In some courts (I dont know the practice of the 2d Cir) it only takes one judge who wants a response for the Court to order the other side to respond. So requesting a response might mean nothing.
TB Suspension: Cheater free to play again
- Thread starter IdiotKicker
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But as a practical matter, would one judge risk wasting the appellee's (and the court's) time if the votes aren't there anyway?
It appears to me that the petition filed was actually a combined petition for panel rehearing and a petition for en banc review. So, before you even get to the question whether there should be en banc review, there is the initial question whether the panel itself wants to change anything in the opinion. So, with respect to whether there is a call for a response, I think it will first be up to the panel, and I would imagine that one judge could call for a response, but if it's just the Chief and the other two don't want a response, who knows what happens.
I don't know Second Circuit practice at all, but in the 9th Circuit, what occasionally happens is you'll file a motion for panel rehearing and petition for rehearing en banc, and time will go by, and then one day you'll get an amended opinion from the Panel, where they fix one of the problems you've identified in an amended opinion (usually you still lose) or maybe they'll clarify what they say to harmonize the case with a case from another circuit or from a prior panel opinion. Inevitably when this happens, you then get an order that says the court having amended the opinion, no active judge voted for en banc and en banc is denied.
Even that is pretty rare -- usually you just get an order denying both. My main point here is that most -- including in the media -- have jumped straight to the en banc procedures but with respect to procedure and theoretical (but not likely) outcomes, the fact that there is also a petition for panel rehearing does matter. (A petition for en banc is virtually always coupled with a petition for panel rehearing, with the thought that the panel should be given the first opportunity to fix their alleged mistake, but not always.)
Edit: Looking at the second circuit's local rules, they are different from what I'm accustomed to in that if the panel grants rehearing and "substantively" changes its opinion, a new petition for rehearing en banc is permitted from the amended opinion. I think that may also be the rule in the 9th Circuit, but they typically shortcircuit it by simply denying en banc on their own after the amended opinion -- though I suppose procedurally there still may be a way to seek en banc again.
I don't know Second Circuit practice at all, but in the 9th Circuit, what occasionally happens is you'll file a motion for panel rehearing and petition for rehearing en banc, and time will go by, and then one day you'll get an amended opinion from the Panel, where they fix one of the problems you've identified in an amended opinion (usually you still lose) or maybe they'll clarify what they say to harmonize the case with a case from another circuit or from a prior panel opinion. Inevitably when this happens, you then get an order that says the court having amended the opinion, no active judge voted for en banc and en banc is denied.
Even that is pretty rare -- usually you just get an order denying both. My main point here is that most -- including in the media -- have jumped straight to the en banc procedures but with respect to procedure and theoretical (but not likely) outcomes, the fact that there is also a petition for panel rehearing does matter. (A petition for en banc is virtually always coupled with a petition for panel rehearing, with the thought that the panel should be given the first opportunity to fix their alleged mistake, but not always.)
Edit: Looking at the second circuit's local rules, they are different from what I'm accustomed to in that if the panel grants rehearing and "substantively" changes its opinion, a new petition for rehearing en banc is permitted from the amended opinion. I think that may also be the rule in the 9th Circuit, but they typically shortcircuit it by simply denying en banc on their own after the amended opinion -- though I suppose procedurally there still may be a way to seek en banc again.
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Adam Schefter @AdamSchefter 27s28 seconds ago
Patriots filed amicus brief supporting NFLPA’s appeal of Tom Brady’s suspension in 2nd circuit, per court filing. Pats + NFLPA vs NFL.
Adam Schefter @AdamSchefter 59s59 seconds ago
Last time team took legal action against NFL was Al Davis and the Raiders; this is a legal brief against NFL and its legal position.
Patriots filed amicus brief supporting NFLPA’s appeal of Tom Brady’s suspension in 2nd circuit, per court filing. Pats + NFLPA vs NFL.
Adam Schefter @AdamSchefter 59s59 seconds ago
Last time team took legal action against NFL was Al Davis and the Raiders; this is a legal brief against NFL and its legal position.
According to Sally Jenkins Olson's letter, together with a congressional report on the NFL's "sham of a commitment to the National Institutes of Health on brain study ... constitute a one-two punch to the league."
https://www.washingtonpost.com/sports/redskins/the-nfl-acts-as-if-its-above-science-and-the-law--and-thats-unacceptable/2016/05/24/0096199c-21d2-11e6-aa84-42391ba52c91_story.html?utm_source=newsletter&utm_medium=newsletter&utm_campaign=daily-radar
https://www.washingtonpost.com/sports/redskins/the-nfl-acts-as-if-its-above-science-and-the-law--and-thats-unacceptable/2016/05/24/0096199c-21d2-11e6-aa84-42391ba52c91_story.html?utm_source=newsletter&utm_medium=newsletter&utm_campaign=daily-radar
Just when I thought I was over it...
Actually, I pretty much am. We all know what a sham the whole thing is at this point, but this thing hasn't been about deflation for a looooong time now.
Edit: I don't see any links to the full brief...
Actually, I pretty much am. We all know what a sham the whole thing is at this point, but this thing hasn't been about deflation for a looooong time now.
Edit: I don't see any links to the full brief...
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Link to the Pats brief:
https://cbsboston.files.wordpress.com/2016/05/patriots-amicus-curiae-brief.pdf
https://cbsboston.files.wordpress.com/2016/05/patriots-amicus-curiae-brief.pdf
Whoa. That brief holds little back.
Although it reads as hastily written, it does a very good job of succinctly laying out what a sham the entire ordeal has been. Could be helpful for the judges to have all of this in an 8 page cliff notes document.
Although it reads as hastily written, it does a very good job of succinctly laying out what a sham the entire ordeal has been. Could be helpful for the judges to have all of this in an 8 page cliff notes document.
Interesting that they go after the argument about access to Paul Weiss notes, which wasn't the main thrust of the NFLPA's petition. Could that be coordination with Gibson Dunn on how best to attack things, given any page restrictions on the NFLPA's filing?
What a great article!
Edit - sorry, lost track of where I was. Mods, please feel free to move this to the DFG megathread if it's inappropriate here.
Fair point. Judges count noses before votes are cast to have some idea if they're pissing up a rope. But if a single judge thinks there might be a few others who might be willing to grant the petition, or if one of the panel majority is worried that "too many" are leaning towards re-hearing.
That was my reaction, too. I was reading it and imagining RG's head getting pummeled with each and every word. Though that may say as much about my hatred for the Commish as the brief itself.
In any event, whether that was coordinated with Gibson Dunn or not -- and I am guessing it was, as parties on the same side often coordinate on some level -- I really like that the Patriots were as hard hitting as they were.
Kraft will likely never live down his decision not to wage war against the NFL, the flowery language he unfortunately used at times or the perception that he is motivated by the Billionaire Boys Club more than his fealty to the Pats. While I understand where that stuff comes from, I think it's also unfortunate and short sighted. I also note the tweet upthread regarding Kraft wanting it both ways. I think that as long as Kraft is an owner in the Club, he will have to play along to some extent but that doing so does not undermine his support of Brady, as this truly hard hitting brief demonstrates. In short, it's not all black and white, and when Kraft wants to go on the offensive -- as he has with that website and this brief -- he sure knows how to do it.
Last, I think it was Chris Gasper who urged Kraft to fold up the tent and close down that website. Another foolish suggestion from Mr. Gasper. And one that I'm glad Kraft did not follow, as this brief makes liberal use of that site, and I think rather effectively.
Really last: I do not have a great sense as to how much attention these Judges are likely to pay to amicus briefs. I'd be interested in the views of others as to that and whether anyone is concerned about diminishing returns or an "enough already" reaction from the Judges. In other words, could the amicus briefs backfire and feed into the normal tendency to deny en banc motions? Or is it, at worst, ice in the winter?
I think the brief is more interesting as a signal about Kraft and the Patriots and how they relate to the league going forward, in no small part because I think it's generally of little importance to the en banc determination. The decision to let Dan Goldberg chew scenery that directly probably wasn't one lightly made.
My first thought was when the CBA is in renegotiation that the Brief is brought up from the Pats as precedent that even an owner thinks Ginger has over extended his authority. The NFLPA has to be elated.
I hope anyway.
I hope anyway.
I enjoyed the brief and it's synthesizing of some of the NFL's/commissioners misdeeds, particularly goodell's mischaracterization of Brady's testimony. However, Footnoting their own website,while an understandable short-cut to a whole bunch of information that they want to cross-reference, strikes me as weak. I understand why they did it though
Do you think he sat there on his selectric and banged that thing out solo, or do you figure there are a couple of associates at Morgan Lewis cursing his name for not even throwing one of them a bone and putting his or her name on a freaking amicus brief?
I saw and noticed the same thing (it's not just the great minds who think alike
) and wondered if they've compartmentalized it a bit. Not his style to shaft an associate like that.
The appeal noted the potential issue of the court's decision related to precedent for labor relations as a particular reason for re-hearing. Is that a particularly strong case? All the stuff about Goodell, the particulars, the amicus brief... If all of that is predominantly case-specific, is it really not moving the needle much (apart from the 'judges are still human and curious' thing)?
I feel like what I've gleened from the legal minds here is that the only hope for the appeal is If the recent decision stands to set precedent that conflicts with other circuits or the 2nd circuit's own work. Am I reading that generally right?
I feel like what I've gleened from the legal minds here is that the only hope for the appeal is If the recent decision stands to set precedent that conflicts with other circuits or the 2nd circuit's own work. Am I reading that generally right?
With the Patriots putting in writing that the league leaked false information and failed to correct it, that leads me to believe they have evidence that is exactly what occurred. Assuming that's true, I think Brady will file a defamation case and I think there's a strong chance it would get past dismissal motions and into discovery, even given the malice standard. If that ever happened, Brady would have the entire league over his knee and could basically demand whatever he wanted. I'm hoping it's something like a public demand for 10 first round draft picks, 10 million each to Jastremski and McNally, and eleventy billion for damage to his reputation.
I can't speak to the rehearing odds in particular, but as a labor leader, I find the notion that this case could have far-reaching implications for labor relations almost laughably unpersuasive. I've never come across any other CBA that empowers an employer to sit as an arbitrator for a contract dispute.
Further, in the normal situation, if an arbitrator were to preside in a manner even remotely similar to Goodell's conduct here, any court would vacate the award, as that arbitrator's partiality would not "inhere" in the "manner chosen" by those parties (a key aspect to the panel's conclusion re evident partiality).
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Yes. The argument has to be larger than "they got this one case wrong." Because everyone on that Court undoubtedly has votes he regrets and would instantly stipulate she got certain cases wrong. It comes with the job. But you can't re-litigate every case, so you have to make it bigger than this case. The category, Alex, is unintended consequences.
I have the same reaction to the Kraft/Goldberg amicus that I did to the Olson petition. Why did it take so long to present these arguments to the Court?
We know that the NFL failed to correct the false report and that the NFL specifically told the Patriots not to correct the false report. We don't know who specifically leaked the false report. If Mort had any integrity....
The amicus briefs probably don't do a whole lot to sway the chances of en banc review. Although unlikely as well, I wonder if Chin ("the evidence of tampering is compelling") is the type to be curious enough from the professors' brief to vote for a rehearing. Although it's being overlooked, that may end up being a better chance than en banc.
I can't imagine any of the three judges would be thrilled to see new testimony, now, that could have been submitted with the original appeal.
Why wasn't Kraft et al screaming about the Mort Tweets on Monday morning? The Pats Are Guilty die was cast by Monday afternoon. Perhaps even earlier since America loves a good Pats hate sesh and seeing no reason to doubt it, people bought the lie; or at least the worst case scenario of the misinformation.
Nobody outside the NFL FO knew the tweets were inaccurate for four months. What was Kraft supposed to say at that point? Same issue for Brady and BB at their press conferences. They couldn't defend themselves.
Joe Zarbano @JoeZWEEI 19m19 minutes ago Boston, MA
Tom Brady's new high profile attorney, Ted Olson, will join us at 12p ET on @WEEI. #Deflategate rolls on.
Tom Brady's new high profile attorney, Ted Olson, will join us at 12p ET on @WEEI. #Deflategate rolls on.
It's never too soon to scream that you haven't done anything wrong and they didn't do that.
Brady would be the only one at that point who could definitively tell anyone that he did nothing wrong. And he did, obviously.
The short versions is because they aren't good arguments for winning the case. The main points people are focussing on--that arbitrator is shitty at science and the collectivley bargained arbitration process is fundamentally unfair--aren't particularly helpful for vacating an arbitral award.
How would Kraft know? He left it to Brady, who denied it from the morning it started. Once the air cleared a bit, Kraft gave a press conference thoroughly defending them.
I hated that Goodell capitulation PC as much as the next person, but let's take a step back and realize Kraft was in a shitty spot and probably has done more to defend Brady and the Pats than any living NFL owner would have. There are plenty of villains in this story, but Bob Kraft is not one of them.
Memorialized in the unforgettable Zach de la Rocha lyric, "[Horri]Bulls on parade!"
Because the Patriots were playing the "we will cooperate" game in case anything did turn up. The NFL makes no bones about going after teams for failing to cooperate so it's best to play the "we'll do everything to cooperate" in public dance.
Kraft was utilizing a rational actor response, not realizing (for whatever reason) that Roger and the NFL weren't going to be rational actors. I still think it came as a bit of a shock that he was so far out on an island. He didn't realize how much animosity and hate still existed from lack (I know) of spygate punishment etc. It helps to explain how beaten he looked when he came out of that owner's meeting. He got a cold dose of reality as to where he actually stood.
Whether he should or shouldn't have known is a different story, but Kraft's initial response made perfect sense in the world he thought he was operating in at the time.
I think we need to realize the Kraft was nearly 100% certain that there was nothing wrong. He was still convinced of this during an interview about a month after the Super Bowl; he mentioned something about "no smoking gun". Given the fact that the incident blew up right before the Super Bowl, he had no feasible choice other than to express his willingness to cooperate with the league's investigation. And cooperate he did; the team's cooperation was even noted in the Wells report.
There are things to blame Kraft for when it comes to Goodell in general. But there is really nothing else he could have done once the NFL decided to concoct a phony scandal in order to appease the owners and the Jets fans over Spygate.
There are things to blame Kraft for when it comes to Goodell in general. But there is really nothing else he could have done once the NFL decided to concoct a phony scandal in order to appease the owners and the Jets fans over Spygate.
It also wasn't clear at all that this investigation was focused on Brady until the Wells report came out. I had assumed all along there were forces out to get Belichick, but Kraft/Patriots and Brady were the ones who got punished. Kraft rolled over in some attempt to help Brady, which, while perhaps somewhat noble, was useless because of the people with whom he was dealing.
The Pats totally misread the public perception of their own team and I was saying it at the time. On Monday they should have fired back with all guns blazing. They let Mort and the NFL write the history instead of mounting a robust and immediate defense. On the other hand, the case has always been more about how people feel about the Pats than about the facts. Perhaps nothing they tried would have mattered considering the forces that were aligned and all too happy to crap all over them.
I think the misinformation was part of the problem here. Kraft, BB, couldn't know for certain that Brady wasn't doing anything. The publicized misinformation strongly implied that something was going on. If they came out Huns blazing, they would have risked being found out if there did turn out to have been significant tampering.