Has the NFL alleged that ball deflation is "serious, result-impacting cheating" in any of its briefs? It didn't in the Wells Report. If not, can it make a new claim to the Appellate Court?
Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only
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The point there was not what was alleged against Brady but the logical extension of Kessler's argument that the NFL would be limited to a fine in all cases of equipment tampering violations.
And DDB, yup, that is indeed the response. I'm also biased and I think it's a winner. I just think there is some not small possibility that an unbiased judge will find that answer to be unappealing and will stretch for ways to get to a conclusion that is contrary to Berman's as a result.
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Could the NFL make the argument that cheating, however minor, damages the integrity of the game and as a result the league suffers financially due to reduced fan interest. The Super Bowl was the most watched ever, so that seems like a difficult argument, but there are probably other measures like attendance (which looks a little higher this year over last), local tv viewership, merchandise, etc that may tell a different story.
Sure, once you call something "cheating" you can say all sorts of things. But that begs the question of what constitutes "cheating" in the first place. Is wearing a tear-away jersey "an equipment violation" or is it "cheating." IMO, "cheating" is most often a post-hoc characterization the use of which is dependent on which team the user roots for. I suppose there are some obvious things, like a placekicker putting lead in his shoe to kick the ball harder/further (I have no idea if this would work), that we might agree are "cheating," but "modified kickers' shoes" is a specifically enumerated "equipment violation" as well. There are examples the other way, as well, like wearing a message on your eye-black, which would be hard to call "cheating." But this clusterfuck is not about the easy cases.
There's a point that's maybe getting lost here. The Commissioner, I assume, has extraordinary powers to deal with cheating. He can hammer clubs, probably without notice. He can suspend or fire or probably even ban from the stadium virtually anyone in the world he wants. He probably even has power (again assuming but I bet I'm right) to forfeit games or declare them replayed or modify results. (Although, if that were ever on the table, you'd see how quickly his concern for the gamblers, fantasy footballers, and his partners in the daily fantasy industry gave way to any concerns about "integrity.") He can probably do all sort of Pete Rose like stuff for retired players. Indeed, he did impose a massive fine and penalty on the team here without notice or any of the fancy CBA procedures, and though Kraft toyed with trying to do something about, the consensus seemed to be he had little recourse.
The one area where he is constrained, and the only thing implicated by this case, is the tiny area where he has to jump through some hoops and limit himself before he messes with the livelihood of a small group of about 1,500 unionized workers on which his league depends. So we're only talking about one very modest stick in the bundle of rights the Commissioner (presumably) has to deal with "cheating." Viewed in that perspective, the fact that there are detailed maximum penalties that accompany specified violations, even for alleged "cheating," doesn't seem so weird. So, to the extent the NFL were to try a woe-is-the-poor-Commissioner-how-can-he-protect-his-league if he can only fine $25,000 for first time offenses argument, it really doesn't resonate with me.
Obviously, again, I'm biased. And I get that $25,000 seems like a modest if any deterrent to $20 million a year player. (Although I would note that even a $10,000 after-tax fine would be a pretty major deal for a $400,000 player and the league has never seen fit to try to get the union to adjust penalties based on the salary of the player.) But what are we talking about here? Let's go back to first principles. What have we been talking about in the last two pages.
A proposition has been advanced by Kessler: This is an equipment violation and the fine is set for such. The question for the court is this -- is that the correct way to interpret the CBA? All of these arguments about "cheating" are what I call "no because if" argument. That is, they would be attempts to give a reasonably clear provision that seems on its face to apply here a different meaning, by pointing out unpleasant consequences of that reading.
"No because if" arguments should always be viewed skeptically from the outset, because it's not for the court to write the best agreement it can for the parties. If the parties want to be stupid, or if they didn't have particularly good foresight about consequences, that's their problem. So, when you make a "no because if" argument, you can't say, "please interpret this contract to mean something else because if you don't it would have an unpleasant consequence." Your argument has to be something much different -- you have to say, "please interpret this contract to mean something else, because this unpleasant consequence I just mentioned should convince you it would be unreasonable to assume this is what the parties really wanted, and so don't interpret this provision to be inconsistent with their intent."
That's a very different thing. And so the point I'm trying to make here is the fact that this is just a small stick in the Commissioner's bundle of rights to stop "cheating" suggests that it would hardly be unreasonable for the union to have negotiated for very specific handling and fines to the player if a player was involved.
Kessler seems to have conceded that the usual Garvey deference-to-a-labor-arbitrator case-law applies in this case, but is this actually appropriate? The central merits dispute in this litigation (or at least, the claim folks here seem to think is Brady's strongest), is the extent to which the alleged ball deflation constitutes "conduct detrimental...", if at all. If, as Kessler continues to argue and we are all convinced, it really doesn't, then Article 46 (which, by the way, doesn't even contain the word "arbitration") was never the appropriate contractual avenue. The CBA actually does have a fairly standard arbitration-for-contract-interpretation/execution-disputes section: it's Article 43. Any determination made by an Arbitrator pursuant to that article would certainly command the standard deference if the award were to be attacked in court. Article 46, by contrast, supersedes and displaces article 43 (it begins "Notwithstanding anything stated in Article 43:") but only for disputes regarding fines/suspensions for either 1) "conduct on the playing field", or, 2) "conduct detrimental...". Brady's alleged actions are clearly not "conduct on the playing field"; but nor are they primarily, argues Kessler, "conduct detrimental"! If that's correct (and many including Judge Bermam think it is), then Article 46 should not even come into play in the first place, and Goodell's entire appeal hearing would be improper jurisdictionally, so to speak (Article 43 would instead apply).
Even assuming arguendo that as a "hearing officer", Goodell's award is entitled to the typical LMRA deference (again, article 46 actually never uses the words "arbitration" or "arbitrator", unlike article 43, which is littered with both), that should only be true insofar as Article 46 was the appropriate league response in the first place. But no arbitrator ever ruled or determined that it was! Rather, an Article 46 hearing officer merely affirmed an Article 46 discipline action, pursuant to an Article 46 appeal.
Why shouldn't the courts have the first crack (de novo) in ruling that the Mgmt Council's utilization of Article 46 was appropriate in the first instance? Why didn't Kessler at least attempt this argument? What am I missing?
Even assuming arguendo that as a "hearing officer", Goodell's award is entitled to the typical LMRA deference (again, article 46 actually never uses the words "arbitration" or "arbitrator", unlike article 43, which is littered with both), that should only be true insofar as Article 46 was the appropriate league response in the first place. But no arbitrator ever ruled or determined that it was! Rather, an Article 46 hearing officer merely affirmed an Article 46 discipline action, pursuant to an Article 46 appeal.
Why shouldn't the courts have the first crack (de novo) in ruling that the Mgmt Council's utilization of Article 46 was appropriate in the first instance? Why didn't Kessler at least attempt this argument? What am I missing?
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To put it yet another way: the usual highly limited standard of judicial review follows from the fact that the parties have chosen arbitration as their method of dispute resolution. If we assume that ball deflation is not properly "conduct detrimental", then the parties have NOT agreed that an Article 46 hearing is the appropriate dispute resolution method. That limited judicial review framework should thus not apply.
Ok, I'll await the reaction of the pros.
Ok, I'll await the reaction of the pros.
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I've been trying to make the case for ages that the Article 46 hearing isn't really arbitration, but apparently Kessler & co don't want to go there.
IANAL, but I think it's fair to say every snap that Brady handled where he knew it was an improperly deflated ball would constitute "conduct on the playing field" if there were some sort of scheme in operation. Of course, I am rooting for Kessler's argument that the CBA-negotiated pemalty scheme for equipment violations trumps any invocation of Article 46.
Vincent definitely didn't elect to punish along those lines though. It was for "conduct detrimental to the integrity...". And Goodell's award echoed that specific citation.
Interesting development. Robert Blecker, NYU Professor, apparently filed an amicus brief arguing that the NFL investigation was corrupt, . This gives Kessler free reign to take the high road, and let Blecker provide the judges about the behind the scenes true story, which may go the whole Article 46/43 argument, and whether this biased process should be deemed an arbitration. I have not found the brief online.
"The NFL's Own Investigation Qualifies As Conduct Detrimental to Integrity and Public Confidence in Game of Professional Football"
That sums it up perfectly.
That sums it up perfectly.
AB in DC, this one's for you. Challenging why the NFLPA is not fighting Goodell's role as arbitrator.
The overall takeaway is overly strident and unsupported by any law. However, it puts the facts before the Court that are hard to unread. It leaves the NFL is a position of just ignoring the amicus on their brief, or if they engage, then making the argument more compelling.
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Wait is this professor the guy from the 60 Minutes sports interview show?
Just finished reading. My god that reads like a patriot fan lawyers takedown of the Wells report.
Hatriots even makes an appearance.
I think I need a cigarette, and I don't even smoke.
Just finished reading. My god that reads like a patriot fan lawyers takedown of the Wells report.
Hatriots even makes an appearance.
I think I need a cigarette, and I don't even smoke.
Is this type of language common in briefs? This brief doesn't seem to be very professionally written and reads like a work of a fan.
Page 12 of the amicus brief
Note: Not an NYU professor---New York Law School, a very different institution.
Usual IANAL disclaimer.
Is this amicus brief a coordinated effort between the Team NFLPA and NY Law Prof?
How much oversight/direction by Kessler etal is given to this brief, which on its own could contain information not necessary or pertinent to the legal issues, or distracting from his own efforts?
Or is it an independent submission not vetted by the NFLPA/Kessler/Gibson?
thanks
It varies depending on the circumstances. In the cases I have had in the Supreme Court, and these are business cases for the most part, securing amicus support is important. You are looking for one or more credible sponsors who you can depend on to produce a good brief and will give the case a helpful slant that you really can't focus on too much in your brief. Those efforts certainly are coordinated.
This is less common at the Circuit level, though it happens. At the very least, this guy would have sought the parties' consent to the filing of the amicus brief, which usually is granted as a matter of course. Without reading this, I have no clue whether Kessler and Co. had any input. As some of us discussed early on, a brief like this would have been. Good vehicle for junk science and related arguments.
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After reading Blecker's submission, I think it is an excellent summary of how the NFL's investigation was flawed, full of bias and actually had a pre-determined outcome.
Does this brief sort of help Kessler fend off the NFL's assertion that he is trying to relitigate the facts of the case?
I should add that my favorite part of this brief, aside from the colorful descriptions, was the list of relevant facts that might be ascertained by access to the investigative notes:
This guy saying it doesn't make it so, but at the very least the judges will have some awareness of the many issues Kessler opted not to raise.
I should add that my favorite part of this brief, aside from the colorful descriptions, was the list of relevant facts that might be ascertained by access to the investigative notes:
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It may have been coordinated, but a Google search shows that this guy is certainly well read on the facts of the case and has been all over it for quite some time - not just in the 60 minutes piece. Whether a closet Patriots fan, someone with a grudge against the NFL, or a lawyer who is disgusted by what he views as a miscarriage of justice, it's not surprising to see this coming from him.
I thought Blecker was just trying to offer support to Brady's claim that access to the notes was necessary for him to have a fair hearing.
Not sure if this was posted anywhere, but Florio took up the Professor's brief today.
http://profootballtalk.nbcsports.com/2015/12/17/third-party-brief-in-brady-case-focuses-on-integrity-of-sport/?ocid=Yahoo&partner=ya5nbcs
http://profootballtalk.nbcsports.com/2015/12/17/third-party-brief-in-brady-case-focuses-on-integrity-of-sport/?ocid=Yahoo&partner=ya5nbcs
What do the legal experts make of Blecker's apparent slant that the NFLPA's approach isn't necessarily in alignment with what would be best for Brady in the Appeals Court arena?
So that is the longest Florio entry I've seen in some time, and it's obvious why. He continues to be disgusted by the railroad job.
This brief could be impactful. Judges are lawyers. Lawyers in the main have a sense of fairness. Second Circuit judges are among the best lawyers you'll find.
All anyone genuinely offended needs is one ally to bury the NFL in a summary affirmance that has no precedential effect.
I am not a lawyer, so please excuse me for what is probably a dumb question. Are amicus briefs usually paid for by one side or are they pro bono by nature? If they are paid to present/submit the brief, does the author have to disclose who sponsored the effort behind the brief?
They are usually commissioned and paid for by persons/entities who are not parties to the litigation but who have a concern about its broader effects on society (which may be beyond the injuries of the parties). It's entirely up to the court how far down that road they want to go- although the suit is ostensibly about the concrete harm suffered by one ore more parties, the parties will sometimes advance public policy concerns, and courts, to a varying degree, may want to consider them.
The amici could sometimes be closely aligned with a party, or could give two shits about the parties, and just support affirmance/reversal due to the precedent.
So amicus briefs are usually done by-
-issue advocacy groups (ACLU, etc.)
-professional organizations, etc. (I was involved in an architecture malpractice case where the local AIA chapter filed one);
-governments, like when a state/local law goes up to SCOTUS, other states with similar laws will file as amici
-sometimes, experts/academics in a litigation focused on a technical field want to make the court aware of their work
Most of these persons have budgets just for this sort of thing, and/or have a financial stake in having the case go a certain way, so are willing to front the $.
IIRC, SCOTUS requires disclosure if a party is paying for an amicus brief. Other jurisdictions differ. All require leave of court to file, though.
IANAL but isnt it just asking for, and receiving, permission from the court?
Kessler might want to acquaint himself with Barrington Parker.
FWIW, last year he redefined insider trading, rebuking Preet Bharara.
SCOTUS recently denied cert.
FWIW, last year he redefined insider trading, rebuking Preet Bharara.
SCOTUS recently denied cert.
Right.
Again, it's totally up to the court how far down the road they want to go of considering briefs from amici. Generally, the more pressing the societal concern, and/or the more legitimate the potential amicus, the more leeway. Ex: when SCOTUS heard McDonald v. Chicago, in which a Chicago ordinance restricting handgun possession was being attacked, the larger question being decided, beyond whether Mr. McDonald could defeat the ordinance as applied to him, was whether the Second Amendment applies to states/localities. Obviously, many, many people and institutions care about this, so SCOTUS accepted amicus briefs from many state AGs and from individual senators/reps.
Now, if a potential amicus is a fly-by-night or a crank (there are many, many cranks attracted to big cases), or if their interest is obviously to just bolster one side and repeat arguments the court has already heard from a party (as opposed to purportedly addressing an issue of importance to society at large), or the interest they articulate is not deemed sufficiently relevant, then the court will not permit the brief.
responding/asking questions related to oilcan's response.
When you say "the court" will/will not permit the brief, is there a separate and distinct panel/judge or law clerk, who assesses the amicus brief and its relevance to the case or importance to societal interests in general?
And if the acceptance of an amicus brief is interpreted
that the court is concerned about a certain related issues, in this case, bias in the commissioner's office interfering with the public's perception of the fairness and integrity in the game of football, is it at all indicative of the court's leaning?
And lastly, does the NFL respond to the brief, and does the court in its eventual ruling have to respond to the issues brought up in the brief?
When you say "the court" will/will not permit the brief, is there a separate and distinct panel/judge or law clerk, who assesses the amicus brief and its relevance to the case or importance to societal interests in general?
And if the acceptance of an amicus brief is interpreted
that the court is concerned about a certain related issues, in this case, bias in the commissioner's office interfering with the public's perception of the fairness and integrity in the game of football, is it at all indicative of the court's leaning?
And lastly, does the NFL respond to the brief, and does the court in its eventual ruling have to respond to the issues brought up in the brief?
I dunno -- I think the Court may very well read the brief as an advocacy piece by a Patriots fan, who includes a few lines of anti-NFLPA sentiment in order to pump up his bona fides, the same way a homophobe tells you about his gay friends. (I realize he's probably not a Patriots fan, or claims not to be one -- I'm using the term sort of in its broader sense.)
My reaction to the brief is different from others here. I view it as a non-serious trifle, unlikely to move the needle much (pun unintentional but recognized after typed). It comes across as borderline unprofessional. For a law professor not to get font and headings right and to blather on about how great his research assistant is just strikes me as not very serious. Plus, there's a significant level of look-at-me-megalomania. I think some of the content is good to have before the Court as potential background. In particular, he does a decent job of explaining why the access to interview notes is at least theoretically more than a technical gotcha, but may have actually had some prejudicial effect. And, yes, it feels sort of good to have some of the points that drive us crazy and have led us to conclude this may very well have been a hatchet job out there in the open. But, on the other hand, I think this brief plays in just a bit to Clement's hands -- all the shit about which gauge, while important to what really happened, sounds like he's arguing about stuff that courts aren't supposed to review in reviewing arbitration awards. There's a reason the union has not done some of the things this guy wishes they would, and it's because they've made a judgment it won't work, not because they are willing to screw Brady to serve their own agenda. His hook -- hey, I'm just a crusader for integrity of the game that's something that courts can take into account in reviewing arbitration awards -- is borderline nonsensical.
He's done some nice work in the court of public opinion. In the court court, he comes across as a I-am-very-important-and-have-the-key-to-the-universe megaglomaniac. I don't think there's much harm done. Weird shit gets filed all the time in amicus briefs -- NAMBLA files garbage in child porn cases so I doubt this one will be viewed as having undermined anything unless the court thinks Kessler was behind it. And I suppose it could moderately be helpful, but other than making us feel good I doubt it makes a difference.
Good points, DDB.
I've thought about it from Kessler's perspective.
On the one hand, it's nice that Blecker was able to inject a whole bunch of crap about the NFL into the fray without it having any negative impact on Kessler. He has to carefully consider every word, and the risk of sounding sensationalist or shrill, and thereby losing credibility. With this brief having been filed, he gets the benefit of Blecker vomiting out a lot of crap, without it coming from him. As you said, I'm not sure how much that crap will stink, but I suspect that some of the points will affect the Judges.
On the other hand, Kessler just lost a little bit of control over how his case is being presented and positioned. I would assume that the control freak in him doesn't like that at all. He purposefully chose to ignore the points that Blecker made and now there's a greater risk that the Judges will be fixated on issues that he was not intending to make front and center.
I've thought about it from Kessler's perspective.
On the one hand, it's nice that Blecker was able to inject a whole bunch of crap about the NFL into the fray without it having any negative impact on Kessler. He has to carefully consider every word, and the risk of sounding sensationalist or shrill, and thereby losing credibility. With this brief having been filed, he gets the benefit of Blecker vomiting out a lot of crap, without it coming from him. As you said, I'm not sure how much that crap will stink, but I suspect that some of the points will affect the Judges.
On the other hand, Kessler just lost a little bit of control over how his case is being presented and positioned. I would assume that the control freak in him doesn't like that at all. He purposefully chose to ignore the points that Blecker made and now there's a greater risk that the Judges will be fixated on issues that he was not intending to make front and center.
Can the brief knock out some of the NFL's argument, though? If the NFL is arguing that it needs the ability to punish players beyond the scope of the agreements that were made in the CBA due to the integrity of the game with comparisons to the Black Sox scandal, does the brief at least raise the point that an NFL organization with that much unchecked power is itself a risk to the integrity of the game?
I think the idea would be that the "integrity of the game of professional football" is properly the concern of the commissioner, not the judiciary.
Still, I like the brief. The gaps and joints within the law (as presented by the parties) ought to bend toward justice; so perhaps it's helpful to have that location forcefully identified by an outsider.
Having read the brief, I think the concept was ok:
"The NFL has degraded the integrity of the game by soliciting a non-objective report to back up pre-determined and faulty conclusions"
I'm disappointed that he didn't concentrate on what any impartial scientific analyst would say - that the Exponent brief could never withstand any scrutiny by the scientific community and that it came to questionable conclusions based upon incomplete data, with the conclusions serving to prop up the "independent" arbiters' case. Essentially - the NFL's case could never have withstood cross examination in a court of law. Even worse, it displayed obvious bias. All he had to do was provide the testimony of any legitimate mathematician, physicist and/or someone schooled in the rules of scientific research.
Not being a lawyer, I have no idea if an arbitration case like this requires fairness when the injured party (NFL) is the one arbitrating.
Other "integrity" cases that I'm aware of involved testimony and/or factual evidence to justify punishment, and when they didn't - they were overturned. Am I correct? (thinking about bounty-gate)
"The NFL has degraded the integrity of the game by soliciting a non-objective report to back up pre-determined and faulty conclusions"
I'm disappointed that he didn't concentrate on what any impartial scientific analyst would say - that the Exponent brief could never withstand any scrutiny by the scientific community and that it came to questionable conclusions based upon incomplete data, with the conclusions serving to prop up the "independent" arbiters' case. Essentially - the NFL's case could never have withstood cross examination in a court of law. Even worse, it displayed obvious bias. All he had to do was provide the testimony of any legitimate mathematician, physicist and/or someone schooled in the rules of scientific research.
Not being a lawyer, I have no idea if an arbitration case like this requires fairness when the injured party (NFL) is the one arbitrating.
Other "integrity" cases that I'm aware of involved testimony and/or factual evidence to justify punishment, and when they didn't - they were overturned. Am I correct? (thinking about bounty-gate)
Most of the work I do is outside of courtrooms, but I have been in a few and the judges I respect more tend to balance legalistic rules with a sense of fairness and a desire to avoid doing unnecessary harm. I'm sure it's somewhat different for appellate judges, with the awareness that what they do will be binding precedent to the extent it breaks new ground, but I hope they see that the underlying arbitration was essentially a show trial and that the NFL brought this mess upon itself. I think, provided that the judges grasp those aspects of the case, they will work out a way to affirm Berman.
Others may disagree, but a somewhat common explanation is that in terms of process, actual court proceedings are "full formal dress," and quasi-judicial proceedings or arb are more like "business casual." But you can't show up for either in a bow-tie, speedo, and flip-flops.
The actual issues on appeal before the court are more defined than asking for an overall "was it fair" analysis, but the problematic behavior by the NFL may irritate the appellate judges as much as the trial judge.
After finally taking the time to read the brief, I'm not particularly impressed. It's sloppy in parts and I don't see the Second Circuit giving it much weight. I have no idea what the professor's background is but it comes across as someone who reads a lot of briefs but doesn't regularly write them. We've had far better analysis in here.
That was my sense as well. It could fall into the area of the each of the panelists' law clerks read them and tell their judges that its not frivolous, but its also not entirely necessary to read the amicus before oral argument.
That said, the judges will eventually read it, and if they arent there already, will at least understand that the PA's position that the entire "process" was deeply flawed is sound. Whether the flaws were "deep enough" is another question. One thing I'm pretty certain about is that it wont hurt.
Bob McGovern @BobMcGovernJr 10m10 minutes ago
The NFL filed its reply in the ongoing #Deflategate appeal. Here are the broad brushstrokes.