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

[Myt1]

I agree that they didn't expect that level of scrutiny. But Wells's use of "at least generally aware," is more supportable than Goodell's retconning, and it's tough for me to assign error to someone who probably stretched things as far as he could without making something up completely out of whole-cloth.

I said it at the time of his report and again at his press conference, I think Wells lost his firm money with this issue. But in that specific instance, I think he did the best he could with what he had.

 

[Joe D Reid]

Can't you hold Wells responsible for "at least generally aware"? Would the litigators here, if hired to write a similar report, have used language they knew to be so at risk in a lawsuit? (I'm just echoing the lawyer claims above that they knew "generally aware" was going to be a problem the first time they read it.)

 

I think "at least generally aware" is a masterpiece. It gave Wells's idiot client the hook it needed to issue the punishment it had already decided upon. But it didn't force Wells himself into a position where he was concluding that there was any direct evidence of any wrongdoing on Brady's part.
 
His towel was too small, but he did a good job tugging it over the important bits.

 

[Shelterdog]

Can't you hold Wells responsible for "at least generally aware"? Would the litigators here, if hired to write a similar report, have used language they knew to be so at risk in a lawsuit? (I'm just echoing the lawyer claims above that they knew "generally aware" was going to be a problem the first time they read it.)

And in hindsight it seems Wells shouldn't have allowed his client to claim he was independent if he was not. And he shouldn't have consented to a live-coached press conference in which he claimed independence. I wonder if that will prove to be a mistake that impacts his future ability to bring in business.

It seems ridiculous that smart people would have failed to anticipate Brady's response. The NFLPA hired Kessler last time, and he won. The PA fought Bountygate, Peterson, and Rice. Did the NFL think they could keep doing the same thing and get a different outcome? Brady makes a suit even more likely - he is the single worst choice of player to railroad. Any of us here would have given at least 50-50 odds Brady would sue. And in fact many here were hoping for Goodell to confirm his four game suspension, because that meant Brady would almost certainly sue. How could Ted Wells have failed to plan for that risk?

 
I'm sure that there were like 47 conference calls and 25 meetings about whether to use "at least generally aware" or some other standard and came to a consensual result  One possibility is that the client wanted them to name Brady and that's as far as Wells was willing to go.  Another is that they purposefully used a very low standard in an attempt to expand the NFL's power. In any event there's just about no chance that the Wells report included that report by accident.

 

[Bleedred]

Attorney Nash flatly mischaracterizes Brady's testimony about thinking about psi and ball inflation/deflation:   
 
Page 45-46 of the 8/19 transcript before Judge Berman:  "In fact I think one of the most interesting aspects on credibility at the hearing was Mr. Brady said he never really thought about ball deflation.  It wasn't really an issue for me.  And yet, there was substantial evidence to the contrary.  There were the texts.  Probably the most direct piece of evidence on this point was the text from Mr. Jastremski to Mr. McNally saying that Mr. Brady brought him up and sad:  "You must be under a lot of stress getting them done.  Mr. Wells and the Commissioner here as well concluded that he was talking about the fact that Mr. Brady was aware that Mr. McNally was the deflating the footballs"
 
Brady's transcript testimony before Goodell;  Page 115; lines 3-4.  Answer [Brady talking]:  "Ball pressure has been so inconsequential, I haven't even thought about that.  I think at the end of the day, the only time I thought about it was after the Jet game and then after this was brought up, after the championship game.  It's never something that has been on my radar, registered.  I never said psi..."
 
I mean, what the fuck?  Could this be an honest mistake made by Pash before the Judge?   Pash is noting that Brady isn't credible because he said Brady testified that he never thought about ball deflation and yet, there it is in black and white.  The very context where Pash is arguing that Brady is not credible actually notes that Brady did think of ball deflation/inflation, and then again the AFCCG.  What gives?
 
Edit:  Nash's entire argument about Brady's credibility seems to stem from these statements.  On page 51 of the 8/19 transcript, he again says Brady cannot be believed because it cannot be possible that he never cared about the psi of the football.   Yet again, the Brady testimony directly debunks Nash's argument here.  I find this stupefying.  
 
Edit #2:  I jumped the gun.  Kessler caught it at page 80-82 of the hearing.   Brilliant

 

[simplyeric]

Quick (I think) question:

On the issue of Pash testifying, what is the thing that Berman brings up, regarding the arbitrator deciding whether the testimony would be 'cumulative'.

I know what the word means in general, but I don't understand the signifigance in a legal context.
(As a lay person I'd say 'well sure, any new testimony from anyone is cumulative, isn't that kindof the point, to accumulate testimony and evidence?')

 

[PaulinMyrBch]

Quick (I think) question:

On the issue of Pash testifying, what is the thing that Berman brings up, regarding the arbitrator deciding whether the testimony would be 'cumulative'.

I know what the word means in general, but I don't understand the signifigance in a legal context.
(As a lay person I'd say 'well sure, any new testimony from anyone is cumulative, isn't that kindof the point, to accumulate testimony and evidence?')

In the interest of legal efficiency, trials in general do not allow multiple witnesses to the make the same point. Cumulative evidence is generally avoided because it wastes the courts time. 
 
The normal practice is you have an judge and an attorney calling a witness (one of their own usually) to testify. The other side objects "cumulative" and the judge calls a sidebar to ask the first attorney what it is the witness will testify to. If the judge deems it cumulative, the witness doesn't take the stand. If it's a new or different take on an existing point, he gets to testify. But it is up to the judge and they have a bunch of discretion here. 
 
For the NFL to not allow Kessler to call Pash as cumulative, its totally different. Pash is not Kessler's witness, he's likely going to be treated like a hostile witness. Kessler does not know exactly what Pash will say, he's never interviewed him, but he knows he edited the report, so he wants to call him to find out. The NFL decides its cumulative without even knowing what points Kessler is attempting to make with the witness. Berman made some comment about "you've got to let them make their case..." and this is what he's talking about. The NFL doesn't get to decide that their witness is going to provide cumulative testimony, especially when they have no idea what questions Kessler was going to ask. 
 
I'm sure someone more fluent might be able to explain it better, but that's the gist of it. 

 

[Bleedred]

In the interest of legal efficiency, trials in general do not allow multiple witnesses to the make the same point. Cumulative evidence is generally avoided because it wastes the courts time. 
 
The normal practice is you have an judge and an attorney calling a witness (one of their own usually) to testify. The other side objects "cumulative" and the judge calls a sidebar to ask the first attorney what it is the witness will testify to. If the judge deems it cumulative, the witness doesn't take the stand. If it's a new or different take on an existing point, he gets to testify. But it is up to the judge and they have a bunch of discretion here. 
 
For the NFL to not allow Kessler to call Pash as cumulative, its totally different. Pash is not Kessler's witness, he's likely going to be treated like a hostile witness. Kessler does not know exactly what Pash will say, he's never interviewed him, but he knows he edited the report, so he wants to call him to find out. The NFL decides its cumulative without even knowing what points Kessler is attempting to make with the witness. Berman made some comment about "you've got to let them make their case..." and this is what he's talking about. The NFL doesn't get to decide that their witness is going to provide cumulative testimony, especially when they have no idea what questions Kessler was going to ask. 
 
I'm sure someone more fluent might be able to explain it better, but that's the gist of it. 

 
If Pash was forced to testify, and he testified that everything he'd testify about would be cumulative would Kessler have been permitted to force him to produce his notes related to his edits of the Wells Report?  i.e. So Kessler would have a foundation to decide whether or not it was true, or at least to establish a record to the contrary?

 

[simplyeric]

In the interest of legal efficiency, trials in general do not allow multiple witnesses to the make the same point. Cumulative evidence is generally avoided because it wastes the courts time. 
 
The normal practice is you have an judge and an attorney calling a witness (one of their own usually) to testify. The other side objects "cumulative" and the judge calls a sidebar to ask the first attorney what it is the witness will testify to. If the judge deems it cumulative, the witness doesn't take the stand. If it's a new or different take on an existing point, he gets to testify. But it is up to the judge and they have a bunch of discretion here. 
 
For the NFL to not allow Kessler to call Pash as cumulative, its totally different. Pash is not Kessler's witness, he's likely going to be treated like a hostile witness. Kessler does not know exactly what Pash will say, he's never interviewed him, but he knows he edited the report, so he wants to call him to find out. The NFL decides its cumulative without even knowing what points Kessler is attempting to make with the witness. Berman made some comment about "you've got to let them make their case..." and this is what he's talking about. The NFL doesn't get to decide that their witness is going to provide cumulative testimony, especially when they have no idea what questions Kessler was going to ask. 
 
I'm sure someone more fluent might be able to explain it better, but that's the gist of it. 

Ok that makes sense, I think.
Would it be fair to say that 'cumulative testimony' might be equivalent to 'redundant testimony', to a lay person? Is that a reasonable way to interpret it?

 

[Koufax]

Yes

 

[PaulinMyrBch]

 
If Pash was forced to testify, and he testified that everything he'd testify about would be cumulative would Kessler have been permitted to force him to produce his notes related to his edits of the Wells Report?  i.e. So Kessler would have a foundation to decide whether or not it was true, or at least to establish a record to the contrary?

It's sort of an odd question. If Pash were on the stand, they'd be past the part about him being a cumulative witness and he'd be answering questions asked. He couldn't refuse to answer by saying his answer would be cumulative. Even if his answer is cumulative, he'd be testifying. 
 
In regards to the notes, Kessler would have crafted questions in a way where relevance of the notes would be in question. So normally those would likely have been some interest to the hearing officer. But again, the judge in that setting is your no legal backround commissioner, so here we are.

 

[kieckeredinthehead]

I think "at least generally aware" is a masterpiece. It gave Wells's idiot client the hook it needed to issue the punishment it had already decided upon. But it didn't force Wells himself into a position where he was concluding that there was any direct evidence of any wrongdoing on Brady's part.
 
His towel was too small, but he did a good job tugging it over the important bits.

When the towel's that small, sometimes it's best to hide your face.

 

[DennyDoyle'sBoil]

 
I think there's a missing ingredient here about a possible appeal to the Second Circuit that has gone unsaid so far in this thread.  Both sides can appeal.  If Berman grants on one ground, but denies on the others, the NFL could appeal on the ground on which relief was granted, but the NFLPA also might (depending on how the opinion is written) be able to appeal the grounds on which relief was denied.  In short, in a case of a partial win, there may be an avenue to get the Second Circuit to go further than Berman does (for either side). The law about when the "successful" party can cross appeal is complicated, and it depends very much on the way the lower court decision is written, so it's far too abstract to say much about, other than that.
 
To answer your question directly, if that were the basis for a decision by Berman, I would think whether or not it would stand up to Second Circuit review depends on how well Berman (and in his briefs, Kessler) could articulate the relevance of the testimony to one of the bases for challenging an arbitration award.  Gut tells me that vacating solely on that ground would be a tough one to get affirmed, but not impossible.  I think it's likely not going to happen.  Even if it stands on appeal, the likely result would be a new hearing before Goodell at which Pash would be compelled to testify.  Berman is probably smart enough to know that's a waste of time.

 
Quoting my own post to add something that I don't think has been explored yet, and actually only occurred to me recently.  An order by Berman on a procedural problem -- like not letting Pash testify -- might not be appealable.  An order vacating the award and ordering a new hearing before a different arbitrator would be probably be appealable to the Second Circuit (although actually I'm not positive it is), but an order merely requiring some aspect of the arbitration to be redone (like allowing Pash to testify or giving the NFLPA the interview notes) would probably not be immediately appealable.
 
I'll look into it over the weekend, but if anyone knows right away whether orders remanding for additional arbitration proceedings are appealable, please post and save me the work.

 

[WayBackVazquez]

Quoting my own post to add something that I don't think has been explored yet, and actually only occurred to me recently.  An order by Berman on a procedural problem -- like not letting Pash testify -- might not be appealable.  An order vacating the award and ordering a new hearing before a different arbitrator would be probably be appealable to the Second Circuit (although actually I'm not positive it is), but an order merely requiring some aspect of the arbitration to be redone (like allowing Pash to testify or giving the NFLPA the interview notes) would probably not be immediately appealable.
 
I'll look into it over the weekend, but if anyone knows right away whether orders remanding for additional arbitration proceedings are appealable, please post and save me the work.

The award is either vacated (or modified), or it's confirmed. It should be immediately appealable no matter what action he takes on the award. Vacating for a full do-over or vacating to reopen the hearing, it's still vacatur.

 

[DennyDoyle'sBoil]

The award is either vacated (or modified), or it's confirmed. It should be immediately appealable no matter what action he takes on the award. Vacating for a full do-over or vacating to reopen the hearing, it's still vacatur.

Looks like the fifth circuit rule is that if the matter gets remanded to the same arbitrator for a partial redo or reconsideration of something, the order is not yet final. The second circuit appears to agree, though neither case was a remand to allow new evidence. http://openjurist.org/954/f2d/794/landy-michaels-realty-corp-v-local-32b-32j-service-employees-international-union

 

[WayBackVazquez]

I stand corrected. I don't know how that decision can be fairly squared with 9 USC 16(a)(1)(E), but on quick read it certainly seems to hold that there are some orders remanding an award that are not appealable. Seems like a delicate dance remanding, but not vacating.

EDIT: that really does make things interesting. I predicted that Berman would vacate on notice re ball deflation, but remand for reconsideration on penalty for noncooperation. Theoretically, he could do so while leaving the proceedings to the original arbitrator (Goodell). If that may lead to bringing the whole shitshow back to him (query whether partially vacating changes the equation), it might make him more interested in trying to find evident partiality, thus requiring a new arbitrator, and at least making the thing a final decision.

 

[DennyDoyle'sBoil]

I stand corrected. I don't know how that decision can be fairly squared with 9 USC 16(a)(1)(E), but on quick read it certainly seems to hold that there are some orders remanding an award that are not appealable. Seems like a delicate dance remanding, but not vacating.

I didn't even know there was a seperate statute for appeal of arbitration awards. I agree the case doesn't much sense. But there it is. Looks like the court was saying, "we have a rule we like, we're not going to let section 16 stand in our way."

 

[amarshal2]

So let's say Berman really does decide the NFL is way off here. He could decide this in multiple grounds all at once, yes?
1. Notice: can't be corrected, but only part of the penalty
Am I getting that right?

Kessler is arguing that notice applies to both the non-cooperation and alleged equipment tampering portion of the award.

 

[Harry Hooper]

Kessler is arguing that notice applies to both the non-cooperation and alleged equipment tampering portion of the award.

 
On a related point, is Berman really going to let the NFL get away with not being specific about how many games were for the deflation misconduct and how many games were for non-cooperation?

 

[simplyeric]

Kessler is arguing that notice applies to both the non-cooperation and alleged equipment tampering portion of the award.

At I had forgotten about that... That's because the equipment violation is for teams, not players, yes?

So he could go for notice on both (phone and equipment), leaving the whole thing dead except for appeals by the NFL, but could also name the other issues, making the appeal somewhat less valuable (the higher court could overturn the notice issue but still uphold process or partiality or law of shop?), thus making the appeals process less, um, appealing for the NFL (assuming that owners really are starting to sour on the process).

Obviously I'm working a hypothetical complete win for TB here, which I know is far from certain.

 

[DavidTai]

Could he also demand that the transcripts from the re-arbitrated decision be made public as well? No more 'hiding'?

 

[amarshal2]

At I had forgotten about that... That's because the equipment violation is for teams, not players, yes?

Right. That and he's arguing the relevant player section on equipment violations specifies a fine for first time offenders but no (notice of) suspensions. Nash keeps trying to say that the wording allows for suspensions based on other parts of the player document but Kessler disagrees with his interpretation and repeatedly urged Berman to read it for himself.

It's worth noting in the Goodell arbitration Kessler called the equipment violation section of the player conduct file somewhat of a reach to football deflation. In the initial appeal filings the wording changed to it being relevant to football deflation but it was oddly buried deep in the filing. It is now a front and center argument in my non-lawyer assessment.

Could he also demand that the transcripts from the re-arbitrated decision be made public as well? No more 'hiding'?

All arbitration or appeal transcripts that have been released.

 

[TarHeel87]

All arbitration or appeal transcripts that have been released.

Sorry if this has already been asked - If the decision is remanded, would it be within Berman's purview to add a sunlight stipulation so all transcripts going forward would also be released?

 

[WayBackVazquez]

Sorry if this has already been asked - If the decision is remanded, would it be within Berman's purview to add a sunlight stipulation so all transcripts going forward would also be released?

That is not going to happen. His job is not help the Patriots, the union, or Brady with their PR, or to satisfy the public's interest. It's to either confirm an arbitration award or ensure that such an arbitration is conducted in accordance with fundamental fairness and the CBA. Unless you can point to some provision of the CBA requiring appeals to be public (you can't), there are no grounds for Berman to issue such an order.

 

[Corsi]

Dan Werly ‏@WerlySportsLaw  4m4 minutes agoAugusta, GA
Breaking: NFL files letter to Judge Berman in Deflategate case attempted to respond to cases submitted by Brady.
 

 

[DennyDoyle'sBoil]

Pretty good distinguishing 19 cases in three pages.  That's hard to do.  Everything they say in this letter may well be true, but on the big picture front, when you're trying to distinguish 19 cases, it sort of puts the word "extraordinary" in context.
 
Their argument on evident partiality is just great.  I really hope Florio grabs it, because it really does show what an absolute farce this thing is.  The argument, at least as I read it, is "hey, don't cite cases to us about evident partiality for neutral arbitrators -- ours wasn't neutral so they don't apply."  So, basically, they are saying if one side agrees to let someone affiliated with the other side arbitrate a dispute, then that arbitrator is not required to be partial.  Maybe that's right.  It's certainly chutzpah.  

 

[WayBackVazquez]

Their argument on evident partiality is just great.  I really hope Florio grabs it, because it really does show what an absolute farce this thing is.  The argument, at least as I read it, is "hey, don't cite cases to us about evident partiality for neutral arbitrators -- ours wasn't neutral so they don't apply."  So, basically, they are saying if one side agrees to let someone affiliated with the other side arbitrate a dispute, then that arbitrator is not required to be partial.  Maybe that's right.  It's certainly chutzpah.  

 
That was the most striking part of the letter to me as well.

 

[Myt1]

That's exactly the point I raised before. What happens when, in the CBA, the parties agree to an arbitrator who is basically partial per se?

For example, take the case with the father and son relationship. Now, pretend that the relationship was disclosed, but both parties nevertheless agreed to continue to use that arbitrator. Could the losing party still claim partiality, or would that be waived?

 

[edmunddantes]

Difference between neutrality and partiality, is there not?
 
A party can be involved on one side, but would still need to make their decisions on an impartial basis. 
 
I think the NFLPA argument would be "yes, he's not a neutral party, but arbitration still requires him to retain impartiality.  He failed for x, y,z" Pash being one of their biggest pieces of evidence.
 
It does make their case harder to argue as things that would be glaringly partial with a neutral aren't as clear here.

 

[Myt1]

I don't see why not allowing Pash to testify is evidence of partiality (it could just be independent error). At least, it's not stronger evidence of partiality than the facts that Goodell A. Is management, and B. Is reviewing his own decision. Both of which the union knew when they agreed to the CBA.

 

[Harry Hooper]

So am I correct that the NFL is not addressing the objection that Goodell ignored express terms of the CBA, namely the stipulated (and negotiated) penalties for player equipment violations and team equipment violations?

 

[RedOctober3829]

 

Daniel Wallach ‏@WALLACHLEGAL  4m4 minutes ago
NFL's belated filing (without properly seeking leave to respond) may be a violation of SDNY Local Rule prohibiting unauthorized filings

What does this mean?

 

[dcmissle]

 
What does this mean?

Jack shit. Worse case, the judge strikes the filing, which leaves the NFL no worse off than it was this morning..

 

[Ed Hillel]

That's exactly the point I raised before. What happens when, in the CBA, the parties agree to an arbitrator who is basically partial per se?

He's partial per se in the sense that he made the original ruling, but I'm not sure that's all that relevant to the major fairness issues present. There are plenty of other matters involved in the process where there's no reason he cannot be objective, such as allowing a fair hearing and access to witnesses. And those are the main issues here. I suspect that fundamental fairness to an appeals process attaches to all arbitrators, regardless of whether a party knowingly signs on to accepting an arbitrator who may have a bias in upholding the original punishment. Roger at least had to go through the motions.

 

[lithos2003]

 
 
What does this mean?
 

 
I was thinking about this before you posted the tweet - I thought I had heard that the filing was due in court Friday 8/21 but they filed today..  Mainly a procedural thing I would think and IANAL, but if the judge is already seemingly not on your side why would you do this (IE miss a deadline)?

 

[DavidTai]

So in essence, they refuse Kessler's request for a neutral arbiter, then turn around and claim Brady -agreed- to have a non-neutral arbiter?
 
What the hell?

 

[dcmissle]

Yes, logic forces the NFL to this position. It may be offensive, but there is really no other way to argue this case that does not dissolve for them.

It's cute when non-lawyers speculate about late filings and such. You would not catch me dead posting about clamps and tampers and such things. Just demonstrates that inside every American is a baby lawyer screaming to get out.

 

[lithos2003]

Yes, logic forces the NFL to this position. It may be offensive, but there is really no other way to argue this case that does not dissolve for them.

It's cute when non-lawyers speculate about late filings and such. You would not catch me dead posting about clamps and tampers and such things. Just demonstrates that inside every American is a baby lawyer screaming to get out.

 
Ok - I don't quite understand the snark.. are you saying that missing a filing deadline in federal court is common?

 

[DavidTai]

Yes, logic forces the NFL to this position. It may be offensive, but there is really no other way to argue this case that does not dissolve for them.
 

 
Doesn't it go to evident partiality that they turned down the request for a neutral arbiter -then- are now claiming he's not a neutral arbiter and that Brady agreed to it? Because I can't make sense out of how this doesn't immediately dissolve for them right there.

 

[dcmissle]

Whether late or entirely unauthorized -- and I suspect the latter on this instance -- it happens.

If it continues much more in this case. I imagine the court will simply enter an order that says "no mas". Then it will stop.

 

[twothousandone]

What the hell?

Your honor, we bargained for the right to have the Commissioner, with his biases toward management (him employer), as the final arbiter. If the union was unhappy with that, they could have (for instance) dropped their demand from 55% of All Revenues to 54% of All Revenues and pushed for an impartial arbiter. That they did not do so, and that they agreed to this deal, confirms that they agreed to the non-neutral Commissioner as final arbiter.

That's the argument, right?

 

[PedroKsBambino]

That's exactly the point I raised before. What happens when, in the CBA, the parties agree to an arbitrator who is basically partial per se?

For example, take the case with the father and son relationship. Now, pretend that the relationship was disclosed, but both parties nevertheless agreed to continue to use that arbitrator. Could the losing party still claim partiality, or would that be waived?

 
If nothing else, the NFL's argument raises a due process question, which I believe Berman referred to in the hearing already.   
 
Another potential response from Berman is to allow the NFLPA to file a response to the NFL's letter, without page limits (but limited to the 19 cases, or the issues raised in the in NFL's letter).  But I agree with others that it doesn't really matter here---Berman seems to know the legal issues cold.
 
Certainly, if one is handicapping things this is another indication the NFL does not like the way things look right now.

 

[Harry Hooper]

Your honor, we bargained for the right to have the Commissioner, with his biases toward management (him employer), as the final arbiter. If the union was unhappy with that, they could have (for instance) dropped their demand from 55% of All Revenues to 54% of All Revenues and pushed for an impartial arbiter. That they did not do so, and that they agreed to this deal, confirms that they agreed to the non-neutral Commissioner as final arbiter.

That's the argument, right?

 
Of course, if the NFL wants to play it that way, then it should have been the Commish and not Vincent handing down the initial discipline decision. 

 

[PedroKsBambino]

 
Of course, if the NFL wants to play it that way, then it should have been the Commish and not Vincent handing down the initial discipline decision. 

 
It's a very tough argument for NFL to pull off in the end; if each clause of the CBA represents a specific set of negotiated trade-offs, then the conduct policy is also exhaustive---which means there is no grounds to punish Brady.   While one can argue that the non-neutrality of the commissioner was a conscious negotiated point of the parties and the intent was to leave the conduct policy open for later interpretation, it is highly unconvincing absent some evidentiary showing that was the case.

 

[WayBackVazquez]

FWIW, I downloaded and reviewed the transcript of the hearing in the case (New York City v. Assoc. of Wall-Ceiling & Carpentry Indus. of N.Y., 2015 WL 1938148 (S.D.N.Y. Apr. 27, 2015)) where Judge Berman vacated an award in April. He was very aggressive/antagonistic toward the side seeking to have the award confirmed, which doesn't necessarily support the theory that he was just getting on Nash to push him towards settlement. He also didn't take too kindly to its suggestion that the arbitrator was entitled to nearly unlimited deference:
 
In response to the assertion by counsel that "it really doesn't matter if [the arbitrator was] right or wrong:"
 

And it also matters if he doesn't reflect the essence of the deal. And we have a deal here. So what you're suggesting is that we can't review him at all, but that's nonsense, because that's why the case is here. Somebody is seeking affirmance of the arbitration, and someone is seeking to vacate the arbitration. So there's got to be a way to do that, and those are the two ways that I'm aware of. So maybe I'm wrong.

 

[dcmissle]

But clamps and tampers arent human beings.  I dont think the intent was to look at it from a legal perspective, but rather from a human nature/ human psychology perspective.

I'm just having fun. Nothing in here bothers me much, and the only things that bother me a little are "libel suit" and "slam dunk."

The interesting thing about this letter to me is not the timing but the purpose.

Does it reflect a belief that "maybe we didn't drive this point home sufficiently"? Possible certainly.

Is it, on the other hand, chin music for the judge -- "you may not vacate, period." Certainly possible. And if that's the purpose, it probably reflects a belief by the League's lawyers that they have lost the judge -- who later would be characterized as "lawless".

 

[WayBackVazquez]

I'm just having fun. Nothing in here bothers me much, and the only things that bother me a little are "libel suit" and "slam dunk."

The interesting thing about this letter to me is not the timing but the purpose.

Does it reflect a belief that "maybe we didn't drive this point home sufficiently"? Possible certainly.

Is it, on the other hand, chin music for the judge -- "you may not vacate, period." Certainly possible. And if that's the purpose, it probably reflects a belief by the League's lawyers that they have lost the judge -- who later would be characterized as "lawless".

 
I think it's just the equivalent of a FRAP 28(j) letter. It looks like Kessler may have handed the Judge a list of authorities at the hearing. I think it's only fair that the league would get to submit a letter in response.

 

[Bleedred]

Let's stipulate that the NFL is correct and that the arbiter need not be neutral (public statements to the contrary).  That still doesn't get to the issue of whether or not the hearing before Goodell was fundamentally fair (see the exclusion of Nash testimony as just one example).  Do I have that right?  And if I do, this 3 page filing doesn't speak to much, other than to parrying the NFLPA's thrust of "hey judge, there are 19 cases where an arbiter's case was vacated."

 

[WayBackVazquez]

it's mousetype on my phone. Did NFLPA reference that decision?

 
Yep, page 2-3 (n. 3) of their last brief, and Kessler referred to it at the outset of his argument.

 

[AB in DC]

It's a very defensive posture by the NFL, isn't it?  Whether the 19 awards not upheld are similar to this one is not entirely relevant.  But if the NFL could name a different case that was very similar to this one, where the award was upheld, than that would be a bigger deal.
 
Otherwise all we're saying is "this is a strange situation where none of the usual precedents apply", which doesn't exactly help either side.

 

[Myt1]

He's partial per se in the sense that he made the original ruling, but I'm not sure that's all that relevant to the major fairness issues present. There are plenty of other matters involved in the process where there's no reason he cannot be objective, such as allowing a fair hearing and access to witnesses. And those are the main issues here. I suspect that fundamental fairness to an appeals process attaches to all arbitrators, regardless of whether a party knowingly signs on to accepting an arbitrator who may have a bias in upholding the original punishment. Roger at least had to go through the motions.

Those procedural issues are either error or they aren't, though. It can't be that all a known partial arbitrator needs to do is observe a few procedural niceties to avoid his partiality becoming an issue.

If he doesn't allow a fair hearing, he doesn't allow a fair hearing, whether it's Roger Goodell or random AAA arbitrator who does it. Now, as you say, maybe those procedural issues are what's important and will form the basis for a ruling.