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

[joe dokes]

Daniel Wallach @WALLACHLEGAL


Jeffrey Kessler files document with the 2nd Circuit confirming that he will be presenting oral argument on behalf of Tom Brady. Why change?

12:46 PM - 24 Nov 2015 · Florida, USA, United States

There is something to be said for having a guy who has internalized every single event in the course of this fiasco arguing. while appeals aren't generally about "facts," Berman's rationale depended on some very specific things that occurred along the way the the NFL/Goodell did or didn't do.
To me it fits with both sides' predominant themes: for the NFL, its a broad stroke, "its labor law -- leave the decisionmaker's decisions alone" and Clement can paint those broad strokes. For Brady it: "the NFL fucked this up and fucked me over three hundred different ways, and here they are" which they not unreasonably think is up Kessler's alley.

In the end though, they are both good, and while, as DDB said, oral argument can occasionally make a large difference, there is nothing to see here, IMO, in the difference between Kessler and Clement.

 

[TheoShmeo]

I agree, Joe Dokes. I have a healthy respect for the art of appellate advocacy and I have read DCM's thoughts on this. His points are well taken and understood, even while I come down on your side.

In addition to what you have said, I have no doubt that Kessler will be reminded and schooled to the extent necessary by the other members of his team on the salient aspects of appellate practice as they apply in this case. He will be more than ready for the argument. He is the "face" of his side and I think he has the gravitas and intellect to handle the Second Circuit and Clement.

 

[GeorgeCostanza]

Daniel Wallach @WALLACHLEGAL


Jeffrey Kessler files document with the 2nd Circuit confirming that he will be presenting oral argument on behalf of Tom Brady. Why change?

12:46 PM - 24 Nov 2015 · Florida, USA, United States

If someone starts a thread about how great Kessler is and what a streak he's been on against the league lately, they are fucking dead.

Does this also mean he will be the driving force behind the filings?

 

[dcmissle]

Brief will be a group effort. But the guy who argues the case has the helm and final say when differences of opinion come up on what should be the approach. That includes tactics and strategy. So the risk here is not only being out fenced at the podium, but also being filleted in the reply brief.

I greatly preferred another outcome than what we seem to have today, but my mind remains open. Let's see what the brief looks like.

 

[TheoShmeo]

Brief will be a group effort. But the guy who argues the case has the helm and final say when differences of opinion come up on what should be the approach. That includes tactics and strategy. So the risk here is not only being out fenced at the podium, but also being filleted in the reply brief.

I greatly preferred another outcome than what we seem to have today, but my mind remains open. Let's see what the brief looks like.

That is true...or better stated, it's been true in my experience.

We don't know the extent of Kessler's humility and openness to different and opposing views. And we don't know a lot about his ability to assimilate views of team members to get to the best approach. We have a clue about that in that he also managed teams of lawyers in connection with his arguments and briefs in front of Berman and other "trial" judges in the past, he's often obtained great results and that in turn suggests he is able to manage a group process well. But it's possible that he's less able to do that when he's out of his comfort zone, in the appellate arena. Like others, I suspect, I have been on teams when the person in charge was a good listener and assimilator, and I have been on teams when that person was rather imperious. My guess is that that Kessler is more like the former, but it's just a guess.

Of course, it's not just about openness. It's about legal acumen and judgment. My sense is that Kessler has those attributes in spades.

Bottom line, I am optimistic that Kessler will do a great job in managing and steering.

 

[edmunddantes]

Trying to remember, when is the Brady side brief due? Week of December 7th*?

*Not sure if that is sticking in my head because of Pearl Harbor.

 

[TheoShmeo]

Jeffrey Kessler is indeed doing the oral argument and has done over thirty appellate arguments (notwithstanding what one would naturally glean from his on line CV).

 

[WayBackVazquez]

Yes, as discussed earlier, he has returned the oral argument statement, indicating that as of now, he intends to argue. It's worth noting that the statement is not forever binding, and not infrequently a new statement will be filed changing the attorney to argue. Not saying this will happen here, but it does happen fairly frequently.

As to his appellate experience, 30 arguments is not a particularly high number for someone with his career length. Clement may have done 30 this year. In any event, I don't think anyone here was questioning his experience; rather some of us question whether he's the best man for the job. I count myself among those because having listened to him in the Peterson case before the Eighth Circuit, I don't think he's very good at it. This isn't an insult- as you know , every lawyer has strengths and weaknesses. Some are better brief writers, others excel at cross-examination. (I have worked with a lawyer who DESTROYS PHD experts and Fortune 500 CEOs, but you don't want him do a direct exam, because he just can't dial down the aggressiveness.) Kessler is probably a brilliant trial lawyer, and his persona and passion seem ideal for a closing argument. But his appellate style doesn't work for me at all. At argument, you want to be measured, concede points when necessary, and answer the questions that have been asked, while deftly trying to highlight why you should win. The best of the best seem entirely reasonable even when arguing novel concepts. To me, the gold standard for this is Ken Starr. Clement is obviously very good as well, and the running the,e is that those with experience in the SG's office tend to strike the right chord. This comes both from experience, but also from the SG's position as king of the "tenth Justice," and the need to maintain credibility with the Supreme Court. I just find Kessler to be too much a bull in a china shop, and wish the union would choose differently, but so be it.

 

[TheoShmeo]

Yes, as discussed earlier, he has returned the oral argument statement, indicating that as of now, he intends to argue. It's worth noting that the statement is not forever binding, and not infrequently a new statement will be filed changing the attorney to argue. Not saying this will happen here, but it does happen fairly frequently.

As to his appellate experience, 30 arguments is not a particularly high number for someone with his career length. Clement may have done 30 this year. In any event, I don't think anyone here was questioning his experience; rather some of us question whether he's the best man for the job. I count myself among those because having listened to him in the Peterson case before the Eighth Circuit, I don't think he's very good at it. This isn't an insult- as you know , every lawyer has strengths and weaknesses. Some are better brief writers, others excel at cross-examination. (I have worked with a lawyer who DESTROYS PHD experts and Fortune 500 CEOs, but you don't want him do a direct exam, because he just can't dial down the aggressiveness.) Kessler is probably a brilliant trial lawyer, and his persona and passion seem ideal for a closing argument. But his appellate style doesn't work for me at all. At argument, you want to be measured, concede points when necessary, and answer the questions that have been asked, while deftly trying to highlight why you should win. The best of the best seem entirely reasonable even when arguing novel concepts. To me, the gold standard for this is Ken Starr. Clement is obviously very good as well, and the running the,e is that those with experience in the SG's office tend to strike the right chord. This comes both from experience, but also from the SG's position as king of the "tenth Justice," and the need to maintain credibility with the Supreme Court. I just find Kessler to be too much a bull in a china shop, and wish the union would choose differently, but so be it.

Kessler plans to do the argument, says he. Yep, Team NLFPA/Brady could change course but it seems unlikely to me.

I wasn't making a point about the 30 plus number. Just passing on a fact that I did not know and I assume was also not known by most others here. My gut is that he's the right man for the job all things considered but your points are very well taken and understood.

 

[dcmissle]

By every relevant, objective criteria, this is a mismatch. Kessler came into this appeal with only two advantages -- an undoubtedly superior knowledge of the record; a presumed greater familiarity with the law. Those advantages will be erased over a weekend if they have not been already. Beyond that, Clement's tool kit is superior, and it is not close:

Clement participated in his 75th Supreme Court argument last October. 24 of them have come over the past few years. Since 2000, he has argued more Supreme Court cases than anyone on the planet, in or out of government. And there are scores of other appellate arguments on top of those.

Oh, and he is 49 (Kessler is 61). That is phenomenally precocious. He is Bryce fucking Harper, or Bill Belichick.

But Belichick may not win Sunday night. Still, one controls what one can -- but we control nothing.

 

[TheoShmeo]

By every relevant, objective criteria, this is a mismatch. Kessler came into this appeal with only two advantages -- an undoubtedly superior knowledge of the record; a presumed greater familiarity with the law. Those advantages will be erased over a weekend if they have not been already. Beyond that, Clement's tool kit is superior, and it is not close:

Clement participated in his 75th Supreme Court argument last October. 24 of them have come over the past few years. Since 2000, he has argued more Supreme Court cases than anyone on the planet, in or out of government. And there are scores of other appellate arguments on top of those.

Oh, and he is 49 (Kessler is 61). That is phenomenally precocious. He is Bryce fucking Harper, or Bill Belichick.

But Belichick may not win Sunday night. Still, one controls what one can -- but we control nothing.

Compelling points, I must admit. I like that Kessler is a street fighter and knows this case inside and out. But your points and those made by WBV do give me pause.

 

[Papelbon's Poutine]

How late can they change from Kessler in the process? Is it possible that they would wait to see the reply to their brief to see the angle the NFL, then make a change as to who would be able to handle it best out of the options you guys think would be better? Is that even possible and if so, is it something that would upset the court?

 

[WayBackVazquez]

The court wouldn't care. The argument statement is really just a housekeeping thing, and the union could definitely file a new one after the reply, which wouldn't be particularly late.

 

[Papelbon's Poutine]

Is that something you've seen in practice and would there be any tactical advantage to that strategy or should I be fitting myself for a tin hat? It just seems with the case against Kessler, in comparison to Clement anyway, it seems to be a miscalculation by be nflpa. Logically they only thing I can think is that filing Kessler at this point is just kind of a placeholder until they have a better idea of what they are up against. Would the judges they draw impact that decision further? When do they find that out (apologies if that has been answered already here) and can they change after that?

 

[dcmissle]

There would be no point to misdirection. Perhaps he is a placeholder while this gets sorted out between TB and union.

Ego tends to get involved in these decisions. But it should not be about ego -- it should be about winning.

Does that sound vaguely familiar?

 

[Papelbon's Poutine]

I guess I wasnt thinking of it as misdirection so much as just as committing as late as possible once all the opposing factors are know to their fully possible extent. But I guess you could view it as that as well. I agree it should be about winning, not ego, which is why if he's as mismatched as you guys make him out to be, I was looking for a possible explanation. Question asked and answered, thanks guys.

 

[joe dokes]

By every relevant, objective criteria, this is a mismatch. Kessler came into this appeal with only two advantages -- an undoubtedly superior knowledge of the record; a presumed greater familiarity with the law. Those advantages will be erased over a weekend if they have not been already. Beyond that, Clement's tool kit is superior, and it is not close:

Clement participated in his 75th Supreme Court argument last October. 24 of them have come over the past few years. Since 2000, he has argued more Supreme Court cases than anyone on the planet, in or out of government. And there are scores of other appellate arguments on top of those.

Oh, and he is 49 (Kessler is 61). That is phenomenally precocious. He is Bryce fucking Harper, or Bill Belichick.

But Belichick may not win Sunday night. Still, one controls what one can -- but we control nothing.

Good food for thought.

 

[DennyDoyle'sBoil]

Sometimes, in big cases, atmospherics are not irrelevant.

I think having Kessler argue communicates something pretty important -- they've spent $5 million over deflated footballs that had no impact on any game, and they've gone through $1500/hour lawyers like they are water. They stacked the deck. They didn't give notice. They sat as judge in their own cause. They hired a Covington lawyer to act as judge as the hearing, while their Paull Weiss lawyer "testified" and his partner cross examined him. Then they released the order and filed a lawsuit instantaneously to choose their forum, and even then they lost. Now, they believe they can't win without hiring the most expensive appellate lawyer in the country, because all their other $15000 fancy lawyers don't seem to be doing it right.

When you're right, you're right. We're dancing with the gal who brung us. Because we're right, and they can throw whatever they want at us, and it doesn't matter, because we're right. Bermann knew it, and the world knows it, and so let them spend a zillion dollars and hiring the fanciest lawyer on the planet to defend the indefensible. We. Don't. Care. They could hire Clarence Darrow, and we could use a fifth-year associate, and it wouldn't make a difference.

I get told all the time this stuff doesn't matter. That it's about the facts and the law. That' court of appeals judges don't pay attention, and probably don't even know any of this stuff is going on. I don't believe it. Never have. Especially in cases with a little publicity. In fact, one of the first things I tell clients who were represented by other lawyers in the trial court is that changing lawyers on appeal is not without a cost. Very often it's the right move. And appeals has recently become enough of a specialty that it doesn't seem so strange any more. Clement is fantastic. When he gets brought in at the Supreme Court, nobody bats an eye, because that's what you do, and it's a highly technical Court --- especially in filing and defending cert. But in the Court of appeals, every time you bring in one of those guys -- especially when you had high-priced counsel in the trial court -- you are saying "we need to be saved." Moving away from Kessler sends the same message for the Union -- worse in fact, because it shows a lack of confidence when what you're doing is defending a long, written order.

Does this win the case? Of course not. It's not nearly as important as the facts or the law. If the court is buying with that NFL has been selling about the legal standards under the LMRA in arbitrations, Mickey Mouse could probably win. This kind of stuff doesn't get you to first base. But it does get you a little of the way down the baseline. Or, it can make the difference in a case that could go either way.

Kessler can be a little shrill. But if anything, I thought his temperament was too appellate like and not quite street-fighter enough in the trial court. I'm comfortable with Kessler. He's good enough that if the case is winable, he'll win it.

 

[Shelterdog]

Sometimes, in big cases, atmospherics are not irrelevant.

I think having Kessler argue communicates something pretty important -- they've spent $5 million over deflated footballs that had no impact on any game, and they've gone through $1500/hour lawyers like they are water. They stacked the deck. They didn't give notice. They sat as judge in their own cause. They hired a Covington lawyer to act as judge as the hearing, while their Paull Weiss lawyer "testified" and his partner cross examined him. Then they released the order and filed a lawsuit instantaneously to choose their forum, and even then they lost. Now, they believe they can't win without hiring the most expensive appellate lawyer in the country, because all their other $15000 fancy lawyers don't seem to be doing it right.

This is pretty interesting. A related issue is that Paul Freaking Clement is going to be up there arguing that this is a run of the mill case about confirming an arbitral award.

 

[joe dokes]

Kessler can be a little shrill. But if anything, I thought his temperament was too appellate like and not quite street-fighter enough in the trial court. I'm comfortable with Kessler. He's good enough that if the case is winable, he'll win it.

In part, though, that's because this trial court proceeding was somewhat appellate in nature, given the labor/CBA issue.

 

[Rovin Romine]

By every relevant, objective criteria, this is a mismatch. Kessler came into this appeal with only two advantages -- an undoubtedly superior knowledge of the record; a presumed greater familiarity with the law. Those advantages will be erased over a weekend if they have not been already. Beyond that, Clement's tool kit is superior, and it is not close:

Clement participated in his 75th Supreme Court argument last October. 24 of them have come over the past few years. Since 2000, he has argued more Supreme Court cases than anyone on the planet, in or out of government. And there are scores of other appellate arguments on top of those.

Oh, and he is 49 (Kessler is 61). That is phenomenally precocious. He is Bryce fucking Harper, or Bill Belichick.

But Belichick may not win Sunday night. Still, one controls what one can -- but we control nothing.

Bit late on this point. I wasn't going to say anything until Shelterdog's comment. Anyway. I like Clement's style of argument, and there's much to be said for having the judges (or justices) be familiar with an advocate and comfortable with their integrity and research. However, I'm not sure sporting analogies are the way to go. Every case has its own particular forum and facts. I'd probably take someone who was very familiar with the circuit court judges/arb issues over Clement (if he were a stranger to the circuit and had little experience with arb issues. I'm not trying to downplay Clement's skills and experience, or to suggest that he's not an elite advocate (because he very clearly is) - but experience only goes so far to hone what's naturally there. It does not continue to raise the probably of success past a certain point. And sometimes it can be an impediment.

 

[dcmissle]

This is pretty interesting. A related issue is that Paul Freaking Clement is going to be up there arguing that this is a run of the mill case about confirming an arbitral award.

With the implied threat of MLBPA v Garvey (2000), the Supreme Court's grant of cert and per curiam reversal of an activist 9th Circuit panel -- a polite threat to be sure, but one made concrete by his very presence at the podium. Now I don't think this case is particularly cert worthy, at least in the absence of a conflicting ruling from the 8th Circuit, but among other things, Clement changes ridiculous cert long shots into mere long shots -- and that will not be lost on the Second Circuit. There was a similar per curiam summary reversal of an anti-arb decision in the last few years, albeit in a non-CBA context, but SCOTUS has a hard on for arbitration. One of several reasons why it was a very good decision to bring Clement aboard.

How that is most effectively dealt with is quite debatable, and I have enjoyed the flurry of posts this afternoon. Please keep the differing viewpoints coming.

 

[BroodsSexton]

I was going to let it go, but opinions being like body parts...I agree with DDB.

This is not brain surgery. Kessler will be fine. While Supreme Court practice is its own animal, three-judge appellate arguments are not rare. I doubt that the Second Circuit panel will be as awed by Clement as a bunch of anonymous message boarders are. And I doubt Clement's appearance will affect Kessler's preparedness to any measurable degree.

 

[Bleedred]

I was going to let it go, but opinions being like body parts...I agree with DDB.

This is not brain surgery. Kessler will be fine. While Supreme Court practice is its own animal, three-judge appellate arguments are not rare. I doubt that the Second Circuit panel will be as awed by Clement as a bunch of anonymous message boarders are. And I doubt Clement's appearance will affect Kessler's preparedness to any measurable degree.

To take this a step further...isn't it possible that not only will Kessler's preparedness not be affected, but in fact, isn't it possible that Kessler may relish the opportunity to hand Clement his ass at the 2nd circuit, given Kessler's knowledge of the case, the facts and likely the legal arguments? I'm not suggesting that Clement will not handle himself expertly and be able to thrust and parry with Kessler and the panel, but Kessler may actually be looking forward to puncturing the NFL yet again, their Supreme court appellate hired gun notwithstanding.

 

[joe dokes]

With the implied threat of MLBPA v Garvey (2000), the Supreme Court's grant of cert and per curiam reversal of an activist 9th Circuit panel -- a polite threat to be sure, but one made concrete by his very presence at the podium. Now I don't think this case is particularly cert worthy, at least in the absence of a conflicting ruling from the 8th Circuit, but among other things, Clement changes ridiculous cert long shots into mere long shots -- and that will not be lost on the Second Circuit. There was a similar per curiam summary reversal of an anti-arb decision in the last few years, albeit in a non-CBA context, but SCOTUS has a hard on for arbitration. One of several reasons why it was a very good decision to bring Clement aboard.

How that is most effectively dealt with is quite debatable, and I have enjoyed the flurry of posts this afternoon. Please keep the differing viewpoints coming.

That is interesting SCOTUS context. While (IMO & YMMV) its unlikely that Clement's presence will give the NFL a discernible substantive advantage at the 2d Cir. (he may have a bigger toolkit; but I don't think this case requires that many more tools), it definitely helps the NFL in terms of teeing it up for SCOTUS review. Undoubtedly Clement will tailor his 2d circuit arguments both to win there AND make it more . . . appealing to SCOTUS. Because ultimately, *that* is Goodell's goal -- to get SCOTUS to declare that the Commissioner has powers as unlimited as Goodell has been claiming, even if he gets bloodied and ridiculed along the way.

Also to be considered is that there are circuit judges who like to tailor opinions to attract SCOTUS attention by, for example, running headlong into a circuit conflict even though it could have been avoided in a particular case by taking a different tack in resolving the case.

 

[dcmissle]

That is interesting SCOTUS context. While (IMO & YMMV) its unlikely that Clement's presence will give the NFL a discernible substantive advantage at the 2d Cir. (he may have a bigger toolkit; but I don't think this case requires that many more tools), it definitely helps the NFL in terms of teeing it up for SCOTUS review. Undoubtedly Clement will tailor his 2d circuit arguments both to win there AND make it more . . . appealing to SCOTUS. Because ultimately, *that* is Goodell's goal -- to get SCOTUS to declare that the Commissioner has powers as unlimited as Goodell has been claiming, even if he gets bloodied and ridiculed along the way.

Also to be considered is that there are circuit judges who like to tailor opinions to attract SCOTUS attention by, for example, running headlong into a circuit conflict even though it could have been avoided in a particular case by taking a different tack in resolving the case.

.


At least three cert grants and summary reversals in the last 4 years in arbitration cases, and I may well have missed some. KPMG v Cocchi (2011); Marmel Health Care v Brown (2012); Nitro-Lift Tech v Howard (2012).

SCOTUS loves them some arbitration. In these cases, it acts frequently as a policing court. Clement's name on the petition earns the petition a serious review.

 

[Shelterdog]

I was going to let it go, but opinions being like body parts...I agree with DDB.

This is not brain surgery. Kessler will be fine. While Supreme Court practice is its own animal, three-judge appellate arguments are not rare. I doubt that the Second Circuit panel will be as awed by Clement as a bunch of anonymous message boarders are. And I doubt Clement's appearance will affect Kessler's preparedness to any measurable degree.

Kessler is also (a) wicked smart and (b) maybe the world's leading expert on this quirky intersection of labor law and sports law. In a very real sense he's been preparing for this argument for 25 years.

 

[edmunddantes]

If the Supreme Court accepts the NFL's version of arbitrator power, arbitration would be even more broken than it is now.

 

[dcmissle]

If the Supreme Court accepts the NFL's version of arbitrator power, arbitration would be even more broken than it is now.

Big picture, for better or worse, the Court has gone far beyond any terrain this case would stake out. in some cases its arbitration decisions have effectively deprived allegedly injured parties of any remedies. For example, prohibiting class arbitration in the consumer context when arbitration is the only remedy and when claims are too small to bring economically unless they are aggregated.

This is not to say the Union's case here is weak. As indicated several times, I think otherwise. It is to say that if I am TB and especially the Union, I don't want this case in the Supreme Court. One can easily imagine a ruling that "you signed it, you're stuck with it, and maybe next negotiating go round, you try to change it."

 

[DennyDoyle'sBoil]

That is interesting SCOTUS context. While (IMO & YMMV) its unlikely that Clement's presence will give the NFL a discernible substantive advantage at the 2d Cir. (he may have a bigger toolkit; but I don't think this case requires that many more tools), it definitely helps the NFL in terms of teeing it up for SCOTUS review. Undoubtedly Clement will tailor his 2d circuit arguments both to win there AND make it more . . . appealing to SCOTUS. Because ultimately, *that* is Goodell's goal -- to get SCOTUS to declare that the Commissioner has powers as unlimited as Goodell has been claiming, even if he gets bloodied and ridiculed along the way.

Also to be considered is that there are circuit judges who like to tailor opinions to attract SCOTUS attention by, for example, running headlong into a circuit conflict even though it could have been avoided in a particular case by taking a different tack in resolving the case.

Yup. Clement on the briefs increases the odds -- at least incrementally -- of a grant if the NFL loses. (But it also, although to a lesser extent, paradoxically increases the odds of a grant slightly even if the NFL wins.). But that's still a ways away.

I didn't really see anything in the opening brief trying to set this up particularly for a grant, though. He is trying to win now.

 

[Bleedred]

Andrew Tulumello of Gibson Dunn submitted the NFLPA brief along with Kessler and Steffan Johnson at Winston & Strawn. What say the legal experts here about the brief and Esqs. Tulumello and Johnson?

 

[dcmissle]

Andrew Tulumello of Gibson Dunn submitted the NFLPA brief along with Kessler and Steffan Johnson at Winston & Strawn. What say the legal experts here about the brief and Esqs. Tulumello and Johnson?

I have not reviewed the brief. Gibson Dunn represented TB below. So this is no surprise. I expect that GD had substantial input into this brief. Which would be good.

 

[Koufax]

While perhaps not central to the legal arguments at hand, I was pleased to see at least a passing reference casting doubt on whether the balls had been deflated at all.t pp 18 - 19 (references to the record omitted):

Before the AFC Championship Game, the Indianapolis Colts sent an e-mail to the NFL accusing the Patriots of deflating footballs. But the NFL had no protocols to test for ball pressure tampering.

After the Colts again complained during the game, the referees—at the direction of Vincent—measured the pressure of both teams’ footballs at halftime. The Patriots balls were below the 12.5 PSI minimum. Vincent later testified that, at the time, no one involved understood that, under the Ideal Gas Law, environmental factors alone—e.g., the cold, rainy weather at the game —would predictably cause significant deflation, potentially explaining the measurements.

Accordingly, the NFL never recorded the data necessary to understand why the Patriots balls deflated below 12.5 PSI (e.g., timing, temperature, and wetness). To render opinions on whether the balls were tampered with, the League’s scientific consultants had to make myriad, uncertain assumptions about missing information. As the NFL’s investigators conceded, the failure to record the necessary data meant that “undue weight” could not be given to the “experimental results”—which were “dependent upon assumptions and information that is uncertain”—and “varying the applicable assumptions can have a material impact on the ultimate conclusions.”

Whatever the cause, not even the NFL suggests that the alleged deflation affected the game’s outcome. “Brady’s performance in the second half of the AFC Championship Game—after the Patriots game balls were re-inflated—improved.” The Patriots won by 38 points.​

 

[scotian1]

The Herald's legal columnist Bob McGovern thinks Kessler and the others did a great job in their reply.

http://www.bostonherald.com/news/columnists/bob_mcgovern/2015/12/mcgovern_brady_attorneys_decimate_nfl_s_appeal_in_deflategate

 

[Norm loves Vera]

Full brief here:
http://ftpcontent2.worldnow.com/whdh/pdf/151207_Brady_Appeal.pdf

 

[Bleedred]

I enjoyed this takedown of Goodell's turning "more probable than not" that Brady was "generally aware" that someone else did something illegal into a scheme orchestrated by Brady. From the Brief at pp 56-57

"In 2009, Goodell disciplined a New York Jets equipment employee for “attempt[ing] to use unapproved equipment to prep the K[icking] Balls.” JA1194. This “attempt to use unapproved materials … could [have] easily be[en] interpreted as an attempt to gain a competitive advantage.” Id. But the Jets kicker was not even questioned about whether he knew of, or approved of, the ball tampering. JA1012 (Tr. 250:2-12) (Vincent); see supra at 24-25 (discussing like incidents).

It is no answer for the NFL to assert Goodell’s award transformed Brady’s alleged state of mind into “participat[ion]” in a conspiratorial “scheme” in which he “induce[d]” ball tampering. Compare JA329 with SPA51, 54. Although Goodell used the word “scheme” fourteen times, it appears nowhere in the 139- page Wells Report. Goodell’s “quantum leap” (JA1458) in using these words “[wa]s wholly inconsonant with his fact-finding, [suggesting] that he was not fulfilling his obligation to interpret and apply the parties’ agreement.” Boise CasCase 15-2801, Document 132, 12/07/2015, 1658227, Page56 of 73 49 cade, 309 F.3d at 1085 n.10. Hoping to compensate for the Wells Report’s limited findings concerning Brady’s state of mind, Goodell pulled his “participat[ion]” and “inducement[]” language from thin air. SPA54, 51. But such arbitral gamesmanship cannot save the award. Leed, 916 F.2d at 65 (judicial review does not end simply because the arbitrator “[made] noises of contract interpretation”)."

Edit: bold/italics emphasis in the original

 

[TheoShmeo]

A few reactions to the brief:

- It's not surprising...they sound the same themes and write in the same style, for the most part, that we have seen in earlier briefs. I thought that style was firm but not shrill. There were a couple references to the NFL being disingenuous in it's presentation that I thought were a little much, but that is not exactly unusual in brief writing.

- Maybe it's my bias talking to some extent, but I think the points they make are very compelling. I know that so much depends on the identity of the Second Circuit Judges. On the other hand, ignoring the points made by Kessler and team will require some stretching, I think. Having read both briefs, I would have trouble ruling for the NFL if I were judging this one. A lot of trouble.

- I like that they clearly made the point that the NFL's position comes down to asking for a rubber stamp on arbitration proceedings, virtually no matter what or how the arbitrator decides.

- I like that they dismissed the notion that Berman was star struck. That, in my view, was an overreach by the NFL.

- The painstaking summary of Goodell's various losses was effective. The message was clear. This arbitrator is out of control and everyone who has reviewed his work has come to that conclusion.

- I like the relentless tone and style of the brief. Yes, like many appellate briefs, it was repetitive at times, but the various themes come through and leave the reader with no doubts and almost finishing the sentences of the authors.

One more point on Kessler being the lead on March 3 or whenever the oral argument actually occurs follows:

I like the message it might send. Sure, the appellant has to change horses and bring in a "ringer." Conversely, the appellee is on the "right" side of the argument, was the winner below and just needs to keep making the points that have already been made clearly and accepted by Judge Berman. No need to go to extremes and change the face of the team, and go to someone other than a lawyer who has consistently been the lead for the players' position. That doesn't wholly answer the points that were well made by others about Clement's great skills. And I know that there are some cases where the appellee is well advised to bring in an appellate expert. But given all of the factors at play in this case, I like the message that keeping Kessler might send, and think it at least partially answers whatever gap in skills that might exist between Clement and Kessler.

 

[joe dokes]

- I like that they dismissed the notion that Berman was star struck. That, in my view, was an overreach by the NFL.

This assertion by the NFL shocked me -- unless the the NFL's lawyers KNOW there's a feeling among the 2nd Circuit that Berman is unreliable (circuits usually know their veteran district court judges' proclivities).

 

[dcmissle]

Molehill meet mountain.

It's the first sentence of the NFL's brief:

"Stripped of its celebrity, THIS CASE involves a straightforward exercise of authority expressly granted under a collective bargaining agreement ("CBA") and shielded from collateral attack by decades of precedent concerning labor arbitration." (Emphasis Added)

It's an entirely fair sentence -- this is a run of the mill case that Judge Berman screwed up. It does not imply that Berman swooned, and equally important, the remaining 59 pages do nothing to advance that notion.

It's not going to be construed as insulting a judge, and Kessler almost comes off as asshole for implying that it was such an insult.

 

[TheoShmeo]

I don't think that this bit at the end of the summary up front reflects poorly on Kessler in any way:

The district court was neither star-struck by “celebrity” (Br. 1) nor unaware


of the legal standards for judicial review of arbitration awards. Nor did the court

vacate the award based on any disagreement with the facts found by Goodell. Rather,

applying settled Supreme Court and Second Circuit precedent, the court recognized

that judicial deference in reviewing arbitral awards is not synonymous

with a rubber stamp, and that Goodell’s award had to be vacated because it was

anathema to the CBA’s notice requirement, specific collectively bargained remedies,

and fundamental fairness. That decision should be affirmed.

Instead, it negates the foolish suggestion that celebrity had anything to do with Berman's decision and instead steers the conversation back to the law. Given that the NFL injected that little bit of stink into the equation, it was fair game for the NFLPA to answer it and quickly move on. If Kessler and team had spent any more ink on that point, I could see what you are getting at.

And I love how Kessler clearly said that deference doesn't require a rubber stamp two sentences later. This case wasn't about much of anything that the NFL said it was, dear Circuit Court judges.

 

[Shelterdog]

Molehill meet mountain.

It's the first sentence of the NFL's brief:

"Stripped of its celebrity, THIS CASE involves a straightforward exercise of authority expressly granted under a collective bargaining agreement ("CBA") and shielded from collateral attack by decades of precedent concerning labor arbitration." (Emphasis Added)

It's an entirely fair sentence -- this is a run of the mill case that Judge Berman screwed up. It does not imply that Berman swooned, and equally important, the remaining 59 pages do nothing to advance that notion.

It's not going to be construed as insulting a judge, and Kessler almost comes off as asshole for implying that it was such an insult.

The Fourth word is celebrity. Clement is opening his brief by insinuating that Berman screwed this up because it was a high profile matter. Kessler's response is fair.

 

[dcmissle]

The Fourth word is celebrity. Clement is opening his brief by insinuating that Berman screwed this up because it was a high profile matter. Kessler's response is fair.

Or he could be saying: you've undoubtedly heard a ton about this case because it has been splayed all over the NY and national press, and one might infer from that that knotty issues are presented. Don't draw that inference, Judges -- take away the name, and it's a plain vanilla case.

If I wanted to create an image of a star struck, jock sniffing Judge Ito, I would have followed up with a couple sentences about the umpteen hours devoted by Berman to this over well more than a month to hearings, settlement talks, and the like.

In any case, I got around to Appelles' brief and like it. A lot.

The facts are the greatest strength in this case, and they are presented in a simple, straightforward and powerful way.

Really happy with the tone -- dignified and sorrowful rather than angry, befitting someone who has been greatly wronged but confident of ultimate vindication.

Everyone will have his or her favorite part. A couple of mine:

1. Pages 14 -17, chronicling Goodell's blown cases on lack of notice. Really well done and pushing the envelope a bit in the statement of the case. But it's accurate, so he won't be called on it and it establishes a strong anchor for the most essential point in the brief.

2. Pages 18 - 19. Four awesome paragraphs on Ideal Gas Law and related reasons on why nothing nefarious happened in all likelihood, much less proven. This matters because judges are human, yet it was done with great economy.

I think case will be resolved on POINT I -- pp. 38 - 52, essence of the agreement. The procedural fairness points strike me as less potent than they did months ago, and the alternative grounds wash out for me.

I really like this brief facing squarely one of the tough questions and getting it out of the way. Yes, if TB himself deflated footballs and covered it up, the most you could do is fine him. If you don't like that -- change the CBA!

IMO, edge Union after two briefs. Clement has some things to do in reply.

 

[djbayko]

[...]
IMO, edge Union after two briefs. Clement has some things to do in reply.

Based on past history, isn't it likely to say (in a nutshell): "Ignore what he said. Overturn this decision because you must defer to arbitration."?

 

[Eddie Jurak]

dcmissile, if you are Clement what is your next move?

The NFL has been charging all along that the NHLPA is trying to rehear the facts of the case, but I think you are right that, with the NHLPA having given this issue all of 2 pages in a lengthy brief, that charge might look silly.

One point I don't think the NHLPA got quite perfect was regarding the "general awareness" standard. They made the point that no player has ever been disciplined for being generally aware of another violation, for example, no player has been punished for being generally aware of a teammate's PED use. But that example is not quite analogous to deflategate (it fits better with the kicker situation).

 

[TheoShmeo]

dcmissile, if you are Clement what is your next move?

The NFL has been charging all along that the NHLPA is trying to rehear the facts of the case, but I think you are right that, with the NHLPA having given this issue all of 2 pages in a lengthy brief, that charge might look silly.

One point I don't think the NHLPA got quite perfect was regarding the "general awareness" standard. They made the point that no player has ever been disciplined for being generally aware of another violation, for example, no player has been punished for being generally aware of a teammate's PED use. But that example is not quite analogous to deflategate (it fits better with the kicker situation).

I agree that the two examples are not on all fours. One relates to another player's individual violation and the other relates to a violation that benefits the player who was generally aware.

But upon reflection, I sort of like that the example does not work perfectly. It almost forces the reader to pause a bit...and then hopefully to realize that imposing a penalty based on general awareness (and even there, of the "more probable than not" variety) is nonsense and truly unprecedented under any system. That the applications are messy arguably emphasizes just how ill conceived such a standard is.

Perhaps that is something that Kessler will be able to respond to during oral arguments or independently suggest at that time.

 

[Harry Hooper]

Really happy with the tone -- dignified and sorrowful rather than angry, befitting someone who has been greatly wronged but confident of ultimate vindication.

Everyone will have his or her favorite part. A couple of mine:

1. Pages 14 -17, chronicling Goodell's blown cases on lack of notice. Really well done and pushing the envelope a bit in the statement of the case. But it's accurate, so he won't be called on it and it establishes a strong anchor for the most essential point in the brief.

2. Pages 18 - 19. Four awesome paragraphs on Ideal Gas Law and related reasons on why nothing nefarious happened in all likelihood, much less proven. This matters because judges are human, yet it was done with great economy.

I think case will be resolved on POINT I -- pp. 38 - 52, essence of the agreement. The procedural fairness points strike me as less potent than they did months ago, and the alternative grounds wash out for me.

I really like this brief facing squarely one of the tough questions and getting it out of the way. Yes, if TB himself deflated footballs and covered it up, the most you could do is fine him. If you don't like that -- change the CBA!

IMO, edge Union after two briefs. Clement has some things to do in reply.

"great economy" captures it nicely. Embedding the gobbledygook phrases right out of the WR was well done here, methinks.

 

[Rovin Romine]

dcmissile, if you are Clement what is your next move?

The NFL has been charging all along that the NHLPA is trying to rehear the facts of the case, but I think you are right that, with the NHLPA having given this issue all of 2 pages in a lengthy brief, that charge might look silly.

One point I don't think the NHLPA got quite perfect was regarding the "general awareness" standard. They made the point that no player has ever been disciplined for being generally aware of another violation, for example, no player has been punished for being generally aware of a teammate's PED use. But that example is not quite analogous to deflategate (it fits better with the kicker situation).

I thought the argument that the parties had already collectively bargained a penalty for equipment violations to be very compelling, and that a "general powers/good of the game" clause shouldn't trump the collectively bargained discipline scheme. If one accepts that, then an unnoticed suspension for obstruction regarding a fineable matter looks arbitrary and punitive.

They didn't really go too deeply into some of the implications of that, but if the standard is "general awareness of anyone's violation" and one can be arbitrarily disciplined for whatever is deemed "obstruction," then the NFL is effectively implementing a "must snitch" rule, which I don't think the PA bargained for.

 

[djbayko]

Let's not start calling it the NHLPA again.

 

[Steve Dillard]

Not only arguing the facts while asserting that you are not doing so, but also including a reference to matters outside of the record the tom curran story and topping it off with the assertions that this was an NFL leak.
Close to the line that Berman judged facts, while hopefully not lending credence to Clement's position that Berman was influenced by his own re-finding of facts.

"great economy" captures it nicely. Embedding the gobbledygook phrases right out of the WR was well done here, methinks.

 

[geoduck no quahog]

The lack of cooperation issue must fall on the undisputed fact that MLB's investigator admits to telling Brady there would be no ramifications for not turning over cellphone and correspondence. Right? How does the NFL get around that?