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

dcmissle

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WaPost has an article this morning quoting several sources on the owners' side indicating that they want to change the disciplinary regime. They supposedly want to do it in conjunction with the NFLPA and extend the CBA, set to expire in 2020, in the process. One of the sources said this could be done by this season's end.

If that were to happen -- IF -- I would expect the NFL to withdraw its appeal in the Brady case. That would serve everyone's interests and provide a face saving way out of this mess for the League.
 

InsideTheParker

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Forgive me if this has been posted elsewhere, but I can't find it.
NY Law School professor Robert Blecker on Sixty Minutes Sports (aired on HBO?) says the NFL is guilty of manipulating evidence and that the deflation of the footballs never happened: https://www.youtube.com/watch?v=wls6WT0DrFM&feature=youtu.be
It must be here somewhere already, but for some reason I'm not seeing it. Here's the piece on the Herald: https://www.bostonherald.com/sports/patriots_nfl/the_blitz/2015/09/ny_law_professor_finds_nfls_smoking_gun_in_deflategate
 

ipol

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InsideTheParker said:
Forgive me if this has been posted elsewhere, but I can't find it.
 
 
It was brought up in the massive thread a couple times but that damn thing is massive. Aired on Showtime, btw.
 
Loved how the professor mentioned more than one that he is no fan of the Patriots, just a fan of justice. Clearly a smart cookie, as mom would have said. I bet he taught well.
 

edmunddantes

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Here's the NFL's areas of appeal. Picture is in the tweet from Wallach.
 
https://twitter.com/WALLACHLEGAL/status/644604923011665920
 

Kevin Youkulele

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edmunddantes said:
Here's the NFL's areas of appeal. Picture is in the tweet from Wallach.
 
https://twitter.com/WALLACHLEGAL/status/644604923011665920
Maybe they had to, but they're ducking the issue of lack of notice to Brady.  I suppose they'll get to it within point 2, but their list of issues seems to imply that they are saying that the lack of notice found as fact by the district judge can never suffice to overturn a suspension.  That seems like a tall order.  They've lost cases on this issue before, right? Maybe not at the second circuit, I guess. 
 

DennyDoyle'sBoil

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Issue 1 is interesting.  They are claiming that the district court should not have relied on FAA standards, but instead should have relied on NLMRA rules regarding vacating arbitration awards.  I'd have to go back to the briefs, but I think there may be a decent argument that the NFL did not properly preserve this argument in the trial court.  Kessler cited authority for the proposition that the standards are essentially the same, or at least that the FAA can be used as guidance in NLMRA arbitration.  I don't recall the NFL ever taking issue with that proposition.  Maybe they did in a footnote.  But, typically, you cannot argue on appeal as error something you did not fairly give the district court a chance to consider.
 
Issue 2 is their "arbitral precedent" argument, which we've discussed at length in this thread.  They are essentially arguing that the arbitrator has the final say in what the CBA means, and what past precedents mean.  Kessler probably will try to cast this as a direct assault on Supreme Court precedent about industrial custom and law of the shop.  They also suggest that Berman second guessed Roger's "findings of fact."  That's going to be a tough one, I think, unless we're all missing something, because Berman was really careful not to do that.
 
Issue 3 challenges Berman's conclusions regarding Pash and the investigative files.  As in issue 2, the NFL is taking a categorical approach, claiming that the commissioner made his rulings on these issues based on his understanding and interpretation of the CBA,and therefore they cannot be reviewed by a court.  So, there's a fair amount of overlap between issues 2 and 3 -- in fact, as I read it, it's really the same argument, but the error asserted in issue 3 is really just a specific application of the rule they argue in issue 2.
 
I'm not sure which of their arguments they believe results in overturning Berman on the lack of notices issues.  It theoretically could be issue 1 -- they would have to be saying that the LMRA does not permit an arbitration award to be vacated based on notice violations.  That seems like a stretch unless there's law we haven't seen.  More likely, they are arguing in issue 2 that implicit in Berman's decision that notice was insufficient were embedded interpretations of the CBA (and other league documents) which the arbitrator had exclusive authority to interpret.
 
As expected, the league is invoking the de novo (not deferential) standard of review, and has framed its arguments to sound like they are challenging legal conclusions.
 

SeoulSoxFan

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As DFG news cycle has slowed down considerably, I'll be unpinning this thread within next several days. This thread has been absolutely invaluable & informative, so if enough of you think it should be moved to a subforum, let me know as well. 
 

WayBackVazquez

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Summary of the reasons for expediting the appeal follows. The parties are seeking argument during the January sitting or as soon thereafter as possible. No, this will not be decided before the Super Bowl, but both parties hope it will be decided before the start of next season.
 
There is good cause to expedite the appeal and argument. This appeal presents important and recurring issues associated with administration of the parties’ CBA. Prompt resolution of those issues will enable the parties to address and resolve future proceedings more effectively and more expeditiously, and also ensure that the parties have the opportunity, in advance of the 2016 regular season, to know Mr. Brady’s status and to plan accordingly. In addition, as the publicity surrounding this case confirms, these are issues in which NFL fans, as well as the parties, have substantial interest.
 
 

WayBackVazquez

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Also, the league has brought in Pratik Shah, formerly of the Solicitor General's office, and head of Akin Gump's (Nash's firm) Supreme Court and Appellate department. I would guess he'll argue at the Second Circuit.
 

DennyDoyle'sBoil

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WayBackVazquez said:
Also, the league has brought in Pratik Shah, formerly of the Solicitor General's office, and head of Akin Gump's (Nash's firm) Supreme Court and Appellate department. I would guess he'll argue at the Second Circuit.
 
Bummer.  Saw him in action in USSC once.  He was fantastic.  Thought his side was unwinnable.  They won 5-4.
 

TFP

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SeoulSoxFan said:
As DFG news cycle has slowed down considerably, I'll be unpinning this thread within next several days. This thread has been absolutely invaluable & informative, so if enough of you think it should be moved to a subforum, let me know as well. 
Au contraire, bonjour.
 

dcmissle

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DennyDoyle'sBoil said:
 
Bummer.  Saw him in action in USSC once.  He was fantastic.  Thought his side was unwinnable.  They won 5-4.
TB has the appellate stable at Gibson Dunn at his disposal.
 

Harry Hooper

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"In addition, as the publicity surrounding this case confirms, these are issues in which NFL fans, as well as the parties, have substantial interest."
 
 
OK, were I on the court that line would not only be a throwaway, but also would actively annoy me.
 

MarcSullivaFan

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dcmissle said:
That is all I need to read to deny expedited treatment.
Read: "Oddsmakers, gamblers, sports radio callers, and the fantasy industry really really wants to know wutz gonna happen!!!" What a load of crap. Although it would be better for the Pats to have a ruling sooner rather than later (assuming it's after the season, and it will be), I still hope they're denied.
 

bankshot1

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So if the appeals court adheres to the "no cutsies" protocol, and the NFL's request is denied, what's a normal timetable?  Is another 3+ months to the requested January oral arguments date reasonable?
 

Kevin Youkulele

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bankshot1 said:
So if the appeals court adheres to the "no cutsies" protocol, and the NFL's request is denied, what's a normal timetable?  Is another 3+ months to the requested January oral arguments date reasonable?
Second circuit rules/practice might be different, but this is a time frame I've seen:
Day 0 - notice of appeal
Day 45 - appeals court receives record from lower tribunal and assigns docket number
Day 105 - Appellant's principal brief due
Day 160 - Appellee's brief due
Day 174 - Appellant's reply brief due
Day 181 - Joint appendix due
Day 271 - oral argument
 
Time to judgment depends on whether it's a summary affirmance (often <30 days), full precedential opinion (3+ months), or nonprecedential/memorandum disposition (somewhat less than a full precedential opinion).
 

Arroyo Con Frijoles

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I just had an argument there a couple weeks ago, and our schedule was as follows (some of this is controlled by the parties, though constrained somewhat by the rules):
 
Day 0 - notice of appeal
Day 100 - appellant's brief
Day 190 - appellee's brief
Day 204 - reply brief
Day 384 - oral argument
 
It may have been that the summer dragged out our oral argument date, but it was about sixth months from the filing of the reply.  
 

dcmissle

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Well if that is the matchup, I am not thrilled. Paul beat the players association at the Circuit level on the last CBA, reversing district court. I have had the pleasure of working with him on several cases, a couple in the Supreme Court. He is as good as it gets.
 

BroodsSexton

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Oral advocacy only really helps at the margins. Given that we've seen what the NFL has to offer, it doesn't really move the needle for me.
 

dcmissle

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That is true. But I see this case closer to margins than most. Clement loses his share. But they tend to be Hail Marys.

The panel is going to matter. A lot.
 

joe dokes

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dcmissle said:
That is true. But I see this case closer to margins than most. Clement loses his share. But they tend to be Hail Marys.

The panel is going to matter. A lot.
 
I saw him argue the DOMA case in the 1st Circuit. His side lost, but he was quite good.
 

WayBackVazquez

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The League's opening brief has been filed.
 
Exercising that authority, which mirrors the broad discretion given to commissioners in other sports to ensure the integrity of the game, the Commissioner suspended Tom Brady, quarterback on the New England Patriots, for four games after finding that Brady had participated in a scheme to deflate game balls to be used in a conference championship game. The scheme was aimed at gaining an unfair competitive advantage on the field, and it was devised to avoid detection by game officials. It struck at the heart of the game’s integrity and the public’s confidence in the NFL’s on-field product. The Commissioner’s conduct detrimental authority exists for incidents just like this.
 
 

BroodsSexton

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They're going to have trouble if they plan on arguing counterfactually to the record. Hopefully NFLPA comes out strong and holds them to it.
 

soxhop411

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@WALLACHLEGAL: NFL POINT I.A: "Judicial Review of a Labor Arbitration Award is Extremely Limited Under the Labor Management Relations Act"


@WALLACHLEGAL: NFL POINT 1.B: "The district court fundamentally failed to apply the correct legal standard" and its "fair notice concerns were misplaced"

@WALLACHLEGAL: NFL POINT I.B.3: "The district court was wrong to second-guess the Commissioner’s application of his Article 46 authority"

@WALLACHLEGAL: NFL POINT II.A: "The District Court Had No Authority—And No Grounds—To Second-Guess the Commissioner’s Evidentiary Ruling"


@McCannSportsLaw: NFL files 59-page brief, says Judge Berman "vastly exceeded" authority & "significant evidence linked [Tom Brady] to the deflation scheme".
 

edmunddantes

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Doesn't a finding for Point IB3 pretty much lead to get out of jail free logic?

NFL: I've activated Article 46 authority.

Court: You were wrong in how you activated it.

NFL: You can't second-guess my activation since Article 46 gives me the power.
 

WayBackVazquez

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Even accepting the notion that deflating game balls is an “equipment violation,” there was manifestly more going on here than that. Brady participated in a scheme to interfere with the officials’ ability to enforce rules going to the very heart of the game, and then not only refused to cooperate with the investigation into that scheme, but also affirmatively obstructed that investigation by destroying highly relevant evidence.
 
 
 
While the Wells Report concluded that Brady was “generally aware” of McNally and Jastremski’s actions, it also concluded that “it is unlikely that an equipment assistant and a locker room attendant would deflate game balls without Brady’s knowledge and approval,” and thus that McNally and Jastremski acted with “Brady’s awareness and consent.” Appellees are therefore simply wrong to argue that the Wells Report and the Commissioner’s initial disciplinary letter rested “solely” on a “general awareness” finding. JA73-74. They were based on knowledge, approval, awareness, and consent—all of which supported the Commissioner’s finding that Brady participated in the scheme.
 
Brief is signed by Clement.
 
Final section argues for the COA to enforce the suspension without remand to the District Court.
 

BlackJack

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Am I reading this wrong or is the argument still basically 'sure we don't have any evidence but c'mon you just know he did it'
 

WayBackVazquez

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BlackJack said:
Am I reading this wrong or is the argument still basically 'sure we don't have any evidence but c'mon you just know he did it'
 
The argument is still "you might not like his findings and rulings, and his interpretation of the CBA, but the Commissioner was granted the power to make those findings, and a court is not supposed to disturb them."
 

edmunddantes

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So all the tweets so far seem to show that the NFL is really hammering the LMRA.

I don't have access to the full brief so relying on those tweets.

Is the LMRA thing a big a winner as the NFL seems to think it is? I don't recall them objecting to the other standard (can't recall the acronym) being included when it was in the briefs, but I'm not certain.
 

WayBackVazquez

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edmunddantes said:
So all the tweets so far seem to show that the NFL is really hammering the LMRA.

I don't have access to the full brief so relying on those tweets.

Is the LMRA thing a big a winner as the NFL seems to think it is? I don't recall them objecting to the other standard (can't recall the acronym) being included when it was in the briefs, but I'm not certain.
 
It's not really a big deal or difference. They're referring to the LMRA because it's directly applicable, but the standards aren't significantly different than those of the FAA. Which is to say, their argument is not primarily that the district court messed up because it applied the FAA standards and not the LMRA standards. In fact, they put that argument in a footnote, and argue that Berman was wrong under either.

 
1 At times, the district court relied on the Federal Arbitration Act rather than the LMRA. That was incorrect; because this dispute arises under a collective bargaining agreement, the LMRA governs judicial review of the award. See Coca-Cola Bottling Co. v. Union Local 812, 242 F.3d 52, 54-55 (2d Cir. 2001). In all events, the court’s analysis would fare no better under the FAA provisions on which it erroneously relied, as “the stringent standard for vacating an arbitration award is materially the same under the FAA [and the] Labor Management Relations Act.” Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv., 754 F.3d 109, 113 (2d Cir. 2014).
 
 
 

Eddie Jurak

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WayBackVazquez said:
 
The argument is still "you might not like his findings and rulings, and his interpretation of the CBA, but the Commissioner was granted the power to make those findings, and a court is not supposed to disturb them."
If they win this, doesn't it, in effect, say that Roger Goodell can suspend any player, any time, for any reason, or no reason, as long as he writes up some bullshit rationalization?
 

WayBackVazquez

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Eddie Jurak said:
If they win this, doesn't it, in effect, say that Roger Goodell can suspend any player, any time, for any reason, or no reason, as long as he writes up some bullshit rationalization?
 
Yeah, that's pretty much what they want.
 
Federal courts have upheld other commissioners’ exercise of that broad authority. See Charles O. Finley & Co. v. Kuhn, 569 F.2d 527 (7th Cir. 1978) (upholding baseball commissioner’s “best interests of Baseball” authority). And this Court has held—even outside the strict standard of review for labor arbitration under the LMRA—that the judiciary must defer to a professional sports league’s “interpretation of its own rules.” Crouch v. NASCAR, Inc., 845 F.2d 397, 403 (2d Cir. 1988) (citing Finley). Rather than “decide de novo whether” a league has correctly applied its own rules, the Court considers only whether league discipline was imposed “in bad faith or in violation of any local, state or federal laws.” Id. at 402-403. “[A]ny lower standard,” this Court explained, “would create too great a danger that courts will become mired down in what has been called the ‘dismal swamp’—the area of a group’s activity concerning which only the group can speak competently.” Id. at 403. Simply put, “the judiciary should not be [the League’s] ‘umpire and governor.’”
 
 

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Procedurally, since Berman left several issues open and did not make findings of fact it's almost impossible for the Second Circuit to do anything but remand or affirm here, isn't it?   I understand the attempt to get CA2 to do otherwise and uphold the suspension, but there's almost no way that succeeds given the open factual questions, seems to me.  Especially so since 'evident partiality' is one of the ones left open
 

jimbobim

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  1. Daniel Wallach ‏@WALLACHLEGAL  58s58 seconds agoFort Lauderdale, FL
    NFL: "McNally expressed frustration with Brady, once saying to Jastremski that “Tom sucks. I'm going to make that next ball a f—kin balloon"

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  2.  

    Daniel Wallach ‏@WALLACHLEGAL  2m2 minutes agoFort Lauderdale, FL
    NFL: "Text msgs b/w Jastremski & McNally indicate that the two had been deflating game balls at TB's request long before the AFC Champ Game"


 
Kessler's rebuttal should be a real treat.
 

soxhop411

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@WALLACHLEGAL: NFL: "Although he professed ignorance . . ., Brady's preference for deflated footballs had been a matter of public knowledge for years"


Wut
 

BroodsSexton

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It's one thing to reach for the law. But when you have to reach on the law AND rewrite the facts, you lose a lot of credibility.
 

Hoya81

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soxhop411 said:
@WALLACHLEGAL: NFL: "Although he professed ignorance . . ., Brady's preference for deflated footballs had been a matter of public knowledge for years"


Wut
I think that's referencing one of Brady's old D&C interviews where he joked about Gronk spiking and deflating the ball.
 

Jed Zeppelin

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soxhop411 said:
@WALLACHLEGAL: NFL: "Although he professed ignorance . . ., Brady's preference for deflated footballs had been a matter of public knowledge for years"
 
 
I'm immediately reminded of the famous "don't talk to the police" lecture. Brady says in semi-jest that he likes it when Gronk spikes the ball hard and years later here it is recontextualized as evidence against him in federal court.
 

Reverend

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Hey everybody--

Let's remember which thread this is, yeah? Stay focused.
 

nattysez

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jimbobim said:
 

 



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  1.  

    Daniel Wallach ‏@WALLACHLEGAL  2m2 minutes agoFort Lauderdale, FL
    NFL: "Text msgs b/w Jastremski & McNally indicate that the two had been deflating game balls at TB's request long before the AFC Champ Game"


 
Kessler's rebuttal should be a real treat.
 
 
This addresses something that puzzled me.  Berman was very specific about this case only dealing with the Colts game, and the NFL, as far as I remember, never really fought that assertion on his part.  Now the NFL is trying to argue (implicitly, as far as I can tell) that Berman was wrong, and that Brady's supposed awareness of/demands for deflated balls in other games creates a pattern of behavior that Goodell could use to inform his decision re: the Colts game.  
 
Of course, the problem for the NFL is that there is no definitive evidence that the balls used during the Colts game were in fact deflated, which supports the argument that the suspension was outside of Goodell's powers since he was essentially suspending Brady for nothing.