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

DennyDoyle'sBoil

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So if it is reversed, that basically means the NFL's original appeal is upheld, correct? And then the NFL will just suspend Brady the 4 games and it is over?
Yes. To be technical, the NFL already has suspended Brady for four games, and then Bermann vacated that order. If the Second Circuit reverses here, they will reverse the vacating of the suspension, which will leave it in place.
 

JokersWildJIMED

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So if it is reversed, that basically means the NFL's original appeal is upheld, correct? And then the NFL will just suspend Brady the 4 games and it is over?
I suppose Roger could decide to unilaterally reduce or eliminate the penalty in the interest of fairness.
 

troparra

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No, he found it unnecessary to reach the issue because he ruled for Brady on other grounds.
Okay, but (B) and (C) from his decision discuss bias. Doesn't it?
(B) Commissioner Goodell Improperly Denied Brady the Opportunity to Examine Designated Co-Lead Investigator Jeff Pash
....The Court finds that Commissioner Goodell's denial of Brady's motion to compel the testimony of Mr. Pash was fundamentally unfair and in violation of9 U.S.C. § !O(a)(3).
....Denied the opportunity to examine Pash at the arbitral hearing, Brady was prejudiced. He was foreclosed from exploring, among other things, whether the Pash!Wells Investigation was truly "independent," and how and why the NFL' s General Counsel came to edit a supposedly independent investigation report.
(C) Commissioner Goodell Improperly Denied Brady Equal Access to Investigative Files
The Court finds that Commissioner Goodell's denial of the Players Association's motion to produce the Paul, Weiss investigative files, including notes of witness interviews, for Brady's use at the arbitral hearing was fundamentally unfair and in violation of9 U.S.C. § 10(a)(3) and that Brady was prejudiced as a result.
 

Tim Salmon

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Okay, but (B) and (C) from his decision discuss bias. Doesn't it?
No, those paragraphs relate to "fundamental fairness" in the context of the federal arbitration statute. There's some overlap in the facts that tend to show fundamental unfairness and the facts that tend to show bias, but they're discrete issues, and Judge Berman didn't address the latter.
 

nothumb

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Not a lawyer here, but it seems like Berman's decision touched on a couple of areas - notice, bias, etc. What happens if the court agrees with him on some, but not all of those points? Can they affirm, but on narrower grounds? Might that explain some of the questions today?
 

WayBackVazquez

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At one point Kessler became exasperated with the judges. “I sense that you all are influenced by your version of the facts.”

We saw this coming months ago.

On another note, having listened to the Peterson argument, I'd feel a lot better if the union brought in an elite appellate lawyer. Kessler's passion and everyman schtick certainly works in some circumstances, but I don't think it plays too well in front of a federal appellate panel.
As to his appellate experience, 30 arguments is not a particularly high number for someone with his career length. Clement may have done 30 this year. In any event, I don't think anyone here was questioning his experience; rather some of us question whether he's the best man for the job. I count myself among those because having listened to him in the Peterson case before the Eighth Circuit, I don't think he's very good at it.

***

But his appellate style doesn't work for me at all. At argument, you want to be measured, concede points when necessary, and answer the questions that have been asked, while deftly trying to highlight why you should win. The best of the best seem entirely reasonable even when arguing novel concepts. ... I just find Kessler to be too much a bull in a china shop, and wish the union would choose differently, but so be it.
 

WayBackVazquez

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Not a lawyer here, but it seems like Berman's decision touched on a couple of areas - notice, bias, etc. What happens if the court agrees with him on some, but not all of those points? Can they affirm, but on narrower grounds? Might that explain some of the questions today?
They can affirm on any grounds supported by the record. I wouldn't pin my hopes on them doing so based on evident partiality.
 

Bleedred

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At one point Kessler became exasperated with the judges. “I sense that you all are influenced by your version of the facts.”

We saw this coming months ago.
Wow...what a huge tactical mistake if it is actually the case that Kessler was out of his element and Brady could have had Ted Olsen at his disposal.
 

bsj

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I was under the faulty impression appeals were based not on the facts of the case but on whether or not the court misinterpreted the law. It seems to me that a lot of the dfiscussion here is about the merits of the case. Sigh.
 

bankshot1

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I was under the faulty impression appeals were based not on the facts of the case but on whether or not the court misinterpreted the law. It seems to me that a lot of the dfiscussion here is about the merits of the case. Sigh.
To coin a phrase, it appears the goal posts (or cell phones) were moved today
 

dhappy42

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Just finished reading some of the reports out of the appeals hearing about how the judges peppered Kessler and Clement with questions about facts or "facts" in the Wells report. I thought the appeals court was supposed to focus on the law, i.e. whether Berman applied it correctly, not things like how many seconds Jastremski was in the men's room, why Brady destroyed his cell phone and whether or not balls -0.2 psi under regulation give a team a competitive advantage.
 

bsj

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Just finished reading some of the reports out of the appeals hearing about how the judges peppered Kessler and Clement with questions about facts or "facts" in the Wells report. I thought the appeals court was supposed to focus on the law, i.e. whether Berman applied it correctly, not things like how many seconds Jastremski was in the men's room, why Brady destroyed his cell phone and whether or not balls -0.2 psi under regulation give a team a competitive advantage.
Ha I basically just said the same thing
 

scotian1

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Shouldn't this appellate case be based on whether or not Berman's ruling was based on the correct interpretation of the law not about cell phones or whether 2 of the judges thought Brady was guilty. Not understanding why it seemed Brady guilt or innocence was being discussed.
 

WayBackVazquez

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There is a quaint notion out there that facts don't matter on appeal-that's where you argue about the law; facts are for sissies and trial courts. The truth is much different. The law doesn't matter a bit, except as it applies to a particular set of facts. So you will find that judges at oral argument often have a lot of questions about the record. Which makes sense. After all, we can read the cases just as well as you can. Often, one or another of the judges has written the key case, so what can the lawyer really contribute to the panel's understanding of it?
- Judge Kozinski
 

dcmissle

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I was under the faulty impression appeals were based not on the facts of the case but on whether or not the court misinterpreted the law. It seems to me that a lot of the dfiscussion here is about the merits of the case. Sigh.
Oral argument is for the judges, not the lawyers. They can ask what they want. They may have understood perfectly well all the arguments set forth in the briefs and decided to spend their time this way for their own reasons that they need not account to us for.

I'll withhold any judgment until I read the transcript.

Nobody should be surprised that, at least atmospherically, today appears to have been quite challenging. Some of us have been warning the "slam dunk" crowd about this for many months now.
 

Tim Salmon

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Oral argument is for the judges, not the lawyers. They can ask what they want. They may have understood perfectly well all the arguments set forth in the briefs and decided to spend their time this way for their own reasons that they need not account to us for.

I'll withhold any judgment until I read the transcript.

Nobody should be surprised that, at least atmospherically, today appears to have been quite challenging. Some of us have been warning the "slam dunk" crowd about this for many months now.
This is an important point. Sometimes judges wear their decisions on their sleeves, but sometimes they just ask hard questions to give counsel an opportunity to quell any nagging doubts. In my office, the appellate team prepares the arguing attorney for Circuit Court hearings by peppering him/her with aggressive questions and comments, even if it's something as outlandish as, say, calling the evidence of ball tampering "compelling."

From the media coverage, today's hearing sounded like a sneak peek of the decision, but it really is too soon to tell.
 

dhappy42

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FWIW, in her column today, WaPo's Sally Jenkins hangs her hat on Blecker's amicus brief, suggesting the court remand the case to Berman and tell him to explore the allegations and insinuations of NFL dishonesty to find evidence to support his ruling.

"Normally, judges shouldn’t interfere in arbitration. Courts give “presumptive validity” to arbitrator decisions, and judicial action is only acceptable in the most extraordinary circumstances where there are “severe transgressions” such as “dishonesty,” the NFL argued in it own filings. Bingo. Exactly those circumstances exist, Blecker declares in his brief, which the appellate court posted on the case docket."

https://www.washingtonpost.com/sports/redskins/in-deflategate-who-is-the-real-cheater-tom-brady-or-roger-goodell/2016/03/03/8d003de0-e172-11e5-8d98-4b3d9215ade1_story.html

A few here have suggested that Blecker is somewhat of a gadfly or crank, but if justice is indeed the goal here, that'd be an ever better outcome than affirming Berman's decision.
 

Shelterdog

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At one point Kessler became exasperated with the judges. “I sense that you all are influenced by your version of the facts.”

We saw this coming months ago.
Give yourself credit, you saw it more clearly than most.

There was a pretty good range of opinions among the lawyers on the board of the merits of using (1) Ted Olson/Seth Waxman type titan of appellate practice, (2) a first rate appellate lawyer who's deliberately not a superstar for atmopsherics (i.e. we're just asking you to affirm the court below, the NFL are the crazy people which is why the had to hire Clement for a simple case) or (3) sticking with Kessler who knows the fact and the subject area but is far from being an appellate specialist. It's easy to say now that Kessler was a poor choice but it's not a simple question with an obvious right answer. With one exception--if you're WBV and you absolutely hit the nail on the head and had the actual right answer then you get to brag about it all day long.
 

epraz

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If they reverse Berman, didn't he specifically not rule on parts of Brady's claims, finding others enough to vacate? If so, wouldn't the case go back to him to rule on those issues?
 

dcmissle

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If they reverse Berman, didn't he specifically not rule on parts of Brady's claims, finding others enough to vacate? If so, wouldn't the case go back to him to rule on those issues?
Not necessarily. Clement asked the Court to rule for the League on this issues as a matter of law. And the Court can if it wishes to do so.
 

Bongorific

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This is an important point. Sometimes judges wear their decisions on their sleeves, but sometimes they just ask hard questions to give counsel an opportunity to quell any nagging doubts. In my office, the appellate team prepares the arguing attorney for Circuit Court hearings by peppering him/her with aggressive questions and comments, even if it's something as outlandish as, say, calling the evidence of ball tampering "compelling."

From the media coverage, today's hearing sounded like a sneak peek of the decision, but it really is too soon to tell.
This is a great point and a big question I have on Chin's comment. It's unclear from the tweets, or perhaps even from the exact quote, what he was getting at. Was he inferring that the evidence in the Wells report was compelling and, thus, the arbitrator would be reasonable in finding a violation? Or was he saying looking at all of the evidence, the testimony, etc., he believes there is overwhelming evidence of ball tampering? Or was he just trying to ask a hard question?

I know Kessler has wanted to stick to arguments related to the CBA, but if if Chin was inferring for the first time that the evidence of ball tampering is convincing and impactful, then I, in his shoes, would have at least made some comment as to the dozens of scientists that have commented on this case since.
 

dcmissle

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Is it possible to appeal back to Berman on partiality?
Not if the panel decides to rule on all issues presented below, whether Berman ruled on them or not, which it certainly may do in this context.

EDIT. I have no idea how this comes out, and I won't until I read the transcript. I think people here are getting ahead of themselves. Reporters on these things are notoriously poor, and these judges often are not transparent.

But I do have a fairly strong gut feel on one thing. This ends with these three guys, one way or another.
 

Bongorific

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Not if the panel decides to rule on all issues presented below, whether Berman ruled on them or not, which it certainly may do in this context.

EDIT. I have no idea how this comes out, and I won't until I read the transcript. I think people here are getting ahead of themselves. Reporters on these things are notoriously poor, and these judges often are not transparent.

But I do have a fairly strong gut feel on one thing. This ends with these three guys, one way or another.
Yeah, I just read McCann's summary up on SI which is a much better summary of the arguments than what was coming across on Twitter. I feel a little better after seeing more of the questions, answers, and context, even if McCann is worried about a 2-1 decision. The panel really grilled Clement on the legal issues whereas the troubling questions to Kessler are more on the facts. So now it may come down to whether the judges are sticking to the case law, or molding their opinion to fit facts that they think indicate nefarious conduct.
 

dcmissle

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Did Kessler offer any push back on the facts, other than his snarky remark?

Can't wait for a transcript.
 

Bongorific

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But I do have a fairly strong gut feel on one thing. This ends with these three guys, one way or another.
This is just mind-boggling to me. NFLPA argued four different flaws in the NFL's action, but Berman ruled on only two of them, and the Appeals court only discussed one of them. Even if they reverse Berman on that one, why would they just flat-out ignore the other three arguments? They weren't even briefed on two of them, except for a few throwaway paragraphs at the end of each submission..
 

scotian1

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What effect, if any, will the fact that Clement lied to the court yesterday have on this case? ie: by restating a statement by Goodell that Judge Berman by releasing the documents proved was false.
 

TheoShmeo

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I don't think it will mean much. First, it's not clear to me that the panel members will view this as a lie. They might think of it as advocacy or as a matter of interpretation, and it's not as if they don't have their own biases regarding the facts (thinking of Chin's comments in particular). Second, Clement, while formidable, isn't the issue or on trial. It is never helpful to be viewed as untruthful but this case is about more than whether a highly respected advocate mischaracterized one of the facts. In the end, the Judges' view of the facts and the law will matter much more than Clement's version of one aspect.
 

dcmissle

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This is just mind-boggling to me. NFLPA argued four different flaws in the NFL's action, but Berman ruled on only two of them, and the Appeals court only discussed one of them. Even if they reverse Berman on that one, why would they just flat-out ignore the other three arguments? They weren't even briefed on two of them, except for a few throwaway paragraphs at the end of each submission..
The panel is as well positioned as Berman to rule on the arguments that Berman did not rule on. The panel has access to the briefs below and the argument transcripts.

This happens, if not often, the regularly enough.

If there is a flat out reversal, it's likely in my view that the panel will reject all challenges rather than remand.
 

Rovin Romine

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At one point Kessler became exasperated with the judges. “I sense that you all are influenced by your version of the facts.”

We saw this coming months ago.
While I'm not saying you were wrong with your assessment of Kessler as an individual attorney, I have to note that this sounds like a bone-headed thing to say at any level of advocacy. Perhaps the context will justify Kessler's comment, but you never go there casually or in frustration.

For the non-attorneys in the thread, I wouldn't characterize Kessler's statement as a purely "appellate attorney v. non-apellate attorney" issue, as some have moved toward in this thread. In the vein of "the customer is always right," it's pretty standard maxim that absent extraordinary circumstances, one never directly says (or strongly implies) that the court is biased, or pre-determined, or obtuse, or missing the point, or not listening, or letting emotion cloud their judgement, or unfair.

Any good advocate should have several easily-rolled-out and well practiced strategies to deal with (very human) judges that are angry, emotional, confused, ill-informed about the facts, or are actually biased going into an argument. What you really want to do is emotionally/logically validate the judge's position, then redefine the argument. There are many ways to do that, but in terms of what you actually say, the other party may have mislead the court about the facts, or mischaracterized the actual issue, etc. etc. The court is probably not even ever mistaken about something. Unless it's a completely understandable mistake, to the point where "I thought the exact same thing at first, your honor, until my co-counsel pointed out that. . ."
 

Bleedred

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As cautioned in this thread, I'm withholding judgment on Kessler's advocacy until I see the transcript, but preliminarily, it sure looks like he was out of his element (from an appellant's perspective) relative Clement.
 

dcmissle

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RR is right. It was an asshat comment that I would direct to no judge, period, even if I were in traffic court.

Thankfully, judges in the main are pretty good at not taking such foolishness out on the client.
 

MarcSullivaFan

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Co-sign. If I had made a comment like that as an associate I would have been packing my shit up in a cardboard box. Not only is it disrespectful, and likely to piss off the court, but it also comes across as weak and desperate. Maybe the transcript will provide more context.
 

bankshot1

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IANAL-

Obviously many of the case facts, Berman rulings, etc were not discussed yesterday, but presumably they've been weighed or considered by the three-Judges. But even though these issues were not discussed yesterday to what extent do they factor into a decision?

Or put another way, the take away from yesterday was Brady got killed on the cell-phone, will Goodelll get killed on the science/phony Exponent report, the IGL, etc. that many impatrial observers relied upon in casting doubt on the NFL's impartiality?

Does the appellate panel now discuss the case among themselves, debate etc, or is each judge an island and do their own analysis along with the input from their clerks?
 

Steve Dillard

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Reading the fuller transcript of questions to Kessler, it seems the Court may go this way:

By Parker's and Chin's line of questioning, all of the remaining (actual main) issues of deflation become irrelevant because (1) the original Wells report charged Brady with destroying his phone (Chin - "everyone within 100 yards.."), (2) even if changes to the charges on deflating occurred (Chin calls it "hypertechnical"), they are permitted by the "rough and tumble" arbitration process, and (3) Goodell could have concluded that destroying the cell was conduct detrimental, and could impose 4 games for that alone.

This allows the Panel to sidestep the deflation issues of the charge morphing from the generally aware into a participated charge, sidestep the "equipment violation" v. "conduct detrimental" issue, and potentially sidestep the Pash discovery/bias issue because the facts of the destruction were admitted and the inference from this was well within the arbitrator's discretion. Add in the questions about this being an important game, and Brady being a superstar so that a message would be sent about "integrity" and you can found the entire punishment on this alone.
 
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tims4wins

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Reading the fuller transcript of questions to Kessler, it seems the Court may go this way:

By Parker and Chin's seeming view, all of the remaining issues become irrelevant because (1) the original Wells report charged Brady with destroying his phone (Chin - "everyone within 100 yards.."), (2) even if changes to the charges on deflating occurred (Chin calls it "hypertechnical"), they are permitted by the "rough and tumble" arbitration process, and (3) Goodell could have concluded that destroying the cell was conduct detrimental, and could impose 4 games for that alone.

This allows the Panel to sidestep the morphing of the generally aware into a participated charge, the "equipment violation" v. "conduct detrimental" issue, and potentially the Pash discovery issue.
Thanks for this.

If Brady is suspended 4 games for conduct detrimental - due to destroying his phone - doesn't that completely violate "law of the shop", given that Brett Favre was only fined like $50K or $75K for not turning over his phone?

Edit: also, where in the CBA does it say that players must turn over personal phones? I don't see how the NFL can win on this point. If they do, the NFLPA is screwed
 
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Bleedred

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Reading the fuller transcript of questions to Kessler, it seems the Court may go this way:

By Parker's and Chin's line of questioning, all of the remaining (actual main) issues of deflation become irrelevant because (1) the original Wells report charged Brady with destroying his phone (Chin - "everyone within 100 yards.."), (2) even if changes to the charges on deflating occurred (Chin calls it "hypertechnical"), they are permitted by the "rough and tumble" arbitration process, and (3) Goodell could have concluded that destroying the cell was conduct detrimental, and could impose 4 games for that alone.

This allows the Panel to sidestep the deflation issues of the charge morphing from the generally aware into a participated charge, sidestep the "equipment violation" v. "conduct detrimental" issue, and potentially sidestep the Pash discovery/bias issue because the facts of the destruction were admitted and the inference from this was well within the arbitrator's discretion. Add in the questions about this being an important game, and Brady being a superstar so that a message would be sent about "integrity" and you can found the entire punishment on this alone.
You lawyers are a bundle of fucking sunshine! :)
 

Steve Dillard

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As I have noted before when the briefs came out, I hated the 1) notice and 2) law of the shop arguments. They are the squishy sort of justification you can sell to the Court to justify going your way, but you have to first sell them on the reason for wanting to do so. Kessler won Berman's heart and mind at the outset, including on the most basic deflation point, and Berman gave him enough time and questions to flush out the true facts.

It plays well for the arbitrators or reviewing person like Judge Jones, but it becomes less compelling in a formal appeal.

For some strategic reason Kessler decided to go with the narrow, technical argument on appeal. I suppose it was because Berman was not suppose to re-evaluate the basic deflation point, so presenting all of the bs in the deflation issue would play into Clement's argument that Berman was superceding Goodell's perogative to find facts, even if those findings were barely colorable.
But, by stripping that entire narrative, the Panel reverted to the findings in Goodell's decision, and had no counternarrative. Indeed, the amicus brief filed by the NY Law Professor spent a long time -- rambling -- expressing dismay that the NFLPA did not present the appellate court with any of the real facts. It sounds like the Panel therefore lacked any reason to want to use the squishy "law of the shop" to help Brady.

Caveat: the Panel has not decided anything, and Kessler's judgment may ultimate be the correct one.
 

Bleedred

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A few thoughts from a friend who is a lawyer who deals in Arbitration cases all the time in NY (although not necessarily this district). His point No. 3 below is consistent with Steve Dillard's point in Post #2045.

1. I have had numerous Arbitration Cases where the Arbitrators have ruled in a diametrically opposed manner to where one would surmise they would be ruling based upon their Questioning. I have had more than a handful of cases wherein Arbitrators have brutalized my client, much to the joy of Opposing Counsel, but to then rule for my Client. Sometimes fact finders merely ask questions for their own curiosity & other times they want to revert back to their former lives as prosecutors;

2. Nevertheless, per No. 1 above, Berman’s questions/tone were certainly CONSISTENT with how he ultimately ruled;

3. Kessler really had very little opportunity to speak; HOWEVER, I have read the Transcript and it was CLEAR that the 2nd Cir. was focused on the evidence & not the law, yet Kessler stuck to the murky CBA. When presented with questions about Cell Phones/Cooperation/Deflation, Kessler should have used all of the good facts at his disposal & moved away from the complex CBA. Unfortunately, he gave several convoluted answers;

4. Should Brady lose, he will get a Stay from the 2nd Cir. and (a) move for an Appeal En Banc to the 2nd Cir., and, should that not be heard, (b) seek Cert. from the USSC;

5. SC won’t grant Writ because they only do so when there is a split among the Circuits;

6. Brady is playing in 16’ as he exhausts all Appeals;

7. 2nd Cir. treated yesterday as an Evidentiary Proceeding. CRAZY.
 

Zedia

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Reading the fuller transcript of questions to Kessler, it seems the Court may go this way:

By Parker's and Chin's line of questioning, all of the remaining (actual main) issues of deflation become irrelevant because (1) the original Wells report charged Brady with destroying his phone (Chin - "everyone within 100 yards.."),
Brady "destroying" his phone didn't come until the appeal. It wasn't in the Wells Report.
 

Steve Dillard

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A hypertechnicality:
Judge Parker: "This all strikes me as just hypertechnical. You were on notice going into the hearing that there was spoliation issues with respect to the cell phone and it seems to me — explain to me why you did not have an adequate opportunity to address those. Anybody within 100 yards of this proceeding would have known that the cell phone issue raised the stakes to this thing. It turned it from air in a football to comprising the integrity of a proceeding that the commissioner had convened."
 

Bongorific

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Very reasonable prediction SD. I think, though, that's why Kessler's argument isn't hyper technical as Parker wanted to characterize it. If the conduct detrimental is based upon destruction of the cell phone, then Brady is afforded a full opportunity to explore that accusation and raise it on appeal. But the whole underlying case and Wells report had to do with a scheme to deflate footballs. The league can't suspend him 4 games for that but then substitute in a 4 game suspension for non-cooperation. And someone who follows the league can see that's what they want to do. Once he league was going to suspend Brady, it was going to be 4 games. They hand out 4 games like its candy. Then they were likely to reduce to 2 once Brady apologized. But when he didn't and destroyed the phone, it stayed at 4. I think Berman saw this and that's why he pressed the league at oral argument on how many games were for ball deflation and how many for non-cooperation.
 

BlackJack

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Reading the fuller transcript of questions to Kessler, it seems the Court may go this way:

By Parker's and Chin's line of questioning, all of the remaining (actual main) issues of deflation become irrelevant because (1) the original Wells report charged Brady with destroying his phone (Chin - "everyone within 100 yards.."), (2) even if changes to the charges on deflating occurred (Chin calls it "hypertechnical"), they are permitted by the "rough and tumble" arbitration process, and (3) Goodell could have concluded that destroying the cell was conduct detrimental, and could impose 4 games for that alone.

This allows the Panel to sidestep the deflation issues of the charge morphing from the generally aware into a participated charge, sidestep the "equipment violation" v. "conduct detrimental" issue, and potentially sidestep the Pash discovery/bias issue because the facts of the destruction were admitted and the inference from this was well within the arbitrator's discretion. Add in the questions about this being an important game, and Brady being a superstar so that a message would be sent about "integrity" and you can found the entire punishment on this alone.
This right here is the type of stuff that frustrates me to no end. The NFL had no legal right to Brady's phone. Wells told him that they didn't need it and praised his cooperation.

If this panel finds as SD has described, there is no way for me to see this as anything other than reaching a conclusion based on what they personally believe the outcome ought to be and then finding a way to do it that the law allows for.