Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only
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Michael McCann @McCannSportsLaw 2m2 minutes ago
NFL files 38-page brief to appeals court for Brady v. NFL. NFL claims Goodell's decision was "eminently reasonable": pic.twitter.com/wRTed941h0
Michael McCann @McCannSportsLaw 2m2 minutes ago
In new court filing, NFL portrays Tom Brady as engaging "unique & aggregate misconduct." Seems like NFL portrays Brady worse in every brief.
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Dan Werly @WerlySportsLaw 26m26 minutes agoOhio, USA
NFL Deflategate Brief: NFL now arguing that Brady admitted that the "equipment policy" does not include balls:
Dan Werly @WerlySportsLaw 21m21 minutes agoOhio, USA
The NFL's Deflategate "notice argument" trap: It did not mention Notice in the opening brief knowing that Brady would argue in reply.
Dan Werly @WerlySportsLaw 21m21 minutes agoOhio, USA
...now the NFL (knowing that Brady will not be able to respond in writing) states that Brady acknowledged that policy doesn't apply to balls
NFL Deflategate Brief: NFL now arguing that Brady admitted that the "equipment policy" does not include balls:
Dan Werly @WerlySportsLaw 21m21 minutes agoOhio, USA
The NFL's Deflategate "notice argument" trap: It did not mention Notice in the opening brief knowing that Brady would argue in reply.
Dan Werly @WerlySportsLaw 21m21 minutes agoOhio, USA
...now the NFL (knowing that Brady will not be able to respond in writing) states that Brady acknowledged that policy doesn't apply to balls
Some real horseshit writing in that brief. The heartland of his discretion? What the hell does that even mean?
Need to read all three now.
Need to read all three now.
Scanning the brief they do a pretty good job of attacking what I think is the league's best point--which is that this is way more than an equipment violation, the allegation (if we assume they're true) is essentially that a player was involved in cloak and dagger type operations to commit an equipment violation. Now like most on this thread I think the evidence strongly suggests that nobody actually deflated any footballs--let alone that Brady directed the Dorito dinks to sabotage equipment after the officials checked the equipment--but the activity in question is far more serious than an equipment violation.
Kessler said in the appeal to Goodell that he didn't think a rule about balls appeared anywhere in the rule books (therefore no notice) but that if it appeared anywhere, it was equipment violations. He said he thought it was a stretch because it doesn't say balls -- I remember cringing a bit reading the transcript at that point. Then, later on when they were in front of Berman, he subtly shifted course from "there was no notice" to "if there was notice, it specifically says a fine and not a suspension".
but not really. All equipment violations (which stickum, jersey alterations, etc all fall under) are schemes of subterfuge unless judges think players just go out and announce that they have something illegal going on to the refs.
It's a fairly silly point that Brady's is some unprecedented violation different from other equipment violations.
If you want to think it's silly point, we'll have to agree to disagree. I think have an underling change the condition of equipment after it's been tested is qualitatively different from just wearing something that isn't allowed (stickum, wrong sized equipment, whatever).
They do check players for stickum and Vaseline on jerseys before games. And guys do things to sneak it past or do it after the check. So I don't see the qualitative difference.
And we have shown how little the NFL cares for this in the Jets kicker ball case and the Carolina vs Minnesota case.
Which shows again the NFL's arbitrary and capricious punishments of this activity.
Having people dicking around with equipment taken from the official's locker room doesn't do anything for you? It does for me.
I completely agree with you about how arbitrary the NFL's system of justice is but that's not a particularly useful lens to use when thinking about how a particular appellate judge will interpret a particular case relating to arbitration. The Second Circuit panel in all likelihood really doesn't want to get into rulings on what constitutes reasonable procedure, what constitutes bias or partiality, etc.
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Can someone refresh my memory...despite that transcript didn't Kessler raise the notice issue in his post-hearing brief before Goodell's (most recent, if you count the Vincent as Goodell's) decision? I don't think you've waived it with one line during a transcript passage if you raise it later, particularly with no confirmation-type remark or adequate follow up from the other side.
Huh?
You're asking if, after one side in an adversarial process says their piece, that it's game over?
I think the tricky thing, and what you and edmunddantes are going back and for around, is that while in a general legal sense a 'scheme' or 'conspiracy to' adds weight to the act, on the terms of the NFL rules it does not seem to---the rules don't actually have a prohibition on 'scheme' or 'conspiracy to' other than the underlying violation (which in this case is, if anything, an equipment violation), do they?
I went back and reviewed Berman's opinion. It is based in part upon the equipment tampering regulation, so I assume that this issue was briefed and argued, but I can't recall for sure that it was. If it was, then I don't think that the colloquy cited in the newest NFL brief is a dagger in the heart.
Berman's opinion also rests upon no notice that there would be punishment for being generally aware of misconduct by others; no notice of possible punishment for not turning over his phone; and other notice issues.
As for the equipment violations, Berman cites the lack of notice that such violations could lead to suspension.
He eviscerates the NFL's reference to "conduct detrimental" because it is contained in a manual that is not distributed to players, only to GMs and owners, so Brady had no notice of that concept. In that context he mentions that ball tampering by the Panthers and the Jets kicker with no consequences to the players.
He also based his opinion on Brady's inability to cross-examine Pash and review the NFL investigatory files.
So a sympathetic appellate panel will have plenty of room to affirm if it wants to; or to remand on issues that Berman expressly left open, including Goodell's partiality.
Game is not over.
Berman's opinion also rests upon no notice that there would be punishment for being generally aware of misconduct by others; no notice of possible punishment for not turning over his phone; and other notice issues.
As for the equipment violations, Berman cites the lack of notice that such violations could lead to suspension.
He eviscerates the NFL's reference to "conduct detrimental" because it is contained in a manual that is not distributed to players, only to GMs and owners, so Brady had no notice of that concept. In that context he mentions that ball tampering by the Panthers and the Jets kicker with no consequences to the players.
He also based his opinion on Brady's inability to cross-examine Pash and review the NFL investigatory files.
So a sympathetic appellate panel will have plenty of room to affirm if it wants to; or to remand on issues that Berman expressly left open, including Goodell's partiality.
Game is not over.
Thank you. Yes. There is no provision or precedent for cheating is okay, light fine, but if you suddenly cheat with others or try to hide it from our procedures (which all cheating is attempting to do by design) that we get to hammer you harder. It's illogical.
Thus I find the argument to be kind of weak on the NFL's part, and it actually draws attention to a particular weakness of their case.
I went back and looked at the record before Judge Berman. in its pleadings, the NFLPA did raise the issue of the equipment violation rule and the lack of notice that a violation could result in a suspension. The NFL's brief addressed this issue as follows:
The most recent NFL brief seems to argue that the NFLPA can't raise the equipment violation rule now because it had failed to raise it below. But the NFL's own brief below asserts that the NFLPA did raise the issue at the hearing. Furthermore, the NFLPA pleadings before Judge Berman raise it front and center as a basis for its objection to the Commissioner's ruling, and the NFL replied to that argument in the text quoted above. That text does not even make the argument that the NFLPA failed to raise the issue below. Instead, it cites the NFLPA's having done so and says that the Commissioner considered and rejected the argument.
In other words, the latest NFL filing in nothing more than hot air. Which is not to say that they won't win, but they won't win on the basis of the NFLPA having failed to preserve the argument that Brady had no notice that an equipment violation could result in suspension. In fact, if a party has failed to preserve an argument, it is the NFL, which did not argue to Judge Berman that the NFLPA had admitted that the equipment violation rule did not apply.
The NFLPA argues that the Commissioner may not impose a suspension because the Union thinks that the Player Policy regarding “equipment violations” only put Brady on notice of a potential fine. See Countercl. ¶¶ 107-112. But when the NFLPA made the same argument below, ..., the Commissioner rejected it, finding "Mr. Brady had notice, and in fact was fully aware of, the established rule governing the pressure of NFL games balls . . . and [had] ample reason to expect that a violation of that rule . . . would be deemed conduct detrimental."
The most recent NFL brief seems to argue that the NFLPA can't raise the equipment violation rule now because it had failed to raise it below. But the NFL's own brief below asserts that the NFLPA did raise the issue at the hearing. Furthermore, the NFLPA pleadings before Judge Berman raise it front and center as a basis for its objection to the Commissioner's ruling, and the NFL replied to that argument in the text quoted above. That text does not even make the argument that the NFLPA failed to raise the issue below. Instead, it cites the NFLPA's having done so and says that the Commissioner considered and rejected the argument.
In other words, the latest NFL filing in nothing more than hot air. Which is not to say that they won't win, but they won't win on the basis of the NFLPA having failed to preserve the argument that Brady had no notice that an equipment violation could result in suspension. In fact, if a party has failed to preserve an argument, it is the NFL, which did not argue to Judge Berman that the NFLPA had admitted that the equipment violation rule did not apply.
I'm having trouble finding the post, but I remember this very clearly.
After the NFL's first brief, many here were in a sweat,concerned that things were not going Brady's way and hope was loss. Then one of our resident lawyers suggested that during this process we would ride a roller coaster of emotion. They said to expect to be very concerned after the NFL's first brief, but then we would feel very positive after the NFLPA's reply. Finally they said we would feel down again when the NFL's second brief came and that we would then just have to wait for nature to take its course. There was some general consensus that this is exactly what would happen but we don't know the judges yet, so we should just enjoy the ride the best we can.
But here we are after the NFL's second brief and the tone in this thread is not suggesting that the roller coaster just took a huge plunge down into the Brady getting hosed zone.
How can I now read too much into the events not playing out as they were purported to?
After the NFL's first brief, many here were in a sweat,concerned that things were not going Brady's way and hope was loss. Then one of our resident lawyers suggested that during this process we would ride a roller coaster of emotion. They said to expect to be very concerned after the NFL's first brief, but then we would feel very positive after the NFLPA's reply. Finally they said we would feel down again when the NFL's second brief came and that we would then just have to wait for nature to take its course. There was some general consensus that this is exactly what would happen but we don't know the judges yet, so we should just enjoy the ride the best we can.
But here we are after the NFL's second brief and the tone in this thread is not suggesting that the roller coaster just took a huge plunge down into the Brady getting hosed zone.
How can I now read too much into the events not playing out as they were purported to?
Clement's argument is a double edged sword, and while he may be right on the arguments presented at the hearing, he risks highlighting another of Kessler's arguments. If Kessler is able, he can use this to his advantage.
Clement argues that Kessler took the position that the ball tampering was not an equipment violation. But the context to this is that Brady had not even been implicated in any ball tampering. As is clear from the opening, Kessler was addressing the "generally aware" contention, and not any allegation that Brady was involved in any ball tampering. Therefore, Kessler's opening addressed the NFL's contentions going into the hearing -- that Brady was being punished based only on being "generally aware."
Here's Kessler's opening:
So, while Clement may make some mileage on the primary argument about the ball tampering being covered by the NFL policy, this may lead them into Kessler's other argument about the lack of notice about what Brady was being charged with (or that he was being accused beyond being "generally aware.") If I was a sympathetic judge on the Panel, I would question Clement about this actual prejudice to Brady/Kessler from being unable to address a claim because he went into the hearing not knowing what he was being charged with.
Clement argues that Kessler took the position that the ball tampering was not an equipment violation. But the context to this is that Brady had not even been implicated in any ball tampering. As is clear from the opening, Kessler was addressing the "generally aware" contention, and not any allegation that Brady was involved in any ball tampering. Therefore, Kessler's opening addressed the NFL's contentions going into the hearing -- that Brady was being punished based only on being "generally aware."
Here's Kessler's opening:
This highlights the lack of notice about what Brady was being charged with, and the migration of the claim from "generally aware" into "active participant." Kessler never had the opportunity to address that argument, let alone take a position on it, because the NFL never presented this at the hearing.
So, while Clement may make some mileage on the primary argument about the ball tampering being covered by the NFL policy, this may lead them into Kessler's other argument about the lack of notice about what Brady was being charged with (or that he was being accused beyond being "generally aware.") If I was a sympathetic judge on the Panel, I would question Clement about this actual prejudice to Brady/Kessler from being unable to address a claim because he went into the hearing not knowing what he was being charged with.
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And didn't even know in the hearing what it was he was being punished for, as Goodell went off and decided on a new level of culpability after the hearing.
It's the NFL messing with the arbitration process again, and proving once again this isn't a conventional or normal version that you would see anywhere else. However they want the courts to treat its process as if it's the conventional process deserving of high deference.
It's the NFL messing with the arbitration process again, and proving once again this isn't a conventional or normal version that you would see anywhere else. However they want the courts to treat its process as if it's the conventional process deserving of high deference.
If anyone with access to legal analytics like Lex Machina has some spare time and it would be as easy as I think it would, could you see what the 2nd circuit affirmance rate is in arb cases (probably segregated based on citing the Fed Arb Act or LMRA)? More particularly (although I'm not sure there would be a breakdown for this), cases where an arb award was vacated?
Wait, I'm missing something...where does Clement say that NFLPA can't raise an argument that was not discussed at the Article 46 hearing?
Yeah, good point. That hearing was like being indicted for aggravated assault, and then convicted of manslaughter (and sentenced for murder one).
Clement's claim is that the NFLPA changed its position from "equipment policy doesn't apply" to "equipment policy has to exclusively apply".
I thought the NFLPA has said something to the effect of, "We don't believe this applies BUT EVEN IF IT DID, then the commissioner acted incorrectly..."
Right, Kessler claimed no notice for "general awareness", and so the closest thing for a player are the equipment violations, which stipulate fines for first offenses. It's just so hilarious that Goodell's award was the result of a hearing to contest this finding (from Vincent's discipline letter):
With respect to your particular involvement, the report established that there is substantial and credible evidence to conclude you were at least generally aware of the actions of the Patriots' employees involved in the deflation of the footballs and that it was unlikely that their actions were done without your knowledge. Moreover, the report documents your failure to cooperate fully and candidly with the investigation, including by refusing to produce any relevant electronic evidence (emails, texts, etc.) despite being offered extraordinary safeguards by the investigators to protect unrelated personal information, and by providing testimony that the report concludes was not plausible and contradicted by other evidence.
In defending himself against this allegation, and the outlandish penalty which accompanied it, general awareness became active participation and knowledge became consent. Knowledge became consent! I sure hope Goodell never has anything to do with a rape inquiry.
That's a powerful analogy*.
You're right, your honor, the $5M report I commissioned did not conclude that she gave consent. But then at the hearing the defendant further denied giving consent and destroyed her cell phone. Therefore, I determined she consented. Respect my authority.
(*though imperfect, obviously)
You do a nice job here of highlighting the extent to which the original discipline letter punished Brady for a thought crime.
Hey, maybe the deflation-rape analogies aren't the way to go to achieve a higher intellectual understanding of this thing.
^ just trying to illustrate the significance of the distinction between knowledge and consent. but, fair enough.
I think the reply is good. As I mentioned earlier, I hate having the middle brief in an appeal where the standard of review is not deferential to the district court. The first and last word is a powerful advantage, and I think the NFL did a good job here.
I think Kessler's response on the change in position regarding the the equipment violation probably needs to be that there is no inconsistency -- his position is the same. There either is no notice here or at most the equipment policy applies. But I think the NFL at least has him on the defensive here -- he did not give the arbitrator a fair chance to consider the primary argument he makes on appeal. The NFL also argues that even under the equipment policy, suspensions are ok. I remember that was briefed below, but don't remember what the answer to that one is.
Kessler also didn't do very much in the second brief to pull the sting from the argument he knew the NFL would make -- that Brady wasn't disciplined for "mere awareness" but for his participation in the scheme as found by the arbitrator. I think Wells' testimony that he never told Brady that getting rid of the phone could be a basis for discipline is helpful here.
Kessler has a lot to do in 15 minutes. Unfortunately, winning first is nice but winning last is what matters. And I think this one is very much in the balance.
I think Kessler's response on the change in position regarding the the equipment violation probably needs to be that there is no inconsistency -- his position is the same. There either is no notice here or at most the equipment policy applies. But I think the NFL at least has him on the defensive here -- he did not give the arbitrator a fair chance to consider the primary argument he makes on appeal. The NFL also argues that even under the equipment policy, suspensions are ok. I remember that was briefed below, but don't remember what the answer to that one is.
Kessler also didn't do very much in the second brief to pull the sting from the argument he knew the NFL would make -- that Brady wasn't disciplined for "mere awareness" but for his participation in the scheme as found by the arbitrator. I think Wells' testimony that he never told Brady that getting rid of the phone could be a basis for discipline is helpful here.
Kessler has a lot to do in 15 minutes. Unfortunately, winning first is nice but winning last is what matters. And I think this one is very much in the balance.
This excerpt from Goodell reminds me of a question I've been meaning to ask of the lawyers here for some time. Don't judges notice when one side in a case repeatedly and somewhat obviously lies or misstates facts? And does that influence their decision?
From day one (or whatever day the NFL leaked false pressure numbers to ESPN) the NFL has misstated the facts again and again. In the above excerpt, the part about Brady "refusing to produce any [my emphasis] relevant electronic evidence is a lie. Brady provided a lot of electronic evidence, just not his physical phone. Reading the two NFL briefs to the appellate court, you can find a many more of these misstatements of facts, a.k.a. lies. I'd think that judges wouldn't like being lied to about the facts of the case, even if, maybe especially if, the facts are not supposed to be reargued on appeal.
Another basic, probably naive, legal question:
Does the fact that the NFL initiated legal action ("cleverly" beating the NFLPA to the punch) hurt the NFL's argument that Berman exceeded his authority when he vacated Goodell's decision? I mean, the NFL asked him to rule on the case, after all. Seems to me an odd argument to ask a judge for an affirmation of an arbitration ruling, then claim the judge exceeded his authority when the ruling goes against you.
Does the fact that the NFL initiated legal action ("cleverly" beating the NFLPA to the punch) hurt the NFL's argument that Berman exceeded his authority when he vacated Goodell's decision? I mean, the NFL asked him to rule on the case, after all. Seems to me an odd argument to ask a judge for an affirmation of an arbitration ruling, then claim the judge exceeded his authority when the ruling goes against you.
But he did. See the quoted language in post 1822. In their brief to the district court, the NFL recites the NFLPA having made the argument to the arbitrator (Goodell) and that the arbitrator found it unworthy.
Koufax
I think there are two arguments, which have also been the source of the larger debate above. The equipment violation vs conduct detrimental. The portion you cite from the nfl brief addresses whether Brady had notice of the 12.5 rule, as that was in the manual provided to teams, not players. The current argument however is whether the equipment violation would be the exclusive remedy, precluding the overlapping conduct detrimental discipline. On that point, it is damming that Kessler said he ball would not even be an equipment violation. While it is intellectually possible, it is less compelling to argue that Brady expected this equipment policy that he contended did not apply now would be the exclusive remedy.
I think there are two arguments, which have also been the source of the larger debate above. The equipment violation vs conduct detrimental. The portion you cite from the nfl brief addresses whether Brady had notice of the 12.5 rule, as that was in the manual provided to teams, not players. The current argument however is whether the equipment violation would be the exclusive remedy, precluding the overlapping conduct detrimental discipline. On that point, it is damming that Kessler said he ball would not even be an equipment violation. While it is intellectually possible, it is less compelling to argue that Brady expected this equipment policy that he contended did not apply now would be the exclusive remedy.
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Yeah, I think you're putting a bit too much weight on the NFL having used some not-particularly-careful language in the district court. Kessler either did or didn't argue it at the hearing. Post 1824 seems to include the relevant hearing transcript portions, and from those, I think Clement is making a fair argument in his brief. I think Steve Dillard makes a good point that it's a double edged sword, and that Kessler's argument really was not a concession that the uniform policy doesn't apply, but an "at most" argument, which is slightly different.
But on the main point, I don't think the language you cite from the NFL's brief in the trial court amounts to a concession that Kessler really did argue something he appears not to have argued in the arbitration hearing. The NFL goofed by saying he made the "same argument," and maybe that's a gotcha that can muddy the waters a bit, but what the NFL really meant was "when the NFLPA made a similar [or related] argument below."
I just really don't see how this plays out to well at oral argument here, unless what Kessler wants to argue is that the NFL has waived the right to make this argument:
Mr. Kessler, your client did not make the equipment violation argument the same way before the arbitrator as you're making it now, did it? There, you said applying that provision to game balls required you to be "creative" but now you're saying it's so patently obvious that the provision applies to ball as to make it improper for the NFL to deny the equipment violation provision -- as opposed to the conduct detrimental provision -- applies here.
No, I didn't say that at the arbitration hearing.
Yes you did. I'm reading the transcript.
Please ignore the transcript. Instead, please look at this portion of the NFL's brief in the trial court where they concede that in the arbitration I made the "same" argument as I was making in the district court.
Really, Mr. Kessler?
Your Honor, we did not make that argument because at the hearing Mr. Brady was charged with being "generally aware" of a violation. The new allegation that Mr. Brady actually was part of a scheme to tamper with the balls was not in the Vincent letter or the Wells Report.
It was only after the Commissioner created new charges -- for the first time in his decision alleging that Mr. Brady engaged in a completely different violation -- that we could have addressed the issue of what sort of punishment could be imposed for that activity.
The NFL perfectly highlights the actual prejudice suffered by Mr. Brady by being charged with one type of violation -- being generally aware -- and then long after the arbitration hearing, being found guilty of a completely different violation.
To phrase it slightly differently, we stand by the assertion that being generally aware of something is not a violation of the equipment policy. But if the new charge is that you participated in the ball tampering, that would be an equipment violation.
This argument frames, more succinctly than we could have expected the NFL to do, the completely improper nature of the arbitation hearing which resolved issues that had not even been alleged against Mr. Brady at the hearing.
It was only after the Commissioner created new charges -- for the first time in his decision alleging that Mr. Brady engaged in a completely different violation -- that we could have addressed the issue of what sort of punishment could be imposed for that activity.
The NFL perfectly highlights the actual prejudice suffered by Mr. Brady by being charged with one type of violation -- being generally aware -- and then long after the arbitration hearing, being found guilty of a completely different violation.
To phrase it slightly differently, we stand by the assertion that being generally aware of something is not a violation of the equipment policy. But if the new charge is that you participated in the ball tampering, that would be an equipment violation.
This argument frames, more succinctly than we could have expected the NFL to do, the completely improper nature of the arbitation hearing which resolved issues that had not even been alleged against Mr. Brady at the hearing.
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It's not a terrible argument, but I think it has the disadvantage of not actually being true. I think Kessler did actually switch positions, or at least decided somewhat midstream that it was better to ride the equipment violation provision instead of saying there was no notice at all. Kessler didn't say during the arbitration that the problem with applying the equipment violation policy was that Brady was only charged with a general awareness crime. (Or maybe he did in fact say that, but it's clearly not all he said.) He said he didn't think it applied because he didn't think that policy applies to balls. And all the NFL really is saying here is, "he was right -- it was obvious to him at the time, it's obvious now, and he's turning on his heel for expediency."
I think you do as much as you can with it by saying that Kessler's change in position "was in the context" of thinking it was a general awareness violation. But "was in the context of" is clearly a lawyer's argument. He apparently said he didn't think the policy applied to balls. (I'm only going by the transcript stuff you quoted, though, so maybe there's more to actual transcript that would help.) The fact that Goodell changed it up from general awareness to something more devious doesn't suddenly make a policy that Kessler said he thought wasn't about balls be one that's suddenly about balls.
And it doesn't mention balls at
8 all, but I'm trying to be creative. Was there
9 anything that could possibly apply to this? And
10 what it specifically says under this thing is the
11 first offense will be a fine. That's what it says.
12 This is Mr. Brady's -- we don't believe it
13 did anything, but this would be a first offense even
14 if it came under this policy, which we don't believe
15 this policy applies either, because there is nothing
16 here about the balls.
I think you do as much as you can with it by saying that Kessler's change in position "was in the context" of thinking it was a general awareness violation. But "was in the context of" is clearly a lawyer's argument. He apparently said he didn't think the policy applied to balls. (I'm only going by the transcript stuff you quoted, though, so maybe there's more to actual transcript that would help.) The fact that Goodell changed it up from general awareness to something more devious doesn't suddenly make a policy that Kessler said he thought wasn't about balls be one that's suddenly about balls.
And it doesn't mention balls at
8 all, but I'm trying to be creative. Was there
9 anything that could possibly apply to this? And
10 what it specifically says under this thing is the
11 first offense will be a fine. That's what it says.
12 This is Mr. Brady's -- we don't believe it
13 did anything, but this would be a first offense even
14 if it came under this policy, which we don't believe
15 this policy applies either, because there is nothing
16 here about the balls.
That's true, but it's hard to see how the applicability of the equipment provision could turn on Brady's level of involvement (general awareness or active participation). Tampering with footballs is either an equipment violation (and thus not properly "conduct detrimental"), or it isn't.
That said, the arbitrator making a finding (active involvement) that was never alleged by a party seems like a breach of his statutory authority. In the case of reversal, I'd hope for a remand on this point...
Edit: DD'sB post of 10 seconds prior renders the above largely superfluous.
That said, the arbitrator making a finding (active involvement) that was never alleged by a party seems like a breach of his statutory authority. In the case of reversal, I'd hope for a remand on this point...
Edit: DD'sB post of 10 seconds prior renders the above largely superfluous.
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"Your honor, at the time of the arbitration hearing, my client had been suspended for general awareness of ball tampering. We argued (and still maintain) that it was and is not clear that the equipment tampering policies provided to the players were applicable to those who were 'generally aware' of another's misconduct. Perhaps the NFL would agree with us, because it was only after this hearing that the NFL changed its tune and found my client to have been an active participant in a scheme (an accusation that was not even made in the $5 million Wells report) and because the league has previously chosen to turn a blind eye to a player's general awareness of ball tampering by other individuals. At the hearing it was only appropriate to defend my client against the findings that had already been made by the NFL, not against the whole universe of potential new findings that might emerge.
Moreover, the reason I argued that despite not clearly being applicable, the equipment tampering policy represented an upper limit on potential penalties was also tied to the NFL's initial finding of 'general awareness'. If the penalty for a first-time finding of equipment tampering by one player is a $5512 fine, it makes no logical sense that a second player, found to be generally aware of the first player's actions, should be subject to a multi game suspension."
No?
Well, its a wonderful monday morning argument, given that we did not highlight it at the time, but...
An undercurrent throughout Brady's appeal is the limited and technical aspect of his argument(s). Amicus points this out. Others on the thread have questioned the concept of the technicality, i.e., whether an equipment violation means it is the exclusive remedy that precludes separate "conduct detrimental" punishment.
With the benefit of hindsight -- seeing this early "admission" -- it leaves Kessler somewhat exposed. I think a lot of the traction he gained with Berman was Berman's engagement in exploring the sham of the hearing, and the weakness of the Commiss's resolutions.
Kessler seems to have deliberately moved away from those aspects because of the highly deferential standard that an appellate court would likely apply (even if Berman gave them wider berth on that).
Let's hope he can bring in enough "injustice" so that the Appellate Judges are inclined to cut him some slack on his earlier position.
Plainly, Clement has already earned his money, having presented a far better argument than the NFL mustered at the first phase.
An undercurrent throughout Brady's appeal is the limited and technical aspect of his argument(s). Amicus points this out. Others on the thread have questioned the concept of the technicality, i.e., whether an equipment violation means it is the exclusive remedy that precludes separate "conduct detrimental" punishment.
With the benefit of hindsight -- seeing this early "admission" -- it leaves Kessler somewhat exposed. I think a lot of the traction he gained with Berman was Berman's engagement in exploring the sham of the hearing, and the weakness of the Commiss's resolutions.
Kessler seems to have deliberately moved away from those aspects because of the highly deferential standard that an appellate court would likely apply (even if Berman gave them wider berth on that).
Let's hope he can bring in enough "injustice" so that the Appellate Judges are inclined to cut him some slack on his earlier position.
Plainly, Clement has already earned his money, having presented a far better argument than the NFL mustered at the first phase.
Eddie -- I like that argument, but I do think he got a bit trapped here given the quote about balls.
In the end, I think Steve's right. I think either you're left with a view that it was a kangaroo court or you're not, and Berman was -- and if you are, you find a way to reverse Goodell's decision whatever the standard. It was always a concern that this would get lost a bit on the dry record of an appeal, but it's kind of hard to say in the end. I still think a fair amount of the NFL's hubris comes through here, and hopefully that helps. And I can guarantee that Kessler is going to have a very excellent answer on the change in position question, because there seems little doubt he'll have to address it.
In the end, I think Steve's right. I think either you're left with a view that it was a kangaroo court or you're not, and Berman was -- and if you are, you find a way to reverse Goodell's decision whatever the standard. It was always a concern that this would get lost a bit on the dry record of an appeal, but it's kind of hard to say in the end. I still think a fair amount of the NFL's hubris comes through here, and hopefully that helps. And I can guarantee that Kessler is going to have a very excellent answer on the change in position question, because there seems little doubt he'll have to address it.
I looked at the transcript from the hearing (exhibit 204 to the NFPLA amended answer in the district court proceeding). While there is some argument there, it is important to note that Kessler acknowledged that the place for putting arguments together was in the briefs.
Which takes us to the brief (exhibit 205). The NFLPA brief to the arbitrator is directed to lack of notice (A) of the Competitive Integrity Policy, which is not distributed to players, (B) the ""General Awareness" standard, and (C) possible discipline for failure to cooperate. The brief does not try to characterize the "equipment violations" rule as an exclusive remedy. It mentions it in connection with the Competitive Integrity Policy, but only as part of the "general awareness" argument. That is, even if Brady had been generally aware of equipment tampering by the staff, he was not on notice that being generally aware of it would be punishable.
So yeah, it sounds as though the NFLPA has made a new issue its primary argument on appeal. I was thrown off by the NFL brief, which mischaracterized what had happened at the hearing.
Which takes us to the brief (exhibit 205). The NFLPA brief to the arbitrator is directed to lack of notice (A) of the Competitive Integrity Policy, which is not distributed to players, (B) the ""General Awareness" standard, and (C) possible discipline for failure to cooperate. The brief does not try to characterize the "equipment violations" rule as an exclusive remedy. It mentions it in connection with the Competitive Integrity Policy, but only as part of the "general awareness" argument. That is, even if Brady had been generally aware of equipment tampering by the staff, he was not on notice that being generally aware of it would be punishable.
So yeah, it sounds as though the NFLPA has made a new issue its primary argument on appeal. I was thrown off by the NFL brief, which mischaracterized what had happened at the hearing.