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

Tim Salmon

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AB in DC said:
Thanks.  I could have sworn that the NFL gave this rationale in other cases when an independent arbiter was appointed, but I haven't been able to dig up a single quote other than "well, that's what we decided".
My understanding is that the NFL has used that rationale in cases where it appointed an independent arbiter, but strongly opposes any argument that this past practice became "the law of the shop" for purposes of future disputes over discipline. In other words, "We are not contractually obligated to follow sound decision-making processes in every case."
 

DennyDoyle'sBoil

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WayBackVazquez said:
 
Yes, mostly. I would strike your last sentence. I think the independence or not of the investigation is a bit of a red herring. What the union attacks on an evident partiality basis is Goodell's public "touting" of its independence and conclusions, not whether it was the sole basis for punishment, or that it was influenced by the NFL. I think this is the weakest of the union's arguments, because IMO, Goodell could have conducted the investigation himself, given a press conference about how thorough it was, and still heard the appeal under the CBA. The stronger argument (on evident partiality, which itself, is one of the union's weaker arguments) is that the union specifically identified delegation as a violation of the CBA and wanted it to be heard, and Goodell could not have been impartial in deciding whether his own conduct was appropriate.
 
I think the NFLPA's argument goes a bit farther.  They are arguing that Goodell had not just evident partiality, but actual bias, and part of his motive was to protect the very expensive Wells report.  The public declaration of the report as "independent" compromised Goodell's ability to be neutral at the subsequent hearing, because he was tied to that premise.
 
In order for this argument to work, I think you have to show either that (1) "independence" (like the propriety of delegation) was a live issue at the hearing such that Goodell's prejudgment on it mattered, or (2) that declaration of the report as "independent" is enough of a synonym for "correct" or "well reasoned" or something like that to be prejudgment of the merits.
 
I actually think these are pretty good arguments.  Why did Goodell tout Wells' independence?  It's clearly to suggest that he did a good job, or took the job seriously, or was not influenced, meaning we can trust his conclusions.  It came out in the hearing that Wells indeed may not have been entirely independent, which I think is absolutely something a truly neutral arbitrator would and could take into account in judging a suspension based on the Wells' report's findings.  Goodell's prejudgment of "independence" compromised his ability to consider the NFLPA's argument, at least so the argument goes.
 
I think what Goodell did goes beyond merely suggesting the report was thorough, or at least arguably does.  And I don't necessarily agree that Goodell could, after making findings and imposing discipline, say anything he wanted in a press conference and that it wouldn't be a basis for a partiality argument.  Remember, this is a he-said-she-said, not a case where the Commissioner has imposed a penalty based on admitted conduct.  If the Commissioner did fact finding, and resolved disputed facts, and imposed a suspension, and then held a press conference where he said, "I just want to assure America that my conclusions are correct and my judgment was sound," I think doing so would definitely be a basis for arguing that he could not thereafter be a non partial hearing officer.  He has voluntarily imposed pressure on himself to be non-neutral.  I think the NFLPA is arguing that his declaration of independence (ha!) is effectively the same.
 

geoduck no quahog

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WayBackVazquez said:
 
...As I've said, I think the union's strongest arguments are lack of notice on potential penalty for alleged ball deflation, and failure to follow the law of the shop regarding penalty for non-cooperation.
 
WBV, where does what I call "moving the goalposts" enter into it (if at all)? I'm specifically referencing the arbiter ruling on "generally aware" but then extending it to active participation without providing any evidence or recourse.
 

WayBackVazquez

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geoduck no quahog said:
 
WBV, where does what I call "moving the goalposts" enter into it (if at all)? I'm specifically referencing the arbiter ruling on "generally aware" but then extending it to active participation without providing any evidence or recourse.
 
What is the question? Yes, it's an argument; a good one, I think. Have you read any of the NFLPA's briefs? You should read the briefs.
The NFL does not deny that no NFL player has ever been punished for “general awareness” of another person’s alleged misconduct. Because this unprecedented standard is indefensible under the CBA requirement of disciplinary notice, the NFL does not even try to defend it, and instead claims that “[t]he Commissioner did not discipline Brady for merely being ‘generally aware’ of a violation of the playing rules.” NFL Mot. 8. Although the NFL now denies that it applied a “generally aware” disciplinary standard, that is exactly what Vincent wrote in his letter imposing the discipline. . . .
 
Despite this record, the NFL now argues that Brady was suspended “for having ‘approved of, consented to, and provided inducements in support of’ ‘a scheme to tamper with the game balls.’” NFL Mot. 8 (citing Award 13, 17-18). But the NFL cites to the Award to make this argument—not to the source of the discipline, i.e., Vincent’s letter and the Wells Report. As the Court observed, the Award accuses Brady of having participated in a “scheme” fourteen times—but the word does not appear once in the 139 page Wells Report or the Vincent discipline letter. This is a clear essence-of-the-CBA violation. As the Article 46 arbitrator, Goodell only had the authority to adjudicate the discipline appealed to him; Peterson establishes that the arbitrator has no CBA authority to justify a suspension on a different basis from that upon which it was imposed. Peterson 15-16
 
 

judyb

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I don't know what to think of a judge that could be convinced that someone's right to an appeal has been fulfilled when he wasn't told everything he needed to defend himself against until after the appeal hearing was over.
 

dcmissle

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Can someone link to a PDF of the argument before J Berman last week that can be printed? Trying to do this off the Globe site, but it has not worked. Yes, I am tech challenged and yes I'm catching up on homework. Thank you.
 

MuppetAsteriskTalk

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TomTerrific

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Well, the Grey Lady weighs in about today's upcoming proceedings, and in unimpressive fashion I might add.
 
http://www.nytimes.com/2015/08/31/sports/football/looking-for-clues-on-how-decision-will-swing-for-tom-brady.html?ref=sports&_r=0
 
Absolutely nothing new here, consisting as it does of a slightly more disguised and ho-hum presentation of the NFL's viewpoint, followed by some hardly-newsworthy quotes from a set of sources who probably have less of a clue about this case than the average reader of this forum.
 
Frankly, if I weren't paying for a subscription I would  probably have let this pass without comment, but it pisses me off that this is all that the gold standard of journalism can come up with.
 

lambeau

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The Times put a football writer on this, not legal; and, being in NY, they're just not tuned in to the outrage (like us with Bountygate).
 

bankshot1

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We should not forget that the NY Times helped swing momentum against the NFL with this op-ed piece.
 
http://www.nytimes.com/2015/06/14/opinion/deflating-deflategate.html
 
 
The N.F.L. commissioned a study, known as the Wells report, that concluded that it was “more probable than not” that Patriots personnel deliberately violated the rules and that Tom Brady, the Patriots quarterback, was aware of it. Following the release of the Wells report last month, the N.F.L. penalized the Patriots organization and suspended Mr. Brady for four games.
Our study, written with our colleague Joseph Sullivan, examines the evidence and methodology of the Wells report and concludes that it is deeply flawed. (We have no financial stake in the outcome of Deflategate.)
 
IMO it help open the floodgates to more and more critical analysis and questions, as to WTF was going on over at 345 Park Ave.
 

Otis Foster

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TomTerrific said:
Well, the Grey Lady weighs in about today's upcoming proceedings, and in unimpressive fashion I might add.
 
http://www.nytimes.com/2015/08/31/sports/football/looking-for-clues-on-how-decision-will-swing-for-tom-brady.html?ref=sports&_r=0
 
Absolutely nothing new here, consisting as it does of a slightly more disguised and ho-hum presentation of the NFL's viewpoint, followed by some hardly-newsworthy quotes from a set of sources who probably have less of a clue about this case than the average reader of this forum.
 
Frankly, if I weren't paying for a subscription I would  probably have let this pass without comment, but it pisses me off that this is all that the gold standard of journalism can come up with.
 Their sports reporting in general is pretty poor.
 

Otis Foster

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Per Mark Maske (@MarkMaske), Mara requested to attend today's hearing. Fun to speculate why
 
(Edit - old news: shld have checked the other thread.)
 
 
Giants owner John Mara is attending Brady hearing today at request of Judge Berman.
 

Otis Foster

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Omar's Wacky Neighbor said:
I see the clarification below, but I'd hope a professional writer would have seen that there are two very different ways to interpret the above tweet.
 
 
(If this was directed to me)
 
I didn't take a position one way or the other. Just food for thought.
 

Shelterdog

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dcmissle said:
The NFL may win this case, but this hiding behind the RG puppet nonsense was bound to end. It was borderline contemptuous of the Judge. More importantly, it makes the NFL's position harder to swallow on the merits with these owners pulling the strings
 
Can you just imagine being outside counsel to the NFL when the Judge asks Mara to be there and your client is like "naah, no point, we'll take the zero" and then fucking leaks that they rejected the offer without even taking it to Mara? 
 

JimBoSox9

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dcmissle said:
The NFL may win this case, but this hiding behind the RG puppet nonsense was bound to end. It was borderline contemptuous of the Judge. More importantly, it makes the NFL's position harder to swallow on the merits with these owners pulling the strings
 
Really, the most fascinating and enduring legacy of this whole mess may be Goodell's final destruction of a 150-year-old mythology of sports commissioners as neutral arbiters and guardians of the game.  That facade had already taken a beating over the last 15 years, but Roger put it six feet under.
 

dcmissle

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Shelterdog said:
 
Can you just imagine being outside counsel to the NFL when the Judge asks Mara to be there and your client is like "naah, no point, we'll take the zero" and then fucking leaks that they rejected the offer without even taking it to Mara? 
This is a high maintenance client. First you have the mess that PW and Pash handed Nash; now this.

I'm in agony inside if I'm in that courtroom today for the NFL. If the judge starts to quiz Mara on owners' input, he has to provide truthful answers.

It's easy to send other people to fight your battles. For every member of the NFL Management Council, this shit just got real.
 

HomeBrew1901

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A question for the SoSH attorneys following the case (and only the attorneys, you wannabe armchair lawyers can just read), what are the odds that this thing ends one way or the other today, this week, sometime in the future?
 

dcmissle

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HomeBrew1901 said:
A question for the SoSH attorneys following the case (and only the attorneys, you wannabe armchair lawyers can just read), what are the odds that this thing ends one way or the other today, this week, sometime in the future?
Who knows? I would bet by the end of this week if there is no settlement. But when it's ready to go, the ruling could come down at any time of the day or night, today included
 

nighthob

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JimBoSox9 said:
 
Really, the most fascinating and enduring legacy of this whole mess may be Goodell's final destruction of a 150-year-old mythology of sports commissioners as neutral arbiters and guardians of the game.  That facade had already taken a beating over the last 15 years, but Roger put it six feet under.
 
Is that really a 150 year old legacy? I thought that the part of the reason for Landis being made major league baseball's commissioner was that the league presidents couldn't be trusted in that role.
 

Shelterdog

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HomeBrew1901 said:
Wow, did not expect this.  Anything that anyone can read into how quickly this started and ended?
Nope.  The sides met privately with the judge beforehand so there wasn't really anything to discuss in public 
 

AB in DC

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HomeBrew1901 said:
Wow, did not expect this.  Anything that anyone can read into how quickly this started and ended?
 
Mara: I'm not getting involved, it's Goodell's decision.
Goodell: Our position hasn't changed.
 

edmunddantes

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https://twitter.com/MikeGarafolo/status/638370977487958016
 
Apparently was a 40 minute or so meeting in the Robing Room (going to be the new nickname for the champagne room?).
 
Then out in front of everyone. 
 
"Settle?"
 
No
 
"Settle?"
 
No
 
"I'll rule in the next day or two."
 
As noted, this ruling has already been written. It's just a matter of a last go over. Tighten up any bits that might have jiggled loose.
 
Then hit "send".
 
And we're off to another round of appeals!!
 

dcmissle

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In lots of cases, a judge may hold off a day or two because some litigants behave like teenagers playing chicken on an undivided highway. There are last minute caves; it's unmanly to "break" too early; people go back to their offices and worry.

But here, if the NFL continued to hold out this morning for the equivalent of an admission of guilt, I'd see no point in waiting.

If the court does wait, I see that as really good news for TB -- unless you indulge the irrational assumption that the judge wants to subject himself and his clerks to stay motions over the Labor Day weekend. If the NFLPA wins this, there will be nothing to stay.
 

wade boggs chicken dinner

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dcmissle said:
Who knows? I would bet by the end of this week if there is no settlement. But when it's ready to go, the ruling could come down at any time of the day or night, today included
 
It'll be done this week.  The most likely result is that Berman overturns the suspension on one or more notice grounds and remands it back for further proceedings and the NFL appeals the ruling but does not take further disciplinary action against Brady.
 
In other words, the NFL does with Brady exactly what it did with AP's case.
 
nighthob said:
 
Is that really a 150 year old legacy? I thought that the part of the reason for Landis being made major league baseball's commissioner was that the league presidents couldn't be trusted in that role.
 
You'd have to ask Morgan G. Buckley what he thought about arbitration awards and collective bargaining back in the 1870s.
 

nighthob

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wade boggs chicken dinner said:
You'd have to ask Morgan G. Buckley what he thought about arbitration awards and collective bargaining back in the 1870s.
 
Well Bulkeley was more a figurehead than anything else, but his successor (William Hulbert) was not exactly known for impartiality in dealing with disputes between clubs and player discipline. Hulbert (president of the Chicago White Stockings) was more Bill Polian than Kenesaw Mountain Landis.
 

Average Reds

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The public may have seen him as an impartial arbitrator, but for the record, Kenesaw Mountain Landis was a piece of shit.
 
Goodell is breaking no new ground here.
 

nighthob

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Leo Durocher had a more nuanced view of Landis. He claimed that Landis despised gambling, which is why the owners wanted to hire him (it was a real problem in that day and age with the way that the owners treated the players), but that outside of gambling issues he used to go out of his way to not discipline players (he related that bit in regards a story of a teammate too stupid to pick up on the hints that Landis was giving him in regards to what he needed to say to get a pass).
 
EDIT: He had some choice things to say about Happy Chandler, though. And if half the things are true he just may have been Goodell's role model.
 

WayBackVazquez

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wade boggs chicken dinner said:
 
It'll be done this week.  The most likely result is that Berman overturns the suspension on one or more notice grounds and remands it back for further proceedings and the NFL appeals the ruling but does not take further disciplinary action against Brady.
 
In other words, the NFL does with Brady exactly what it did with AP's case.
 
The situations really aren't directly comparable. AP had already served the mandatory part of his suspension when his award was overturned. The league reinstated him on April 15, which is when it previously said it would consider doing so.
 
On the other hand, if Berman rules in favor of Brady, he will play for now, but if the league ultimately wins its appeal before the Second Circuit, you can be damned sure the league will belatedly extract its four-game pound of flesh.
 

Average Reds

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nighthob said:
Leo Durocher had a more nuanced view of Landis. He claimed that Landis despised gambling, which is why the owners wanted to hire him (it was a real problem in that day and age with the way that the owners treated the players), but that outside of gambling issues he used to go out of his way to not discipline players (he related that bit in regards a story of a teammate too stupid to pick up on the hints that Landis was giving him in regards to what he needed to say to get a pass).
 
EDIT: He had some choice things to say about Happy Chandler, though. And if half the things are true he just may have been Goodell's role model.
 
We can discuss in another thread or via PM, but Landis was a piece of shit.  And the reasons have nothing to do with gambling.
 
Goodell would have liked him.
 

wade boggs chicken dinner

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The situations really aren't directly comparable. AP had already served the mandatory part of his suspension when his award was overturned. The league reinstated him on April 15, which is when it previously said it would consider doing so.
 
On the other hand, if Berman rules in favor of Brady, he will play for now, but if the league ultimately wins its appeal before the Second Circuit, you can be damned sure the league will belatedly extract its four-game pound of flesh.
 
I know the situation isn't directly comparable, but as far as I understand it, AP didn't really ever get suspended - he was placed on the Commissioner's Exempt List for the entire season.  (For example, the notice you post states:  "If he appeals, Peterson will remain on the Exempt List and continue to be paid pending a decision.")  And although the NFL could have pursued a different penalty for AP under the old policies, it never did.
 
And likewise, if Berman remands Brady to the NFL, the NFL is not going to undergo a second administrative punishment process.
 
I agree that if Berman rules against the NFL but the NFL wins the appeal they could reinstate the suspension.  As of right now, I would be inclined to guess that in that case, Brady would never serve any of the suspension - the NFL just wants the precedent; they don't actually care about the specific case - but that's a complete and utter guess.
 

Reverend

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I'm just going to make this plea now because the decision could drop at any time (and my bet would be today, but whatever):

Once it drops, please, focused questions that are answerable and informed answers only, please.
 
We have another thread for commentary and wise cracks. Heck, you can hit "Multiquote" here and then hit respond in the other thread to migrate quotes to bring discussion across, which is welcome and even encouraged.
 
There has been a lot of feedback and buy-in with respect to the two thread separation and I thank you people for that--it's been pretty awesome putting together this informative collaboration (worth many figures from what I can tell).
 
Let's continue to make this work.
 

wade boggs chicken dinner

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For posterity's sake, the decision is here:  https://cbsboston.files.wordpress.com/2015/09/bermandecision.pdf.
 
One legal question that is going to come up.  Because the case was brought to the court on a motion to confirm, and because Judge Berman denied the motion, could the NFL theoretically re-arbitrate the case?  I.e., even though Berman did not explicitly remand, does the procedural posture of the case imply a remand?
 
To be clear, even if the NFL has the ability to re-arbitrate, I don't think they will do it but I'm curious to know the technicalities on this if anyone knows.
 

MiracleOfO2704

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Assuming the NFL appeals, how well-written a decision is this to prevent an overturn on the appeal? The reading makes it clear that there is legal standard to vacate an award if there's no notice of consequences, but will those two cases cited hold up in front of an appellate court?
 

DennyDoyle'sBoil

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wade boggs chicken dinner said:
For posterity's sake, the decision is here:  https://cbsboston.files.wordpress.com/2015/09/bermandecision.pdf.
 
One legal question that is going to come up.  Because the case was brought to the court on a motion to confirm, and because Judge Berman denied the motion, could the NFL theoretically re-arbitrate the case?  I.e., even though Berman did not explicitly remand, does the procedural posture of the case imply a remand?
 
To be clear, even if the NFL has the ability to re-arbitrate, I don't think they will do it but I'm curious to know the technicalities on this if anyone knows.
 
It's not clear.  I don't think so.  They would have to go back to square one and re-notice.  But I'm not sure how they could cure the notice defect that Brady never received notice that suspension is a possible result for the alleged violation.
 
Also, even if they could, under this decision they would, unless they could find a way to weasel out of it, be required to turn over all Wells investigative notes and other documents, including Pash's edits.  I don't think they are going to want to do that.
 

AB in DC

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They could possibly re-notice on the obstruction charge, right?  (Knowing that anything more than the $50,000 fine would be appealed.)
 

Eddie Jurak

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DennyDoyle'sBoil said:
 
It's not clear.  I don't think so.  They would have to go back to square one and re-notice.  But I'm not sure how they could cure the notice defect that Brady never received notice that suspension is a possible result for the alleged violation.
 
Also, even if they could, under this decision they would, unless they could find a way to weasel out of it, be required to turn over all Wells investigative notes and other documents, including Pash's edits.  I don't think they are going to want to do that.
Is this a risk for the NFL on appeal? IE, on appeal could the Pash/evidence sharing finding be upheld and the notice finding not upheld, putting NFL in a position it doesn't want to be in?
 

JimBoSox9

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In terms of future discipline, does the notice ruling put a stake in the heart of the concept that Goodell can use the 'integrity of the game' clauses to impose discipline that isn't specifically enumerated by the CBA?  Is there an avenue where they can sort of apply a new 'general notice' to all players for something like a non-cooperation suspension, under the guise of clarifying the existing rules?  
 

DennyDoyle'sBoil

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AB in DC said:
They could possibly re-notice on the obstruction charge, right?  (Knowing that anything more than the $50,000 fine would be appealed.)
 
I guess.  But then what they'd be doing is charging him for the "violation" of not cooperating in an appeal and investigation where the appeal and investigation itself violated due process.  
 
Kessler would have some fun with that.
 

DennyDoyle'sBoil

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JimBoSox9 said:
In terms of future discipline, does the notice ruling put a stake in the heart of the concept that Goodell can use the 'integrity of the game' clauses to impose discipline that isn't specifically enumerated by the CBA?  Is there an avenue where they can sort of apply a new 'general notice' to all players for something like a non-cooperation suspension, under the guise of clarifying the existing rules?  
 
This is a very fundamental and crushing blow to the concept of "conduct detrimental" as Goodell and, I presume, the league would like it to be understood.  To me, there are at least two consequences of this aspect of Berman's decision -- (1) It really demonstrates the NFL's hubris and highlights was reasonable neutral people have been saying all along, that they wen't completely batshit crazy in this case and cut off their nose to spite their face.  All they've done is create precedent that strikes to the very core of what Sheriff Roger has been selling and what seems to be his single most important issue.  The NFLPA, for the moment, has neutered him.  Whether the NFL will find some way to impose new notice in a way that restores some of the commissioner's authority the way he wants it, without having to collectively bargain, is going to be a fascinating question and thing to watch.  At least, unless CA2 reverses.  (2) This portion of Berman's decision makes it unfathomable to me that the NFL could decline to appeal.
 

Harry Hooper

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JimBoSox9 said:
In terms of future discipline, does the notice ruling put a stake in the heart of the concept that Goodell can use the 'integrity of the game' clauses to impose discipline that isn't specifically enumerated by the CBA?  Is there an avenue where they can sort of apply a new 'general notice' to all players for something like a non-cooperation suspension, under the guise of clarifying the existing rules?  
 
The NFL kind of did that already last year. They stiff-armed the NFLPA out of a role in delineating the new conduct policy.
 

FL4WL3SS

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How bad does this court case look on Wells? I would think some of his clients (and prospective clients) wouldn't look to kindly at this clownshow. Especially when they're trying to win real cases.