Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only
- Thread starter WayBackVazquez
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Hi, I'm a lurker, but this thread has been fascinating and extremely informative, so thanks.
I have a friend on facebook (mild acquintance I've never met in person), that's a labor lawyer (and I think 100% on the side of labor and never management). He thinks that Berman left himself open to reversal for several reasons.
In one comment, he said that district court judges often do a terrible job reviewing these arbitration awards because they don't truly understand the relevant legal standards. I asked which legal standards he was referring to, and this was his reply:
I then asked about being able to review evidence (investigative notes) and cross examine Pash (since these seem like just as valid reasons to vacate as the failure to notify reason). He replied:
Anybody have comments to refute these reasons the NFL appeal will be successful?
I have a friend on facebook (mild acquintance I've never met in person), that's a labor lawyer (and I think 100% on the side of labor and never management). He thinks that Berman left himself open to reversal for several reasons.
In one comment, he said that district court judges often do a terrible job reviewing these arbitration awards because they don't truly understand the relevant legal standards. I asked which legal standards he was referring to, and this was his reply:
I think the law of the shop sort of is the reason Berman can and did determine that proper notice not being given is a reason to vacate. Right?
I then asked about being able to review evidence (investigative notes) and cross examine Pash (since these seem like just as valid reasons to vacate as the failure to notify reason). He replied:
I would think a motion to vacate an arbitrator's decision would fall under the FAA and not hte LMRA (and said as much, but have yet to hear back). I think my friend is a decent labor lawyer. I also know he likes to take contrarian positions for the f of it.
Anybody have comments to refute these reasons the NFL appeal will be successful?
And, just so I'm clear "law of the shop" in the NFL now says it's $50K if you don't hand over your personal cell phone when requested as part of an investigation.Ed Hillel said:
It's not in the CBA, but Favre (and by extension the NFLPA) accepted it. Now Brady -- eventually -- will accept it.
Or, without that as part of the original Brady penalty, and if the process doesn't work it's way through in time, the next time it comes, the NFLPA can say --"there's one player who paid the $50K fine, there's another who wasn't even fined $50K. It ISN'T law of the shop."
Hextall said:
Edit: Deleted.
Sorry, I'm just retreading old ground. I'd just say all this is answered pretty well in here.
edmunddantes said:
It's really helpful (and thus standard practice) to cite to the page number when quoting an opinion.
EDIT: Okay, found it. You're quoting from Berman's summary of IV(C). He detailed the prejudice suffered in the preceding two pages.
twothousandone said:
I'm not sure if 50K is really a hard and fast line, so the NFL could conceivably push it a bit. But Berman seems to imply on pages 24-25 that Goodell should not be pushing those boundaries, and that a suspension would be out of line. I could be wrong, but that's how I read it.
Also, I just want to note how awesome this line is (pps. 23-24):
Berman intentionally leaves out commas and writes it in this garbled manner to demonstrate just how ridiculous and disjointed the standard is. Love it.
Has anyone figured out the difference(s) between the original order issued and the amended version?
Also, a little odd that it was scanned, rather than PDFed from Word (though it looks like he issued at least one other order in this case in that fashion).
Also, a little odd that it was scanned, rather than PDFed from Word (though it looks like he issued at least one other order in this case in that fashion).
I'm waiting for this post, column or radio sound bite --
"Fuck, Tom's got some exposure on appeal here. Maybe he should bargain it down to 1 game -- without the apology -- and out this behind him forever. It's just Thursday night."
Maybe Felger and Mazz can convene a high level panel. Jackie Mc, Bobby Ryan, Tanguay and somebody I know.
"Fuck, Tom's got some exposure on appeal here. Maybe he should bargain it down to 1 game -- without the apology -- and out this behind him forever. It's just Thursday night."
Maybe Felger and Mazz can convene a high level panel. Jackie Mc, Bobby Ryan, Tanguay and somebody I know.
Sorry. It's throughout that whole section. Page 36, 38, etc.WayBackVazquez said:
On further read, yes he talks through the prejudice part. As I thought, I might have been getting too far into the weeds on it.
I think it was the repetition on meeting the first part of the test versus the not as explicit repetition on meeting the second part of the test.
I can see a reason for that especially considering he didn't want to get into evident partiality.
I think it just needed time to marinate in the brain.
WayBackVazquez said:
I believe in the original order, in the final paragraph, he said he denying the NFL MC's motion to confirm and that he was granting the NFLPA's motion to vacate, but the ECF citations in that paragraph were to the Answer and the Counterclaim. He fixed those citations so they now refer to the ECF citations to the cross-motions. It appears the Clerk's judgment got it right.
Is this partly sort of the outcome of Nash's refusal to define how many games for deflation ( ahem. Alleged inflation) and how many for non cooperation? (in your opinion with all caveats). And the questioning about "conspiracy" when only one incident was alleged?Ed Hillel said:
Hextall said:
As Ed points out, it's already been kicked about on this thread. Here's a link to the FAA - 9 USC § 10. https://www.law.cornell.edu/uscode/text/9/10 That's the basic jurisdictional foundation/grounds for vacating.
You can see the court applying 10(a)(3). Caselaw interprets the amount of deference and just what constitutes "any other misbehavior." It's not my area of law, but it seems the court has laid down some solid reasoning.
The Second really has no reason (I can see) to cut against Berman's ruling. I think the only way the NFL wins is if the Second makes some kind of ruling that despite the unfairness of what occurred, it does not rise to the level where circuit courts should be second guessing an arbitrator's decisions. However, these are appellate court judges. I can't imagine that they'll feel much differently than Berman on the basic fundamental fairness of the arbitration process. Very few people will bend over backwards to endorse something that rankles them - and while Berman didn't reach some of the issues, it's pretty clear that, overall, this wasn't a fair process. Affirming on notice will let them make a decision without wading into what are clearly stinky waters.
The rankles part is why I think Berman did a good job getting in some of the more obnoxious parts of the NFL answers during the process into the order.Rovin Romine said:
SumnerH said:
Second Circuit. The standard on appeal is de novo for legal conclusions, clear error for findings of fact. Appellate courts can be pretty crafty in characterizing something as one or the other, however. Likewise, district court judges do the same dance in reverse. If you read the opinion, you'll see Berman used "I find," or "the Court finds," a few times. This is Berman trying to COA-proof his opinion as a straightforward application of the law to his findings of fact.
So lawyers...thinking back to where you were when this first got to SDNY and thinking about what you felt Brady's chances at a win were.
Would you say you think the NFL's chances at a win on appeal are better or worse than you felt about Brady's chances back then?
Would you say you think the NFL's chances at a win on appeal are better or worse than you felt about Brady's chances back then?
I'm only a semi-lawyer, but way worse. Brady had a strong case, the NFL's situation is dire. Ascribing number's is a fool's errand, but I'm a fool and would say Brady is at least 95% on appeal, even with the Second Circuit's relatively high reversal rate. I think the odds are higher that certain owners push the appeal to get dropped as part of a systematic overhaul than the NFL winning the appeal.
I thought that Berman had no jurisdiction to engage in fact finding. He had to stick to the record from the arbitration. Any "findings" were either conclusions of law or ultra vires. Anything Berman concluded can easily be swept away by the court of appeals. (I'm not a litigator so I'm blowing smoke just a bit here. Please kick me if I'm wrong.)
Berman's opinion has persuasive power but is not entitled to any deference of which I am aware. So the chances of a favorable outcome on appeal are, in theory, little different from than the chance was at the district court level. However, the persuasive power of Berman's opinion has to count for something, so maybe it tips the scales from 55-45 to 65-35 in favor of Brady.
Statistics published earlier showing a 9% success rate on appeal undoubtedly include mostly results from trials where fact-finding has occurred, and which courts of appeals are loathe to second-guess. Berman was not supposed to engage in fact-finding, so his opinion is just that -- an opinion.
Berman's opinion has persuasive power but is not entitled to any deference of which I am aware. So the chances of a favorable outcome on appeal are, in theory, little different from than the chance was at the district court level. However, the persuasive power of Berman's opinion has to count for something, so maybe it tips the scales from 55-45 to 65-35 in favor of Brady.
Statistics published earlier showing a 9% success rate on appeal undoubtedly include mostly results from trials where fact-finding has occurred, and which courts of appeals are loathe to second-guess. Berman was not supposed to engage in fact-finding, so his opinion is just that -- an opinion.
Yup. NFL gets two briefs, the first and last word, in a de novo appeal with a very strict standard in the NFL's favor. NFLPA still needs to convince at least 2 more.Koufax said:
This was always a bit like going into game six down 3-2. NFLPA needed to win 2. NFL needs just one. They still have game 7. Admittedly, not a perfect analogy, because if the NFL had won, the NFLPA could have appealed, but it would have been really uphill.
Winning first is nice. Winning last is what matters.
Please don't keep saying this without citation. There are definitely findings of fact that can be made in review of an arbitral award, and those are reviewed under a clear error standard. Judge Berman made several clear findings of fact, and other arguable ones.DennyDoyle said:
You predicted there was a 60% chance of confirmation, and 40% of evident partiality; you were 100% wrong.
Kick. Of course he can make findings of fact. What do you suppose it would be if the NFLPA argued Goodell was evidently partial because he had taken a $1 million payment from Jerry Jones? Berman questioned Goodell who said he never took a dime, but Jones testified he gave him a suitcase full of cash? There is no requirement that he "stick to the record in arbitration," nor that even if he did he can't make findings of fact.Koufax said:
I was only 60 percent wrong.
Berman didn't take testimony. The paper record was quite limited. What fact do you think is going to be disputed that matters on appeal? All the primary issues are legal. Whether the award draws its essence from the CBA is going to be reviewed de novo. Whether the notice that players receive is adequate for a suspension is going to be reviewed de novo. The law of the shop could theoretically have been a question of fact, but he relied on opinions and on this record at most its a mixed question, still reviewed de novo.
Sure, if there was a dispute about whether Brady received X or Y player conduct policy pamphlet, Berman's findings would be reviewed for clear error. If there were conflicting testimony or affidavits about what industrial customs were or weren't in this shop, he would get deference. But unless I'm missing it, I don't see a single contested fact on which the NFL's arguments rely or Berman's opinion hinges. Yes, had Berman taken testimony on evident partiality, any findings, if contested, would be entitled to deference on appeal. But he didn't. The NFLPA didn't seek to introduce any.
All of the NFL's arguments accepted as true the few "facts" that the NFLPA relied upon. And even there were a dispute over those "facts" --like whether Goodell really didn't make Pash available or something -- everything here is on a documentary record. "Clear error" is not a demanding standard when there is no testimony because the documents usually speak for themselves and courts of appeals don't have a disadvantage in reading them viz. the trial court. The big ticket errors the NFL will assert are legal questions, which Kessler will really have to stretch to say turn on disputed facts resolved by the district court to which deference is due.
Berman didn't take testimony. The paper record was quite limited. What fact do you think is going to be disputed that matters on appeal? All the primary issues are legal. Whether the award draws its essence from the CBA is going to be reviewed de novo. Whether the notice that players receive is adequate for a suspension is going to be reviewed de novo. The law of the shop could theoretically have been a question of fact, but he relied on opinions and on this record at most its a mixed question, still reviewed de novo.
Sure, if there was a dispute about whether Brady received X or Y player conduct policy pamphlet, Berman's findings would be reviewed for clear error. If there were conflicting testimony or affidavits about what industrial customs were or weren't in this shop, he would get deference. But unless I'm missing it, I don't see a single contested fact on which the NFL's arguments rely or Berman's opinion hinges. Yes, had Berman taken testimony on evident partiality, any findings, if contested, would be entitled to deference on appeal. But he didn't. The NFLPA didn't seek to introduce any.
All of the NFL's arguments accepted as true the few "facts" that the NFLPA relied upon. And even there were a dispute over those "facts" --like whether Goodell really didn't make Pash available or something -- everything here is on a documentary record. "Clear error" is not a demanding standard when there is no testimony because the documents usually speak for themselves and courts of appeals don't have a disadvantage in reading them viz. the trial court. The big ticket errors the NFL will assert are legal questions, which Kessler will really have to stretch to say turn on disputed facts resolved by the district court to which deference is due.
How many Second Circuit arbitral vacatur/confirmation decisions have you read? Do you think they always recite the clear error factual finding standard just out of boredom? Or did these all involve DC testimony? There will be deference to Berman's factual findings related to notice and law of the shop, and I am willing to put my money where my mouth is on it. Are you?DennyDoyle'sBoil said:
Not to get all legal realist here (although as an in-house lawyer, I am inclined toward a vision of the legal world based on leverage), but you two very bright people are having a second-order fight about a first-order question. If the Second Circut panel decides to uphold Berman based on the merits of the arguments before them, they will serendipitously find that Berman's opinion contains material findings of fact to which deference is owed. If they are inclined to rule against based on the merits, they will emphasize the de novo standard.WayBackVazquez said:
I agree completely. and that's why I wrote:Joe D Reid said:
The standard on appeal is de novo for legal conclusions, clear error for findings of fact. Appellate courts can be pretty crafty in characterizing something as one or the other, however. Likewise, district court judges do the same dance in reverse.
Yeah, probably, if we can isolate what we're not agreeing about. When you say they will defer to Berman on law of the shop, what does that even mean? He didn't make factual findings. If you're saying they will defer on what Bounty or Peterson means, I'll happily bet on that. If what you're saying is they will have some recitation in their standard of review paragraph that says clear error is the standard for factual findings, I don't know if they will or won't.
My position isn't complicated. There is no significant factual finding lurking in Berman's opinion that should give us much solace in clear error review on appeal, even if there are some theoretically disputed facts. What happened here is the equivalent to cross motions for summary judgment (which obviously would be reviewed de novo). They weren't called that, but there was no evidentiary hearing or bench trial. The parties essentially agreed to resolve the case on an undisputed set of facts, and that's how the second circuit is going to view it in the main. I don't even care about betting. If I'm wrong about that I'll pay a couple hundred to whatever charity you like.
My position isn't complicated. There is no significant factual finding lurking in Berman's opinion that should give us much solace in clear error review on appeal, even if there are some theoretically disputed facts. What happened here is the equivalent to cross motions for summary judgment (which obviously would be reviewed de novo). They weren't called that, but there was no evidentiary hearing or bench trial. The parties essentially agreed to resolve the case on an undisputed set of facts, and that's how the second circuit is going to view it in the main. I don't even care about betting. If I'm wrong about that I'll pay a couple hundred to whatever charity you like.
DennyDoyle'sBoil said:
First off, sorry if I was unnecessarily snippy last night. I was a bit drunk, and was still stewing over the Michigan loss.
But this is how I fully expect it to play out: The NFL's opening brief will take your position and offer a couple of perfunctory paragraphs asserting that the ruling should be reviewed de novo. The NFLPA's opposition will argue that either Berman made findings of fact that are entitled to deference under the clear error standard, or that his conclusions were on mixed questions of law and fact, and that those conclusions are entitled to a standard more deferential than de novo. This issue will be argued before the panel. In its opinion, the court will either reach the question, or it won't. See, e.g., Scandanavian Reinsur. Co. Ltd. v. St. Paul Fire and Marine Ins. Co., (unpublished) at 16 n. 14 ("The parties dispute whether the appropriate standard of review for conclusions regarding mixed questions of law and fact is de novo or clear error in the context of petitions to vacate arbitration awards. Because we conclude that the result below rests on legal error, we need not reach this question.") And if it reaches it, it will either decide de novo is appropriate or it won't. But either way, it will be a contested point, which is why I think definitively stating that the ruling will be reviewed de novo is not far afield from Munson's "Brady will lose because deference and Article 46."
Somewhat as an aside, the Second Circuit has one of the higher rates of mem (unpublished) dispositions in the country. Depending on the panel, I wouldn't be terribly shocked if it chose not to make any potentially sweeping decisions about labor arbitration review in connection with some multimillionaire's playing schedule and deflated footballs, and instead spit out a narrow unpublished decision mainly deferring to Judge Berman's findings.
I don’t mind snippy if also substantive. Debating legal issues is fun, though I guess I’d acknowledge that standards of review aren’t exactly sexy.
I think it could well play out like you suggest – and any discussion of standards of review is always premature until you know what the appellant is going to argue. Standards of review depend on what the appellant says is error. If they challenge factual findings, it’s clear error. If they challenge legal issues, de novo. If they challenge discretionary decisions, it’s abuse of discretion. So, an argument that Brady actually did receive notice of what constitutes conduct detrimental would be reviewed for clear error. (If it were disputed.) An argument that the notice Brady received was sufficiently adequate so as not to make the proceedings fundamentally unfair would be reviewed de novo. An argument that the judge erred by deciding the merits after holding settlement conferences would be reviewed for abuse of discretion (assuming the NFL had properly preserved an objection).
Perhaps the most accurate way to say what I’ve been trying to say is that I just don’t think we’re going to see any arguments in category one from the NFL. They really can’t challenge any of the “facts” on which the decision was based, because they didn’t ask to submit evidence and didn’t contest the accuracy of the NFLPA’s exhibits. This was decided on, essentially, a stipulated factual record by agreement of both sides. If the NFL tried to challenge the facts (for example, if they tried to say on appeal that Brady actually did receive some pamphlet that explained what conduct detrimental means) they’d have a far bigger problem than standard of review – they’d have the problem that they waived or failed to preserve.
But if what you’re saying is that the NFL may make an argument they say is a legal issue where Kessler responds, “actually, their argument depends on an implicit factual premise that either they conceded below or must be reviewed for clear error,” then, yes, we don’t disagree. That happens sometimes in appeals and could happen here. Though I do think this is a strategy fraught with a little peril in this particular case, in that he could walk into a trap by suggesting the judge made factual findings on matters outside the permitted grounds for vacating awards.
Your main disagreement seems to be with my saying “this is a de novo appeal” or whatever I said. To put more meat on that bone, that’s shorthand for what I’m really saying which is that at least on my first couple of readings, I’m not really seeing anything in Berman’s decision that qualify as findings of disputed facts that will be dispositive (or even very significant) with respect to any of the arguments I anticipate the NFL will make.
On the last point, I would think a memdisp is more likely to be good news for Brady and an opinion is more likely to be bad.
I think it could well play out like you suggest – and any discussion of standards of review is always premature until you know what the appellant is going to argue. Standards of review depend on what the appellant says is error. If they challenge factual findings, it’s clear error. If they challenge legal issues, de novo. If they challenge discretionary decisions, it’s abuse of discretion. So, an argument that Brady actually did receive notice of what constitutes conduct detrimental would be reviewed for clear error. (If it were disputed.) An argument that the notice Brady received was sufficiently adequate so as not to make the proceedings fundamentally unfair would be reviewed de novo. An argument that the judge erred by deciding the merits after holding settlement conferences would be reviewed for abuse of discretion (assuming the NFL had properly preserved an objection).
Perhaps the most accurate way to say what I’ve been trying to say is that I just don’t think we’re going to see any arguments in category one from the NFL. They really can’t challenge any of the “facts” on which the decision was based, because they didn’t ask to submit evidence and didn’t contest the accuracy of the NFLPA’s exhibits. This was decided on, essentially, a stipulated factual record by agreement of both sides. If the NFL tried to challenge the facts (for example, if they tried to say on appeal that Brady actually did receive some pamphlet that explained what conduct detrimental means) they’d have a far bigger problem than standard of review – they’d have the problem that they waived or failed to preserve.
But if what you’re saying is that the NFL may make an argument they say is a legal issue where Kessler responds, “actually, their argument depends on an implicit factual premise that either they conceded below or must be reviewed for clear error,” then, yes, we don’t disagree. That happens sometimes in appeals and could happen here. Though I do think this is a strategy fraught with a little peril in this particular case, in that he could walk into a trap by suggesting the judge made factual findings on matters outside the permitted grounds for vacating awards.
Your main disagreement seems to be with my saying “this is a de novo appeal” or whatever I said. To put more meat on that bone, that’s shorthand for what I’m really saying which is that at least on my first couple of readings, I’m not really seeing anything in Berman’s decision that qualify as findings of disputed facts that will be dispositive (or even very significant) with respect to any of the arguments I anticipate the NFL will make.
On the last point, I would think a memdisp is more likely to be good news for Brady and an opinion is more likely to be bad.
For the pacer nerds, the case has been docketed in CA2. 15-2801 is the lead.
Nothing of significance yet, except the NFLPA has added to their team Barbara Berens -- who you've probably seen on TV coming in and out of the Minnesota courtrooms in the various NFLPA cases there. She's Minnesota based.
She actually made kind of a rookie mistake in the court of appeals -- she filed a notice of appearance in the case but she's not actually admitted to the second circuit, so they had to call her to tell her she was required to file an application for admission and attach it to her notice of appearance. (Amazing what you can glean from the docket.)
Nothing of significance yet, except the NFLPA has added to their team Barbara Berens -- who you've probably seen on TV coming in and out of the Minnesota courtrooms in the various NFLPA cases there. She's Minnesota based.
She actually made kind of a rookie mistake in the court of appeals -- she filed a notice of appearance in the case but she's not actually admitted to the second circuit, so they had to call her to tell her she was required to file an application for admission and attach it to her notice of appearance. (Amazing what you can glean from the docket.)
Barbara Berens, former clerk to Judge Doty, and MN local counsel on the NFL antitrust litigation
http://www.berensmiller.com/attorneys/barbara-podlucky-berens
http://www.berensmiller.com/attorneys/barbara-podlucky-berens
I'm sorry, but not only is this not a "perfect analogy," it's terrible. The odds are nowhere near 50-50.DennyDoyle'sBoil said:
I said yesterday that I thought the odds of the NFL overhauling the system and dropping the appeal are higher than Brady losing. Looks like we may have a significant development in that department:
I think this appeal is getting dropped. The NFL will have to be happy with its ridiculous draft pick punishment and Kraft will have to live with that as part of his legacy in Boston.
A wise approach would be to start from scratch on discipline, to have a top notch law firm hitherto not connected with the NFL report to a committee of owners, and to work something out with the NFLPA. Like baseball. Ancillary to that effort, the appeal in this case and in the AP case (pending in the 8th Circuit) are dropped. Cherry on sundae would be to remove people with agendas in the NFL office.
But that would be wisdom. I am not holding my breath. At most, we'll likely see RG removed as role of arbitrator in all disciplinary matters -- at gunpoint, no doubt.
But that would be wisdom. I am not holding my breath. At most, we'll likely see RG removed as role of arbitrator in all disciplinary matters -- at gunpoint, no doubt.
dcmissle said:
That's exactly what I was thinking. They'll keep Roger as initial decision-maker, but remove him as arbitrator. The question is if they'll try to push their own favorites or actually work with the NFLPA to find some they can agree on. Either way, it should be a delicious dish of shit served warm to Roger. Tom would enjoy that, though I doubt it's going to sate his anger.
The crazy thing here, depending on if and how this actually pans out, is that the players are getting this without having to give up anything at the bargaining table. This is a huge failure on Goodell's part. He could have been firm and made it clear that the CBA prevented him from doing more, but he massively overreached his power.dcmissle said:
I think this is more about optics than anything else. Why would the NFL owners GIVE away anything? They may take the executioner role from Goodell's J/J/E model and let some ball-boy carry out the rubber stamp role. Real advances may be won at the bargaining table in 5 years, (IIRC?) but this about the PR war that Goodell lost, which embarrassed the owners,(really John Mara in court-what if he had to testify) and the fall-out has to be contained.dcmissle said:
bankshot1 said:
I think you are correct. The last thing NFL owners want to do is emulate MLB's labor relations policies.
Perhaps we could rehabilitate his analogy by saying that this is like the 2004 ALCS: once the MFY lost Game 6, they were all but dead in Game 7.Ed Hillel said:
Rovin Romine said:
I've been trying to follow along here with all the arguments, but this portion of Rovin Romine's post a little bit upthread is maybe the most important one I've seen - I've researched the thread to see if anyone has elaborated on this idea- I hope I'm not rehashing anything, but this merits some elaboration:
While the NFL's deep pockets and atavism toward the NFLPA seem without limits, they are really up against it and are going to spend even more resources regardless of the standard of review and likelihood of success in the 2d Circuit on appeal. Rovin Romine's point quoted above was consistent with a "(gasp)whoa!" moment I had when reading Berman's specific language about not deciding all the claims raised. My take was that Berman had cherry picked what he thought were the worst errors in the arb process, passing on what he thought were other significant problems presenting more thorny legal issues. This almost guarantees a remand on those remaining issues if there is a reversal.....and as RR notes, then you have to go through another appeal, one which seems inevitable regardless of who wins round 2 in front of Berman.
So I would say it is worse than this "not playing out well" for the NFL and is instead more like a complete nightmare - this could stretch on for a long time, and to be clear, Brady is playing through all of it: this appeal, a remand back to Berman, potential loss/win of round 2 before Berman, and then another appeal to the 2nd circuit, with a likely stay pending appeal if he needs one.
My impression is that Berman's tone during argument and in the decision strongly suggests he thinks there was "evident partiality." I don't know enough about labor law or appellate decisions in that area to have a firm idea on this, but my guess is an "evident partiality" finding requires quite a bit of digging through the record, a little subjectivity to go with your objectivity etc, so I expect there could be all kinds of different views of this issue making it perhaps a very loose hook on which to hang one's hat. If the NFL loses that fight in a second round after a remand, it will be couched in even uglier language about them - and while Roger might not care, I think many owners would. As I see it, the NFL is fighting a battle to get to another round where it is likely the SDNY would again hand their heads to them - so their end game has to be to outlast all of this with a final/ultimate vindication after a second appeal.
You could think the NFLPA's loss of that second appeal is inevitable if they lose this one, but I find appellate courts often work in strange and mysterious ways. What the parties might expect are the strongest arguments turn out to be the weakest in an appellate court's view, and vice versa. It's possible the 2nd Circuit will look at the transcript now and say "we don't agree with the decision below, but hmmm.....evident partiality does seem pretty obvious to us here" - but they are unlikely to tell you that now (though they might hint at it, maybe in a footnote).
A party that is "too stupid to quit", indeed....as a divorce lawyer relative of mine was fond of saying, about the demand for litigation of domestic disputes and the great success of his practice; "sometimes there's no such thing as a diminishing supply of hate."
The problem is, this is far from certain. Appellate courts employ all kinds of exceptions to evade the general rule that a court should not decide an issue not passed on in the court below. Of those, the ones that come to mind that an unfriendly panel here could assert are (1) the correct result is "clear"; (2) the matter concerns a purely legal question; or (3) the factual record is sufficiently developed that the COA can decide the matter without wasting judicial resources on remand.bob burda said:
Point being, if a panel wants to make a final decision in the league's favor, there are ways to do so.
To my knowledge, there's not any dispute about the facts surrounding the evident partiality argument. If the 2nd Circuit wants to reach it (either way), I think they have enough there already.bob burda said:
A panel certainly could resolve the unresolved issues listed at the end of Judge Berman's decision to prevent another appeal. On the other end of the spectrum, a panel could resolve the case in favor of the Union and TB in an unpublished memorandum opinion of no precedential value. Indeed, I don't this is likely, but the 2nd Circuit could resolve this case in one sentence:
"The judgment below is affirmed."
It does not have to create law, it does not even have to provide reasons, though it probably will provide at least a bare bones explanation.
And that could be the end one way or another because (1) this Court does not grant rehearings, much less rehearings en banc (2) any petition for review to the US Supreme Court will be decided this way --
"The petition for a writ of certiorari is denied"
"The judgment below is affirmed."
It does not have to create law, it does not even have to provide reasons, though it probably will provide at least a bare bones explanation.
And that could be the end one way or another because (1) this Court does not grant rehearings, much less rehearings en banc (2) any petition for review to the US Supreme Court will be decided this way --
"The petition for a writ of certiorari is denied"
I think the chances that the Court will reach arguments Berman did not will increase if Kessler tries to argue them as alternative bases for affirmance. Whether to do so or not is a tough strategy call. But fortunately, he can see how the NFL's opening brief comes out before he has to decide. It seems unlikely the Court would reach some of them if he doesn't argue them, although the Court always retains discretion to affirm on any basis apparent in the record. (It will virtually never, however, reverse based on arguments not made by the appellee on appeal.) The rule in the Circuits I'm familiar with would not require Kessler to make the alternative arguments for affirmance on appeal in order to preserve his right to re-urge them on remand if that opportunity exists later, but I don't know what the Second Circuit rule on this is thought it would be very surprising if different.
I think it's a bit too early to predict whether there might be a certworthy issue here, at least until we know what the Second Circuit has done. NLRMA arbitration is an important federal issue, and there is definitely some tension among the Circuits on some of these issues -- as has been explored a little in this thread. It's possible that the Second Circuit could decide the appeal in a way that creates a Circuit split or deepens an existing Circuit split, which would give the loser some potential ammunition to work with. Though, betting against cert being granted is always the right bet.
I think it's a bit too early to predict whether there might be a certworthy issue here, at least until we know what the Second Circuit has done. NLRMA arbitration is an important federal issue, and there is definitely some tension among the Circuits on some of these issues -- as has been explored a little in this thread. It's possible that the Second Circuit could decide the appeal in a way that creates a Circuit split or deepens an existing Circuit split, which would give the loser some potential ammunition to work with. Though, betting against cert being granted is always the right bet.
The Court likes arbitration cases, and in recent years has granted review in 1 to 3 per Term. That said, unless you can present a clear cut Circuit split -- and I mean as clear as a Montana sky -- you have no shot. At his confirmation hearings, CJ Roberts expressed a wish to get the Court's docket > 100 cases a Term. It is lower now than when he testified.
Florio on his Thursday radio show said whichever side loses in the appeal (either 2 judges to 1, or 3-0) can then ask for a review by all 22 judges sitting on the 2nd Circuit. Only after that is there a chance of it rising to the Supreme Court. Is Florio right?
Harry Hooper said:
No. En banc review by the entire bench (all of the judges) is very uncommon, takes place only at the discretion of the court of appeals, and it is not required before a party seeks review from the Supreme Court.
After the three-judge appeal, the losing party may seek en banc reconsideration, but if it truly thinks it has grounds, it is more likely to seek review, directly, by the Supreme Court. That, too, is discretionary--the Supreme Court doesn't have to hear the case, and only hears about 100 of the more than 10,000 cases each year for which parties seek review, a process known as petitioning for certiorari. The Supreme Court typically only hears cases to resolve important differences in interpretation of the law by the various Courts of Appeals. There are 13 different geographic "Circuits" of appeals courts throughout the country, each of which operates independently, with a body of case law that interprets the law and Supreme Court precedent, and which is only binding on the trial courts in that circuit (the NY trial courts are bound by the Second Circuit; the California trial courts by the Ninth Circuit, etc.). The Supreme Court sits atop all of the courts, and (as noted), it tends to grant certiorari, and hear cases, for the purposes of bringing continuity to the law as amongst the Circuits. There are some other reasons why the Supreme Court hears cases, but resolving differences in interpretation amongst the Circuits is the primary one.
It is very, very unlikely that this goes to the Supreme Court. I haven't seen any analysis of whether there are any significant Circuit splits at stake here, but it strikes me as unlikely, particularly given the factual uniqueness to these circumstances.
Missle is right about the Second Circuit. It just doesn't like to sit en banc. Overall, federal Circuits grant en banc review in about 2 of every 1,000 cases. The Second Circuit hears at a rate about one eighth of that -- fewer than one per year. I think it almost has to be an intra-Circuit split, where a panel reaches a decision contrary to what a prior panel decided (which it is not supposed to do except in extraordinary circumstances like an intervening change in Supreme Court law).
A former clerk would have to confirm, but I believe that when a three judge panel in the Second Circuit is ready to issue a published decision, it is first circulated in draft to all the judges, who can comment or alert the panel if they think it is clearly inconsistent with existing Circuit precedent. That practice tends to cut down on en banc review.
A former clerk would have to confirm, but I believe that when a three judge panel in the Second Circuit is ready to issue a published decision, it is first circulated in draft to all the judges, who can comment or alert the panel if they think it is clearly inconsistent with existing Circuit precedent. That practice tends to cut down on en banc review.
https://twitter.com/wallachlegal/status/642483719643766784
So Berman is nothing if not diligent. Still ruling on motions.
So Berman is nothing if not diligent. Still ruling on motions.