Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only
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Why so pessimistic?
As much as I enjoy reading the knowledgable and detailed analysis of the legal briefs, it seems to me the case boils down to whether at least two of the three appeals court judges buy the NFL's argument that Goodell's decision was, in the NFL's words "eminently reasonable," or whether they instead agree with Berman that the NFL's investigation and arbitration process was fundamentally flawed. From Berman's decision:
"Although judicial scrutiny of arbitration awards is necessarily limited... the deference due an arbiter does not extend so far as to require a district court to countenance, much less confirm, a reward obtained without the requisites of fairness and due process." (Berman p.18)
Was Berman correct or not in his finding that the NFL's investigation and arbitration were both unfair and in violation of the principles of due process? Isn't that the central question before the appeals court?
Here's the problem with the NFLPA argument.
Suppose that a player really was involved in some novel cheating scheme that really did have a substantial effect on fair competition. But this novel scheme was something that no one had ever thought of before, and it involved activities that the CBA never really addressed. Then it would be entirely reasonable to suspend the player for "conduct detrimental". (I would even say that's the entire purpose of the "conduct detrimental" language in the first place.) In that case, hiding behind "notice" would seem like an incredibly weak argument.
It's always felt like a much stronger argument to say that the entire process for reaching those findings was so fundamentally flawed that it cannot stand: (1) Brady never had an opportunity to rebut the factual findings, (2) the Commissioner completely deviated from the factual findings anyway, and (3) there was no opportunity to rebut the Commissioner's newly-invented findings.
Suppose that a player really was involved in some novel cheating scheme that really did have a substantial effect on fair competition. But this novel scheme was something that no one had ever thought of before, and it involved activities that the CBA never really addressed. Then it would be entirely reasonable to suspend the player for "conduct detrimental". (I would even say that's the entire purpose of the "conduct detrimental" language in the first place.) In that case, hiding behind "notice" would seem like an incredibly weak argument.
It's always felt like a much stronger argument to say that the entire process for reaching those findings was so fundamentally flawed that it cannot stand: (1) Brady never had an opportunity to rebut the factual findings, (2) the Commissioner completely deviated from the factual findings anyway, and (3) there was no opportunity to rebut the Commissioner's newly-invented findings.
If it's not addressed in the rules, how could it possibly be cheating? By definition a rule violation must have a rule that it is violating.
A defendant never has the opportunity to debut the factual findings of the ultimate fact-finder. The problem with the facts here is that there was a moving target. Brady thought he was accused of being "generally aware" but the fact-finder concluded that he was the ring-leader. So that ends up looking like a notice argument -- he had no notice of the crime that he was being accused of.
There's no rule which explicitly prohibits pouring a slippery substance all over an opponent's sideline, in order to degrade their ability to perform on the playing field, but such an action could likely be properly considered "conduct detrimental", and sanctioned rather severely...
Yeah, but that's not really how NFLPA is describing the situation, is it? The notice issue, per NFLPA, is that Brady had no reason to believe that the actions he took (if he indeed took those actions) were against the rules. If it were just a matter of bait-and-switch, then Berman would have remanded back to Goodell for a new hearing on the amended accusation. But Berman's finding on notice would preclude any sort of suspension for the activities that Brady was accused of.
Kessler makes both arguments. From the appellee brief:
"Further, under longstanding law that arbitrators may not “exceed[] the scope of the [parties’] submission” (Enter. Wheel, 363 U.S. at 597), Goodell lacked au- thority to affirm Brady’s suspension based on alleged “participat[ion]” in a “scheme” that was not the basis for Vincent’s discipline of Brady."
To which, Clement responds:
"To the contrary, he made findings based on, among other things, the new evidence that Appellees themselves brought to light and Brady’s credibility in light of that new evidence. Surely Appellees cannot mean to suggest that the Commissioner’s fact finding was limited to only those new facts that would have benefitted Brady. The whole point of the appeal hearing was to give the Commissioner an opportunity to hear additional evidence and to reconsider his initial findings and discipline. Nothing in the CBA prohibited him from considering all the available evidence and concluding that Brady’s misconduct was even worse than he had initially thought."
I suppose Goodell could have concluded that Brady attempted to murder his children, based on the destruction of the cell phone and the feeling he got looking into TB12's eyes?
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Was there ANY new evidence that supported that Brady participated in a scheme, etc.? I don't recall any.
Will Kessler point out during oral argument that even if new evidence to support Goodell's findings could have been considered, there was none offered?
My recollection is that Goodell went from what Wells concluded (more probable than not generally aware) to the scheme nonsense out of whole cloth. Am I mis-remembering?
All I can remember was the adverse inference from Brady's destruction of the phone and his "denial that he spoke to JJ about football inflation in the days/weeks following the AFCCG" which was, of course, Goodell outright lying about Brady's testimony. Was there more?
Again, does the fact that Goodell and the NFL have repeatedly and obviously lied in briefs to the district and appellate courts damage their argument? Or is it acceptable to "stretch" the truth when writing briefs? I'd think that judges would be annoyed at a minimum and more likely pissed off by that kind of behavior.
Well, the heart of the NFL's argument has been that the courts shouldn't second-guess Goodell's fact finding, so, presenting those "facts" in such a way as to invite disagreement from the NFLPA allows them to demonstrate just such second-guessing.
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Sure, but there's fact-finding and "fact-finding." I don't think arbitrators who just make shit up are due judicial deference. If Goodell suspended Brady for being generally aware of or orchestrating 9/11, no judge is going to buy the "the arbitrator deserves deference" argument.
But I'm not talking only about fact-finding or fact-inventing. I'm talking about misrepresenting things that are in the legal record. Making stuff up based on the investigation is one thing. Making stuff up about what Kessler argued or what Berman said that are contradicted by the legal record is quite another.
MarcSullivanFan - did you ever get to read all 3 together? Very interested in your take on the status going forward.
I know this was posted to death in the other thread, but don't underestimate the legal impact of the front page of the NY Times story saying the underlying science was bs. Second Circuit judges read the stories, and it does play into their understanding of fairness, which Judge Berman saw, but the dry appellate briefs didn't explain. http://mobile.nytimes.com/2016/01/23/sports/football/nfl-ignores-ball-deflation-science-at-new-england-patriots-expense.html?referer= We've all seen that outcome rather than process is often the single largest predictor of appellate decisions. With this article, about a month from argument date, summarizing the science, a few judges will be seeing this as they are snow bound in Manhattan.
+1.
These men and women are in somewhat of a bubble, but they are not shut off from the real world. They read, they watch, they listen and they think.
Despite the unremitting negativity, paranoia and triumph of victimhood here -- just look at the various thread titles, and the one on worst losses has to take the fucking cake in its timing -- the narrative is shifting. And it will continue to shift if the Pats play impressively tomorrow and, if they win, two weeks from tomorrow.
No, this isn't getting those draft picks back, but it will have an unmeasurable impact on the Brady case. Judges are human, and they can smell bullshit a mile away.
These men and women are in somewhat of a bubble, but they are not shut off from the real world. They read, they watch, they listen and they think.
Despite the unremitting negativity, paranoia and triumph of victimhood here -- just look at the various thread titles, and the one on worst losses has to take the fucking cake in its timing -- the narrative is shifting. And it will continue to shift if the Pats play impressively tomorrow and, if they win, two weeks from tomorrow.
No, this isn't getting those draft picks back, but it will have an unmeasurable impact on the Brady case. Judges are human, and they can smell bullshit a mile away.
Joe Nocera is a highly respected financial reporter. For him to categorically state that the owners, seeking revenge, threatened thecommissioner/arbiter with repercussions if he did not punish the Patriots severely, despite junk science--well, that has to draw the court's attention.
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Speaking of the influence of the NYT, did anyone see their 3 part series on arbitration, starting with Arbitration Everywhere, Stacking the Deck of Justice? As the title suggests, the articles are highly critical of the practice of corporations using arbitration clauses to prevent customers and employees from taking disputes to courts, and instead being forced to go to arbitration hearings that are heavily stacked in favor of the corporations. Our ginger friend also makes an appearance:
Even some N.F.L. cheerleaders have had to agree to them. When a group of cheerleaders sued the Oakland Raiders over working conditions, they discovered that Roger Goodell, the N.F.L. commissioner, would preside over the arbitration. The Raiders later agreed to use someone else.
But there are a number of other examples of "stacking the deck", including an arbitration case where during a break in the hearing, the arbitrator and corporate lawyer went to lunch together in matching sports cars (not making this up).
The judges responsible for this situation can't be happy about the scrutiny. So they might be leery of drawing any more attention by endorsing the NFL's farcical arbitration.
One more thing for them to think about. A bi-partisan bill has been introduced in the US Senate to allow military service members to opt out of arbitration clauses (S.2331 - SCRA Rights Protection Act of 2015). While it only affects service members, the implied indictment of arbitration practices is clear. One of the co-sponsors is RI Sen. Reed. Again, court endorsement of the NFL arbitration farce can only encourage other NE senators to join the effort, and to make passage a priority.
The rise of arbitration generally is indeed a real issue, maybe most particularly recently within credit card agreements as far as the average consumer is concerned, but the narrowness of the latitude given to a faux-monopoly like the NFL to adjudicate disuptes, I think, makes this case not all that interesting in that realm overall. IANAL.
Searching back in this thread it looks like the NFL's appeal will be heard on March 6th. We've been told over and over again that the selection of the three judges will have the greatest affect on who wins this round. When would we find out the Judge's names? Will it be weeks before the appeal or days?
No, sorry to interject if it comes out in an obtuse manner, but that's not really correct. Judges' ideologies tend to matter only on the margin. Most cases (and probably this one) will be decided doctrinally. It is the record and the law that will have the greatest effect on who wins.
That makes me feel much about about the appeal but the tenor in this thread (at least early on) was that Brady's fate would be decided by the luck of the draw on the judges. I have zero experience with this so I'm just going off of what was said here, but I sure hope you're right.
The NFL decided PSI level was such an important integrity of the game issue that they created explicit regulations outlining the in-depth procedures officials would be taking to measure and record PSI levels as part of "random" testing throughout the season. These regulations included that measurements must be taken, recorded, and then sent to the league office. The NFL then indicated the results would be made public. Flash forward to the end of the season, no measurements provided and it's possible there were either never records taken or they were taken and destroyed.
I know none of this made it in time for briefs, but I have to think this information is making its way into arguments.
I know none of this made it in time for briefs, but I have to think this information is making its way into arguments.
This is a close case that could go either way IMO. So who is on that three-judge panel will matter. Not because any of them are corrupt or Jets fans. And not because any of them are "liberal" or "conservative" in a political sense, though both are amply represented on that court. But because they have varied judicial philosophies and approaches to matters like this.
Some of us have experience in that court and a few of us are likely to have argued before at least one of the judges who will end up on the Brady panel. We'll weigh in with educated guesses and evaluations when the panel is known.
DC and other lawyers....
Does the slam-dunk-ness of Berman's ruling lead any of you to believe that even those diverse judicial philosophies might not be enough to overturn? Because as close a case as some of you say this is, his ruling seemed really, really definitive. Obviously, he's a judge and, in what I assume is a very real way a judge's whole job is to be some degree of "definitive," but surely there are myriad decisions handed down, whose presiding judges acknowledge some gray area or close-call-ness within his/her ruling.
I guess what I'm asking is, Is there any reason to be reasonably heartened by the fact that Judge Berman came off as pretty clearly in favor of the NFLPA? Or do I have that wrong?
Does the slam-dunk-ness of Berman's ruling lead any of you to believe that even those diverse judicial philosophies might not be enough to overturn? Because as close a case as some of you say this is, his ruling seemed really, really definitive. Obviously, he's a judge and, in what I assume is a very real way a judge's whole job is to be some degree of "definitive," but surely there are myriad decisions handed down, whose presiding judges acknowledge some gray area or close-call-ness within his/her ruling.
I guess what I'm asking is, Is there any reason to be reasonably heartened by the fact that Judge Berman came off as pretty clearly in favor of the NFLPA? Or do I have that wrong?
He wrote a strong, well reasoned opinion. That always helps. His ruling does not formally carry a presumption of correctness, but it will require 2 of the 3 judges to reverse him, so from a process standpoint this is far from a completely entirely arbitrary situation. Reversal rates from the SDNY tend to be low, and Berman is pretty highly regarded.
You have all that going for you. But slam dunk, no. Not close.
You have all that going for you. But slam dunk, no. Not close.
We're gonna have to define "not close," because while it is certainly not a "slam dunk," it is a high likelihood. Maybe not quite around Berman's standard 92% because some of those cases are slam dunks, but it's still high. There's also the human element at play here if we get judges who pay attention to any of the science-related briefs or can be influenced by the NFL's farsical follow-up this season.
PSA to ANALs - Lawyers are pessimists and worriers by nature. Could Brady lose? Yes. Is it a realistic possibility. Yes. Will he lose? Very unlikely.
Edit - Thinking about it, I would probably agree it's not close to a slam dunk (99+%), per se, but I am far more optimistic overall. I wouldn't call the overall case "close." Clear advantage Team Brady to me.
PSA to ANALs - Lawyers are pessimists and worriers by nature. Could Brady lose? Yes. Is it a realistic possibility. Yes. Will he lose? Very unlikely.
Edit - Thinking about it, I would probably agree it's not close to a slam dunk (99+%), per se, but I am far more optimistic overall. I wouldn't call the overall case "close." Clear advantage Team Brady to me.
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I'm going to side with DC Missle, and say this one is too close to call, hardly the "very unlikely" prediction of Ed Hillel. The appellate court will make its own judgment, and will not defer to what Berman wrote, so while his views provide a slight advantage, the appeal is a blank slate. I think the NFL did a far better job on the appellate papers, limiting the arguments to technical issues. Kessler scored most of his points when Berman chose to dig into the facts far more than most judges might. With a sterile record lacking a back story, and then with the fact that Brady leads with an argument that Kessler had undercut in the arbitration, and it is a very close call. I went back and re-read Berman's decision and was heartened by how it reminds of the better side of the story and how things could be decided. But if you just read the technical arguments in the appellate briefs, it is a close call. Close enough that the panel of judges will matter. And any awareness of the NFL bias (which is the "real" issue highlighted by the facts, but which probably does not rise to the legally required bias) might sway the more liberal of the judges.
Let me rephrase him for you Ed
"I'm a professional. I set expectations properly for my clients, and I do not wish to be wrong. So I NEVER tell anyone a case is a slam dunk."
Not to get too far off topic, but when did this happen? I thought we'd been debating this point until this past week when Goodell finally commented on it.
@dcmissile: I don't think this is a "slam dunk," per se, but if I were a betting man I'd give 5:2 odds. The facts are so ugly that even if on doctrine the Panel wanted to reverse, it would likely sculpt the opinion to avoid the doctrinal issues. The thread and analysis is too often focused on the law (sensible for a "legal issues only" thread), at the expense of the real impact that facts have on judges.
I assume this is a joke or a publicity stunt, but it has me wondering, do consumers of sporting events, say season ticket holders, have any legal standing in matters like this?
"As shared by Sports Illustrated legal analyst Michael McCann, Derochea filed a consumer complaint with the Massachusetts Attorney General’s Office on Friday in an effort to regain the draft picks the Patriots lost in Deflategate."
http://nep.247sports.com/Bolt/Patriots-fan-files-consumer-complaint-against-NFL-43514321
"As shared by Sports Illustrated legal analyst Michael McCann, Derochea filed a consumer complaint with the Massachusetts Attorney General’s Office on Friday in an effort to regain the draft picks the Patriots lost in Deflategate."
http://nep.247sports.com/Bolt/Patriots-fan-files-consumer-complaint-against-NFL-43514321
I'm not sure they have to, per se. Because they're not suing the NFL directly. They're filing a consumer fraud complaint with the Massachusetts AG's office, and if the AG's office took it up it would be investigating consumer fraud committed by the league office against the consumers of the state of Massachusetts. It likely doesn't go anywhere as I'm sure the billionaire boy's club will be on the phone to Kraft to get him to nip this in the bud if it ever became an issue.
Kraft nips this in the bud, how? Calls the AG and tells him what to do, or calls the fan and buys him?
Once the complaint's filed the fan is, more or less, out of it. The Attorney General's office would be conducting its own investigation. I am relatively certain that the Patriots, if/when the AG investigators called would ask them to please not take the matter any further. Well, Bob anyway. No telling what Jonathan would do.
However, it would still be hilarious if the AG's office deposed Goodell and decided to share the tapes with the world.
However, it would still be hilarious if the AG's office deposed Goodell and decided to share the tapes with the world.
Lawyers, help us out here, does this actually qualify? I mean earlier today I thought it funny but most likely to die on the vine, but don't some of the regional casinos have sports books? Does that imply that the WWEification of the league actually does constitute consumer fraud?
EDIT: I guess the season ticket holders would be the ones directly effected and therefore give the AG's office its opening if it really wanted to go there.
EDIT: I guess the season ticket holders would be the ones directly effected and therefore give the AG's office its opening if it really wanted to go there.
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People are sort of dancing around this. This isn't just "likely to go nowhere." If this were filed in a court as a lawsuit under 93A, there's a likelihhod, IMO, that if asked, a judge would find it frivolous and sanction the filer. That Goodell is a shitty Commissioner (according to many, but not nearly all, maybe not even close to a majority) who makes questionable decisions, is not a ground for fraud. And this statement is false: ". . . . by wrongfully taking away draft picks of the New England Patriots, who were absolved of wrongdoing (see Ted Wells Report)." You can't say OJ was convicted of murder.
This is first-year law student-level stupid, as applied to the Patriots and the NFL.
I'm not surprised McCann re-tweeted it though, stupidity notwithstanding. Who you gonna call to get a comment? I wish he'd grab onto the back of a departing campaign bus and skitch out of NH.
Now that you mention it, 93A was the way to go as it provides for treble damages. If the guy won, the Pats would've gotten 3 first round picks.
Yup. McCann is on his 13th and a half minute. You have the Second Circuit argument, the decision. And then a very, very high likelihood this goes away for good, putting us all out of our misery.
What about saying you're going to conduct an independent investigation and then not doing so? Running a rigged investigation would be questionable, but doing so after saying the investigation is going to be independent sounds fraudulent, at least in the common meaning of the word.
This post deserves some love.
I don't think its "consumer fraud" in any sense of how I understand consumer fraud, but MMV.
Someone ought to shoot these posts before they breed.
The Massachusetts Attorney General has broad powers to investigate fraud and bring civil actions on her own under ch. 93A, which prohibits not just fraud, but unfair and deceptive trade practices.
The chances of it happening here are less than zero.
The Massachusetts Attorney General has broad powers to investigate fraud and bring civil actions on her own under ch. 93A, which prohibits not just fraud, but unfair and deceptive trade practices.
The chances of it happening here are less than zero.
