I think it's a pretty good brief. It's important to understand that the judges usually are not reading the briefs as they come in, but read them as a set once the briefing is completed. In fact, the panel may not even be assigned internally yet. Given the high profile nature of the case, maybe the judges are reading this stuff as it comes in. But essentially, they will have the briefs as a set. Many judges don't read the briefs in order. Some read the reply first, to get a handle on what's truly disputed. Some read sections and then read the responsive sections in the other briefs. The point is that reading this brief now, without the other briefs, is distorted because you don't know exactly what the full story will be when the people deciding the case are looking at it.
I don't like having the middle brief in a de novo appeal. (WBV and I had a spat about whether this truly is a de novo appeal, and I think it is essentially, but we'll see what Kessler says about it.) Ceding the first and last word is tough, and Clement et al. are plainly playing to win it in the reply brief. It's a great strategy in this case. Make yourself hard to pin down, set some traps, and then hammer the reply. I thought where the NFL got into trouble in the district court was when it took absolute positions and then cited cases that didn't entirely support those positions. This brief is perfectly comfortable not citing cases at major points, and even not providing record citations in places where one would expect to find one, and then using case authority only where the citation is solid on a more general point. Not citing a case for every proposition or a record cite for every factual assertion is something that junior lawyers at appeals seminars would hear are terrible sins. But the truth is that sometimes it's a winning strategy, in the hands of an experienced appellate lawyer. It can backfire, but the reason it backfires is usually because it will cause a court to question your credibility. A former SG comes to court with credibility intact and this is exactly why you hire one -- they can get away with this stuff in moderation. Here, it will be hard for the union to pin the NFL down -- take the section on "arbitral precedent" as just one example. Instead of taking an absolutist position and disregarding precedent on law of the shop, they focus on the district court and claim it improperly expanded the doctrine of law of the shop, instead of saying it doesn't exist. It's essentially the same argument, but without taking on an absolute position that's relatively easier to knock down.
Where I think the brief is particular clever is in taking some liberties with the factual record and presenting a narrative about Brady's supposed scheme as though it's undisputed. But again, it's all a bit fuzzy -- he leaves himself just enough of a tether to the record that it's a bit hard to call him on it. He gives himself the out that he's fairly characterizing what the commissioner found. But what he's really doing is creating a difficulty for the NFLPA. What do you here? Do you try to call him on it? If you do, you set yourself up for a response that goes something like, "see, they are arguing the facts just like they did to trick the district court, and everyone knows that the district court can't second guess on factual findings". How Kessler handles this will be interesting. Presumably, he will downplay it, by noting a few places where the NFL has taken liberties, but also try to suggest it's not where the action is. I think he has to do it that way -- but that's a modest victory for the NFL, because they've essentially stolen the narrative by putting Kessler in a difficult position if he tries to write a brief that constructs a different factual narrative.
I may have some small picture comments later. But I think the ground on which the NFL is trying to win this thing is well chosen and pretty clever. They seem to feel they are weakest on notice -- and I guess the way Berman decided the case they have to focus on it -- so they are trying in 70 pages to make a relatively simple point. It goes something like this: (1) If the district court were correct that this was a mere equipment violation, perhaps it would have had a point. (2) But this is more. It's about a scheme to violate the most fundamental set of precepts that a sports league has regarding fair competition, and then to cover it up. (3) You might disagree. You might think, "nah, it's really not. It's really just about equipment and the rest is window dressing." Or maybe you think like Judge Berman that deflating footballs isn't a big deal. And maybe that's a perfectly reasonable thing to think, and something that a reasonable person like Judge Berman might think. But that's not the test. The Commissioner thought it was about more. Much more. And you have to defer to him. Because that's the law. And because that's exactly the stuff that the union gave him the power to consider and decide when it negotiated the CBA.
Look forward to Kessler's response. He has a lot to do in 14,000 words.
