little.
 

garzooma

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Harry Hooper said:
 
If Wells really had a mandate to write an indictment for the NFL and not an independent probe, it could expose in high relief the lack of cross-examination and discarding of potentially exculpatory evidence for Brady.
 
 
I don't know if this is precisely a legal question, but if Wells had a mandate to write an indictment, rather than conduct a fair investigation as he was ostensibly supposed to, would he have needed to see such a mandate in writing?  To protect himself if things went south and the NFL then claimed he went off on his own.
 

joe dokes

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If Berman has serious doubts about the integrity of the arbitration hearing,he could call Reisner.
 
 
If Wells really had a mandate to write an indictment for the NFL and not an independent probe, it could expose in high relief the lack of cross-examination and discarding of potentially exculpatory evidence for Brady.
 
 
 
Berman doesn't need any additional evidence to make that conclusion. He knows how the proceedings were conducted. 
 
He also knows each side's strongest arguments.  He's going to probe the weak ones. The weak ones are where the briefs were probably thin and//or vague, and he's going to ask questions to get answers.
 
He's also going to try and get concessions from both sides about things around the edges, to create some sort of guideposts.  "You would agree, Mr. NFL Lawyer, that if the record showed that Mr. Goodell received a $5million check from an NFL owner with a note saying, 'please take Brady off the field for our next matchup,'  that would be sufficient bias to vacate the award, right?"
 
"And you agree Mr. Kessler, that mere buffoonery is not enough to vacate the award, right?"
 
Such concessions by each side will be met with reporters declaring victory for the other. Don't buy it. Unless he clearly telegraphs his intent (very unlikely), forecasting what Berman will do based on his conduct at a hearing is like trying to predict the weather 9 months from now.
 

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lambeau said:
Another Amicus Curiae brief from the Dowd compound in Chatham, this on "Blatant Bias":
 
 
 
http://www.deflategatefacts.com/blog/2015/8/17/roger-goodells-blatant-bias
 
Thankfully not a lawyer, but Goodell's obvious bias has always seemed to be the NFLPA's strongest argument to me. Shouldn't the fact that Goodell lied multiple times in his appeal decision be cut and dried enough to vacate the suspension? Particularly given that Goodell thought the hearing transcripts would be sealed? The point below is the one I keep coming back to: 
 
2. Goodell found that Brady’s increased communications with Patriots Assistant John Jastremki after the AFC Championship game "undermine[d] any suggestion that the communications addressed only preparation of footballs for the Super Bowl rather than the tampering allegations" -- despite the fact that Brady testified at length that he discussed the tampering allegations with Jastremski because he was concerned they were causing Jastremski considerable stress and wanted to know what had happened.
 
Goodell lied about Brady's testimony when he thought he'd be able to get away with it. It's so brazen that it'd be shocking if the words hadn't come from Roger Goodell pen. Am I off base here?
 

Koufax

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It is possible that Goodell, poor fellow, was just confused; he got his facts mixed up.  His lawyers should not have been confused, however, and they undoubtedly participated in the drafting of this document.  So the collective group that signed its name "Roger Goodell" knew that the decision contained misremembered facts (thanks to another Roger for that wonderful word).  Put simply, the appeal decision was filled with lies.
 

AB in DC

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Seabass177 said:
 
Thankfully not a lawyer, but Goodell's obvious bias has always seemed to be the NFLPA's strongest argument to me. Shouldn't the fact that Goodell lied multiple times in his appeal decision be cut and dried enough to vacate the suspension? Particularly given that Goodell thought the hearing transcripts would be sealed? The point below is the one I keep coming back to: 
 
 
Goodell lied about Brady's testimony when he thought he'd be able to get away with it. It's so brazen that it'd be shocking if the words hadn't come from Roger Goodell pen. Am I off base here?
 
Also not a laywer, but obvious bias always seemed to be to be the NFLPA's weakest argument.  False statements in the appeal aren't proof of bias; arbitrators aren't overturned just because of mistakes.  I mean, you and I may know in our hearts that Goodell deliberately lied, but how do you prove that to a judge?  And then prove this is evidence that the decision itself is biased, rather than just the way the decision was written?  I don't see it.
 
Plus the fact that the CBA specifically allows Goodell to be in charge of the hearing, which means that the NFLPA accepted the fact that there may be some bias in the process.
 

dcmissle

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Shifting gears again.

I have tried to look at this objectively from Berman's standpoint and think I've done decently, even though my rooting interest is obvious.

In that vein, man would I be pissed by the NFL's maximalist demands if current reports are true. Still adhering to laundry list of concessions before even getting into horse trading on a penalty reduction. Are you kidding me? That's not too far from a prosecutor demanding the death penalty in a plea deal.

Negotiation requires concession. Concession means each side puts aside its win-win; you are going to emerge diminished from winning the case straight out.

By demanding admissions from TB and the other sorts of concessions being bandied about, the League is trying to emerge in a BETTER position than the status quo and thus better than if Judge Berman simply confirmed the award.

Think about that for a minute. It is fucking breathtaking and unprecedented in my experience, recognizing that his is a one-off sort of case

Now what about cutting the suspension, would not that be a concession from RG? The simple answer is no, for obvious reasons.
 

Eddie Jurak

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dcmissle said:
Shifting gears again.

I have tried to look at this objectively from Berman's standpoint and think I've done decently, even though my rooting interest is obvious.

In that vein, man would I be pissed by the NFL's maximalist demands if current reports are true. Still adhering to laundry list of concessions before even getting into horse trading on a penalty reduction. Are you kidding me? That's not too far from a prosecutor demanding the death penalty in a plea deal.

Negotiation requires concession. Concession means each side puts aside its win-win; you are going to emerge diminished from winning the case straight out.

By demanding admissions from TB and the other sorts of concessions being bandied about, the League is trying to emerge in a BETTER position than the status quo and thus better than if Judge Berman simply confirmed the award.

Think about that for a minute. It is fucking breathtaking and unprecedented in my experience, recognizing that his is a one-off sort of case

Now what about cutting the suspension, would not that be a concession from RG? The simple answer is no, for obvious reasons.
So the NFL's case is now, in effect, that the "middle ground" is a sitraightforward confirmation of the award?  Just like the award itself was a sort of middle ground, because Goodell could have reached a finding of fact that Tom Brady eats babies for breakfast (and has never stated otherwise) and should have been suspended for much longer.
 
If Berman's decision is anything other than a complete repudiation of the NFL, this is going to be depressing.  
 

bradmahn

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AB in DC said:
 
Also not a laywer, but obvious bias always seemed to be to be the NFLPA's weakest argument.  False statements in the appeal aren't proof of bias; arbitrators aren't overturned just because of mistakes.  I mean, you and I may know in our hearts that Goodell deliberately lied, but how do you prove that to a judge?  And then prove this is evidence that the decision itself is biased, rather than just the way the decision was written?  I don't see it.
 
Plus the fact that the CBA specifically allows Goodell to be in charge of the hearing, which means that the NFLPA accepted the fact that there may be some bias in the process.
I agree it's the hardest case to sell to a judge but it might be the easiest for a judge to use to nullify the deference allowed to arbitration proceedings.
 

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OK, I've got a question about labor law that I think is really important but can't fully make heads or tails of. I know 46 is getting a lot of play, but the NFL's key argument seems to be in its attack on the NFLPA's "notice" argument that is widely held to be their strongest and, specifically, how they address the "law of the shop" issue.
 
To whit:
 
The Union’s suggestion that the Court may reconsider the Commissioner’s analysis of the “law of the shop” is simply wrong. “A federal court may not second-guess” an arbitrator’s “conclusion that he was not bound by” a prior arbitration decision. W.R. Grace & Co. v. Local Union 759, Int’l Union of United Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S. 757, 764-65 (1983); see also Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d 29, 32-33 (2d Cir. 1997) (arbitrator has no “duty to follow arbitral precedent” and the “failure to do so is [no] reason to vacate an award”). That is because the law requires deference to the arbitrator’s consideration of the “law of the shop.” Local Union No. 135 of United Rubber, Cork, Linoleum & Plastic Workers of Am. v. Dunlop Tire & Rubber Corp. of Buffalo, N.Y., 391 F.2d 897, 900 (2d Cir. 1968) (“The labor arbitrator is chosen because the parties presumably believe he has special knowledge of ‘the common law of the shop’ and an ability to weigh [the relevant] considerations . . . . No judge or aggregation of judges can do this.”). Every circuit court on record agrees, including the Eighth Circuit in a post-Peterson decision. See SBC Advanced Solutions, Inc., v. Comm’cns Workers of Am., Dist. 6, No. 14-3351, -- F.3d --, 2015 WL 4528456, at *6-8 (8th Cir. July 28, 2015) (court “will not vacate” an award based on “inconsistency” or “disagreement” with a prior award because it is the arbitrator who “has the power to determine whether a prior award is to be given preclusive effect”).2
 
Because the Commissioner addressed the notice issue, the Union’s argument that he did not apply the “law of the shop”—meaning that he failed to adopt the Union’s interpretation of the Bounty and Ray Rice arbitration decisions—provides no basis upon which to vacate the Award. Nor is the Award in any way inconsistent with those decisions.
 

2 Accord, e.g., Int’l Union v. Dana Corp., 278 F.3d 548, 557 (6th Cir. 2002) (“[T]he preclusive effect of an earlier arbitration award is to be determined by the arbitrator” absent a contractual provision stating otherwise.); El Dorado Tech. Servs., Inc. v. Union Gen. De Trabajadores de Puerto Rico, 961 F.2d 317, 321 (1st Cir. 1992) (“It is black letter law that arbitration awards are not entitled to the precedential effect accorded to judicial decisions.”); accord IDS Life Ins. Co. v. SunAmerica Life Ins. Co., 136 F.3d 537, 543 (7th Cir. 1998); Hotel Ass’n of Washington, D.C., Inc. v. Hotel & Rest. Emps. Union, Local 25, 963 F.2d 388, 390 (D.C. Cir. 1992); Little Six Corp. v. United Mine Workers of Am., Local Union No. 8332, 701 F.2d 26, 29 (4th Cir. 1983).
 
The thing is, I dug into the cases (I have linked to them for convenience) and, bracketing a couple of quibbles such as misquoting W.R. Grace (seriously?) and leaving out that in Wackenhut, "The role of the doctrine of stare decisis in arbitration is not raised," which is a bit of a shenanigans (to say nothing of the part about deference given to the arbitrator because he's all knowledgable and wise and shit), it seems like the cases really do say what the NFL claims.
 
So what the hell is the "law of the shop" if it is so weakly binding? Or, in effect, not truly binding at all so much as information that an arbitrator may do with as he or she pleases.
 
Basically, I feel like I am seeing a tension between what the "law of the shop" is held to be in terms of what it is defined as and how it is generally understood if someone asks, "Explain to me what the 'law of the shop' is," and how it is treated in the cases the NFL cites.
 
Given the case law cited, the NFL's position vis-á-vis notice strikes me as quite strong. But I'm also flummoxed at the idea that that's how the law of the shop is treated as it seems to make a mockery of the jurisprudential principles upon which the law of the shop is based, e.g. that law must be promulgated to be legitimate.
 
Anyone know enough about this to provide some explanation?
 

Leather

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My quick-take is that they are conflating an arbitrator's authority to ignore precedent on discipline with the arbitrator's need to follow industry practices.
 
That is:  an arbitrator is not bound by prior arbitration awards in the sense that they don't have to say: "Well, that guy did something similar last year, and he got X, so I am required to give you X."  This makes sense, as facts are almost always going to be different and times change.  So if there was an arbitration award for deflating footballs last year where Joe Flacco got suspended for 1 game, Goodell would not be required, because of that ruling, to give Brady 1 game in this case.
 
However, "law of the shop" is more akin to "industry practices" or (under the UCC) "course of performance."    Basically:  if an industry has done something the same way, again and again, for years and years to be so common as to be accepted as just  "the way things are done", then it becomes an implicit requirement that, barring some change, that's the way things are done.   Both parties are on implied notice, so one party can't take advantage of the other's reliance on there not being a written term to break the implied term.   
 
So, basically, the "law of the shop" stuff has to be considered.   A loser at arbitration can't say: "But the decision isn't supported in the contract" if the arbitrator can point to industry practices that act as implied terms to that contract.   That seems to be what the cases the NFL cite say.  They are twisting around and saying: "We get to consider the law of the shop, not the NFLPA or a judge!"  but that doesn't strike me as true.  If the NFLPA can make a prima facie showing that: "This is the law of the shop, and the NFL ignored it" then I think that is supported by the cases.  
 

( . ) ( . ) and (_!_)

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One thing that has been said many times is that if judge Berman does send this back for another round of arbitration then he also has the ability to give directions or limitations on what that arbiter can do.

Does he also have sway over who that arbiter is? Can he saw not only can Rog not be the man making the decision but XXX is going to be the guy? Or failing that can he make it conditional that the two sides mutually agree on who would hear the future hearing?

I'm curious if the NFL could just say, fine roger won't be the next arbiter but Troy Vincent (or any other office stooge) will be.

I think going in front of an actual neutral would be a win for Brady. An annoying win since this will drag into the season, but a win all the same. I'm just nervous about more NFL bullshit if that process does unfold.
 

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drleather2001 said:
My quick-take is that they are conflating an arbitrator's authority to ignore precedent on discipline with the arbitrator's need to follow industry practices.
 
That is:  an arbitrator is not bound by prior arbitration awards in the sense that they don't have to say: "Well, that guy did something similar last year, and he got X, so I am required to give you X."  This makes sense, as facts are almost always going to be different and times change.  So if there was an arbitration award for deflating footballs last year where Joe Flacco got suspended for 1 game, Goodell would not be required, because of that ruling, to give Brady 1 game in this case.
 
However, "law of the shop" is more akin to "industry practices" or (under the UCC) "course of performance."    Basically:  if an industry has done something the same way, again and again, for years and years to be so common as to be accepted as just  "the way things are done", then it becomes an implicit requirement that, barring some change, that's the way things are done.   Both parties are on implied notice, so one party can't take advantage of the other's reliance on there not being a written term to break the implied term.   
 
So, basically, the "law of the shop" stuff has to be considered.   A loser at arbitration can't say: "But the decision isn't supported in the contract" if the arbitrator can point to industry practices that act as implied terms to that contract.   That seems to be what the cases the NFL cite say.  They are twisting around and saying: "We get to consider the law of the shop, not the NFLPA or a judge!"  but that doesn't strike me as true.  If the NFLPA can make a prima facie showing that: "This is the law of the shop, and the NFL ignored it" then I think that is supported by the cases.  
 
OK, but then the thing is that Goodell said he did consider the law of the shop and the NFL brief points to where he addresses it in his ruling (Award). Of course, Goodell's finding was that it didn't apply because this offense was something totally original and not like anything that discipline had been issued for before.
 
It seems, then, that the issue would become how the judge goes about considering if the arbitrator really did consider the law of the shop or is just giving lip service to having done so. That seems legally difficult to do, though I suppose not impossible--like (in an extreme example) perhaps a finding that no reasonable person considering the law of the shop could come up with what such and such arbitrator did.
 
Does anyone have any specific insight into or experience with an issue like this?