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

Tim Salmon

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DennyDoyle'sBoil said:
 
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.
 
Agreed.  I think this is portion of the ruling is critical, as it highlights the huge chasm between how each side interpreted the CBA:
 
"[A]n applicable specific provision within the Player Policies is better calculated to provide notice to a player than a general concept such as "conduct detrimental." See In re Lehman Bros. Holdings Inc., 761 F.3d 303,313 (2d Cir. 2014) cert. denied sub nom. Giddens v. Barclays Capital Inc., 135 S. Ct. 2048 (2015) ("To the extent that there appears to be conflict between these provisions, the specific governs the general."); John Hancock Mut. Life Ins. Co. v. Carolina Power & Light Co., 717 F.2d 664, 670 n.8 (2d Cir. 1983) ("Where the parties have particularized the terms of a contract an apparently inconsistent general statement to a different effect must yield.")."
 
Goodell views "conduct detrimental" as a catch-all that allows him to trump up the penalties for other offenses that are clearly defined.  Under that interpretation, a player could never truly be on notice of the penalties for particular conduct, because Goodell could always choose between following the on-point provision or using the catch-all option.  The fact that this point was contested, and that a federal judge had to spell it out, is mind-boggling.
 

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I suspect PLI had a DFG program in the works, with Ted Wells holding court. If so, I am quite certain it has been out in the dumpster for at least one year.
 

epraz

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If Brady didn't have sufficient notice of the penalties assessed, there's no way the NFL could "cure" this at this point, or "re-notice."  The whole point of notice is that you are aware of the penalties for the actions before you take the actions.  The NFL could re-do the proceedings and give out a different punishment that it can argue Brady had prior notice of, or it can appeal Berman's decision.
 

JimBoSox9

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DennyDoyle'sBoil said:
 
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.
 
 
PhilPlantier said:
 
Agreed.  I think this is portion of the ruling is critical, as it highlights the huge chasm between how each side interpreted the CBA:
 
 
Goodell views "conduct detrimental" as a catch-all that allows him to trump up the penalties for other offenses that are clearly defined.  Under that interpretation, a player could never truly be on notice of the penalties for particular conduct, because Goodell could always choose between following the on-point provision or using the catch-all option.  The fact that this point was contested, and that a federal judge had to spell it out, is mind-boggling.
 
Thanks for understanding and translating the question.  I've always figured the key to understanding the NFL's thinking as rational actors is that they didn't see a threat to Goodell's overall power or their bargaining position at the next CBA even if they lost this specific case.  If the result of this is a stronger guardrail that the league needs to bargain for specific enumerated penalties in all areas of discipline, then it seems to follow that they've allowed the court to strip them of something that could have been otherwise used to extract monetary concessions next CBA, all over nothing.  That would seem to be the kind of thing owners notice.  I've never been of the opinion that anyone besides maybe Vincent in the league office was going to catch real fallout for this, but damn.  
 

Harry Hooper

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PhilPlantier said:
 
Agreed.  I think this is portion of the ruling is critical, as it highlights the huge chasm between how each side interpreted the CBA:
 
 
Goodell views "conduct detrimental" as a catch-all that allows him to trump up the penalties for other offenses that are clearly defined.  Under that interpretation, a player could never truly be on notice of the penalties for particular conduct, because Goodell could always choose between following the on-point provision or using the catch-all option.  The fact that this point was contested, and that a federal judge had to spell it out, is mind-boggling.
 
 
ESPN front office insider Joe Banner on right now, "The NFL has negotiated for a power that it appears they don't have." Also said something about poor execution of this power by the Commish is what got the NFL in trouble with the courts. 
 

AB in DC

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Harry Hooper said:
 
 
ESPN front office insider Joe Banner on right now, "The NFL has negotiated for a power that it appears they don't have." Also said something about poor execution of this power by the Commish is what got the NFL in trouble with the courts. 
 
Well, those are two different things.  If the NFL was run by smart people, they would take the Berman ruling as a blueprint for how they can legally use that power in the future.
 

jscola85

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AB in DC said:
 
Well, those are two different things.  If the NFL was run by smart people, they would take the Berman ruling as a blueprint for how they can legally use that power in the future.
 
If the NFL were run by smart people, they never would've wound up before Judge Berman in the first place.
 

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CaptainLaddie said:
So, what the fuck.  Why the fuck are the Patriots still losing two draft picks over this garbage?
 
The pithy answer would be, "Because JJ and/or McNally deflated balls in an attempt to gain a competitive advantage [whether or not such an advantage existed] on a team that has established a pattern of infractions for that purpose."

Remember: Berman didn't rule on the issue of deflation--though some of his thoughts on the matter may be inferred--but on the illegal treatment of Brady by the NFL under the CBA.
 

Rovin Romine

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MiracleOfO2704 said:
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?
 
I'm not sure, and I think this is the most pertinent question in this thread.  
 
At first cut, I believe the standard of review for vacating arb awards in the Second Circuit is "de novo" - meaning the appeals court accepts findings of fact that are not clearly erroneous, but may determine the import of applicable law completely differently than the trial court (Berman).
 
My impression of the opinion is that it's a tiny bit "soft" in that it does not often clearly lay out which facts apply to which sections of the USC that narrowly allow for vacating an arbitration award.  That's sort of good and bad.  On one hand, Goodell *could* appeal and try to twist the decision and get greater clairfication.  On the other, it's a lot of work for the Second to deal with, and they may, instead of parsing out everything again, try to find the most narrow issue (notice, IMO) on which to hang their hat and confirm Berman's opinion.   
 
The question is, does Goodell want to push forward and get a circuit court of appeals opinion on the issue?   If narrow, say on notice, it does not tie his hands that much.  If broader, it may severely limit his options in the future.  Right now, there's just an unfavorable decision on the trial court level - it does not bind other circuit court judges the way a court of appeals ruling would.  
 
Another interesting thing here is that Berman specifically did not reach the issue of whether Goodell was:
 
[SIZE=11pt]"evidently partial" within the meaning [/SIZE][SIZE=12pt]of [/SIZE][SIZE=11pt]9 U.S.C. § 10(a)(2).[/SIZE]
 
I think the import of that is even if the Second reverses, they pretty much have to remand to Berman to address that issue.  So, Berman can have another run at Goodell on other grounds, which would result in a second appeal, and which could stick.  
 
The more I think about it, the more I think that Berman has, in essence, fundamentally decided the issue and is keeping his options open in case of an appeal.   I don't see this playing out well for Goodell.  But sometimes we get legal decisions because a party is too stupid to quit and cut their losses.  
 

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CaptainLaddie said:
So, what the fuck.  Why the fuck are the Patriots still losing two draft picks over this garbage?
 
Because any informal ways the Pats had to challenge the ruling didn't work and the only formal thing they could do was go into thermonuclear war with the league.
 

DennyDoyle'sBoil

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Rovin Romine said:
 
 
I think the import of that is even if the Second reverses, they pretty much have to remand to Berman to address that issue.  So, Berman can have another run at Goodell on other grounds, which would result in a second appeal, and which could stick.  
 
The more I think about it, the more I think that Berman has, in essence, fundamentally decided the issue and is keeping his options open in case of an appeal.   I don't see this playing out well for Goodell.  But sometimes we get legal decisions because a party is too stupid to quit and cut their losses.  
 
I think the NFLPA will almost certainly argue it as an alternative basis to uphold the decision, in which case the Second Circuit could reach it.  Maybe they won't, to try to preserve a second bite with Berman, but that's a little risky and doesn't really seem like Kessler's style.
 

Eddie Jurak

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Rovin Romine said:
 
The more I think about it, the more I think that Berman has, in essence, fundamentally decided the issue and is keeping his options open in case of an appeal.   I don't see this playing out well for Goodell.  But sometimes we get legal decisions because a party is too stupid to quit and cut their losses.  
I think there's a case to be made that the best "loss" for Goodell is the one he has now. Brady suspension is overruled on the notice issue and it's over. A sane NFL would not be overly concerned about the need to
provide notice to players - after all, shouldn't their goal be to prevent infractions, not allow them to punish them?

If NFL wins on appeal, they can get a better outcome (from their narrow and stupid point of view). But they could also get a much, much worse outcome, right? A new appeal hearing, in front of a neutral arbiter, with Brady getting full access to the Wells report files and Jeff Pash. That can't be good for the shield.
 

Tim Salmon

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Eddie Jurak said:
A sane NFL would not be overly concerned about the need to provide notice to players - after all, shouldn't their goal be to prevent infractions, not allow them to punish them?
 
Notice and prevention go hand-in-hand.  By letting people know that certain conduct has consequences, you can regulate their behavior.  If players have no idea that they're not allowed to be "generally aware" of someone else's wrongdoing, then they have no incentive to stop being "generally aware" of someone else's wrongdoing.  The same goes for handing over phones, etc.
 

epraz

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Eddie Jurak said:
I think there's a case to be made that the best "loss" for Goodell is the one he has now. Brady suspension is overruled on the notice issue and it's over. A sane NFL would not be overly concerned about the need to
provide notice to players - after all, shouldn't their goal be to prevent infractions, not allow them to punish them?

If NFL wins on appeal, they can get a better outcome (from their narrow and stupid point of view). But they could also get a much, much worse outcome, right? A new appeal hearing, in front of a neutral arbiter, with Brady getting full access to the Wells report files and Jeff Pash. That can't be good for the shield.
 
It may be the "best loss", but it does strip Goodell of the ability to levy his own punishments for conduct detrimental to the game offenses, which wasn't in serious doubt before this brouhaha.
 

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epraz said:
 
It may be the "best loss", but it does strip Goodell of the ability to levy his own punishments for conduct detrimental to the game offenses, which wasn't in serious doubt before this brouhaha.
 
It's really the sweet icing on this cake: By doubling down on that element in their briefs, the NFL put more of the commissioner's authority into play than was necessary and lost it.
 
Before briefs were filed, even if the NFL had lost, that authority was something that, if the NFLPA wanted back from the NFL, they'd have to "buy" it during the next round of CBA negotiations. Putting it into play allowed Berman to nix it altogether (assuming it stands up on appeal, of course).
 
Basically, the League fucked up even more than I could have imagined.
 

DennyDoyle'sBoil

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There is no Rev said:
 
It's really the sweet icing on this cake: By doubling down on that element in their briefs, the NFL put more of the commissioner's authority into play than was necessary and lost it.
 
 
 
Not to mention, lost it in their chosen forum, and thus also lost their ability to continue to spin their "that crazy Doty is out to get us" meme.
 

Eddie Jurak

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There is no Rev said:
 
It's really the sweet icing on this cake: By doubling down on that element in their briefs, the NFL put more of the commissioner's authority into play than was necessary and lost it.
 
Before briefs were filed, even if the NFL had lost, that authority was something that, if the NFLPA wanted back from the NFL, they'd have to "buy" it during the next round of CBA negotiations. Putting it into play allowed Berman to nix it altogether (assuming it stands up on appeal, of course).
 
Basically, the League fucked up even more than I could have imagined.
I missed the significance of this. So they have no choice but to appeal, even though the appeal could potentially be bad for them.

What are the odds that NFL HQ, Exponent, and Paul Weiss are firing up the shredders now? I assume the lawyers wouldn't risk that but NFL HQ has proven to be so stupid they are probably destroying phones left and right even as we type.
 

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DennyDoyle'sBoil said:
 
Not to mention, lost it in their chosen forum, and thus also lost their ability to continue to spin their "that crazy Doty is out to get us" meme.
 
Eddie Jurak said:
I missed the significance of this. So they have no choice but to appeal, even though the appeal could potentially be bad for them.

What are the odds that NFL HQ, Exponent, and Paul Weiss are firing up the shredders now? I assume the lawyers wouldn't risk that but NFL HQ has proven to be so stupid they are probably destroying phones left and right even as we type.
 
Exactly right.
 
Ken Tremendous's man who shouts "How dare you??" finally ran headlong into a man with the power to say, "Who do you think you are?"
 

epraz

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Eddie Jurak said:
I missed the significance of this. So they have no choice but to appeal, even though the appeal could potentially be bad for them.

 
 
Well, legally I overstated this.  Berman didn't literally strip Goodell of the power to make conduct detrimental punishments.  Goodell could still whip up his own conduct detrimental, and the NFLPA would have to challenge them in court, and no other court (even in the SDNY) is bound by Berman's decision.  But in practice, there will be a cloud of uncertainty over these rulings and the NFL would look terrible.
 
And by appealing, the NFL really doubles down.  If it loses at the 2d circuit, conduct detrimental is going to be toast unless they can show specific notice for each punishment.
 

JimBoSox9

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There is no Rev said:
 
 
Exactly right.
 
Ken Tremendous's man who shouts "How dare you??" finally ran headlong into a man with the power to say, "Who do you think you are?"
 
How dare YOU, sir!
 
 

Joe D Reid

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If I'm the NFL, I notice my appeal on the last day permitted and wait to file my brief until the last day permitted, in the hopes that the 8th comes in with a favorable ruling in the Peterson case in the interim. If Peterson does come in before I file, I make my go/no go decision based on what's in that opinion.
 

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Statement from Robert Kraft on Judge Berman decision



Thursday, September 03, 2015 1:17 PM EDT










By New England Patriots


 @patriots
































Statement from Patriots Chairman and CEO Robert Kraft on today’s decision by Judge Richard Berman:Read
"As I have said during this process and throughout his Patriots career, Tom Brady is a classy person of the highest integrity. He represents everything that is great about this game and this league. Yet, with absolutely no evidence of any actions of wrongdoing by Tom in the Wells report, the lawyers at the league still insisted on imposing and defending unwarranted and unprecedented discipline. Judge Richard Berman understood this and we are greatly appreciative of his thoughtful decision that was delivered today. Now, we can return our focus to the game on the field."
 
http://www.patriots.com/news/2015/09/03/statement-robert-kraft-judge-berman-decision
 

WayBackVazquez

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Otis Foster said:
Statement from Patriots Chairman and CEO Robert Kraft on today’s decision by Judge Richard Berman:Read
"As I have said during this process and throughout his Patriots career, Tom Brady is a classy person of the highest integrity. He represents everything that is great about this game and this league. Yet, with absolutely no evidence of any actions of wrongdoing by Tom in the Wells report, the lawyers at the league still insisted on imposing and defending unwarranted and unprecedented discipline. Judge Richard Berman understood this and we are greatly appreciative of his thoughtful decision that was delivered today. Now, we can return our focus to the game on the field."
 
http://www.patriots.com/news/2015/09/03/statement-robert-kraft-judge-berman-decision
Man, I haven't seen this level of white-knighting since you defended Ted Wells's honor after his report came out.

I know Ted Wells and PW and can tell you that anyone who claims they slanted the report to a desired outcome literally doesn't know jack shit. You can hate the outcome, as I do, but there's no basis for slandering PW.
(I know you came around. Just giving some friendly shit.)
 

Otis Foster

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WayBackVazquez said:
Man, I haven't seen this level of white-knighting since you defended Ted Wells's honor after his report came out.


(I know you came around. Just giving some friendly shit.)
 
 
I have no current recollection of the matter at hand.
 

Koufax

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If this were a run-of-the-mill case, how long would it take for the Second Circuit to rule on the appeal?  Is the timing likely to be affected by the notoriety of the case?
 

WayBackVazquez

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Koufax said:
If this were a run-of-the-mill case, how long would it take for the Second Circuit to rule on the appeal?  Is the timing likely to be affected by the notoriety of the case?
This is a run-of-the-mill case for the Second Circuit. It'll be a long time. Several months to complete briefing, 8-12 weeks to set argument, a month or two before that argument, and then at least a few months to more than a year waiting for the decision.
 

DennyDoyle'sBoil

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Koufax said:
If this were a run-of-the-mill case, how long would it take for the Second Circuit to rule on the appeal?  Is the timing likely to be affected by the notoriety of the case?
 
Every court is a little different.  In the second circuit, the first act is the filing of a notice that the losing party wishes to appeal.  This can happen immediately, or up to 30 days.  
 
Then there is a period in which the record from the district court must get prepared and readied.  Once that's done, you have your "ready date".  Assume this takes about 30 days.
 
Then the NFL will tell the court how long it wants to file its briefs.  40 days is presumptive, but they can take up to 91 with the court's permission, and the same applies to the Appellee.  Then there is a reply, with is due 14 days later.  So, this is 3 months to 6.5 months.
 
After some period of time, the court will schedule oral argument -- figure within six months, but maybe as much as twelve.  
 
Then, after argument, it can take between a day and a year or more to rule.
 
tl/dr -- assuming the NFL doesn't try to expedite and takes the usual amount of time, 18 months is a good guess.
 

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Thanks, that fits with  what I was expecting.  So this could easily bypass the upcoming season entirely.  I'm guessing that the court will decide not to bother Brady while he's working, and schedule to oral argument for the spring of 2016.  Then it could render a decision before the start of the 2016 season.  So we'll get to live this all over again next summer and fall as the Second Circuit takes this up on a de novo basis.
 

DennyDoyle'sBoil

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Koufax said:
I'm guessing that the court will decide not to bother Brady while he's working, and schedule to oral argument for the spring of 2016.  Then it could render a decision before the start of the 2016 season. 
 
Without a motion or agreement of the parties, the court won't let the football schedule affect either the timing of its decision or its scheduling of oral argument.  A decision before the start of the 2016 season would be very fast and probably not all that likely unless the NFL were to file immediately and take the minimal time for its briefs, and even then that would be fairly fast.  Spring 2017, assuming no expedition, is a reasonable guess.
 

Koufax

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Either one works for me.  I just don't want the decision to be made in the middle of a season (in case it goes the wrong way).
 

Eddie Jurak

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DennyDoyle'sBoil said:
 
Every court is a little different.  In the second circuit, the first act is the filing of a notice that the losing party wishes to appeal.  This can happen immediately, or up to 30 days.  
 
Then there is a period in which the record from the district court must get prepared and readied.  Once that's done, you have your "ready date".  Assume this takes about 30 days.
 
Then the NFL will tell the court how long it wants to file its briefs.  40 days is presumptive, but they can take up to 91 with the court's permission, and the same applies to the Appellee.  Then there is a reply, with is due 14 days later.  So, this is 3 months to 6.5 months.
 
After some period of time, the court will schedule oral argument -- figure within six months, but maybe as much as twelve.  
 
Then, after argument, it can take between a day and a year or more to rule.
 
tl/dr -- assuming the NFL doesn't try to expedite and takes the usual amount of time, 18 months is a good guess.
How does the fact that Berman opted not to rule on certain issues (evident partiality) affect the timing?
 

joe dokes

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Without a motion or agreement of the parties, the court won't let the football schedule affect either the timing of its decision or its scheduling of oral argument.  A decision before the start of the 2016 season would be very fast and probably not all that likely unless the NFL were to file immediately and take the minimal time for its briefs, and even then that would be fairly fast.  Spring 2017, assuming no expedition, is a reasonable guess
 
 
Regardless of the schedule, litigants' presence at federal appeals oral arguments is unnecessary so the court is very unlikely to consider that.  Obviously, criminal appellants aren't there.  And many civil ones aren't either.
 

Ed Hillel

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Here
So, here's how I'm reading the practical effects of the HONORABLE Judge Dicky B's decision:
 
 
 
1. The Wells Report is insufficient for a finding of guilt under any NFL rule, due to its "general awareness" standard; no NFL player has notice of that BS standard.
 
2. Want to go through the process again, not use the Wells report, and find that Brady deflated the footballs in the bathroom with his dick? Ok, fine, go nuts (ok, that's overstating it, but let's just assume...). Just make sure the max punishment is a $5,512 fine.
 
3. Goodell can fine Brady in the 50k range for lack of cooperation, but he shouldn't suspend him again unless he wants to end up back in Berman's court getting embarrassed again.
 
4. Though practically irrelevant due to "1," Brady/Kessler had a right to view your Wells Report info. In the future, no more hiding behind horseshit "privilege" claims, you need to run your appeals hearings equitably.
 
I think that part 2 is important. I would not have put it past Goodell to try something like he did during the appeals ruling, and create a finding beyond the "generally aware" upon remand. Even if he does, Berman all but explicitly states that Goodell cannot suspend him.
 
Under this ruling, even if Goodell finds Brady is so guilty it hurts, Tom Brady can only be fined, and it should be in the realm of $55,512.
 
Delicious.
 
Edit - Please forgive my constant switch between first and second person. I got to work real early and home early, so I'm celebrating this decision.
 

DennyDoyle'sBoil

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Eddie Jurak said:
How does the fact that Berman opted not to rule on certain issues (evident partiality) affect the timing?
 
No effect.  Though the Second Circuit could rule in a way where it sends it back to Berman for further proceedings, which could affect the question being asked here -- which, I think, is when, if the NFLPA loses the appeal, might the suspension occur.  
 
It's really hard to answer.  We might have a better sense in a few months when the appeal briefs are filed and we see what the parties are asking for.
 
Even if the Second Circuit were to reverse, Kessler might have some tricks that would allow for a stay pending additional proceedings, but it's just way too early to predict.
 

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Judge Berman was obviously sensitive to the question of timing -- he got a decision out before the end of the pre-season even though he didn't have to do that.  He could have just issued a temporary injunction while he pondered the magnificence of his power.  I'm just hoping that the Second Circuit is similarly considerate.
 

DennyDoyle'sBoil

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Koufax said:
Judge Berman was obviously sensitive to the question of timing -- he got a decision out before the end of the pre-season even though he didn't have to do that.  He could have just issued a temporary injunction while he pondered the magnificence of his power.  I'm just hoping that the Second Circuit is similarly considerate.
 
It looks to me as though the NFL filed its notice very fast after receiving the judgment (which is a separate document that the clerk filed after Berman's order, and which is the prerequisite for filing a notice of appeal).  This may have been a PR move.  It may also be a precursor to the NFL seeking expedited treatment of the appeal to see if they can get a decision this season.  We'll have to wait and see, but the case is now officially with the Second Circuit.
 

epraz

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Koufax said:
Either one works for me.  I just don't want the decision to be made in the middle of a season (in case it goes the wrong way).
 
Berman also withheld judgment on a couple of the NFLPA's arguments (including fundamental fairness).  If the 2nd Circuit overturned this decision, it would remand to Berman for consideration.  Good luck trying to figure out when this would end.
 
Edit: What DennyDoyle'sBoil said.
 

Koufax

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Perhaps it can bounce around among the courts until after Brady has retired -  7 years from now.
 

dcmissle

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DennyDoyle'sBoil said:
The NFL has filed its notice of appeal -- it did not wait the permitted 30 days.  
That's fine. It probably wants to quash "will they?" speculation

Here is the deal, I think. The one and only thing these adversaries have agreed on is how things would proceed before Berman and the schedule.

The Second Circuit allows latitude and party input on the schedule, and I think there is a decent chance the parties will agree on that topic

No way is the NFL getting a stay, and it knows it. The owners want this off the front pages -- now that they are losing. Plus they want to focus on the season. We are off to the back burner, I think.
 

wiffleballhero

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In the simulacrum
epraz said:
 
Berman also withheld judgment on a couple of the NFLPA's arguments (including fundamental fairness).  If the 2nd Circuit overturned this decision, it would remand to Berman for consideration.  Good luck trying to figure out when this would end.
 
Edit: What DennyDoyle'sBoil said.
Roughly the week Brady enters Canton, 12 years from now?
 

WayBackVazquez

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The league filed its notice of appeal the same day or the next following Judge Doty's opinion in AP, as well. It's Standard Operating Procedure over there to make decisions as quickly as possible, rather than thinking things through.
 

AB in DC

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WayBackVazquez said:
The league filed its notice of appeal the same day or the next following Judge Doty's opinion in AP, as well. It's Standard Operating Procedure over there to make decisions as quickly as possible, rather than thinking things through.
 
They can always withdraw the notice later, right?  Nothing to think through if there's literally no downside to filing (other than a filing fee I guess).
 

WayBackVazquez

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AB in DC said:
They can always withdraw the notice later, right?  Nothing to think through if there's literally no downside to filing (other than a filing fee I guess).
There's always something to think through, if nothing more than attorney schedules. The clients I represent can afford the filing fee as well, but never once have I heard a request to get a notice on file ASAP. One would think that if one purports to represent the management council, it might be prudent to call a meeting with the members to discuss next steps.
 

edmunddantes

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I had always wondered about this part. Now it's nice to see that the NFLPA and Kessler were smart in what they asked for from NFL in regards to documents.
 
Why Roger and his legal council thought it was a good idea to reject these? (No idea, but maybe they were relying way too heavily on the trappings of arbritration shielding what they did)
 
[Document Request 4: "All documents concerning all prior incidents- whether implicating players, Clubs, or Club personnelinvolving alleged or actual violations of NFL playing rules involving equipment, apparel, or other game-day playing items (including, but not limited to, footballs, tees, gloves, helmets, pads, eyewear, and cleats/turf shoes), regardless of whether discipline was ultimately assessed." !d., Ex. 166 at 3. Document Request 5: "All documents concerning all prior incidents involving an alleged failure to cooperate (including, but not limited to, any alleged failure to produce electronic information) on the part of an NFL player in an NFL investigation, regardless of whether or not discipline was ultimately assessed." !4J." 13 !d., Ex. 166 at 4.
 
On June 22,2015, Commissioner Goodell denied Brady's document request. Goodell cited to CBA Article 46, noting "n appeals under Section I (a), the parties shall exchange copies of any exhibits upon which they intend to rely no later than three (3) calendar days prior to the hearing." !d., Ex. 208 at 4. Goodell stated that "the collective bargaining agreement provides for tightly circumscribed discovery and does not contemplate the production of any other documents in an Article 46 proceeding other than under these terms. In short, on the basis of my interpretation of the Collective Bargaining Agreement, I deny the NFLP A's motion for discovery." !d.
 
Commissioner Goodell also identified "other independent ground" for his decision to deny discovery. "First, I did not review any of Paul, Weiss' internal interview notes or any other documents generated by Paul, Weiss other than their final report. The Paul, Weiss interview notes played no role in the disciplinary decisions; the Wells Report was the basis for those decisions. [Cf. discussion infra p. 17 (regarding Goodell's reliance upon "the available electronic evidence, coupled with information compiled in the investigators' interviews")]. The Management Council has produced to the NFLPA that report, which contains a detailed accounting of witness comments, and Mr. Wells will be available to testify about the substance and conclusions of the report. In addition, I understand that the Management Council produced all of the NFL documents considered by the investigators in preparing their report, including notes of interviews conducted by in-house NFL investigators prior to the time that the Paul, Weiss investigation began." Id. (emphasis added).
 
Original emphasis added all Berman's
 
 
This is Berman in the matter of fact part of the order laying out the facts, and you can already here him saying in his head "you guys got way too cute with all of this, and I haven't even gotten to the raking you over the coals part".
 

edmunddantes

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Okay.. reading the document. It's overall really good for Brady/NFLPA, but there are some parts that seem really shaky or not as tight as I would want.
 
Two parts in particular:
 
The whole steroids comparison section. It just seems really stretched out by Berman. He's hanging on lot on Goodell was saying they were comparable, but he doesn't make as strong as case as I think you would want. 
 
The end part on the evidence is a little loose too. I might just be missing it in my reading, but Berman nails on multiple occasions the first part of the cite he keeps using
 
 
("A failure to discharge this simple duty would constitute a violation of [FAA § I 0( a)(3 )], where [as here] a party can show prejudice as a result.")
but I don't feel a lot of "there" there in Berman's order on the second part of that cite especially as Berman goes out of his way to not rule on the evident partiality part at all.
 
Unless this is his way of keeping it in his back pocket if it gets remanded back down to him. 
 
IANAL, but it feels like there are some fairly large bits of wiggle room for a three judge panel (that is not labor friendly) to wiggle their way through in those two parts alone.
 
edit - I will now stop peeing in the punch bowl of celebration.
 

Ed Hillel

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twothousandone said:
But as of now, there's not even a $50K fine, right? Since there was no fine (other than lost pay) in the original, he can't just add that in now. Right?
 
He should be able to once the appeals process is over and he loses again there. They'll just go through the process again, and I'd be stunned if they don't at least hit his wallet for not handing over his phone.
 
Edmund, I've read your post 3 times, and can't make heads of tails of it. The odds of this getting overturned are extremely low.
 

edmunddantes

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Oh I know it's rare to get overturned, but merely stating there are a couple parts where it seems Berman is really stretching some of the cites and comments put in front of him.
 
Yes it's his perogative as a federal judge, but at the same time, as we just saw, it's possible for that to come back to bite you.
 
Particularly the case he keeps citing about
 
 
 
("A failure to discharge this simple duty would constitute a violation of [FAA § I 0( a)(3 )], where [as here] a party can show prejudice as a result.")
Berman nails the first part "failure to discharge this duty... violation" part on multiple spots with Roger in regards to protecting Pash, withholding Wells notes, and document requests. 
 
However, the case and cite he uses appears to have a second part requiring that appellant than shows prejudice as a result. 
 
Now, maybe I'm too far in the weeds here, but Berman than doesn't go far in showing how Brady/Kessler met the second part of that test in his order vacating Goodell.
 
Not really that important, but if I was worried about where the appeal may go squirrely, these are the areas that would keep me up at night.