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

[TheoShmeo]

I'm glad that Clement got called out. I think he either fibbed or was incredibly sloppy. And I think that he lost more than he gained with his not very straightforward reply.

But in the end, my assumption is that the decision was already made, likely soon after the arguments, and nothing in these letters will change that. I further assume that the present delay is down to the writing process.

Do others see this differently? Does anyone think that these letters could actually change the result?

 

[PedroKsBambino]

Isn't Clement's real problem that he knows he misrepresented the factual record to the court during oral argument, though? He is living with the concern the clerks catch him and cause him a problem for years with the judges, I suspect, and this feels to me like a way to try and submit an explanation without admitting to having made that mistake.

Clement is a very smart guy; I find it a lot more likely he honestly misunderstood the record of a case he only inherited recently (only recognizing that fact afterwards) than that he did all this tactically---the statements he made in court simply are beyond the line I would expect him to be willing to draw as just 'spin.' Perhaps others more experienced in appellate matters feel otherwise.

 

[Bleedred]

Isn't Clement's real problem that he knows he misrepresented the factual record to the court during oral argument, though? He is living with the concern the clerks catch him and cause him a problem for years with the judges, I suspect, and this feels to me like a way to try and submit an explanation without admitting to having made that mistake.

Clement is a very smart guy; I find it a lot more likely he honestly misunderstood the record of a case he only inherited recently (only recognizing that fact afterwards) than that he did all this tactically---the statements he made in court simply are beyond the line I would expect him to be willing to draw as just 'spin.' Perhaps others more experienced in appellate matters feel otherwise.

I'm not an appellate lawyer or even a litigator, just a lowly transactional attorney (real estate and corporate). Nevertheless, Clement misrepresented the facts of Tom Brady's testimony (or rather, Goodell's blatant lie or gross negligence in misrepresenting Brady's testimony) and whether or not the appellate lawyers here think that has any meaning, it remains an indisputable empirical fact. I read Clement's response to the letters as borderline desperate to show his indignity at being caught and not a little strident. I don't care how "brilliant" he is, but I certainly know his reputation as one of the great appellate minds of our time, yet despite that, he doesn't win in that exchange when he has to defend himself where the facts don't support his defense. I have to defer to WBV, DDB, MYT, DCM, etc. on what this all means at the appellate level, but there's no spinning that Clement got it wrong and he seems to know it.

 

[Bongorific]

I find it another example of how many great lawyers have been caught off guard in this case. Wells, Nash, Clement. All of them have handled cases much, much more important than air in footballs. So this isn't at all to imply that they are in over their heads. But I think they have under appreciated how fantical people get over sports and it seems to get under their skin.

 

[Myt1]

I'm not an appellate lawyer or even a litigator, just a lowly transactional attorney (real estate and corporate). Nevertheless, Clement misrepresented the facts of Tom Brady's testimony (or rather, Goodell's blatant lie or gross negligence in misrepresenting Brady's testimony) and whether or not the appellate lawyers here think that has any meaning, it remains an indisputable empirical fact. I read Clement's response to the letters as borderline desperate to show his indignity at being caught and not a little strident. I don't care how "brilliant" he is, but I certainly know his reputation as one of the great appellate minds of our time, yet despite that, he doesn't win in that exchange when he has to defend himself where the facts don't support his defense. I have to defer to WBV, DDB, MYT, DCM, etc. on what this all means at the appellate level, but there's no spinning that Clement got it wrong and he seems to know it.

I think there's more right than wrong in this post, but can see how others would differ. It just sucks that it was a missed opportunity at oral argument for Kessler to do some real work.

 

[DennyDoyle'sBoil]

Judges are just people, so the spectrum of ways this could be playing out in their minds is probably represented by the various opinions expressed here. I mean, if 30 percent of people think he sounds desperate, then that's probably a good indication that at least one of the panel will think the same. (Though there is an awful lot of wishful thinking here since we all are pretty close to the issue and care about the outcome.) The problem here is that this is playing out after the judges have already voted and someone is writing an opinion, and it's hard to think it will change that outcome, so myt1 is right that there was a lost opportunity here.

It sucks. Kessler needed to do better. But every appellate lawyer has been there. You know your record cold. You think you have it all. Your opponent says something you're almost certain is wrong, but in the moment you have a brief moment of doubt, and you need to be absolutely positive before you call your opponent a liar. And you've only got 2 minutes and 8 things you want to say anyway, and so you move to more solid ground. Because the only thing worse than being caught in a lie is saying you've caught your opponent in a lie and being wrong.

In the end, it might not have mattered anyway. And it still might not. Just have to wait and see.

 

[Steve Dillard]

I agree that the letter is a bit of a Hail Mary worth throwing. The vote has taken place, so if Brady won this will not change anything. If he lost, the letter either causes a judge to reconsider whether the NFL's lack of forthrightness with Clement changes anything.

As for Kessler, he had limited time and kept away from doing what got him the win-- having unlimited time to show Berman the facts and the NFL's lies. He chose not to spend time arguing facts and accepting them all, even when Clement stretched them even further.

 

[Steve Dillard]

So, in drawing up the haily mary play for requesting en banc review, you typically want to focus on a single issue, not throw a bunch of issues on the wall. So, here do you drop all prior arguments and present the single issue Katzamann identified:

Does an CBA's right to "appeal" limit the reviewer to the issues initially found, or can he independently find facts for the first time? Does the later deprive the player the benefits of the CBA "appeal" right?

Isolated like this is doesn't seem that compelling. After all, the judges themselves are appellate judges, and on appeals can affirm even on theories not presented below. Also, the majority opinion seemed to say that Goodell could have punished Brady even on the original findings, so whatever new bases Goodell found were redundant or extraneous. But if you list all of your cummulative grievances then it is sure not to be read.

This issue, however, doesn't help you much if you want to set up the cert petition to the Supreme Court, because the 8th circuit case doesn't per se involve the appeal process (there, Goodell was the initial punishing party, and Henderson was the appellate hearing officer.) That case focuses more on the punishments disclosed for the conduct, which is what Kessler used as a template for Brady, arguing the schedule of fines was the notice.

 

[tims4wins]

Would a better approach be that Goodell did not draw upon the essence of the CBA because he ignored the stickum analogy, because that specifically calls out "integrity of the game" in the rules?

 

[AB in DC]

Is it a safe bet that the only chance for an en banc review is if Katzmann himself wants it?

And not that there are a whole lot of conclusions to be drawn from 8-10 data points, but it would be interesting if there were any threads in common from past en banc reviews.

 

[joe dokes]

Is it a safe bet that the only chance for an en banc review is if Katzmann himself wants it?

And not that there are a whole lot of conclusions to be drawn from 8-10 data points, but it would be interesting if there were any threads in common from past en banc reviews.

I can't imagine a judge who didn't sit on the panel would vote for en banc review if Katzmann, the dissenter, wasn't for it. Certainly not a majority of active judges.

If nothing else, Parker's senior status means one less potential "no" vote for en banc review, although he'd get to sit on the en banc panel if it came to pass. Heads would spin if they got 7 votes for en banc review, then the en banc court, with Parker, voted 7-7, leaving the panel judgment intact.

 

[Myt1]

Doesn't he get to vote in the first instance because he was on the panel? I looked at this a while ago, but I can't remember.