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

AB in DC

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NFL seems to be using "law of the shop" and "arbitral precedent" interchangeably.  Those seem like two different things to me and that they're conflating the two to confuse the issue.  Lawyers, do you read this the same way?
 
 
 
 
The Union’s suggestion that the Court may reconsider the Commissioner’s analysis of the
 
law of the shop” is simply wrong. “A federal court may not second-guess” an arbitrator’s 
 
“conclusion that he was not bound by” a prior arbitration decision. W.R. Grace & Co. v. Local 
 
Union 759, Int’l Union of United Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S. 
 
757, 764-65 (1983); see also Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d 29, 32-33 
 
(2d Cir. 1997) (arbitrator has no “duty to follow arbitral precedent” and the “failure to do so is 
 
[no] reason to vacate an award”).
 

Harry Hooper

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bankshot1 said:
Is the next legal step, oral arguments this coming Wed. and then absent a settlement, the Judge's decision by Sept 4?
 
Can't Berman drag it out for 2 years as he threatened?
 

djbayko

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Layperson here, but I don't understand how the NFL's argument cannot be viewed as insanely weak. Please Hear me out...

I get the concept of arbitral deference, but it's not an absolute. It's not as if the courts *never* overturn an arbitration award. In fact, the legal system has a process in which to engage them in such an argument and even has a fancy Latin term for it. So it follows that there must be exceptions.

And the NFLPA has outlined what it believes to be 4 such exceptions that are met in this case. Therefore, by doing nothing other than saying "you must defer" and not even trying to argue any of those 4 points, they are basically hoping and praying that the judge doesn't agree that *at least* one of those exceptions is satisfied.

I know this is a simplistic view from a non-lawyer, but it seems the NFL is taking a big risk here (whether they have a choice or not is another matter).

Edit: The NFL is also hoping that the judge doesn't find their behavior distasteful and find one of the NFLPA's 4 points "good enough". This increases the risk of their approach.
 

Bleedred

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djbayko said:
Layperson here, but I don't understand how the NFL's argument cannot be viewed as insanely weak. Please Hear me out...

I get the concept of arbitral deference, but it's not an absolute. It's not as if the courts *never* overturn an arbitration award. In fact, the legal system has a process in which to engage them in such an argument and even has a fancy Latin term for it. So it follows that there must be exceptions.

And the NFLPA has outlined what it believes to be 4 such exceptions that are met in this case. Therefore, by doing nothing other than saying "you must defer" and not even trying to argue any of those 4 points, they are basically hoping and praying that the judge doesn't agree that *at least* one of those exceptions is satisfied.

I know this is a simplistic view from a non-lawyer, but it seems the NFL is taking a big risk here (whether they have a choice or not is another matter).

Edit: The NFL is also hoping that the judge doesn't find their behavior distasteful and find one of the NFLPA's 4 points "good enough". This increases the risk of their approach.
Lawyer here, although I don't litigate or appear in court, but I believe you've done a nice job of articulating the essence of the 2 sides.   I found the NFL's argument very weak as well, although they start from a position of superiority given the inclination of courts to defer to the power and authority of the arbitrator, absent the exceptions you mention (or rather Kessler articulates).   The NFL has mischaracterized Kessler's argument in their very first paragraph, but I think it's mostly because they have no choice but to argue that the NFLPA is seeking to overturn the arbitrator's decision and are questioning his authority.  They are, but on grounds that, at least according to the NFLPA brief, are established in the "law of the shop" and arbitration law generally.   
 
After reading both briefs today, if Judge Berman is so inclined (a big, unknowable if), he could rule for the NFLPA as I believe they have carried their burden of showing why the arbitrator's decision, in this instance, does not deserve deference.  The lack of notice argument, to me, is the killer argument.
 

Harry Hooper

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There's the lack of notice, but also bowiac's #3: 
They point out that the NFL's reading of the Contract Detrimental language would render the Player Policies a nullity. This is a key point it seems to me, and if anything should have been fleshed out more. There's no reason to have any discipline policies if Goodell can just snag any and all behavior under the Conduct Detrimental catchall.
 
 
 
Indeed, why have any specified penalties if the Almighty Commish has easy recourse to a Roger-can-do-what-he-likes clause.? It nullifies the overall CBA.
 

djbayko

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Bleedred said:
Lawyer here, although I don't litigate or appear in court, but I believe you've done a nice job of articulating the essence of the 2 sides.   I found the NFL's argument very weak as well, although they start from a position of superiority given the inclination of courts to defer to the power and authority of the arbitrator, absent the exceptions you mention (or rather Kessler articulates).   The NFL has mischaracterized Kessler's argument in their very first paragraph, but I think it's mostly because they have no choice but to argue that the NFLPA is seeking to overturn the arbitrator's decision and are questioning his authority.  They are, but on grounds that, at least according to the NFLPA brief, are established in the "law of the shop" and arbitration law generally.   
 
After reading both briefs today, if Judge Berman is so inclined (a big, unknowable if), he could rule for the NFLPA as I believe they have carried their burden of showing why the arbitrator's decision, in this instance, does not deserve deference.  The lack of notice argument, to me, is the killer argument.
Okay then, follow-up question which I meant to include in my last post...

Given that there are indeed exceptions to arbitral deference, isn't the NFL's complete ignorance of that fact to some extent insulting the judge's intelligence? And thumbing their nose at the court's very real power?
 

Bleedred

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djbayko said:
Okay then, follow-up question which I meant to include in my last post...

Given that there are indeed exceptions to arbitral deference, isn't the NFL's complete ignorance of that fact to some extent insulting the judge's intelligence? And thumbing their nose at the court's very real power?
I wouldn't call it ignorance, I would call it willful neglect.  But in a word, yes.    
 

DennyDoyle'sBoil

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I think Kessler's brief is fantastic.  
 
I don't know how many brief writing seminars I've had to sit through where some blowhard (including the blowhard next to me in the front of the room when I've taught some) about how there's no place for being strident, or adjectives, or italics in briefs.  It strikes me as the same sensibility that leads the same guys to pontificate that "no point worth making should take more than a page," or who teach young writers never to write a sentence longer than four lines, or never to use semi-colons, or whatever.  One size fits all models simply don't work.
 
There are times when stridency is necessary.  In moderation, almost always, but necessary.  If what the other side has done is shitty, sometimes you have to call it that way, and if what they have done would make a reasonable person angry, sometimes you have to show your anger.  Judges rarely admit this, but in a case where they have to decide which side is in the right and which is in the wrong, the conviction with which the side claiming an injustice presents its case is something the judge is paying attention to.  If you're accusing someone of conscious bias, and railroading your client, a reasonable person would be a bit angry about it, and (and I know many lawyers disagree with this, but I feel strongly about it) showing anger is not a negative.  Whether they pretend to be annoyed or not, it can be quite effective.  Kessler played it close to the vest in his first brief.  But now he's taking a shot directly at the king, and to dance around it in the last brief you're going to get would make no sense.  The judge needs to decide whether he believes what Kessler is saying about this being a league hatchet job is true.  If it is true, it's something that would make Kessler and Brady very very angry.  Showing a little of that anger -- most of which is reserved for the final pages of the brief -- is not a problem.  
 
One other thing he's done masterfully is to turn around the "generally aware" issue.  Let's really deconstruct what he's done here.  His argument has a problem.  It is that Goodell fixed the weak "general awareness" finding by beefing it up.  Where the NFL should want to fight this battle is on the question whether the decision really gives a new basis for punishment as opposed to simply finding more evidence to support the essentially same basis for punishment.  But the league overshot a bit -- it made a good argument that this is not a Peterson-style change of basis for punishment, but then it tried to tack on an argument that courts don't get to consider the law of the shop.  And in this brief, Kessler has used that to completely change the battlefield, making it so that this argument -- which the league is weak on -- is the only argument.  He's set it up to try to persuade the judge that so long as it decides arbitral precedent is not the same as law of the shop (which is an argument for which he has Supreme Court law on his side), that his side should win.    
 
I don't think Kessler has made a material misstep yet -- maybe my only quibble is stating as though it's a fact that the NFL leaked the "destroyed phone" angle to Stephen A. Smith.  (While that's a fair inference and maybe the only reasonable inference, in the end claiming to know something you cannot know for sure can hurt credibility.)  His concession at the hearing about Brady's regret about destroying the phone, was masterful.  He took the hardest fact, and he disarmed it, conceded it was a problem, and then said in essence, "but let's talk about the facts now," and the judge seems to at least be following along.  Kessler knows his audience.  He wouldn't have written this brief this way if he didn't think it might work.  Brady may not win here. Overcoming an arbitration award is hard.  But I feel as though Kessler is doing what he can to give his client(s) the best chance possible.
 

Bleedred

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DennyDoyle'sBoil said:
I think Kessler's brief is fantastic.  
 
I don't know how many brief writing seminars I've had to sit through where some blowhard (including the blowhard next to me in the front of the room when I've taught some) about how there's no place for being strident, or adjectives, or italics in briefs.  It strikes me as the same sensibility that leads the same guys to pontificate that "no point worth making should take more than a page," or who teach young writers never to write a sentence longer than four lines, or never to use semi-colons, or whatever.  One size fits all models simply don't work.
 
There are times when stridency is necessary.  In moderation, almost always, but necessary.  If what the other side has done is shitty, sometimes you have to call it that way, and if what they have done would make a reasonable person angry, sometimes you have to show your anger.  Judges rarely admit this, but in a case where they have to decide which side is in the right and which is in the wrong, the conviction with which the side claiming an injustice presents its case is something the judge is paying attention to.  If you're accusing someone of conscious bias, and railroading your client, a reasonable person would be a bit angry about it, and (and I know many lawyers disagree with this, but I feel strongly about it) showing anger is not a negative.  Whether they pretend to be annoyed or not, it can be quite effective.  Kessler played it close to the vest in his first brief.  But now he's taking a shot directly at the king, and to dance around it in the last brief you're going to get would make no sense.  The judge needs to decide whether he believes what Kessler is saying about this being a league hatchet job is true.  If it is true, it's something that would make Kessler and Brady very very angry.  Showing a little of that anger -- most of which is reserved for the final pages of the brief -- is not a problem.  
 
One other thing he's done masterfully is to turn around the "generally aware" issue.  Let's really deconstruct what he's done here.  His argument has a problem.  It is that Goodell fixed the weak "general awareness" finding by beefing it up.  Where the NFL should want to fight this battle is on the question whether the decision really gives a new basis for punishment as opposed to simply finding more evidence to support the essentially same basis for punishment.  But the league overshot a bit -- it made a good argument that this is not a Peterson-style change of basis for punishment, but then it tried to tack on an argument that courts don't get to consider the law of the shop.  And in this brief, Kessler has used that to completely change the battlefield, making it so that this argument -- which the league is weak on -- is the only argument.  He's set it up to try to persuade the judge that so long as it decides arbitral precedent is not the same as law of the shop (which is an argument for which he has Supreme Court law on his side), that his side should win.    
 
I don't think Kessler has made a material misstep yet -- maybe my only quibble is stating as though it's a fact that the NFL leaked the "destroyed phone" angle to Stephen A. Smith.  (While that's a fair inference and maybe the only reasonable inference, in the end claiming to know something you cannot know for sure can hurt credibility.)  His concession at the hearing about Brady's regret about destroying the phone, was masterful.  He took the hardest fact, and he disarmed it, conceded it was a problem, and then said in essence, "but let's talk about the facts now," and the judge seems to at least be following along.  Kessler knows his audience.  He wouldn't have written this brief this way if he didn't think it might work.  Brady may not win here. Overcoming an arbitration award is hard.  But I feel as though Kessler is doing what he can to give his client(s) the best chance possible.
You lawyers are so risk averse!  After fellating kessler (rightfully I believe), you then conclude "he still has a hard time, but he's doing a good job."   Do you think he'll win or not?
 

DennyDoyle'sBoil

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Bleedred said:
You lawyers are so risk averse!  After fellating kessler (rightfully I believe), you then conclude "he still has a hard time, but he's doing a good job."   Do you think he'll win or not?
No. If it doesn't settle, I still think it's more probable than not that the NFLPA will lose.

But I will say this -- it's feeling like much more of an even-money proposition than I would have though a couple of weeks ago.
 
Edit:  Let me give a sports analogy.  You ever get ready to watch a playoff game where one team is dramatically favored over the other and has been beating the crap out of teams all year?  You look at it before hand, and you think of the underdog, "well, they're good or they wouldn't have gotten this far but no matter how much I look at the matchups, they just don't seem to have much of a shot."  And then the game starts, and they are hanging in there, surpassing everyone's expectations.  Maybe they get an early lead, but you know the other team is going to come back, and you're just sort of relieved it's a good game and not a blow out.  And then maybe it gets into the second half, and you start to realize that the underdog is actually really well coached, seems to have a plan, and that the other side is getting flummoxed?  The favorite is hanging in there, because they have a significant advantage, but you realize this is more than a "little engine that could" story.  This is actually a ball game.  And then, maybe toward the end of the third quarter, or the beginning of the fourth quarter, with the outcome still very much in the balance, you have that "holy shit" moment?  Boy, with a break or two, or if they can just keep this up, they might actually be able to win this thing.
 
I think I'm getting close to that holy shit moment here.  We're still the underdog, but we're putting up a crazy good fight.
 

amarshal2

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DennyDoyle'sBoil said:
No. If it doesn't settle, I still think it's more probable than not that the NFLPA will lose.

But I will say this -- it's feeling like much more of an even-money proposition than I would have though a couple of weeks ago.
Why? Help us understand.

I get that it's a really high bar. But, to us lay people, it seems like there was blatant violation of the laws of the shop. How does one figure whether something was blatant enough if it's still blatant?

In my head it's like this super opaque scale that runs from "no" to "yes" but you don't actually get a yes outcome unless you go some undefined distance beyond yes and nobody can explain or quantify that distance.
 

DennyDoyle'sBoil

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amarshal2 said:
Why? Help us understand.

I get that it's a really high bar. But, to us lay people, it seems like there was blatant violation of the laws of the shop. How does one figure whether something was blatant enough if it's still blatant?

In my head it's like this super opaque scale that runs from "no" to "yes" but you don't actually get a yes outcome unless you go some undefined distance beyond yes and nobody can explain or quantify that distance.
 
Don't get worried about my thoughts.  "Risk averse" is the right way to describe me.  I was worried in the 9th inning of game 6 of the WS last year.  Being a lawyer gives me no better ability to predict this stuff than anyone else.  If it did, I'd be at the track, not grinding away selling my time by the hour.
 
The path of least resistance here is to say: (1) the CBA lets Rog the Shithead sit, and (2) under arbitration standards he said the right magic words in his opinion, and (3) the end.  That's the only reason for my pessimism.  That's the easy, and expected decision.  But team Brady has put on a real good show.  I thought they wrote a kick ass brief.  
 
In pretty much any case arising from an arbitration award, without an obvious and fundamental flaw that everyone could see, I'd give the same answer I gave above.  
 

lambeau

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What about the point that Goodell cannot beef up "generally aware" in the Award, because to do so, moving beyond Vincent, constitutes an arbitrator "moving beyond the scope of the
submission"--which is not allowed? And, of course, that brings us back to no notice for "generally awareness."
 

WalletTrack

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Know that I don't know. Really.
But Berman can pretty much do what he wants, granted he's limited to not doing anything off the wall, that means he can keep G-Dell original decision.
4-games and matyrdom for TB12.
Based on the strict reading of the CBA.
 

Doctor G

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Does the possibility exist for Berman to remand this appeal to a neutral arbiter on the basis that Goodell in essence did not arbitrate the Brady appeal but simply subjected Brady to a second prosecution. Having Reisner as your primary interrogator and further maintaining that the penalty could have been increased does not suggest arbitration.
This can't be what the NFLPA understood to be arbitration when they agreed to the terms in the CBA.

If the court affirms this conduct on the part of Goodell, doesn't that discourage any appeals in future NFL disciplinary actions. This would seem to have the practical result of changing the CBA at least as far as the efficacy of potential arbitration is concerned.
 

Reverend

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Guys, stop asking the lawyers not to worry like lawyers.

It's vaguely cruel. Like telling your mom not to worry about you. Not gonna happen, and that's not even a bad thing, really.
 

Steve Dillard

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DennyDoyle'sBoil said:
I think Kessler's brief is fantastic.  
 
I don't know how many brief writing seminars I've had to sit through where some blowhard (including the blowhard next to me in the front of the room when I've taught some) about how there's no place for being strident, or adjectives, or italics in briefs.  It strikes me as the same sensibility that leads the same guys to pontificate that "no point worth making should take more than a page," or who teach young writers never to write a sentence longer than four lines, or never to use semi-colons, or whatever.  One size fits all models simply don't work.
 
There are times when stridency is necessary.  In moderation, almost always, but necessary.  If what the other side has done is shitty, sometimes you have to call it that way, and if what they have done would make a reasonable person angry, sometimes you have to show your anger.  Judges rarely admit this, but in a case where they have to decide which side is in the right and which is in the wrong, the conviction with which the side claiming an injustice presents its case is something the judge is paying attention to.  If you're accusing someone of conscious bias, and railroading your client, a reasonable person would be a bit angry about it, and (and I know many lawyers disagree with this, but I feel strongly about it) showing anger is not a negative.  Whether they pretend to be annoyed or not, it can be quite effective.  Kessler played it close to the vest in his first brief.  But now he's taking a shot directly at the king, and to dance around it in the last brief you're going to get would make no sense.  The judge needs to decide whether he believes what Kessler is saying about this being a league hatchet job is true.  If it is true, it's something that would make Kessler and Brady very very angry.  Showing a little of that anger -- most of which is reserved for the final pages of the brief -- is not a problem.  
 
One other thing he's done masterfully is to turn around the "generally aware" issue.  Let's really deconstruct what he's done here.  His argument has a problem.  It is that Goodell fixed the weak "general awareness" finding by beefing it up.  Where the NFL should want to fight this battle is on the question whether the decision really gives a new basis for punishment as opposed to simply finding more evidence to support the essentially same basis for punishment.  But the league overshot a bit -- it made a good argument that this is not a Peterson-style change of basis for punishment, but then it tried to tack on an argument that courts don't get to consider the law of the shop.  And in this brief, Kessler has used that to completely change the battlefield, making it so that this argument -- which the league is weak on -- is the only argument.  He's set it up to try to persuade the judge that so long as it decides arbitral precedent is not the same as law of the shop (which is an argument for which he has Supreme Court law on his side), that his side should win.    
 
I don't think Kessler has made a material misstep yet -- maybe my only quibble is stating as though it's a fact that the NFL leaked the "destroyed phone" angle to Stephen A. Smith.  (While that's a fair inference and maybe the only reasonable inference, in the end claiming to know something you cannot know for sure can hurt credibility.)  His concession at the hearing about Brady's regret about destroying the phone, was masterful.  He took the hardest fact, and he disarmed it, conceded it was a problem, and then said in essence, "but let's talk about the facts now," and the judge seems to at least be following along.  Kessler knows his audience.  He wouldn't have written this brief this way if he didn't think it might work.  Brady may not win here. Overcoming an arbitration award is hard.  But I feel as though Kessler is doing what he can to give his client(s) the best chance possible.
 
I agree with this, and was a bit surprised at the board's initial reaction to the question of how to present this.  I thought that the NFLPA's initial brief was a bit too dry and technical, focusing on the law, and little on the facts underlying this particular case.  With the heavy burden for overturning an award, you need to engage the Court in a narrative to illustrate the unfairness.  Luckily, Judge Berman saved them by interjecting his concerns about the facts at the hearing.  As a result of getting the Judge's "permission" to focus on the unfairness, I like the second brief a heck of a lot more.  There are a few instances of too many italics (my partner who edits my briefs loves adding adjectives, but hates the "two-level" emphasis of italics/italics plus bolding) but I found those on the summary of the argument the sort of helpful to isolate the critical component of the assertion.
 
Kessler faces the biggest hurdle in that there is no real way to challenge the "sufficiency of the evidence" as one does on appeal of a civil jury verdict.  The arbitrator has the right to decide the facts (significantly, that the balls had been deflated notwithstanding the shoddy nature of the conclusion, and that Brady was involved, notwithstanding the lack of anything but an inference).  He also has discretion to determine his jurisdiction.  Thus, when Goodell decides that the deflation constitutes "conduct detrimental" his conclusion is fairly well conclusive.Lastly, with respect to bias, the rule is that bias must be proven from facts outside of the hearing itself.  Thus, all of his favoritism that we would view as showing favoritism does not constitute legal bias.
 
The Judge has given Kessler an assist to tell a compelling narrative, with some narrow legal room to carve out an exception to the  otherwise rubber stamp on awards.   Kessler needed to make this compelling as to how unfair and consequential this is to Brady, and that he should not be sacrificed to an otherwise dry turf battle between union and management.   I think the second brief does this fact better than the initial brief.  Fortunately Berman's law clerks seemed keen on this case from the beginning, and therefore told the Judge the real story rather than the limited glimpse that the first NFLPA brief gave.
 

edmunddantes

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I'm not sure who said it above, but I think they nailed the strategy. Go easy first than crank up if situation dictates. Versus go over the top rhetorical and get admonished without ability to pull back.

We go dry, factual, to the point.

See how judge acts when we get in front of him.

If he he shows the right or wrong signs, then go for it in the last brief.

I forgot about that aspect till reading yours above. It makes sense.
 

dcmissle

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Friends, you are looking for love in the wrong place if you are ISO anything approaching certainty. This is not a hard science. Nate Silver is helpless here. It is history, psychology, philosophy and politics rolled into a very messy package.

I think we will win this before Berman. My confidence has grown in that belief. But I will not be the least bit surprised, much less embarrassed, if I am wrong.
 

TheoShmeo

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Steve Dillard said:
I agree with this, and was a bit surprised at the board's initial reaction to the question of how to present this.  I thought that the NFLPA's initial brief was a bit too dry and technical, focusing on the law, and little on the facts underlying this particular case.  With the heavy burden for overturning an award, you need to engage the Court in a narrative to illustrate the unfairness.  Luckily, Judge Berman saved them by interjecting his concerns about the facts at the hearing.  As a result of getting the Judge's "permission" to focus on the unfairness, I like the second brief a heck of a lot more.  There are a few instances of too many italics (my partner who edits my briefs loves adding adjectives, but hates the "two-level" emphasis of italics/italics plus bolding) but I found those on the summary of the argument the sort of helpful to isolate the critical component of the assertion.
 
Kessler faces the biggest hurdle in that there is no real way to challenge the "sufficiency of the evidence" as one does on appeal of a civil jury verdict.  The arbitrator has the right to decide the facts (significantly, that the balls had been deflated notwithstanding the shoddy nature of the conclusion, and that Brady was involved, notwithstanding the lack of anything but an inference).  He also has discretion to determine his jurisdiction.  Thus, when Goodell decides that the deflation constitutes "conduct detrimental" his conclusion is fairly well conclusive.Lastly, with respect to bias, the rule is that bias must be proven from facts outside of the hearing itself.  Thus, all of his favoritism that we would view as showing favoritism does not constitute legal bias.
 
The Judge has given Kessler an assist to tell a compelling narrative, with some narrow legal room to carve out an exception to the  otherwise rubber stamp on awards.   Kessler needed to make this compelling as to how unfair and consequential this is to Brady, and that he should not be sacrificed to an otherwise dry turf battle between union and management.   I think the second brief does this fact better than the initial brief.  Fortunately Berman's law clerks seemed keen on this case from the beginning, and therefore told the Judge the real story rather than the limited glimpse that the first NFLPA brief gave.
Where are you getting that insight about the clerks from?

PS: without getting into the debate about what the first brief should have sounded like, I agree that this brief nailed it. The NFL's conduct here, and even their approach to these hearings, has been staggering. Magically changing the narrative from "generally aware" to being involved in a "scheme" (and I know, it's even more that mere involvement) is but one example of their arrogance. And it almost demonstrates by itself that the arbitrator is not playing fair.

Another poster -- Yecul, I believe -- commented that the one who screams the loudest is usually the loser. That has not been my experience. Sometimes the other side's conduct or tack in arguments is so beyond the pale that it needs to be vividly and pointedly demonstrated. I loved how the NFLPA/Brady noted the many uses of the word "scheme" when Wells never used the term, and the reminder that the decision was supposed to be based on Wells. But again, I have not seen a correlation between the kind of advocacy we're seeing here and losing. Sometimes a situation calls for some outrage and some clear demonstration of the basis for same, and I think this is one of those times. I could have done with a little less emphasis through italics and less adjectives and adverbs, but that's art and not science, and really a quibble at the margins. All in all, I am feeling lucky to have the legal talent that the NFLPA and Tom have lined up.
 

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Also remember the last round of briefing was submitted after a couple days of settlement discussions with Judge Berman.  I suspect both sides felt that Berman was favorably inclined to the NFLPA's arguments, which explains the NFL focusing on the limited role the district court have in reviewing arbitration and the decisions of other circuit courts as they prepared for appeal and the NFLPA just blasting away based on what they thought would be a receptive audience. 
 

dcmissle

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dcmissle said:
Shifting course for a bit, some thoughts on how I would handle the events of next week. How J Berman goes about it, of course, is anyone's guess, and he may well deviate a lot from this suggested approach.

1. I don't expect the case to settle on Wednesday the 12th. I'd be delighted if it did, but I am really aiming to get this resolved the following week, and would not be shocked if it settled even after that, by which point oral argument would have occurred and the case submitted for resolution.

2. That said, I have to get a lot done Wednesday. This entails pushing both aides, and chiding them if no progress has been made. I'll know a lot about that, because I ordered them to engage in good faith settlement talks and suggested that they use Magistrate Judge Francis. He will have briefed me by early next week, and if the report is that one side or both is not taking this seriously, I will light them up.

3. To move the parties -- and particularly to light them up, if needed -- I really have to know how I'm going to rule. Not with 100% certainly, but probably 85 to 90%. My mind is not fully made up, but I have a definite POV. You have to be there in order to nudge with conviction. You are not making threats, but you are sending unmistakeable signals in a professional way. If you don't act this aggressively out of the chute -- especially after your aggressive order -- then you are just inviting both sides to play you and continue to waste your time.

4. With this in mind, I have my best law clerk sketching out an opinion right now. I cannot afford to assume this will settle. I am not going to lose sleep over getting reversed by the Second Circuit, but I am putting my very best work out there if forced to rule. I will have sketched the broad points of a ruling, based on the submissions and my own ideas, and will expect the clerk to build on this and take it further. As this week and next proceed, this document will grow and ultimately turn into an opinion if need be. As it evolves, it will inform my mediation efforts.

5. Even if inclined to rule for the NFL, I will push RG very hard, to the point that he is miserable. He has a lot more room to move than Brady and the Union, and I know it. So I use that -- a first principle of mediation is a variation on the famous Willie Sutton line -- you squeeze the party with the resources.

6. Implicit in 5 is this point that will strike some people here as obnoxious: Berman's only client until forced to rule is the deal. if there is a settlement, no matter how lopsided, he will have succeeded. The judge probably has some gut sense of where this should settle based on overall fairness and would be most pleased to broker an outcome in that range. But in the unlikely event something really spooks one of the parties and it folds like a lawn chair, he will be happy to have that deal too.

A corollary of this is NOT to be upset if reports emerge that Berman is really squeezing TB and the Union. Whether we hear about it or not, that probably will happen. It's just the judge doing his job.
Updating:

1. Week 1 went as expected. No settlement.

2. I push hard this week, focusing mainly on the party I intend to rule against. That heavy lifting is done mostly out of the view of the public.

3. Barring Haley's Comet knocking me off the horse, I am certain now how I will rule. Draft opinion continues to evolve, taking into account Friday's filings. May well be tweaked to reflect oral arguments this upcoming week, and any additional aubmissions, but barring a surprise, I'm 90% done.

4. I use oral argument as a sanity check mostly, and in that connection may push hardest against the side I intend to rule for. At the same time, if a hard message needs to be communicated to the loser's constituencies, I may do that too. So usual caveats apply -- don't read too much into my questions and comments.

5. Nonetheless, between my comments in the robing room and at oral argument, the loser will know it is in pretty bad shape. This may, or may not, produce substantial concessions in negotiations.

It also may produce something that WILL BE worthy of the attention of those watching. The parties -- and most notably the NFL and RG -- are public relations addicts. They can't help themselves. If they think they will lose, they will try to get out front of the story. You will see leaks that one side or another expects to lose. On the other hand. If Dee Smith emerges from the court house saying, again, "we had a productive day", this is likely very bad news for the NFL. Winners are very afraid of rocking the boat, and have no reason to get out in front of a win.

6. Even though I am well positioned to rule by Friday, I don't. I rule on the day by which I promised a decision. You can never rule out a last-minute cave by one of the sides
 

TomTerrific

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Wallace sent this tweet earlier:

https://twitter.com/WALLACHLEGAL/status/632762480603721728
link to tweet

Can some legal mind unpack this for me? Is Wallach saying that Goodell as arbitrator explicitly used some principle(s) outside the CBA in arriving at his judgement, and that's specifically cited as ground for vacating by CA2?

EDIT: thanx to soxhop for posting this tweet in the other thread
 

TheoShmeo

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TomTerrific said:
https://twitter.com/WALLACHLEGAL/status/632762480603721728

link to tweet
link to tweet
Can some legal mind unpack this for me? Is Wallach saying that Goodell as arbitrator explicitly used some principle(s) outside the CBA in arriving at his judgement, and that's specifically cited as ground for vacating by CA2?
Yes, the sheriff went outside the CBA and that's a ground for Berman to vacate the suspension/fine.
 

AB in DC

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More lawyer questions:
 
1) The NFLPA offered four reasons to overturn the Goodell decision.  Is it accurate to say that the Judge only needs to agree with one of the four in order to vacate & remand?
 
If yes,
2) Suppose the Judge agrees with NFLPA on more than one of the four.  Would you expect the opinion to describe all of the areas where he agreed with NFLPA, or would he just pick the one that seemed most bulletproof?
 

Joe D Reid

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AB in DC said:
More lawyer questions:
 
1) The NFLPA offered four reasons to overturn the Goodell decision.  Is it accurate to say that the Judge only needs to agree with one of the four in order to vacate & remand?
 
If yes,
2) Suppose the Judge agrees with NFLPA on more than one of the four.  Would you expect the opinion to describe all of the areas where he agreed with NFLPA, or would he just pick the one that seemed most bulletproof?
Yes to both. Each of the PA's grounds would independently support vacatur, and Berman would describe each area so that an appellate court could address each independently if it came to that.
 

wade boggs chicken dinner

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More lawyer questions:
 
1) The NFLPA offered four reasons to overturn the Goodell decision.  Is it accurate to say that the Judge only needs to agree with one of the four in order to vacate & remand?
 
If yes,
2) Suppose the Judge agrees with NFLPA on more than one of the four.  Would you expect the opinion to describe all of the areas where he agreed with NFLPA, or would he just pick the one that seemed most bulletproof?
On question 2, generally speaking, if the judge has more than one really solid argument, he'll mention them both to make his judgement non-reversible. But since he doesn't have to, if he's not really sure about a decision, he'll won't mention it. So the answer is, as usual, it depends.
 

BigJimEd

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6. Even though I am well positioned to rule by Friday, I don't. I rule on the day by which I promised a decision. You can never rule out a last-minute cave by one of the sides
Curious as to why? Why would a judge prefer a settlement to his ruling?
 

PedroKsBambino

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BigJimEd said:
Curious as to why? Why would a judge prefer a settlement to his ruling?
 
Finality, for one...no appeals, no remand to Goodell for another decision, etc.
 
Many judges would say both parties agreeing to something in a settlement is also superior to the court imposing something on them
 

simplyeric

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PedroKsBambino said:
 
Finality, for one...no appeals, no remand to Goodell for another decision, etc.
 
Many judges would say both parties agreeing to something in a settlement is also superior to the court imposing something on them
I'm not disagreeing with you so much as just curious:
Would he feel that settlement (some middle ground) is superior than his ruling if he felt that his ruling would be
A. Very one-sided
B. Very solid against appeal

Obviously nothing is guaranteed in an appeal, but what if he felt that he had two or even three really rock solid argument for his decision, and his decision was totally in favor of one side or another. Would he prefer a middle ground settlement over what he feels is a one-sided truth?

He very well may, I'm just curious (with the understanding that you've all also clearly stated that 'it depends' is also a valid answer).

Edit: noting also that you all have mentioned that he'd very likely try to steer the ship towards a settlement in favor of one party, if he felt strongly about that party's case.
 

lostjumper

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The Union’s suggestion that the Court may reconsider the Commissioner’s analysis of the
 
law of the shop” is simply wrong. “A federal court may not second-guess” an arbitrator’s 
 
“conclusion that he was not bound by” a prior arbitration decision. W.R. Grace & Co. v. Local 
 
Union 759, Int’l Union of United Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S. 
 
757, 764-65 (1983); see also Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d 29, 32-33 
 
(2d Cir. 1997) (arbitrator has no “duty to follow arbitral precedent” and the “failure to do so is 
 
[no] reason to vacate an award”).
 
So here the NFL is saying that basically the courts(and judge Berman) have no authority to over the NFL's decision. But it was the NFL who filed with the court to confirm their decision!!
 
This makes me feel pretty good about how things are going, because A) the NFL has completely changed their position on their filing, and B) this feels like something that would piss off a judge and that can only help Brady and the nflpa.
 

PedroKsBambino

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simplyeric said:
I'm not disagreeing with you so much as just curious:
Would he feel that settlement (some middle ground) is superior than his ruling if he felt that his ruling would be
A. Very one-sided
B. Very solid against appeal

Obviously nothing is guaranteed in an appeal, but what if he felt that he had two or even three really rock solid argument for his decision, and his decision was totally in favor of one side or another. Would he prefer a middle ground settlement over what he feels is a one-sided truth?

He very well may, I'm just curious (with the understanding that you've all also clearly stated that 'it depends' is also a valid answer).

Edit: noting also that you all have mentioned that he'd very likely try to steer the ship towards a settlement in favor of one party, if he felt strongly about that party's case.
 
As noted above, I think many judges prefer a settlement because it is the will of the parties (rather than the court imposing it) and because it is final.  those have nothing to do with his confidence in his own opinion.  Even if he feels he will be upheld on appeal, an appeal still takes time for the parties and the judicial system and delays finality for months (or more).
 
Others have done far more of this than I, but my personal opinion is that Berman is not motivated much at all here by fear of reversal...he's trying to get the parties to develop and own their own solution.
 

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Assuming no settlement and no change in the schedule, at the September 4 oral argument, which themes would you emphasize the most for Brady and the NFLPA if you were in Kessler's shoes?
 
I have not thought this through all the way (i.e., I have not sat down with the briefs and rank ordered the arguments and considered fully what will play best orally).  But I have read the briefs filed on Friday and everything else I can get my hands on, and the two themes that really scream out to me are:
 
- Tom had no notice of the policy the NFL was punishing under.  Vincent admitted that the policy is only given to the teams.  As a result, levying a punishment on a player based on that is inherently unfair and against, or at least inconsistent with, all precedent.
 
- There is no credible explanation for Goodell morphing from Tom being "more probably than not generally aware" of ball tampering to the shiny new stuff about Tom "supervising/directing a scheme" to tamper.  To me, that baseless jump makes Goodell look craven, arbitrary and unfair.  Trying to explain how and why he went further than Wells seems to be a huge problem to me.  Wells spent all the time and money that he did but Goodell went so radically further based on Tom's testimony at the appeal hearing?  A judge would have to believe that Tom was a ridiculously poor witness and obviously lying in order to buy that. 
 
The "no direct evidence" path is appealing but, then again, you can convict someone for murder on the basis of circumstantial evidence.  It's possible that the Judge was going down that path to soften the NFL up regarding a settlement and does not view it to be the haymaker that many are now viewing it as.  Going too hard on the "no direct evidence" theme invites the NFL to say "yeah, but the evidence, taken as a whole, invites the logical conclusions that Goodell drew, and he did not need to have direct evidence in order to get there."  Not that I find it to be convincing.  I just think they have more of an answer than on the first two points. 
 
With the important caveat that the best arguments often present themselves at the hearing, when you see where the Judge is going, what would folks emphasize the most at the September 4 hearing?  I have no doubt that there are more very good themes and I am not suggesting that those are the only two.  But the question is where do you lead off and what do you emphasize.  Kessler will likely paint a broad picture of a Commissioner run amok, and I think he should as it goes to whether Goodell was outside the CBA and acting as an unfair arbitrator, but in the end he will have to choose what he emphasizes the most.  
 
I know that the settlement hearing this week might inform views on this.
 

ivanvamp

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lostjumper said:
So here the NFL is saying that basically the courts(and judge Berman) have no authority to over the NFL's decision. But it was the NFL who filed with the court to confirm their decision!!
Interesting point. Why doesn't Bermsn simply say, uh, if you (the NFL) is saying that I have no jurisdiction over matters pertaining to the NFL CBA, why did you guys (the NFL) file a suit in my court?
 

riboflav

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ivanvamp said:
Interesting point. Why doesn't Bermsn simply say, uh, if you (the NFL) is saying that I have no jurisdiction over matters pertaining to the NFL CBA, why did you guys (the NFL) file a suit in my court?
 
They're not saying the court has no jurisdiction. They're saying the court has no authority to overturn the decision. But, the court can rubber stamp the decision.
 

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lostjumper said:
 
So here the NFL is saying that basically the courts(and judge Berman) have no authority to over the NFL's decision. But it was the NFL who filed with the court to confirm their decision!!
 
This makes me feel pretty good about how things are going, because A) the NFL has completely changed their position on their filing, and B) this feels like something that would piss off a judge and that can only help Brady and the nflpa.
?
The NFL is saying that the Court cannot overturn the decision that the arbitrator made pursuant to the CBA; and the NFL is asking the Court to agree. I don't see why that would piss off a Court.  Depending on the Judge's starting point, that could be the type of thing that lends itself to confirming starting assumptions about the roles of courts.
 

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I don't think the NFL's position on Berman's power will inevitably piss him off. 
 
But I do think there's a danger there and that the NFL is very close to, and maybe over, that line. 
 
Courts have already overturned several arbitration punishments under the CBA.  That's no secret.  In Berman's shoes, I would understand the deference point but also that it's obvious that some decisions are so beyond the pale that would have no other choice but to vacate the NFL's award.  The question, then, is not whether Berman's hands are tied.  It's whether the NFL's process and decision in this case are so beyond the pale as to open the door for vacating the award or even require it.  Because of that, I hope the NFL continues with the mantra that that Berman must rubber stamp Goodell, as I believe that mantra is overstated and diminishes from the NFL's credibility.
 

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It's possible as well that the history of reversals taints the NFL's credibility in making this argument.  If you've become known as a bad actor, the deference might start to wear thin after awhile.
 

The Big Red Kahuna

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TheoShmeo said:
Assuming no settlement and no change in the schedule, at the September 4 oral argument, which themes would you emphasize the most for Brady and the NFLPA if you were in Kessler's shoes?
 
.....
 
I know that the settlement hearing this week might inform views on this.
 
Aren't the settlement hearings occurring "this week" the final oral arguments... with a decision/ruling expected by Sept. 4th?  Why do you cite oral arguments for Sept 4th? 
 

ivanvamp

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riboflav said:
 
They're not saying the court has no jurisdiction. They're saying the court has no authority to overturn the decision. But, the court can rubber stamp the decision.
 
It seems to me that if they're saying the court has no authority to overturn the decision, it can't have the authority to validate it, either.  Because if it has the authority to validate it, it has the authority to actually *sit in judgment* over it.  It's not sitting in judgment if you can only judge one way.  Imagine a case being brought before an appellate court where the appellate judge is only allowed by law to rule one way and not the other.  It makes no sense.
 
But then again, lots about this entire episode makes very little sense to me.
 

Kenny F'ing Powers

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ivanvamp said:
 
It seems to me that if they're saying the court has no authority to overturn the decision, it can't have the authority to validate it, either.  Because if it has the authority to validate it, it has the authority to actually *sit in judgment* over it.  It's not sitting in judgment if you can only judge one way.  Imagine a case being brought before an appellate court where the appellate judge is only allowed by law to rule one way and not the other.  It makes no sense.
 
But then again, lots about this entire episode makes very little sense to me.
 
You guys are looking too hard into this. The NFL filed because they were trying to beat the PA to the punch and wanted the ball in their court. It was a legal tactic and nobody is going to look much deeper than that.
 

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ivanvamp said:
 
It seems to me that if they're saying the court has no authority to overturn the decision, it can't have the authority to validate it, either.  Because if it has the authority to validate it, it has the authority to actually *sit in judgment* over it.  It's not sitting in judgment if you can only judge one way.  Imagine a case being brought before an appellate court where the appellate judge is only allowed by law to rule one way and not the other.  It makes no sense.
 
But then again, lots about this entire episode makes very little sense to me.
 
The NFL is asking the court to confirm that the union can't appeal the decision through the courts.  Seems pretty cut and dry.  I think you are searching for something that is not here.  
 
How they are going about it may be messy, but what they are asking for through the courts is very simple.  
 

ivanvamp

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Koufax said:
It's possible as well that the history of reversals taints the NFL's credibility in making this argument.  If you've become known as a bad actor, the deference might start to wear thin after awhile.
 
I would think that after a while, this has to come into play, no?  I mean, Goodell's penalty issued against the Patriots was done, in part, because of the "repeat offender" status.  
 
“Here, there are several factors that merit strong consideration in assessing discipline. The first is the club’s prior record. In 2007 the club and several individuals were sanctioned for videotaping signals of opposing defensive coaches in violation of the Constitution and Bylaws. Under the Integrity of the Game Policy, this prior violation of competitive rules was properly considered in determining the discipline in this case." (http://www.nfl.com/news/story/0ap3000000492190/article/nfl-releases-statement-on-patriots-violations#sthash.BImi7yvI.dpuf)
 
The repeat offender status should apply to Goodell too, should it not?  He lied in the Ray Rice case.  He was overturned in the Bountygate case and the Peterson case.  At some point, a judge has to look at Goodell and say this guy routinely goes rogue and makes stuff up and issues penalties way WAY beyond what the rule book or precedent calls for.  
 

dcmissle

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There is nothing at all odd in the NFL asking a federal court to confirm the award. Confirmation would give it the force of law and insulate it against attack elsewhere.

Few bring a more jaundiced eye to league arguments than I, but there is nothing wrong with this filing or inconsistent with the League's position on the very narrow scope of judicial review.

The NFL may well rue the day it forum shopped and ended up in te SDNY. But that's an entirely different issue.
 

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I'm not questioning asking the Court to confirm the award (or even filing in NY in the first place).  No issues there. 
 
I just think that there is some danger in hanging the NFL's hat so squarely on the deference point, for the reasons I've noted.  Courts have not deferred slavishly to the NFL and the NFL needs to make Berman comfortable that deference is indeed appropriate here.  My hope is that the NFL will continue to pound on deference and fall down on how the circumstances here justify such deference.