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

[dcmissle]

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?

The NFL punted on this some time ago, as a practical matter. It is coming at this with the spoliation twist to establish TB's presumed guilt. Lets them harp again on the flurry of communications between TB and the meatheads when it hit the fan after AFC Ch game. Which looks really fishy to the overwhelming majority of people and, I would submit, to the majority of judges not wearing laundry.

 

[DJnVa]

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?

Aren't they saying something like "We're not punishing him for not turning over the phone, we're simply inferring that because he didn't want to, that there must be bad things on there, therefore he did it."

 

[DennyDoyle'sBoil]

On first glance, I like the brief. Kessler is relying heavily on cases that reverse arbitration decisions that fail to "discuss probative terms." I'm not sure exactly what that means without reading the cases, but I don't recall much emphasis on that point in the district court. If those cases say what he says they say, it would seemingly be an easy road to affirm. I'm guessing they are more nuanced than he is arguing.

 

[Mugsy's Walk-Off Bunt]

Lets them harp again on the flurry of communications between TB and the meatheads when it hit the fan after AFC Ch game. Which looks really fishy to the overwhelming majority of people and, I would submit, to the majority of judges not wearing laundry.

I'm not sure I ever understand this point. No matter what happened or didn't, why WOULDN'T there be a flurry of communications between Brady and the ball boys, just to figure out what the hell is going on - or isn't - how they are doing under the scrutiny, how are the swirling rumors and media coverage affecting the prep for the most important game of the season... Of course they talked, and of course they talked a lot.

 

[dcmissle]

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).

A few preliminary thoughts:

1. Beat the hell out of the law. The briefs have offered competing visions of the legal landscape at a very general level. With the last written word, I expect the NFL to dive down into the forest and begin examining trees. Why case x is inapposite, how case y has been mischaracterized by the Union, why case z means we win. Use that discussion to bolster your version of the legal landscape. This is a legitimate tactic the Union cannot complain about, or do anything about in writing; it kept its legal discussion general too. Now open season for the League.

2. Take the Union's legal position to its logical conclusion. Parade of horribles time.

As noted above, for example, the Union acknowledged its hard line -- even if TB unquestionably cheated in this game, the very most Goodell could do is impose a fine. That may be fair (collectively bargained), but is it sound? Does it make any sense with regard to any Commissioner's responsibility in running a professional sports league? Cheat in the Super Bowl and the very most they can do is fine you. Really?

When offered the choice between two imperfect conceptions of how things should work, courts often opt for the one that does the least amount of harm over the long haul. Clement needs to get this case beyond Tom Brady.

3. But with regard to Brady, run with the Union's concession that the Commissioner can adjudicate violations (as opposed to discipline, which is collectively bargained for, the Union says) and argue that whatever the Union may pretend to be doing, it's really seeking to relitigate Tom Brady's guilt. And in that connection, the Commissioner fairly drew logical inferences -- from "the deflator" through the destruction of the cell phone. And it's more than mere knowledge -- TB directed deflation before, and courts must honor Goodell's finding that he did so this time too.

In this connection, arbitrations are flexible, not a one-way street, and so it was entirely appropriate for Goodell to go beyond the Wells Report in making culpability findings based on the hearing. This point was made in the opening brief and merits repetition and further support.

4. Close with the great importance SCOTUS attaches to arbitration, which I discussed up thread recently. Steel fist in a velvet glove.

 

[pappymojo]

EVERYBODY in the country was talking about it.

 

[TheoShmeo]

2. Take the Union's legal position to its logical conclusion. Parade of horribles time.

As noted above, for example, the Union acknowledged its hard line -- even if TB unquestionably cheated in this game, the very most Goodell could do is impose a fine. That may be fair (collectively bargained), but is it sound? Does it make any sense with regard to any Commissioner's responsibility in running a professional sports league? Cheat in the Super Bowl and the very most they can do is fine you. Really?

When offered the choice between two imperfect conceptions of how things should work, courts often opt for the one that does the least amount of harm over the long haul. Clement needs to get this case beyond Tom Brady.

This point is very compelling for their side. I don't recall whether the NFL has ever made it (in front of Berman or in the opening Second Circuit brief). Does anyone recall?

If the point has not been made, I guess it's because the NFL has been unwilling to admit that Goodell's power is so limited, even for the sake of argument. But it does beg the "even assuming they are correct" construct, as intuitively a league commissioner should have that power under those circumstances.

And Kessler's response, I suppose, is that the CBA is a heavily negotiated document, and if RG wanted that power, he should have negotiated for it along with the many other powers he is granted thereunder. He might also note in passing that it's a rare case indeed when the league knows that a player unquestionably cheated regarding an equipment violation, making the need for specified penalties, as opposed to a roving power to impose whatever, more appropriate.

I like the NFL's side of this point better.

 

[Scott_Cooper_AllStar]

This point is very compelling for their side. I don't recall whether the NFL has ever made it (in front of Berman or in the opening Second Circuit brief). Does anyone recall?

If the point has not been made, I guess it's because the NFL has been unwilling to admit that Goodell's power is so limited, even for the sake of argument. But it does beg the "even assuming they are correct" construct, as intuitively a league commissioner should have that power under those circumstances.

And Kessler's response, I suppose, is that the CBA is a heavily negotiated document, and if RG wanted that power, he should have negotiated for it along with the many other powers he is granted thereunder. He might also note in passing that it's a rare case indeed when the league knows that a player unquestionably cheated regarding an equipment violation, making the need for specified penalties, as opposed to a roving power to impose whatever, more appropriate.

I like the NFL's side of this point better.

So their nightmare scenario is essentially that they would be limited to fines in situations that they have declined to investigate at all in the past (Brad Johnson, SB37)? I get that that's not in the record under consideration, but the logical conclusion talk brings in hypotheticals. Can hypothetical scenarios actually carry more weight than actual events outside the record at this point in the process?

I'm having trouble understanding how this specifically negotiated scenario is more compelling than the "Goodell can do whatever he wants if he says the word integrity" scenario that the NFLPA paints. What's the thought process behind giving the NFL the edge on either degree of harm or broad vs. specific metrics?

BTW, IANAL. I've been appreciating the focus on this thread so please let me know if I'm polluting it with common sense that is irrelevant at this point, so I can restrict myself to the civilian thread.

 

[Eddie Jurak]

As noted above, for example, the Union acknowledged its hard line -- even if TB unquestionably cheated in this game, the very most Goodell could do is impose a fine. That may be fair (collectively bargained), but is it sound? Does it make any sense with regard to any Commissioner's responsibility in running a professional sports league? Cheat in the Super Bowl and the very most they can do is fine you. Really?

I think the answer to this is obvious (though it may be either useless or counterproductive to state this during the proceeding).

Yes, it is absolutely sound, because the commissioner cannot be presumed infallible. If Roger Goodell or some future commissioner makes an mistake in the use of this power, then the commissioner's action itself is conduct detrimental to the league affecting the competitive integrity of the game.

We can see from the Jets kicking ball case that this power of the commissioner has at times been wielded arbitrarily, in a way that could provide a competitive advantage to some teams relative to others and this pattern of selective enforcement could potentially do far more to damage competitive integrity than Brady's alleged ball deflation. (Losing 25% of a season, or not, due to an arbitrarily applied enforcement power has a massive effect on competitive integrity).

Thus, If NFL is allowed to win on this point it strengthens Brady's case on the other points. Ensuring that these huge discretionary powers are applied fairly and appropriately becomes all the more important.

(As I said, I imagine this won't fly at all and could amount to Kessler plunging the
metaphorical knife into Brady's back in open court, but it is both correct and the stronger argument).

 

[pappymojo]

Does the comparison to a player cheating in the super bowl hold up when the conclusion of the 'independent' investigator hired by the NFL was that Brady was more probable than not to have known about an effort to deflate footballs?

 

[joe dokes]

I'm not sure I ever understand this point. No matter what happened or didn't, why WOULDN'T there be a flurry of communications between Brady and the ball boys, just to figure out what the hell is going on - or isn't - how they are doing under the scrutiny, how are the swirling rumors and media coverage affecting the prep for the most important game of the season... Of course they talked, and of course they talked a lot.

That's a fair example of two competing views of the same evidence. From the NFL's perspective, it's nefarious because it's the first voluminous communication between them in awhile. From Brady's, it's as you describe it. A fact-finder's choice of either one is essentially beyond reproach on appeal. (obviously, for the league, this is just one weak link in a weak chain, but that's a different issue than the meaning ascribed to the communications themselves.)

 

[tims4wins]

That's a fair example of two competing views of the same evidence. From the NFL's perspective, it's nefarious because it's the first voluminous communication between them in awhile. From Brady's, it's as you describe it. A fact-finder's choice of either one is essentially beyond reproach on appeal. (obviously, for the league, this is just one weak link in a weak chain, but that's a different issue than the meaning ascribed to the communications themselves.)

Given how the entire investigation went, it seems like the NFL would have used a lack of communication as evidence against Brady as well (along the lines of "Brady clearly didn't contact them because he didn't want to seem guilty")

 

[Rovin Romine]

This point is very compelling for their side. I don't recall whether the NFL has ever made it (in front of Berman or in the opening Second Circuit brief). Does anyone recall?

If the point has not been made, I guess it's because the NFL has been unwilling to admit that Goodell's power is so limited, even for the sake of argument. But it does beg the "even assuming they are correct" construct, as intuitively a league commissioner should have that power under those circumstances.

And Kessler's response, I suppose, is that the CBA is a heavily negotiated document, and if RG wanted that power, he should have negotiated for it along with the many other powers he is granted thereunder. He might also note in passing that it's a rare case indeed when the league knows that a player unquestionably cheated regarding an equipment violation, making the need for specified penalties, as opposed to a roving power to impose whatever, more appropriate.

I like the NFL's side of this point better.

I understand where you're going with this, but the Players Union exists to protect the players, individually and collectively, not the clubs for which they play. There's also a question of "what is cheating" and who can be punished for cheating - players or clubs?

The way I read the landscape (and I could be wrong about this?) is that the Commissioner can still have broad latitude to impose penalties for cheating against the clubs themselves - signal stealing, video taping practices, head hunting, etc. However, the individual players need to know they're not going to be singled out and made into a "fall guy" based on the whims of the commissioner. In many circumstances, negotiating ahead of time for a range of penalties applicable to individual players for certain types of rule breaking makes sense. I think "equipment violations" are just exactly that - where one uses non-standard equipment. The immediate case, involving footballs which may have been slightly under inflated, perhaps due to purely natural causes, (and which may not have conveyed any advantage), (and which was corrected mid-game), does not push the boundary in any way.

If a Commissioner is allowed to escalate any specifically enumerated CBA violations/penalties solely because the Commissioner wants to, then it completely eviscerates the CBA. "So, here are your collectively bargained rights, for which you've given up certain things - oh, but they control just so long as the Commissioner wants them to."

Also, I think to the extent that there was any sort of "scandal detrimental to the game," it was precipitated by the NFL's ham-handed "sting," biased investigation, premature press leaks, bogus rationale, etc. The NFL essentially created its own problem here.

 

[dcmissle]

This point is very compelling for their side. I don't recall whether the NFL has ever made it (in front of Berman or in the opening Second Circuit brief). Does anyone recall?

If the point has not been made, I guess it's because the NFL has been unwilling to admit that Goodell's power is so limited, even for the sake of argument. But it does beg the "even assuming they are correct" construct, as intuitively a league commissioner should have that power under those circumstances.

And Kessler's response, I suppose, is that the CBA is a heavily negotiated document, and if RG wanted that power, he should have negotiated for it along with the many other powers he is granted thereunder. He might also note in passing that it's a rare case indeed when the league knows that a player unquestionably cheated regarding an equipment violation, making the need for specified penalties, as opposed to a roving power to impose whatever, more appropriate.

I like the NFL's side of this point better.

I have been through all of the briefing and the argument transcripts before Judge Berman, and to the best of my recollection this point has not been developed. It certainly is not developed in the NFL's opening brief, but I think that is by design -- the seed was planted in the brief mention of the Black Sox scandal, which was entirely legitimate despite the almost hysterical reaction to it in some quarters. And, as I suggested above, I think it will be a central argument in a reply brief that is likely to leave many of us feeling -- temporarily -- gut punched.

There is no downside to developing this point. Perhaps the NFL early gave up on Berman; perhaps it illustrates the difference between Clement and Nash as lawyers. The former, probably, but I still would have argued it.

There are answers, but no silver bullet. How one reacts depends very much on one's judicial philosophy and life's experiences. Do you care more about individual justice or the broader scheme? And in both cases, how much does it matter that the side about to lose made its own bed? Note with regard to that last question that it applies to both sides - everyone has long been arguing that the Union signed on to this style of justice. But the NFL also cabined itself by agreeing to the rules that Berman found dispositive. It would be delicious if the Second Circuit concluded after all this time that the NFL made its own bed with the equipment violation rules and now must lie in it.

Because there is no "right" answer to this and other pivotal issues, either side can win (as some of us have been saying, annoyingly to some for months), and the outcome will very much depend on the three judges assigned to this panel. The day Berman got this case, I celebrated. I figured a judge elevated by Clinton, from Family Court duties in NYC, with a Masters in Social Work from a Catholic university - better yet, a Jesuit university -- would care about individuals and be entirely unafraid of the NFL's power and "celebrity" (especially in NY). I figured he would rule for the Union if he could once persuaded of the merits. Better, certainly, than cranky Judge Kyle in Minnesota.

Call that stereotyping if you want, but that's some of the thinking I would do when the identify of the panel is revealed. And I'd pitch my oral argument to these three people on a gut level depending on what moves them.

 

[troparra]

Regarding the Black Sox, the NFL already has strict rules in place to handle gambling by players.
They have strict rules in place regarding PEDs, as well.
And they have rules in place regarding equipment violations.
They essentially want to ignore the rules on equipment violations and apply the discipline used for PEDs, while citing the rule on gambling as a reason why.
Can a panel of judges fall for such crap?

 

[joe dokes]

Given how the entire investigation went, it seems like the NFL would have used a lack of communication as evidence against Brady as well (along the lines of "Brady clearly didn't contact them because he didn't want to seem guilty")

I see what you're getting at and I don't doubt they'd try, but that would be a tougher one, since a lack of post-AFCCG communications would be somewhat consistent with pre-AFCCG.

 

[tims4wins]

True, good point.

Of course, the NFL never answered the question of "if this was a ball deflation scheme, then why only the AFCCG, and why was there no communication leading up to it?"

I need to stop, this is starting to get me angry again. Thought I was over this whole charade.

 

[dcmissle]

Regarding the Black Sox, the NFL already has strict rules in place to handle gambling by players.
They have strict rules in place regarding PEDs, as well.
And they have rules in place regarding equipment violations.
They essentially want to ignore the rules on equipment violations and apply the discipline used for PEDs, while citing the rule on gambling as a reason why.
Can a panel of judges fall for such crap?

Expand your frame of reference a bit. "Black Sox" in this context extends beyond gambling and can be deemed to encompass anything that illegitimately flips the result in a championship game or series. So suppose the grandson of Lester Hayes employs undetectable stickum and wins the SB. The Union's position is -- and must be -- that the Commissioner cannot then suspend the player for four games the following season.

Now there are reasons why this result is defensible and even preferable. But to pretend this hypothetical would not trouble judges is really putting your head in the sand; it's not "crap". And it is no answer to say, "that isn't this case, Judge". Judges strive for resolutions that dispose not only of this case but also reasonably predictable future cases, fairly and equitably. They have to make sense of the legal regime before them. And so often, hypotheticals are where they live.

 

[joe dokes]

Judges strive for resolutions that dispose not only of this case but also reasonably predictable future cases, fairly and equitably. They have to make sense of the legal regime before them. And so often, hypotheticals are where they live.

"Counselor, what's the limiting principle here?" is probably the one question that comes up in every remotely close appellate case.

 

[Scott_Cooper_AllStar]

Expand your frame of reference a bit. "Black Sox" in this context extends beyond gambling and can be deemed to encompass anything that illegitimately flips the result in a championship game or series. So suppose the grandson of Lester Hayes employs undetectable stickum and wins the SB. The Union's position is -- and must be -- that the Commissioner cannot then suspend the player for four games the following season.

Now there are reasons why this result is defensible and even preferable. But to pretend this hypothetical would not trouble judges is really putting your head in the sand; it's not "crap". And it is no answer to say, "that isn't this case, Judge". Judges strive for resolutions that dispose not only of this case but also reasonably predictable future cases, fairly and equitably. They have to make sense of the legal regime before them. And so often, hypotheticals are where they live.

But don't the actions of the NFL when presented with a confession to almost the same thing (Brad Johnson) frame this evaluation? Why should it trouble the judges if if manifestly doesn't trouble the NFL?

 

[troparra]

Expand your frame of reference a bit. "Black Sox" in this context extends beyond gambling and can be deemed to encompass anything that illegitimately flips the result in a championship game or series. So suppose the grandson of Lester Hayes employs undetectable stickum and wins the SB. The Union's position is -- and must be -- that the Commissioner cannot then suspend the player for four games the following season.

Now there are reasons why this result is defensible and even preferable. But to pretend this hypothetical would not trouble judges is really putting your head in the sand; it's not "crap". And it is no answer to say, "that isn't this case, Judge". Judges strive for resolutions that dispose not only of this case but also reasonably predictable future cases, fairly and equitably. They have to make sense of the legal regime before them. And so often, hypotheticals are where they live.

But what's the purpose of the equipment violation rules that already exist? To prevent someone from gaining a competitive advantage, right? Your example of stickum helping win the Super Bowl is already dealt with in the rulebook:

OTHER PROHIBITED EQUIPMENT, APPAREL
Section 4. Article 4.
Adhesive, Slippery Substances (i) Adhesive or slippery substances on the body, equipment, or uniform of any player; provided, however, that players may wear gloves with a tackified surface if such tacky substance does not adhere to the football or otherwise cause handling problems for players.

Penalties: (a) For violation of this Section 4 discovered during pregame warm-ups or at other times prior to the game, player will be advised to make appropriate correction; if violation is not corrected, player will not be permitted to enter the game.
(b) For violation of this Section 4 discovered while player is in game, player will be advised to make appropriate correction at the next change of possession; if violation is not corrected, player will not be permitted to enter the game. Provided, however, if the violation involves the competitive aspects of the game (e.g., illegal kicking toe of shoe, an adhesive or slippery substance), player will be suspended immediately (removed from the game for one play) upon discovery.
(c) For repeat violation: Disqualification from game.
(d) For illegal entry or return of a player suspended under this Section 4: Loss of five yards from succeeding spot and removal until properly equipped after one down.
(e) For violation of this Section 4 detected in the bench area: Player and head coach will be asked to remove the objectionable item, properly equip the player, or otherwise correct the violation. The involved player or players will be disqualified from the game if correction is not made promptly.
SUPPLEMENTAL NOTES Note 1: In addition to the game-day penalties specified above, the Commissioner may subsequently impose independent disciplinary action on the involved player, up to and including suspension from the team’s next succeeding game—preseason, regular season, or postseason, whichever is applicable.

The penalty is written out in full. Assuming stickum was found during the game, the player is removed from game until a correction is made. Then, the commissioner may impose other discipline up to a suspension from the team's next game (i.e. a one game suspension).

The NFL wants to override their own rulebook and give a player a 4 game suspension. I understand your point, a Super Bowl outcome may have been altered, which is quite serious for the NFL. But in this case the infraction is explicitly discussed in the rulebook, examples of players breaking this rule no doubt exist, and previous examples of the resulting discipline also no doubt exist. Moreover, in this rule, the NFL has already made an allowance for the seriousness of the infraction by including language discussing the Commissioner's right to impose other disciplinary action.

But I guess you are saying that what is written in the rulebook doesn't matter, because the outcome of the rule-breaking may be unforeseen in its seriousness, and would warrant further discipline. In your example, however, I fail to see how the NFL would not be aware that stickum use might change the outcome of a game.

 

[Bleedred]

But what's the purpose of the equipment violation rules that already exist? To prevent someone from gaining a competitive advantage, right? Your example of stickum helping win the Super Bowl is already dealt with in the rulebook:



The penalty is written out in full. Assuming stickum was found during the game, the player is removed from game until a correction is made. Then, the commissioner may impose other discipline up to a suspension from the team's next game (i.e. a one game suspension).

The NFL wants to override their own rulebook and give a player a 4 game suspension. I understand your point, a Super Bowl outcome may have been altered, which is quite serious for the NFL. But in this case the infraction is explicitly discussed in the rulebook, examples of players breaking this rule no doubt exist, and previous examples of the resulting discipline also no doubt exist. Moreover, in this rule, the NFL has already made an allowance for the seriousness of the infraction by including language discussing the Commissioner's right to impose other disciplinary action.

But I guess you are saying that what is written in the rulebook doesn't matter, because the outcome of the rule-breaking may be unforeseen in its seriousness, and would warrant further discipline. In your example, however, I fail to see how the NFL would not be aware that stickum use might change the outcome of a game.

This is well put. What it comes down to for me is that the NFL and NFLPA have specifically delineated in the Player Policies bargained for penalties in the event of certain rule violations. If the NFL wanted to be able to suspend someone for 4 games because of an equipment violation (stick-um, ball deflation, tear away jersey, whatever), then they would have bargained for it in their negotiations with the NFLPA and inserted it into the rule book/Player Policies delivered to the players, putting them on notice of the potential 4 game suspension. That's what they did for PEDs, they didn't do it for equipment violations. The core of the NFL's case has been "hey, they granted extraordinarily broad powers to the commissioner when they negotiated the CBA, gave him the power to enforce penalties, act as the trier of fact in a player appeal of those penalties and then issue the award." What the NFL cannot now plausibly argue, and I don't think Clement has convincingly argued to date (the SOSH lawyer ejaculation over his experience and brilliance notwithstanding), is that the Commissioner's powers include the right to supersede bargained for, specific and express penalties related to equipment violations (or any other violations for that matter). This principle has been reinforced in each of the Ray Rice, Hardy, Peterson and Bounty case, and I predict it will be upheld here as well.

 

[TheoShmeo]

There are of course great arguments on both sides.

But dcmissle is right in my view when he suggests that one or more of the judges might be bothered by the suggestion that Goodell would have no discretion to remedy a violation that is painted as "serious, result impacting cheating" other than by imposing a fine.

A judge who is troubled by that might become more open to the NFL's arguments about the discretion that arbitrators are due. Said otherwise, a judge who wants to avoid a result that seems nonsensical will be more open to arguments that will allow him or her to achieve the objective.

 

[Bleedred]

There are of course great arguments on both sides.

But dcmissle is right in my view when he suggests that one or more of the judges might be bothered by the suggestion that Goodell would have no discretion to remedy a violation that is painted as "serious, result impacting cheating" other than by imposing a fine.

A judge who is troubled by that might become more open to the NFL's arguments about the discretion that arbitrators are due. Said otherwise, a judge who wants to avoid a result that seems nonsensical will be more open to arguments that will allow him or her to achieve the objective.

So to follow your logic, a judge who is troubled by that is a judge who is not troubled by the fact that the NFL is seeking to expand its rights that are otherwise constrained by the specifically negotiated terms of the CBA.

edit: clarity

 

[snowmanny]

But can the NFL have it both ways? Can they argue:
1) Goodell can declare himself the abitrator and decide whatever he wants without review and without boundary because that was specifically collectively bargained
AND
2) The penalties for equipment violations were specifically collectively bargained but surely there is some boundary that can be crossed wherin these penalties no longer apply and the NFL can do whatever it wants

Edit: Also, i type slowly

 

[dcmissle]

So to follow your logic, a judge who is troubled by that is a judge who is not troubled by the fact that the NFL is seeking to expand its rights that are otherwise constrained by the specifically negotiated terms of the CBA.

edit: clarity

That presumes that "equipment violation" captures the totality of what Tom allegedly was up to, according to the League

Cutting to it: "equipment violations" can run the gamut from innocent to an outright effort to steal a game.

I am far from confident that every judge will view this specifically negotiated term as limiting the Commissioner's options.

You may disagree, and that is fine. If the point is that this case cannot be lost short of an act of bribery on the part of the League, then I strongly disagree and cannot add much more.

 

[troparra]

There are of course great arguments on both sides.

But dcmissle is right in my view when he suggests that one or more of the judges might be bothered by the suggestion that Goodell would have no discretion to remedy a violation that is painted as "serious, result impacting cheating" other than by imposing a fine.

A judge who is troubled by that might become more open to the NFL's arguments about the discretion that arbitrators are due. Said otherwise, a judge who wants to avoid a result that seems nonsensical will be more open to arguments that will allow him or her to achieve the objective.

This makes sense to me. Thanks. So in the case of deflategate, the NFLPA would have to argue that the infraction (if it had occurred) was not actually serious and that the NFL rulebook, as written, applies.

 

[TheoShmeo]

So to follow your logic, a judge who is troubled by that is a judge who is not troubled by the fact that the NFL is seeking to expand its rights that are otherwise constrained by the specifically negotiated terms of the CBA.

edit: clarity

Not necessarily. All of us weigh conflicting concerns all the time. "I really want that piece of cake but it will make me fat." If I eat the cake, it doesn't mean I don't care at all about being fat; if I skip the cake, it doesn't mean that I didn't want it.

My point is that some judges might be so troubled by the extreme example that dcmissile posited -- definite, serious violation/relatively small fine as the only penalty in the NFLPA's world -- that he or she will override other legitimate competing considerations such as the fact that the CBA was negotiated and does not expressly grant RG the discretion he claims. (Along with RG's despicable conduct throughout, I might add).

That there are various shades of grey and competing arguments (and your mileage may vary on how reasonable each competing argument is), puts a fine point on what many have been saying all along: The identity of the judges will be critical.

 

[Bleedred]

That presumes that "equipment violation" captures the totality of what Tom allegedly was up to, according to the League

Cutting to it: "equipment violations" can run the gamut from innocent to an outright effort to steal a game.

I am far from confident that every judge will view this specifically negotiated term as limiting the Commissioner's options.

You may disagree, and that is fine. If the point is that this case cannot be lost short of an act of bribery on the part of the League, then I strongly disagree and cannot add much more.

I didn't say the case couldn't be lost but for an act of bribery on the part of the league, but if that helps you make your point so be it. What I am arguing is that the deflation of footballs, even it were taken as fact that it was intentionally done, is most akin to an equipment violation. The league's analogizing to PED use is simply not credible IMO, so I do believe that it comes down to the equipment violation, for which there are specifically negotiated penalties. If the NFL wanted an exception for "equipment violations that could affect a particular game like the superbowl or the AFCCG" (i.e. your grandson of Lester Hayes hypothetical) then they should have negotiated that exception in the CBA/Player penalties. They didn't, so they live with their prescribed penalties.

I recognize that Goodell found in his award that TB participated in a scheme to deflate, etc., etc., but I think that's a loser of a position for the NFL too.

 

[TheoShmeo]

This makes sense to me. Thanks. So in the case of deflategate, the NFLPA would have to argue that the infraction (if it had occurred) was not actually serious and that the NFL rulebook, as written, applies.

I think they will argue that the CBA simply does not give RG that discretion and the fact that certain penalties were provided for leaves the NFL with its bargain and not what it may now wish it negotiated into the CBA.

And that the Court has to weigh THIS CASE, which is far from a circumstance where there is a known violation.

And that the hypothetical is very unusual. That clear violations are rare could, in part, explain why the NFLPA did not give RG open ended power.

 

[Bleedred]

Not necessarily. All of us weigh conflicting concerns all the time. "I really want that piece of cake but it will make me fat." If I eat the cake, it doesn't mean I don't care at all about being fat; if I skip the cake, it doesn't mean that I didn't want it.

My point is that some judges might be so troubled by the extreme example that dcmissile posited -- definite, serious violation/relatively small fine as the only penalty in the NFLPA's world -- that he or she will override other legitimate competing considerations such as the fact that the CBA was negotiated and does not expressly grant RG the discretion he claims. (Along with RG's despicable conduct throughout, I might add).

That there are various shades of grey and competing arguments (and your mileage may vary on how reasonable each competing argument is), puts a fine point on what many have been saying all along: The identity of the judges will be critical.

You're conflating two things. The NFL clearly does not think equipment violations are "serious violations," otherwise, they wouldn't have a "small fine" as a punishment for first time offenses. What you are arguing is that the equipment violation had the consequence of affecting a "seriously" important game. Thus, even if the NFL and NFLPA have judged equipment violations worthy of small fines only, the judge may substitute his/her judgment for the negotiated judgments of the NFL and NFLPA as to penalties for the equipment violation in a seriously important game. As everyone has pointed out, judges are people and they could find this way, but I tend to think not (i.e. that they'll find this way, I concede that judges are people..mostly).

 

[dcmissle]

I recognize that Goodell found in his award that TB participated in a scheme to deflate, etc., etc., but I think that's a loser of a position for the NFL too.

We've pretty much exhausted the first issue.

I think the strength of the "scheme" turns on whether the arbitration is, in fact, a "one-way street". That is, whether Goodell was bound by the Wells Report and not permitted to draw any additional inferences from the hearing. I have not had a chance to look at the law, so I'm agnostic on that for now.

If Goodell is bound by Wells, we should be in good shape, in "general awareness" land. If not, maybe not. I can tell you based on personal experience that courts are basically beyond-the-pale deferential on an arbitrator's factual determinations. The inferences can be speculative and gossamer thin, yet they will be honored. That is the nature of arbitration.

 

[TheoShmeo]

You're conflating two things. The NFL clearly does not think equipment violations are "serious violations," otherwise, they wouldn't have a "small fine" as a punishment for first time offenses. What you are arguing is that the equipment violation had the consequence of affecting a "seriously" important game. Thus, even if the NFL and NFLPA have judged equipment violations worthy of small fines only, the judge may substitute his/her judgment for the negotiated judgments of the NFL and NFLPA as to penalties for the equipment violation in a seriously important game. As everyone has pointed out, judges are people and they could find this way, but I tend to think not (i.e. that they'll find this way, I concede that judges are people..mostly).

I don't think I am conflating anything. But I can see why you would say that.

I am not making an argument. I'm saying that I could imagine a Judge being troubled by the logical extreme that dcmissle pointed out that Clement could suggest.

Clement could say that the NFLPA's position leads to the unsatisfying conclusion that Goodell would be limited to imposing a small fine even when a player was caught red handed committing an equipment violation that would or could confer on him an extreme competitive advantage. "You mean to tell me that if we had video of Tom Brady himself deflating the balls down to 8 PSI before kickoff and he was markedly more effective with those balls than he was after they were restored to 12.5 PSI, that Roger Goodell could only fine him $25k under those circumstances?"

Yes, there are answers to that. Good ones.

And yes, some Judges might be troubled by the notion.

 

[Bleedred]

I don't think I am conflating anything. But I can see why you would say that.

I am not making an argument. I'm saying that I could imagine a Judge being troubled by the logical extreme that dcmissle pointed out that Clement could suggest.

Clement could say that the NFLPA's position leads to the unsatisfying conclusion that Goodell would be limited to imposing a small fine even when a player was caught red handed committing an equipment violation that would or could confer on him an extreme competitive advantage. "You mean to tell me that if we had video of Tom Brady himself deflating the balls down to 8 PSI before kickoff and he was markedly more effective with those balls than he was after they were restored to 12.5 PSI, that Roger Goodell could only fine him $25k under those circumstances?"

Yes, there are answers to that. Good ones.

And yes, some Judges might be troubled by the notion.

They "could" say that. Do you think it's persuasive?

 

[joe dokes]

That presumes that "equipment violation" captures the totality of what Tom allegedly was up to, according to the League

Cutting to it: "equipment violations" can run the gamut from innocent to an outright effort to steal a game.

I am far from confident that every judge will view this specifically negotiated term as limiting the Commissioner's options.

You may disagree, and that is fine. If the point is that this case cannot be lost short of an act of bribery on the part of the League, then I strongly disagree and cannot add much more.

I think that's where it has to go. Either the NFL argues this wasn't an "equipment violation" as that term is used in the CBA; or if it was, Brady did more than that. (The obstruction, perhaps? Or orchestrating the violation)

 

[geoduck no quahog]

Legal only question:

I can't find a reference anywhere that cites what rule the League used to warn the Panthers/Vikings (and all other teams) not to heat footballs. I think it would be relevant if it were based on the Equipment Violations rule, but perhaps it wasn't.

Also, I believe the NFL's response to the Rodgers' quote (which indisputably proves a "general awareness" of circumventing the rules) was that the quote was post-game and therefore was no longer relevant (even though the quote was apparently pre-game).

These two precedents appear (to the layman - me) as demonstrating an arbitrary punishment imposed upon one NFLPA member.

 

[Bleedred]

I think that's where it has to go. Either the NFL argues this wasn't an "equipment violation" as that term is used in the CBA; or if it was, Brady did more than that. (The obstruction, perhaps? Or orchestrating the violation)

I agree that this is where the NFL has to focus, otherwise they're sunk. The problem for the NFL is that the Wells Report found that it was more probable than not that TB12 was generally aware that Jastremski and McNally intentionally deflated footballs. That's the finding, and the only finding of relevance in the Wells Report. If he was aware of deflating footballs, then he was aware of an equipment violation, for which there are prescribed penalties. Goodell's effort to turn it into a "scheme" tantamount to conduct detrimental to the integrity of, and public confidence in, the game of professional football is pure wishcasting on the part of the Commissioner. I'll stop now as I'm repeating myself, but I'm not the least bit persuaded by the NFL's position....yet (subject to modifying when I read their reply brief).

 

[Koufax]

I don't think that the NFL is stuck with Wells' finding. Roger Goodell is the ultimate finder of fact, and he found TB not to be credible; and that he was the ringleader of a conspiracy to deflate the footballs after the refs had approved them. He's wrong, of course, but he's not limited to the findings of the Wells Report.

 

[TheoShmeo]

They "could" say that. Do you think it's persuasive?

I think it's an extreme application that would make some judges pause. But to answer directly, I don't find it to be a winner and, having gone back and forth a little in my own mind, and I think the NFLPA's argument is better. The notion of a penalty different from the one prescribed should be anathema.

But results oriented judges are not exactly unheard of and find ways to get to where they want to go. That an example such as the ones discussed might help a judge get to the NFL's side is really all I have been saying. Maybe a judge says that when it's an equipment violation coupled with obstruction, then RG's discretion gets expanded. Especially given the notion that such an extreme example would only result in a fine in Kessler's world.

 

[Bleedred]

I don't think that the NFL is stuck with Wells' finding. Roger Goodell is the ultimate finder of fact, and he found TB not to be credible; and that he was the ringleader of a conspiracy to deflate the footballs after the refs had approved them. He's wrong, of course, but he's not limited to the findings of the Wells Report.

I think he is. The award, according to Vincent, was based solely on the findings of the Wells Report. Page 224 of the hearing Transcript:

Q (to vincent): So you based your recommendations of discipline in this letter solely upon the reading of the Wells report? That what I wanted established:
A (from Vincent): Yes

The Well's report found no such scheme and Goodell is trying to transform the findings after the fact. I believe that Goodell is stuck with the Well's report.

 

[Bleedred]

I think it's an extreme application that would make some judges pause. But to answer directly, I don't find it to be a winner and, having gone back and forth a little in my own mind, and I think the NFLPA's argument is better. The notion of a penalty different from the one prescribed should be anathema.

But results oriented judges are not exactly unheard of and find ways to get to where they want to go. That an example such as the ones discussed might help a judge get to the NFL's side is really all I have been saying. Maybe a judge says that when it's an equipment violation coupled with obstruction, then RG's discretion gets expanded. Especially given the notion that such an extreme example would only result in a fine in Kessler's world.

Congratulations, you offered an opinion.

 

[Koufax]

I think he is. The award, according to Vincent, was based solely on the findings of the Wells Report. Page 224 of the hearing Transcript:

Q (to vincent): So you based your recommendations of discipline in this letter solely upon the reading of the Wells report? That what I wanted established:
A (from Vincent): Yes

The Well's report found no such scheme and Goodell is trying to transform the findings after the fact. I believe that Goodell is stuck with the Well's report.

Do you think that Roger is bound by Vincent's recommendation? He Goodell sat in a room with Brady for an entire day. Isn't he within his right to reach his own conclusions as to what happened, based upon that testimony?

 

[joe dokes]

I don't think that the NFL is stuck with Wells' finding. Roger Goodell is the ultimate finder of fact, and he found TB not to be credible; and that he was the ringleader of a conspiracy to deflate the footballs after the refs had approved them. He's wrong, of course, but he's not limited to the findings of the Wells Report.

I don't really have a strong sense of whether he's stuck with it, but while Goodell is the ultimate fact-finder, his "ringleader" finding came on what seemed to be the equivalent of an appeal. But my labor law isn't strong enough to know if that's a fair parallel. And its not so much that he's stuck with Wells (the witness), its more that he's stuck with Vincent (the trial judge).

 

[TheoShmeo]

Congratulations, you offered an opinion.

I know you are just kidding around but, to turn serious for just a second, what I think doesn't really matter. To me, what was interesting and somewhat disconcerting about dcmissile's "logical extension" point is that I could see it as something that might get traction with one or more of the judges, whether it should or not. As he points out, judges are people too, and when the logical extension of a point leads to an unpalatable result, sometimes unpredictable things happen.

The post I responded to originally spit balled a number of possible arguments that Clement might make. The one that gave me the most pause is the one we have been discussing. Not that the others were points I would dismiss out of hand.

From my position in Tom's corner, that there are any arguments out there that I could see a judge getting tangled up in is a lot more material to me than my ultimate opinion of a particular argument.

 

[Eddie Jurak]

Do you think that Roger is bound by Vincent's recommendation? He Goodell sat in a room with Brady for an entire day. Isn't he within his right to reach his own conclusions as to what happened, based upon that testimony?

If the NFL wins here, won't this become standard strategy for the league: 1. Issue discipline on a weak factual grounds, 2. At the arbitration hearing, issue a much stronger factual finding on which to uphold award.

As a player, you go to arbitration at your own risk, your situation could get worse by doing so.

 

[DennyDoyle'sBoil]

Clement could say that the NFLPA's position leads to the unsatisfying conclusion that Goodell would be limited to imposing a small fine even when a player was caught red handed committing an equipment violation that would or could confer on him an extreme competitive advantage. "You mean to tell me that if we had video of Tom Brady himself deflating the balls down to 8 PSI before kickoff and he was markedly more effective with those balls than he was after they were restored to 12.5 PSI, that Roger Goodell could only fine him $25k under those circumstances?"

Yes, your honor. Absolutely. If the NFL wanted more or an exception based on the Commissioner's view of how red handed the violation was or how much it affected competitive balance, they could have bargained for those rights. To engraft on to the text of the CBA unwritten seriousness exceptions, and then give the Commissioner unfettered discretion to decide when they apply, renders meaningless -- or at best merely advisory -- all of the specific and detailed provisions the union bargained for. [If I had time I would add: In any event, when they set the penalty for equipment violations, those who negotiated the CBA likely understood that something like what your honor proposes is unlikely to happen. Game equipment is in plain view of millions of people, and is handled by opposing players and officials. Just like the alleged deviation from the rules here, any alteration to game equipment has to be exceptionally modest to not be obvious -- or at least the negotiators of the CBA could have so thought, making a maximum $25,000 fine an entirely appropriate penalty. Until now, the NFL seems to have agreed -- in all other cases of supposed equipment violations, including those relating to manipulating game balls, the league has never before exceeded the bargained for cap.]

I'm biased, but I think, so far, Kessler has the far better of this argument. What is the use in bargaining specific penalties for specific violations if the Commissioner can just ignore the bargained for penalties?
I think the much harder questions on this issue are on Clement's side -- so, are you saying the commissioner has the power to impose an 8 game ban for a first steroid violation if, in his sole discretion in judgment, he decides it is super serious? Or because the player taking the steroids was caught on video?

In fact, after reading the briefs, I am starting to think how the NFL answers this question is going to largely decide the appeal, and I'm not sure they have a great answer. Obviously, this argument goes away if they can convince the court that this discipline was not really for an equipment violation. But to convince the court that some other general provision of the CBA gives the commissioner power to enhance penalties for expressly contemplated violations is a very tough road.

Edit: By the way, I also really like Kessler's argument that, to the extent the Commissioner might have such discretion to enhance specifically bargained penalties in the CBA, he would only ever have it as Commissioner. He cannot implement such discretion when he sits as arbitrator, which is what he's trying to do here.

 

[djbayko]

I don't really have a strong sense of whether he's stuck with it, but while Goodell is the ultimate fact-finder, his "ringleader" finding came on what seemed to be the equivalent of an appeal. But my labor law isn't strong enough to know if that's a fair parallel. And its not so much that he's stuck with Wells (the witness), its more that he's stuck with Vincent (the trial judge).

Ah, but according to Goodell, Vincent wasn't the trial judge - he was merely the courier boy. Remember?

I realize that may have no bearing on whether or not Goodell gets another turn, per labor law.

This case is full of examples where the NFL would prefer to have it both ways.

 

[djbayko]

I don't think I am conflating anything. But I can see why you would say that.

I am not making an argument. I'm saying that I could imagine a Judge being troubled by the logical extreme that dcmissle pointed out that Clement could suggest.

Clement could say that the NFLPA's position leads to the unsatisfying conclusion that Goodell would be limited to imposing a small fine even when a player was caught red handed committing an equipment violation that would or could confer on him an extreme competitive advantage. "You mean to tell me that if we had video of Tom Brady himself deflating the balls down to 8 PSI before kickoff and he was markedly more effective with those balls than he was after they were restored to 12.5 PSI, that Roger Goodell could only fine him $25k under those circumstances?"

Yes, there are answers to that. Good ones.

And yes, some Judges might be troubled by the notion.

I hate the "caught red handed" argument and the "this is super serious" argument.

You punish someone based on the infraction, not the evidence...either there is enough evidence there to support a guilty verdict or there isn't.

At the time of negotiating penalties, it was no secret that cheating could impact the results of the game. All cheating is designed to impact the results of the game! And it should be foreseeable that the game in question could be more important. If you want degrees of severity, then stipulate that in the agreement.

Any judge who buys into such an argument loses me (not that they'd care). I am worries that they'll find it's not an equipment violation, but if they do so, they're really looking for a way to uphold the decision IMO. You can't say it's not an equipment violation with a straight face...you just can't.

 

[Super Nomario]

I think it's reasonable that the NFL determined that the "equipment violation" section did not apply to doctoring footballs. Section 4 of the rule book discussed "Equipment, Uniforms, and Player Appearance" and specifically delineates penalties for stuff like stickum. Nowhere are footballs mentioned, except that you can't wear equipment that looks like a football. Contextually, it's pretty clear that they're talking about personal equipment like gloves and pads, not universal equipment like footballs and, I dunno, goal posts?

 

[DennyDoyle'sBoil]

I think it's reasonable that the NFL determined that the "equipment violation" section did not apply to doctoring footballs. Section 4 of the rule book discussed "Equipment, Uniforms, and Player Appearance" and specifically delineates penalties for stuff like stickum. Nowhere are footballs mentioned, except that you can't wear equipment that looks like a football. Contextually, it's pretty clear that they're talking about personal equipment like gloves and pads, not universal equipment like footballs and, I dunno, goal posts?

I don't think I would call that reasonable. According to the union the NFL distributes 14 documents to players on prohibited conduct. One specifically relates to game misconduct. It specfically references "equipment". I doubt that anywhere in there is any discussion about who owns the equipment. What exactly is "personal" equipment anyway? If you borrow someone else's gloves, and then doctor them, does it make a difference? That Brady himself didn't personally own the footballs doesn't mean they are not equipment. It seems unfathomable to me you could use the word "equipment" in a policy expressly geared toward game misconduct, and also clearly envision equipment means more than "uniform" and not have it include the quintessential piece of equipment used in the game.

Does it seem intuitive that a fine is not enough if someone took a few links out of the measuring stick chain or tried to move the pylon to gain an advantage? Perhaps. But then the NFL should have been more clear. Suggesting the ball is not equipment would seem pretty desperate to me.

The NFL's brief doesn't even really argue that the equipment policy does not apply here. Indeed, it assumes it does (page 45) and instead argues the Commissioner is entitled to choose among different provisions and apply Article 46 discipline instead.

I guess one could argue the equipment violation is really not about tampering but instead, like the rulebook, mostly about decorum. But that's a tough sell when you specifically include stickum violations.