TB Suspension: Cheater free to play again

phenweigh

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I don't have the experience to make even an educated guess. From everything I've read, its a long shot.

But I do think when you can cite something this court has done that no other court has done before, then you've got the attention of the judges for them to at least consider what the far reaching effects of the existing ruling will be if left on the books. I like how that issue in no longer framed as a Brady/NFL issue, but a more importantly an issue that will have far reaching effects on all workers under existing CBA's. Olsen had to raise an issue that moved the focus from Brady/NFL to workers nationwide to have a chance. I think he's done that.

So I think you'll see some things later today from experts indicating the brief and issues framed are stronger than they anticipated, and couple that with Ted Olsen making the argument, and the odds of the en banc getting granted are higher than most anticipated. But putting a number on that at 20-30-40%??? I don't know.
Assuming an en banc review is granted, what might be the odds of Brady winning?
 

WayBackVazquez

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Assuming an en banc review is granted, what might be the odds of Brady winning?
Pretty good. Having a majority of active judges vote to rehear a case, especially in a circuit where en banc review is almost never granted, suggests that majority feels something was wrong with the panel opinion. I think when I did this research last, I found that somewhere around 75-80% of cases nationwide that were reheard en banc ended up with a different decision from the original panel. The sample is so small in the Second Circuit that percentages are probably not meaningful.

It's not going to be granted, though.
 

TheoShmeo

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Pretty good. Having a majority of active judges vote to rehear a case, especially in a circuit where en banc review is almost never granted, suggests that majority feels something was wrong with the panel opinion. I think when I did this research last, I found that somewhere around 75-80% of cases nationwide that were reheard en banc ended up with a different decision from the original panel. The sample is so small in the Second Circuit that percentages are probably not meaningful.

It's not going to be granted, though.
That's quite definitive. Not that I believe you are wrong. I am just not at that level of certainty.

Maybe (probably, really) I am guilty of being caught up in this but I think the odds are better than zero because:

- Olson has so much credibility with the Judges (and I know that's true of Clement too)

- The brief was compelling in my view

- The Chief wrote the dissent

- They may know that Chin got some of the facts wrong, thereby arguably casting some stink on the majority opinion

- This case just might be sui generis given all the attention it has gotten and the reasonable belief that some of the Judges could form that Brady got railroaded by an unhinged or biased Commissioner

I know how rarely these motions get granted and remain pessimistic.
 
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AB in DC

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[edit: responding to DrewDawg...for some reason I can't get the message quoted here]



Goodell has no reason to talk about settlement, anyway. As far as he's concerned, he's already won.

Now if the union does get the Second Circuit to hold an en banc hearing, that might change. I could easily see the settlement discussions reopen in earnest. But for now, there's no point.
 

Koufax

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The fact that this case is sui generis is a reason not to consider it en banc. When the court is reversing $1.2B fines against major banks, it may feel that it has more important things to spend its time on than a 4 football game suspension, especially if the case really is not of major precedential value.
 

BaseballJones

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Legal types: Since they filed this appeal for an en banc hearing (review? whatever it's called), what happens if it's denied? Can they then file an appeal with SCOTUS? Or did they basically have a decision to make - either en banc OR appeal to SCOTUS, and they chose en banc, which kills their option for SCOTUS? I'm sure someone has already answered this question, and if so, I apologize for missing it.
 

WayBackVazquez

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Yes, they can file a petition for certiorari with SCOTUS after en banc denial. I continue to believe they should not, because it it will be denied and could end up biting the Pats on timing.
 

DJnVa

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Goodell has no reason to talk about settlement, anyway. As far as he's concerned, he's already won.

Now if the union does get the Second Circuit to hold an en banc hearing, that might change. I could easily see the settlement discussions reopen in earnest. But for now, there's no point.

I wasn't talking about now. I was talking about the apparent settlement discussions that happened months ago and the fact that Brady offered to settle this, but the NFL apparently wanted him to roll over on the 2 equipment guys.
 

dcmissle

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The Supreme Court has for a while been under fire for not taking enough cases, and the current stats for the next Term are eye popping in that regard. Also, the 4-4 split since Scalia's death and the refusal to consider Garland highlight the Court's apparent dysfunction.

I'd still rather have Scalia there than not for purposes of this case, but all of this may create an opportunity that might not exist in more ordinary times. You have two great advocates and an interesting enough case for a Court that needs cases.

This alone won't do it, and I have homework to do before arriving at an opinion on whether yesterday's filing presents a cert worthy question. But if there is one, the Court may just bite.
 

tims4wins

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I mean, for this to reach absolute, full ridiculousness, it almost has to end up in the Supreme Court at this point.
 

WayBackVazquez

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I would happily give odds on a denial here better than the cert grant rate for paid cases.

I think it's a reach to assume that the because the Court is not accepting new cases, it's going to start accepting uncertworthy cases to give itself something to do. There is no cert hook here beyond a contrived and shallow split with the Eighth Circuit. This petition would not get a relist.
 

BaseballJones

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I mean, for this to reach absolute, full ridiculousness, it almost has to end up in the Supreme Court at this point.
This was suggested very early on and poo-poohed here by many (probably for good reason). And it's still a long shot I'd wager. But.... would it REALLY surprise anyone at this point if it ended up there?
 

WayBackVazquez

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This was suggested very early on and poo-poohed here by many (probably for good reason). And it's still a long shot I'd wager. But.... would it REALLY surprise anyone at this point if it ended up there?
Yes, it would surprise me. Nothing extraordinary has occurred since legal proceedings were initiated. One party won at the district court; the losing party appealed. There was no way those things weren't going to happen. Brady is now throwing his Hail Mary. Nothing surprising there; he has nothing to lose with a rehearing petition.

Brady only stands to lose something after the petition is denied. Like I've said, (assuming he gets a stay while a cert petition is pending) filing a cert petition threatens to have him in position to miss games in mid or late season.

I may as well go on record with my prediction that after the en banc petition is denied, Brady will drop the case and issue a statement that he will serve his suspension at the start of the season rather than seek Supreme Court review. Honestly, if Brady's legal team thought there was a reasonable chance at cert, I don't think they would have wasted time with the en banc petition, which has less than a reasonable chance.
 

DennyDoyle'sBoil

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I may as well go on record with my prediction that after the en banc petition is denied, Brady will drop the case and issue a statement that he will serve his suspension at the start of the season rather than seek Supreme Court review. Honestly, if Brady's legal team thought there was a reasonable chance at cert, I don't think they would have wasted time with the en banc petition, which has less than a reasonable chance.
I don't disagree with your overall pessimism, but I disagree that filing an en banc petition has much to do with what they think about their cert prospects. Unless cost is an issue, it's hard to imagine not seeking en banc review when an opinion is published with a dissent.
 

WayBackVazquez

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You're certainly right generally, though there are exceptions. One being that the panel majority clearly followed circuit precedent, though it's in conflict with other circuits. Another, I would think is that you're in the Second Circuit, and timing is a major factor.

(I am currently opposing a state-on-top cert petition in a case my client won 2-1 at the COA. No petition for rehearing was filed, and the state solicitor general is not inexperienced.)
 
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AB in DC

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IANAL, but isn't it odd to highlight the circuit split in the en banc petition? I didn't think the Circuit Court judges would care about that -- seems like an issue only for the Supreme Court..
 

WayBackVazquez

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IANAL, but isn't it odd to highlight the circuit split in the en banc petition? I didn't think the Circuit Court judges would care about that -- seems like an issue only for the Supreme Court..
Odd? No. While the more common reason presented for en banc rehearing tends to be that the panel decision is contrary to circuit precedent, one of the other situations explicitly contemplated by the federal rules is "a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue."

Basically, if you've got a split, you include it. And Brady did claim such a split in his 35(b) statement:

Rehearing is warranted because the panel opinion conflicts in two key respects with decisions of the Supreme Court and decisions of other circuits.
 
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dcmissle

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There is no doubt TB is facing long odds; it's easy to conclude that and I'm looking for the pony in the barn.

I'm never going to be able to prove causation, but I remain convinced TB did not get Kessler involved in this matter early enough -- and then retained him one step too long.
 

Norm loves Vera

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More than 20 Professors sign a brief submitted in support of TB and petition for a rehearing.

"“Although sensationalized in the press, it was no surprise to any scientist that the Patriots’ footballs lost pressure during the AFC Championship,” the professors wrote in an amicus brief filed today. “So-called ‘deflation’ happens naturally when any closed vessel, such as a football, moves from a warm environment to a cold one.”
http://www.bostonherald.com/news/local_coverage/herald_bulldog/2016/05/more_than_20_professors_back_tom_brady_in_deflategate

Edit: Adding another article about the brief, with more in depth info, I found this very interesting:

"Here, the group noted that the NFL has admitted to now understanding the Ideal Gas Law. The group then looked at the temperature for 10,000 NFL games dating back to 1960 and determined that if footballs were inflated in a 70-degree room:

–Footballs inflated to 13.0 PSI before the game would have dropped below the NFL’s allowable limit in approximately 61 percent of every NFL game since 1960."

http://boston.cbslocal.com/2016/05/24/deflategate-professors-file-amicus-brief-admonishing-nfl-supporting-tom-brady/
 
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BroodsSexton

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A lot has been made about the fact that "the Chief Judge wrote the dissent," but isn't that basically just a rotating administrative designation? I'm not sure his opinion carries any more weight, beyond its persuasiveness.
 

WayBackVazquez

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A lot has been made about the fact that "the Chief Judge wrote the dissent," but isn't that basically just a rotating administrative designation? I'm not sure his opinion carries any more weight, beyond its persuasiveness.
You're right that it rotates based on seniority, and is not in and of itself all too significant. In this case though, Katzmann happens to be one of the most (probably THE most) respected judges on the court.

That said, I don't even think it's a sure thing that Katzmann calls for a vote or votes for rehearing. He has publicly supported the tradition in the Second Circuit of respecting panel opinions and rehearing only in extraordinary circumstances. I could see him not wanting to appear hypocritical.

I concur in the denial of rehearing en banc, consistent with our Circuit's longstanding tradition of general deference to panel adjudication-a tradition which holds whether or not the judges of the Court agree with the panel's disposition of the matter before it. Throughout our history, we have proceeded to a full hearing en banc only in rare and exceptional circumstances.
-Ricci v. Destafano
 
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joe dokes

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You're right that it rotates based on seniority, and is not in and of itself all too significant. In this case though, Katzmann happens to be one of the most respected judges on the court.
We also can't assume that his dissent is an indication that he thinks the case worthy of en banc.
 

dcmissle

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And it's not clear to me that his status as Chief helps. It may hurt.

Katzmann has staunchly defended the Second Circuit's practice of panel deference, which has resulted in almost no en bancs. If that's the rule and you're the defender of this institutional practice, it should apply when you're on the short end of decisions too.
 

djbayko

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I could be wearing Patriots glasses, but I think that this is the kind of thing that will slant public opinion more in Brady's favor years from now.

Good for him.
It certainly should look good on him, but sadly I think most people are never going to hear about this development. Unless more specifics are released which turn it into a juicy anti-Goodell story, I think this will be lost in the noise.
 

Manuel Aristides

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Great thread for those of us who know that lawyers wear suits and little else. The expertise is interesting and informative. I have little to add, and I'm sure I simply missed it, but: how long would you barrister-types expect to wait they male a decision on holding the en banc? Based on the trajectory of this case, I assume, like, July?
 

djbayko

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More than 20 Professors sign a brief submitted in support of TB and petition for a rehearing.

"“Although sensationalized in the press, it was no surprise to any scientist that the Patriots’ footballs lost pressure during the AFC Championship,” the professors wrote in an amicus brief filed today. “So-called ‘deflation’ happens naturally when any closed vessel, such as a football, moves from a warm environment to a cold one.”
http://www.bostonherald.com/news/local_coverage/herald_bulldog/2016/05/more_than_20_professors_back_tom_brady_in_deflategate

Edit: Adding another article about the brief, with more in depth info, I found this very interesting:

"Here, the group noted that the NFL has admitted to now understanding the Ideal Gas Law. The group then looked at the temperature for 10,000 NFL games dating back to 1960 and determined that if footballs were inflated in a 70-degree room:

–Footballs inflated to 13.0 PSI before the game would have dropped below the NFL’s allowable limit in approximately 61 percent of every NFL game since 1960."

http://boston.cbslocal.com/2016/05/24/deflategate-professors-file-amicus-brief-admonishing-nfl-supporting-tom-brady/
I found this article with a lot more details and direct quotes from the brief, as well as a list of the professors and universities attached to it.

http://boston.cbslocal.com/2016/05/24/deflategate-professors-file-amicus-brief-admonishing-nfl-supporting-tom-brady/

I loved this graph which says "hey dummies, you're teams are playing with 'illegal' balls all the time!"



The group then looked at the temperature for 10,000 NFL games dating back to 1960 and determined that if footballs were inflated in a 70-degree room:

–Footballs inflated to 13.0 PSI before the game would have dropped below the NFL’s allowable limit in approximately 61 percent of every NFL game since 1960.

–Footballs inflated to 12.5 PSI before the game would have dropped below the NFL’s allowable limit in approximately 82 percent of every NFL game since 1960.

–Footballs inflated to 13.5 PSI before the game would have dropped below the NFL’s allowable limit in approximately 38 percent of every NFL game since 1960.
 

TheoShmeo

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There is no doubt TB is facing long odds; it's easy to conclude that and I'm looking for the pony in the barn.

I'm never going to be able to prove causation, but I remain convinced TB did not get Kessler involved in this matter early enough -- and then retained him one step too long.
I understand well the "retained him one step too long" part of your lament. Just hearing Olson on GMA made me think that, never mind the fact that Kessler is not as accomplished on the appellate side and seemed to have a rocky day on oral argument before the Second Circuit. But the bolded part has me scratching my head (though not disagreeing).

Can you or anyone else who agrees with you elaborate on when you think Kessler should have been involved and how did do you think that not happening until later hurt Tom?
 

tims4wins

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I understand well the "retained him one step too long" part of your lament. Just hearing Olson on GMA made me think that, never mind the fact that Kessler is not as accomplished on the appellate side and seemed to have a rocky day on oral argument before the Second Circuit. But the bolded part has me scratching my head (though not disagreeing).

Can you or anyone else who agrees with you elaborate on when you think Kessler should have been involved and how did do you think that not happening until later hurt Tom?
I'm sure it had to do with the advice that Yee was giving his client early on
 

Bleedred

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I found this article with a lot more details and direct quotes from the brief, as well as a list of the professors and universities attached to it.

http://boston.cbslocal.com/2016/05/24/deflategate-professors-file-amicus-brief-admonishing-nfl-supporting-tom-brady/
My favorite part of the article is this:

"Additionally, had the NFL taken the opposite assumptions — that referee Walt Coleman used the gauge he recalled using, and that the temperature was 71 degrees [in the locker room where the balls were gauged] — then the “additional” pressure loss beyond natural expectations would be at or close to zero. “Had the league made these two different assumptions alone,” the group stated, “the results would have vindicated Mr. Brady.” [my emphasis]

In other words, if Ted Wells had credited Walt Coleman, the man who he identified as one of the "most respected referees in the NFL" and "widely recognized as exceedingly meticulous, diligent and careful" (page 47 of the Wells Report), with correctly using the gauge he said he used, then Ted Wells would have had to conclude no evidence of tampering.
 

dcmissle

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I'm sure it had to do with the advice that Yee was giving his client early on
Precisely. Yee writes nice press releases that make fans feel better, but TB was a lamb to the wolves with him. Kessler would have been far better. It's too bad.
 

TheoShmeo

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Precisely. Yee writes nice press releases that make fans feel better, but TB was a lamb to the wolves with him. Kessler would have been far better. It's too bad.
I don't disagree. Yee, though, was functioning as Tom's agent. I believe that the NFLPA retained Kessler as opposed to Brady. It's indeed a shame that he not hired by them earlier and that he did not babysit Yee and play an active role in Brady's decision making earlier on.
 
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That chart could be very persuasive (maybe not to the judges, but to normal people). Many people tune out when numbers get thrown around, but this avoids that reflex. Only complaint is that the game in question should be highlighted or a different color.
 

The Big Red Kahuna

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It was asked above, but I don't believe answered... when would we expect a decision on whether the en banc request has been approved or denied?
 

dcmissle

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It was asked above, but I don't believe answered... when would we expect a decision on whether the en banc request has been approved or denied?
There is no telling. It's reasonable to expect some time before mid-June that the Court either will deny the petition outright or order a response from the NFL.
 

Norm loves Vera

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IANAL, or even watch Law and Order, but a link to the "Sixth Circuit Appellate Blog" piqued my interest when it showed up on my Twitter feed today. It was an explanation by Judge Sutton on why Enbanc Reviews are so rare. Did Olson make a strong case that a review is worth the time and resources of the 2nd?

"Convincing a majority of active judges that an issue was wrongly decided (or conflicts with another decision) is therefore not the most important part of an en banc petition. An en banc case draws on intra-circuit political capital, consumes scarce judicial resources, and diverts the attention of the entire court for just one case. A petition must show that the result will be worth the price."

http://www.sixthcircuitappellateblog.com/recent-cases/judge-sutton-explains-why-en-banc-review-is-so-rare/

edit: typos
 
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WayBackVazquez

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In case you didn't know, you also quoted the law firm associate blogger, not the actual words of Judge Sutton. And what a judge in the Sixth Circuit thinks is not necessarily same as what 13 judges in the Second Circuit think.

Olson knows the reasons why en banc review is disfavored; he knows the appropriate grounds for review. He also know that judges are human, and sometimes they do things because they want to, even if those things are inconsistent with what judges may have stated in the past or with their usual philosophy. The petition reflects all that knowledge. It's still a long shot.
 

PaulinMyrBch

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It was asked above, but I don't believe answered... when would we expect a decision on whether the en banc request has been approved or denied?
Wallach tweeted something yesterday where he indicated that 30 days will be a telling time frame. If the court is going to deny the request, it will likely happen in about 30 days. If they are going to consider granting the request, then they will likely instruct the NFL to file a response to Olson's petition. So if we hear something about the NFL being asked to submit a brief, then that is a good sign that the judges, probably 4 at least, are seriously considering granting the request. Just because the NFL may be asked to respond doesn't mean they are going to accept the case, but it is a good sign that they are considering it.
 

WayBackVazquez

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Wallach tweeted something yesterday where he indicated that 30 days will be a telling time frame. If the court is going to deny the request, it will likely happen in about 30 days. If they are going to consider granting the request, then they will likely instruct the NFL to file a response to Olson's petition. So if we hear something about the NFL being asked to submit a brief, then that is a good sign that the judges, probably 4 at least, are seriously considering granting the request. Just because the NFL may be asked to respond doesn't mean they are going to accept the case, but it is a good sign that they are considering it.
He doesn't know what he's talking about. Yes, something might happen within 30 days. It also might not. We could hear nothing for 4 months, and then get an amended opinion. We could hear nothing for 8 months and then get a denial with a couple of concurrences with and a couple of dissents. We could get an order for a response in two weeks.
 

dcmissle

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I don't mean to pump the expertise in BBTL; it doesn't need it, off field or on.

But if you have a question, you're better off putting it here. The vast majority of these outsiders do not know what they are talking about.

There is no practical way of getting a stats based handle on what Wallach is speculating about. And even if there were, this matter could be an outlier.
 

WayBackVazquez

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FWIW, in the last case the Second Circuit heard en banc (Ganias), it ordered a response a week after the petition was filed. In the most recent Second Circuit case before the Supreme Court (RJR Nabisco v. the EC), the court never asked for a response and took many months to deny. And as dcm says, those data points really can't predict future results.
 

steveluck7

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Ted Olson is encouraged that Katzmann went to the trouble of dissenting link
“The Chief Judge wrote a very convincing dissent,” Olson said. “He’s a highly respected individual. He’s been a member of that Court for many, many, many years. He very rarely dissents from an opinion by his colleagues. Over the years, just a few times out of thousands of cases in which he’s participated. So here’s an individual who is highly respected, who’s the Chief Judge of the court, who wrote a very cogent, persuasive, dissenting opinion pointing out important principles that he felt — and we feel — the majority got wrong. So we do think that that gives us an extra impetus in seeking rehearing.”
Curious about the accuracy of the bolded