TB Suspension: Cheater free to play again

naclone

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Can someone explain why the NFL, as an organization, felt compelled to pursue this very expensive legal effort to hide the most likely truth? I understand that some of the other owners may have had it in for the Patriots, but once the NFL realized that the science didn't support the storyline, how is it not in the best interest of the league to advocate for the truth? How can it benefit a sports league to engage in perpetuating a dishonest story that directly compromises their audience's trust of the fairness of the league?

I get that the P.R. battle with the leaks to Mort may have gotten ahead of them, and that the majority of their audience hates the Patriots anyways, but how is an honest and impartial application of the rules not the most paramount objective of a sports league?
Because the alternative was issuing a public apology to Bob Kraft. And that was never, ever, ever going to happen. No matter what.

I know some think Kraft should have done more or fought harder, but when he issued that demand, the die was cast. If Roger wasnt already on the path to covering his tracks, then he certainly committed to framing Brady when the assistant commissioner called him out.
 

Shelterdog

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I think he knew, and the report makes clear, he didn't have the goods here. This was ultimately like an insider trading investigation where they couldn't find evidence a trade ever occurred, but found some evidence consistent with a cover-up. That is why Exponent stretched as far as they did. And, I am a little surprised he was willing to sign off on what is so clearly a piece of junk advocacy given the public profile of this thing; I'd have imagined he'd push for even softer conclusions. But obviously, he did not.

To Dr Leather's point, interesting to ponder whether some of Wells' anger at that press conference might have been that he was pushed where he was, or whether it truly was all about him being questioned...
You think referencing the deflator text 15 times was overmuch?

I assumed Wells's testiness at the press conference was because his client made him go do a press conference to defend the goddamn report they'd requested (instead of a more straightforward one blaming the dorito dinks and saying Brady credibly said he didn't know about it, there were no communications with Brady showing Brady's involvement) when he'd fucking told them they were stretching and they didn't have enough on Brady and it was going to be a shitshow.
 

crystalline

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Unless your name is Brady and your lifes effort has been tainted and smeared beyond belief. Or you're the organization which has done nothing wrong and has been penalized in a way which could affect years of success and profits.

Those were the targets of the effort and if he is satisifed with the result - not caring that he was the tool used to cause the damage - then he is a schmuck. Yes, no life was lost but in the context of the arena he was working in there were historic levels of damage and impact.
Tom Brady and Bob Kraft and the Patriots are some of the least vulnerable and least sympathetic victims one could imagine when entities with a lot of money at stake put on a full court press.

Yes, it sucks that the Pats' long string of excellence is now tainted unnecessarily in some people's eyes. But Kraft is still worth billions, Brady is worth a few hundred million and has a supermodel wife and seemingly loving family, and the dorito dinks haven't suffered too much collateral damage.

Exponent and white shoe litigation firms quite often line up on the side of the tobacco company arguing that the lung cancer patient deserved their fate. Or the asbestos company. Or the hedge fund manager whose profits come from your and my retirement investment vehicles. Or the Bear Stearns CEO. It's the nature of the business that the usually the side that can afford Wells' fees is the corporate one. Yes, some of the cancer lawsuits are frivolous, and I love Brady, but I'll save my tears for the real little guys who have been on the other side of Ted Wells' arguments.

http://californiahealthline.org/morning-breakout/tobacco-companies-make-opening-arguments-in-289-billion-justice-department-lawsuit/
Phillip Morris attorney Ted Wells on Wednesday said that the mistakes tobacco companies made in the past did not constitute fraud and that the current business practices of companies make "any future fraud unlikely," the New York Times reports (Janofsky,New York Times, 9/23). "Some of the conduct by individuals in the past ... was wrong-headed, mistaken and even regrettable, but it wasn't a ... conspiracy,"
 

JokersWildJIMED

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The main target at the outset had to have been BB and there is the same case to be made about BIll's involvement (Lack of) as Brady, as there is no evidence against either. However, BB outfoxed Goodell with the Mona Lisa press conference that was PR genius And helped change the narrative, whereas Brady went silent after a horrible rambling press conference and became the easy target...although it is questionable what exactly Brady could have said, in hindsight it is doubtful that his press conference or collinsworth interview could have been worse. He "looked" evasive and uncertain in his answers which laid the groundwork to framing the narrative of his "noncooperation". The lack of a foreceful denial just made it too easy for the dimwits in the League office.
 

dcmissle

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And/or BB has the goods on the League. As in grassy knoll level goods. And he wasn't going to be taken for a ride on this one.

And to answer the question, some owners and executives drive the bus on this one. Roger Goodell did what they wanted.
 
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RetractableRoof

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Tom Brady and Bob Kraft and the Patriots are some of the least vulnerable and least sympathetic victims one could imagine when entities with a lot of money at stake put on a full court press.

Yes, it sucks that the Pats' long string of excellence is now tainted unnecessarily in some people's eyes. But Kraft is still worth billions, Brady is worth a few hundred million and has a supermodel wife and seemingly loving family, and the dorito dinks haven't suffered too much collateral damage.

Exponent and white shoe litigation firms quite often line up on the side of the tobacco company arguing that the lung cancer patient deserved their fate. Or the asbestos company. Or the hedge fund manager whose profits come from your and my retirement investment vehicles. Or the Bear Stearns CEO. It's the nature of the business that the usually the side that can afford Wells' fees is the corporate one. Yes, some of the cancer lawsuits are frivolous, and I love Brady, but I'll save my tears for the real little guys who have been on the other side of Ted Wells' arguments.

http://californiahealthline.org/morning-breakout/tobacco-companies-make-opening-arguments-in-289-billion-justice-department-lawsuit/
I did use the word context. In the arena of professional football would be the context. I thought that was clear. I never said Brady or the Patriots were sympathetic victims. I certainly never drew parallels between people with real life problems. You want to have that discussion have it with someone else.

ELIF: in a professional football context there were historic punishments / consequences as a result of the shit that Wells put his name on. If he is ok with that, he is a schmuck.
 

Eddie Jurak

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And/or BB has the goods on the League. As in grassy knoll level goods. And he wasn't going to be taken for a ride on this one.
Kind of hard to imagine what kind of goods he could have had that were good enough to protect him completely, but powerless to affect the punishments doled out to the team and to Brady.
 

crystalline

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Can someone explain why the NFL, as an organization, felt compelled to pursue this very expensive legal effort to hide the most likely truth? I understand that some of the other owners may have had it in for the Patriots, but once the NFL realized that the science didn't support the storyline, how is it not in the best interest of the league to advocate for the truth? How can it benefit a sports league to engage in perpetuating a dishonest story that directly compromises their audience's trust of the fairness of the league?
Don't forget the labor negotiation element of this.

We'll probably never know, but here's one plausible guess on the NFL's motivations:

Lots of teams had it in for the Patriots. So when the balls came up soft in the cold weather, some of the guys who are not the sharpest knives in the drawer-- Grigson and Kensil -- ran with it in the moment. We have a quote saying as much at halftime of the Colts game.

Then the NFL saw that it was drawing huge attention, and still thought Brady or Belichick could be at fault. So they let the Pats twist in the wind as they investigated. The other owners were largely happy to see a comeuppance for the Pats. Goodell saw this and decided it was a way to consolidate his power with the owners by taking the side of the majority.

At some point, Goodell, Pash, and most of the owners realized that this was a good opportunity to (1) get back at Brady who was a name plaintiff in the last labor legal battle, and (2) build commissioner discipline into an issue the players would need to give up something for in the next labor negotiation. So the NFL turned on the full railroad, with white shoe representation, appellate firepower, and a $5-10M budget, small beans when spread across all the teams in comparison to their yearly profits. And Jerry Jones and other owners told Kraft this was a hardball labor negotiation issue, and a profit issue, and to pipe down.

That story is consistent with what we know. As has been brought up here a few times, Tagliabue was deposed and Goodell elected commissioner because Tagliabue didn't extract absolute maximum profit from the players in the last labor negotiation.
 

Harry Hooper

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The main target at the outset had to have been BB and there is the same case to be made about BIll's involvement (Lack of) as Brady, as there is no evidence against either. However, BB outfoxed Goodell with the Mona Lisa press conference that was PR genius And helped change the narrative, whereas Brady went silent after a horrible rambling press conference and became the easy target...although it is questionable what exactly Brady could have said, in hindsight it is doubtful that his press conference or collinsworth interview could have been worse. He "looked" evasive and uncertain in his answers which laid the groundwork to framing the narrative of his "noncooperation". The lack of a foreceful denial just made it too easy for the dimwits in the League office.
BB didn't outfox anyone.

Right from the start, NFL folks like John Madden weighed in with "no one is messing with the footballs" without Brady's involvement/approval. That left BB largely out of it.

Add in BB's well-documented history of disdain for ball inflation {probably attested to by non-BB chums such as Capers and Mangini} and nothing at all showing up in his (and his coaches') cellphone history that the NFL had full access to.

There was no there there. Plus, under "repeat offender" provisions, finding BB culpable would lead to a massive suspension or even banishment for him from coaching, and the league was not eager to travel down that path.
 

lexrageorge

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Wells was likely told that the league believed the Patriots were guilty of something fishy, and instructed Wells to dig through every crevice to see what he and his team could find. I can picture Goodell and Kensil and Vincent telling Wells "You know, the Pats are always up to something, and they got let off the hook once before after Spygate, so be sure to use a fine tooth comb". Pure speculation, but would explain why Wells was driven to write what he wrote once he found the text messages referring to the Deflator and that Brady was unwilling to turn over his phone. Exponent simply fitted the data to the conclusion to provide Wells the backing, and that was that.

Wells may or may not have been given the league's thoughts on who was responsible. If he had, I'm sure that list would have Belichick's name on it. But Wells could find nothing directly or even indirectly implicating Belichick; or Kraft for that matter. Wells couldn't out and out fabricate evidence against Belichick, so Belichick was exonerated. I'm sure that pissed off Kensil and Goodell and all the Jets fans in the league office, but Goodell was still able to exact some penalty on the Patriots organization and, of course, on Brady, so it wasn't a total loss. And Paul Weiss still got to cash the league's checks, so all is good.

Had Wells created evidence out of thin air, I'm quite certain Belichick could have, and probably would have sued. Wells wasn't going to risk that. And, yes, perhaps Belichick does expose some skeletons in the league's closet as a result, because at that point he would have had absolutely nothing to lose.
 

PaulinMyrBch

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Today is the deadline for filing an Amicus brief. Hoping we get at least one from a major workers union. I don't know if his influence works in that way, but I'm hoping such a brief is part of Olson's overall gameplan with the other filings and media appearances. Impressive so far.
 

RetractableRoof

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I have a theoretical question...

Example: A worker in a non-sports union was accused of doing something not illegal but against company policy. There is nothing in union contract that requires turning over ones personal cell phone. The company requests the phone as part of their investigation and then fires the employee for not aiding the investigation (not turning over the cell phone).

Is anything in the Brady court case setting a precedent where a run of the mill union employee could end up screwed for not giving up their personal cell phone? Assuming like the NFL union that there is the personal cell phone is not addressed in the union contract.

Edit:typos / clarity
 

kefkafloyd

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kartvelo

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Wells was likely told that the league believed the Patriots were guilty of something fishy, and instructed Wells to dig through every crevice to see what he and his team could find. I can picture Goodell and Kensil and Vincent telling Wells "You know, the Pats are always up to something, and they got let off the hook once before after Spygate, so be sure to use a fine tooth comb". Pure speculation, but would explain why Wells was driven to write what he wrote once he found the text messages referring to the Deflator and that Brady was unwilling to turn over his phone. Exponent simply fitted the data to the conclusion to provide Wells the backing, and that was that.

Wells may or may not have been given the league's thoughts on who was responsible. If he had, I'm sure that list would have Belichick's name on it. But Wells could find nothing directly or even indirectly implicating Belichick; or Kraft for that matter. Wells couldn't out and out fabricate evidence against Belichick, so Belichick was exonerated. I'm sure that pissed off Kensil and Goodell and all the Jets fans in the league office, but Goodell was still able to exact some penalty on the Patriots organization and, of course, on Brady, so it wasn't a total loss. And Paul Weiss still got to cash the league's checks, so all is good.

Had Wells created evidence out of thin air, I'm quite certain Belichick could have, and probably would have sued. Wells wasn't going to risk that. And, yes, perhaps Belichick does expose some skeletons in the league's closet as a result, because at that point he would have had absolutely nothing to lose.
Ummm.... and what's the evidence against Brady that wasn't created out of thin air?
A text message between two other people that gives no indication whatsoever of any scheme to break the rules?
The fact that when explicitly told by investigators that no one needed or wanted his phone, he didn't preserve it just in case?
The idea that temperature and pressure have no relationship?
 

j44thor

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I don't post in these threads much, but I do read them regularly. In the interest of hearing cases en banc, the second circuit had a pretty juicy fourth amendment case that was reversed en banc on Friday. While it has far more reaching implications than Brady's case, the lawyer types here might like a recent en banc reversal to chew over.

http://arstechnica.com/tech-policy/2016/05/feds-can-keep-your-hard-drives-indefinitely-and-search-them-too/
Slightly different circumstances given this was the US Gov't asking for and receiving the en banc. That case is also terrifying and it is ironic that Chin was the only dissenter this time.

Do hope that case goes to the SC as that case has far reaching implications well beyond DFG.
 

awallstein

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Today is the deadline for filing an Amicus brief. Hoping we get at least one from a major workers union. I don't know if his influence works in that way, but I'm hoping such a brief is part of Olson's overall gameplan with the other filings and media appearances. Impressive so far.
That'd be nice, except that labor doesn't give a rat's ass about this fiasco of a case; and, if anything, tends to prefer the finality of arbitration.
 

geoduck no quahog

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Ummm.... and what's the evidence against Brady that wasn't created out of thin air?
A text message between two other people that gives no indication whatsoever of any scheme to break the rules?
The fact that when explicitly told by investigators that no one needed or wanted his phone, he didn't preserve it just in case?
The idea that temperature and pressure have no relationship?
It still appears that Goodell/NFL just got ahead of themselves with eagerness to slam the Patriots. Like you imply, we're not dealing with the brightest bulbs in the room here.

Grigson/Kensil fed the media a "gotcha" story, based on what Kensil chose to believe on that day of the game...which was based on what he considered to be credible reports received from Mike Adams and Sean Sullivan. They then started trapping themselves by making assumptions they probably believed to be true: that the officials had found Patriots footballs "severely" under-inflated at halftime. It was Christmas for those guys.

Then a videotape is handed over of McNally taking the balls, unaccompanied, into the bathroom - fueling even more certainty that Sullivan was correct. Once that got rolling, Kensil (and now Goodell) go into full attack mode, secure in their knowledge that the Patriots had deflated balls at Brady's request. Now all they needed to do was release false information to Mort, use extracted "deflator" texts, imply quid pro quo with gifts from Brady and seal the deal. I imagine none of the NFL players had any concern about the science, even after it was being shape-shifted by Exponent. They would't know a test tube from a petri dish.

In short, I think Kensil sincerely believed that Brady had the footballs deflated as a regular thing, and he saw this as an opportunity to slam the Pats, and unintentionally started a witch's trial that, today, he probably wishes didn't happen (given the debunking). Once started down that path, the NFL had no choice to go all-in in an effort to save face. I don't think it was a pre-planned conspiracy.
 

pappymojo

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It still appears that Goodell/NFL just got ahead of themselves with eagerness to slam the Patriots. Like you imply, we're not dealing with the brightest bulbs in the room here.

Grigson/Kensil fed the media a "gotcha" story, based on what Kensil chose to believe on that day of the game...which was based on what he considered to be credible reports received from Mike Adams and Sean Sullivan. They then started trapping themselves by making assumptions they probably believed to be true: that the officials had found Patriots footballs "severely" under-inflated at halftime. It was Christmas for those guys.

Then a videotape is handed over of McNally taking the balls, unaccompanied, into the bathroom - fueling even more certainty that Sullivan was correct. Once that got rolling, Kensil (and now Goodell) go into full attack mode, secure in their knowledge that the Patriots had deflated balls at Brady's request. Now all they needed to do was release false information to Mort, use extracted "deflator" texts, imply quid pro quo with gifts from Brady and seal the deal. I imagine none of the NFL players had any concern about the science, even after it was being shape-shifted by Exponent. They would't know a test tube from a petri dish.

In short, I think Kensil sincerely believed that Brady had the footballs deflated as a regular thing, and he saw this as an opportunity to slam the Pats, and unintentionally started a witch's trial that, today, he probably wishes didn't happen (given the debunking). Once started down that path, the NFL had no choice to go all-in in an effort to save face. I don't think it was a pre-planned conspiracy.
Not disagreeing but for the bolded. They certainly had other choices. That they presumably valued 'saving face' over other considerations is a pretty damning indictment of the actual integrity of the league.
 

tims4wins

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Don't forget the labor negotiation element of this.

We'll probably never know, but here's one plausible guess on the NFL's motivations:

Lots of teams had it in for the Patriots. So when the balls came up soft in the cold weather, some of the guys who are not the sharpest knives in the drawer-- Grigson and Kensil -- ran with it in the moment. We have a quote saying as much at halftime of the Colts game.

Then the NFL saw that it was drawing huge attention, and still thought Brady or Belichick could be at fault. So they let the Pats twist in the wind as they investigated. The other owners were largely happy to see a comeuppance for the Pats. Goodell saw this and decided it was a way to consolidate his power with the owners by taking the side of the majority.

At some point, Goodell, Pash, and most of the owners realized that this was a good opportunity to (1) get back at Brady who was a name plaintiff in the last labor legal battle, and (2) build commissioner discipline into an issue the players would need to give up something for in the next labor negotiation. So the NFL turned on the full railroad, with white shoe representation, appellate firepower, and a $5-10M budget, small beans when spread across all the teams in comparison to their yearly profits. And Jerry Jones and other owners told Kraft this was a hardball labor negotiation issue, and a profit issue, and to pipe down.

That story is consistent with what we know. As has been brought up here a few times, Tagliabue was deposed and Goodell elected commissioner because Tagliabue didn't extract absolute maximum profit from the players in the last labor negotiation.
This needs to be quoted because it is IMO exactly what happened and a great summary of the entire affair
 

Otis Foster

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Not disagreeing but for the bolded. They certainly had other choices. That they presumably valued 'saving face' over other considerations is a pretty damning indictment of the actual integrity of the league.
And likely spot on.

With organizations like the NFL, and a bunch of billionaires who are used to getting their way, they cannot under any circumstances admit error and back off their position.Factor in resentment over the penalties in Spygate, and a distaste for the TB/BB perennial supremacy, certain owners 'discovered' why the NEP always finished atop the standings. They wanted them slammed and RG obliged.

RG has the rectitude of a fisher cat. The arrogance of the NFL, and its deceit in the concussion studies, has cooled my 50 year passion for pro football. (I miss Otto Graham and Ernie Stautner.)
 

Harry Hooper

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Dale Arnold just mentioned there's a tweet out there that the AFL-CIO filed a brief in support of Brady today.
 

TheoShmeo

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That'd be nice, except that labor doesn't give a rat's ass about this fiasco of a case; and, if anything, tends to prefer the finality of arbitration.
This appears to be wrong in that the AFL-CIO just filed an amicus. I don't see a link to it but I assume someone will post it soon.

Good.
 

TheoShmeo

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It's short but the gist is that the Arbitrator is not allowed to be arbitrary and Goodell changed the basis for culpability from "general awareness" to "being involved in a scheme, etc."

These are, of course, not new points but that they are being made by the AFL-CIO strikes me as a very good thing (with all appropriate caveats re en banc review).

PS: Kenneth Feinberg apparently filed an amicus too per a Wallach tweet. Among other things, Feinberg administered the 9/11 Victims Fund.
 
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Koufax

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Ken Feinberg also filed an amicus brief authored by Jenner & Block today. He's a respected arbitrator, but a homer.
He's quite a prestigious fellow to be bothered with this matter.

Pacer show a motion for leave to file a brief, but no brief. Usually the brief accompanies the motion, but not in this case. Perhaps Jenner & Block plans to sharpen it while to court considers the motion for leave.
 
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trekfan55

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Just out of general curiuousity, why weren't all these amicus briefs filed when the case was originally appealed to the 2nd Circuit? It might have been more helpful then is my uneducated guess.
 

WayBackVazquez

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He's quite a prestigious fellow to be bothered with this matter.

Pacer show a motion for leave to file a brief, but no brief. Usually the brief accompanies the motion, but not in this case. Perhaps Jenner & Block plans to sharpen it while to court considers the motion for leave.
Not sure where you're looking; the brief was filed.
 

bernardsamuel

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Ken Feinberg also filed an amicus brief authored by Jenner & Block today. He's a respected arbitrator, but a homer.
Just to document your "homer" characterization which fascinated me, the Wikipedia entry on Mr. Feinberg discloses that he was born in Brockton, did his undergraduate work at UMASS-Amherst, and serves on the adjunct law faculties of Columbia University's School of Law and Yeshiva University's Cardozo School of Law. Both of these universities connect closely with Mr. Kraft (aside: his address to the YU graduates moved me to tears). It also fascinates me that the Brady case shows that there can be and actually are commonalities of interest where you'd least expect them, namely Donald Trump and the AFL-CIO both being in Brady's corner.

EDIT: I was moronic - WBV's own post linked to the Wikipedia. Sorry.
 
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dcmissle

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This has to be considered a significant development, correct? When one of the biggest unions in the country is siding with Brady's side it is a good thing. This has to get the judges' attention.
Necessary because mere error correction is not sufficient to trigger review by the entire court. We're still in long short territory. I think this ups the likelihood the court will ask for a response by the NFL. If and when that happens, folks should not get too giddy.

And yes, these filings could have been solicited on the direct appeal. And probably should have been.
 

Koufax

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Not sure where you're looking; the brief was filed.
It wasn't there 15 minutes ago but it's there now. Here's the argument:


I. Procedural Integrity Is Inherent To The Viability Of Arbitration.

As the neutral charged with many of the nation’s most high-profile resolution programs, including the September 11 fund, Mr. Feinberg acutely understands the real-world importance of fairness to the parties’ ability to accept an outcome—whatever it may be. Often no sum of money can repair the losses victims and their families suffer. "Justice" rests solely upon receiving fair process.
These same principles resound equally in arbitration. In Mr. Feinberg’s personal experience over the past 35 years, the key to a successful arbitration begins with a clear understanding by the parties of the scope of the arbitration itself and the role the arbitrator plays in assuring fairness and due process. This is all the more important where there is a sole arbitrator. Mr. Feinberg has been involved in many high-profile arbitrations—Stolt-Nielsen, the Kennedy assassination film valuation, and the determination of Holocaust Slave Labor Attorneys’ fees, among others. In these cases, scrupulous adherence to procedural due process was critical to the credibility and success of the arbitrations.
In contrast, the Commissioner’s decision here lacked even the basic hallmarks of due process—a fair process, before a fair tribunal. Decisions such as this have no credibility. That lack of credibility is only heightened here, where the non-neutral arbitrator’s key decisions consistently advantaged his own organization over the opposing party.

Until now, contracting parties have been assured that the court will ensure a baseline level of process: an opportunity to present evidence to an unbiased tribunal. See 9 U.S.C. § 10(a). The panel’s decision functionally eviscerates these protections. If it is permitted to stand, parties will and should question the risk posed by arbitration. Having witnessed the tremendous benefits arbitration and private dispute resolution have shown in myriad types of conflict, this would be a tremendous loss to our justice system. While arbitrators’ approaches may vary, the Commissioner’s actions were simply beyond the bounds. They must be recognized as such to preserve the public’s faith in the arbitration process.
II. The Commissioner’s Procedural And Substantive Determinations Were Arbitrary, Biased, And Beyond The Parties’ Grant Of Authority.
The selection of a non-neutral arbitrator does not vitiate the requirement that the arbitrator act impartially and in a manner consistent with the collective desires of both parties. Notwithstanding that directive, the Commissioner impermissibly exceeded the scope of his authority, then created new substantive and procedural rights not contemplated by the CBA, to effectuate his "own brand of industrial
justice." Stolt-Nielsen, 559 U.S. at 671 (citation omitted). He reshaped the parties’ bargain to favor the NFL. This violates the most basic tenet of arbitration: the arbitrator’s authority is derivative of and subordinate to the contract. See id. at 683-84; Alexander v. Gardner-Denver Co., 415 U.S. 36, 53 (1974).
1. Scope of Proceeding. Arbitrators must ensure that the parties are fully aware at the outset of the scope of the arbitration and what factors will be deemed important in rendering a decision. Arbitrators must not change issues or render decisions inconsistent with the parties’ understanding at the outset. This is prerequisite to allowing the parties to develop—and, in turn, present—pertinent evidence. See 9 U.S.C. § 10(a) (authorizing vacatur for "refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced").
The Commissioner’s award violated all these principles. The disagreement within the panel itself speaks volumes about the lack of clear notice to the parties about the scope of the appeal. See Slip op. at 21. This dynamic made it impossible for Brady to obtain fair process. The award sent a clear signal to the public about arbitration: procedural due process can be ignored. In so doing, he undercut the role of arbitration as a viable and effective alternative to protracted litigation.
2. Ultra Vires or Biased Decisions Are Unenforceable. Honest mistakes (whether errors of law or fact) are not reviewable. In contrast, unfair rulings and
bias are intolerable. See United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960). Arbitrators must be perceived as neutral and must not suffer from a conflict of interest. See 9 U.S.C. § 10(a) (providing vacatur for "partiality" or "undue means"). Even if the parties convey wide-ranging discretion, this does not excuse unfettered discretion.
Ordinarily in the labor context, shifting rationales raise an inference of bias. See EEOC v. Ethan Allen, 44 F.3d 116, 120 (2d Cir. 1994). Here, the shift is simply one striking example of the biased process. Cf. Slip op. at 3-4 (dissent).
First, an award that creates new violations never before identified or exacted punishment far in excess of that previously prescribed, is unenforceable. See In re Marine Pollution Serv., Inc., 857 F.2d 91, 93-96 (2d Cir. 1988). It is undisputed that the award here did both.
If the NFL sought to add a new violation for failure to report wrongdoing, increase the penalty for equipment violations, or begin suspending players for obstruction, it would be within its rights to do so. But these changes must come through the bargaining process—not the arbitration process. The arbitrator, whose authority is derivative of the contract, cannot modify the contract. Alexander, 415 U.S. at 53; Stolt-Nielsen, 559 U.S. at 683-84.
The panel opinion suggests that if a party is unhappy with the result of an arbitration, the remedy is to circumscribe the arbitrator’s authority. Slip op. at 13.
The Association did just that by clearly specifying equipment penalties. (See JA 384.) The arbitrator exceeded this specification, relying on his general powers to take action exceeding the limited grant of authority with respect to equipment violations. (See SPA 55-57.) If this is permitted to stand, the sole remedy of contractual specification the panel identifies will be rendered meaningless.
Second, the rulings are also internally inconsistent. The Commissioner was confronted with two issues on appeal—scope of review and scope of discovery. As to the first issue, he determined he could consider alternative bases and was not confined to the original decision. (See SPA 48-49.) On the second issue, Brady was confined to the materials reviewed in making the original decision—even though the Commissioner ruled that the appeal was not so confined. (See SPA 64-66.)
Assuming arguendo that this construction of the scope of the appeal was valid, it was unreasonable to fail to provide (1) any notice of what these new grounds may be, and (2) discovery related to these potential new grounds. These rulings deprived Brady of any prospect of a fair hearing. See 9 U.S.C. § 10(a).
3. Selection of a Non-Neutral Does Not Waive Right to a Fair Arbitration. It is relatively common for parties to select a non-neutral arbitrator, but this does not vitiate the arbitrator’s obligation to act without bias. Enter. Wheel, 363 U.S. at 597. The Commissioner used the guise of arbitration to dramatically alter many of created new violations and disciplinary powers. These were objectives for the bargaining table, not to be unilaterally imposed by a biased arbitrator in the arbitration itself.
So too the procedures the Commissioner utilized were not an exercise in arbitral discretion, but instead so one-sided as to reflect a clear intent to advantage one side. He appointed his own in-house counsel as co-lead investigator, then ruled that individuals that did not cooperate with or obstructed his investigation could be sanctioned. (See JA 1198.) Indeed, Brady’s refusal to cooperate was cited as a major factor in the four-game suspension. (See SPA 52-54.) Although the NFL had full access to the results of the investigation, Brady’s team was denied access to the materials. (See SPA 64-66.) In sum, Commissioner Goodell utilized his purported procedural authority to grant unilateral discovery to one side (accompanied by a threat of sanction), while affirmatively denying the other side’s request to the same materials.2

The notion that only one side would be entitled to the materials of the independent investigator is so egregious that it cannot be the result of good faith mistake—there is no provision in the CBA that could be construed to even contemplate this type of one-sided access. It is instead yet another clear indicia of the bias that permeated this proceeding.

CONCLUSION
The Commissioner impermissibly exceeded the scope of his authority in this matter. But more troubling, he used the vehicle of arbitration as a mechanism to rewrite the underlying bargain between the parties, to the sole advantage of his organization as against Brady and the Players Association. If this type of bias or capricious notions of industrial justice are upheld, the public should—and will—lose faith in the systems of arbitration and private dispute resolution that have become a parallel component of our justice system.

Fair process before a fair tribunal cannot be an aspiration; it is an unwaivable, inviolable necessity.
 

TheoShmeo

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I like the different perspectives and points of emphasis, as well as the commonalities, these briefs paint.

The 90% likelihood comment made by someone linked upthread strikes me as outrageously optimistic. But I also believe that the odds have gone up given the nature of the various arguments and the identity of those making them. The Second Circuit now has organized labor, a group of professors at prestigious universities, a well respected arbitrator and one of the NFL clubs (albeit a very biased one), along with the estimable Ted Olson, to consider. That strikes me as quite the shit sandwich for the ultimate bag of shit, Roger Goodell.
 

Harry Hooper

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Feinberg's piece takes an interesting approach, predicting the decision against Brady if allowed to stand marks the beginning of the withering away of arbitration.

He then goes on to echo Berman's take about Roger crafting his own brand of industrial justice. Why will this get more of a hearing now, given it didn't carry the day with the 2 judges before?

Also looks like at least one typo in there at "The Commissioner used the guise of arbitration to dramatically alter many of created new violations and disciplinary powers."
 

Koufax

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Also looks like at least one typo in there at "The Commissioner used the guise of arbitration to dramatically alter many of created new violations and disciplinary powers."
My error. I dropped a line. The complete text was:

The Commissioner used the guise of arbitration to dramatically alter many of the long-standing features of the parties’ course of dealing. Substantively, he created new violations and disciplinary powers.
 

DennyDoyle'sBoil

Found no thrill on Blueberry Hill
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I finally read the professors' brief. It's pretty good. I also think it's actually conclusive -- for those who still doubted it -- whether there was actually any ball deflation going on.

The point they make pretty well is that even the league has conceded now that there would be a drop in pressure due to moving the balls outdoors. The league's position now, according to the citations in the brief, is that there is an additional incremental amount of deflation above that which would be predicted by science. We know that this is dependent on the "which gauge' problem and the league's gymnastics on the issue. And the professors do a nice job at showing that lots of environmental and timing issues could account for the supposed incremental difference.

But it all misses, to me, the most critical point. The order of magnitude of supposed extra deflation, even crediting the league's findings, is, according to the brief around .14 psi, and maybe as high as .5. This leads me to two questions: (1) Is it even possible for a guy who has 90 seconds in a bathroom to deflate balls using a release mechanism this minimally? A long time ago, in the deflategate thread, I posted about experiments that I did in my backyard cooling down and warming up footballs, with a gauage with a release. When balls are inflated to around 13 psi, they are actually pretty hard. With a hand pump, once you get above 11 or so, the pump takes considerable resistance. When the ball is inflated like that, the air comes out quickly when you release it. If you just manually stick a needle in a ball like that, it would be hard if not impossible to only let out .14 psi. It comes out way too fast. Even with a gauge that has a release button, a .14 deflation would a virtually imperceptible tap. The notion that in a minute in a bathroom at least one of the balls wouldn't take a much more significant deflation seems absurd. (2) Even if we accept everything -- that it's possible to do -- the remaining question is who the heck would do that? What player would possibly think that some advantage was gained by releasing .2 psi. It defies common sense. The argument would have to be that Brady wanted the balls deflated, but Jastremski sucks and only deflated them a tenth of a psi. It's laughable.
 

Harry Hooper

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It will never happen, but I would love to see things at least get as far as Exponent being required to produce the video of the test they claim to have done demonstrating someone could deflate all 12-14 footballs in that little bathroom in 90 seconds.
 

djbayko

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As an outsider to law, I'm impressed. Great utilization of their collective Rolodex to find friendly parties with common interests and have them each come at this from a slightly different angle but tying back to a central theme.

If "we"' should ultimately lose this case, I'll be disappointed, but at least we can be proud that Brady and team went down kicking and clawing until the clock reads :00, as we have come to expect from him. That mindset is what brings victories.
 
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tims4wins

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It will never happen, but I would love to see things at least get as far as Exponent being required to produce the video of the test they claim to have done demonstrating someone could deflate all 12-14 footballs in that little bathroom in 90 seconds.
This is a great point. All of the "analysis" regarding the bathroom trip centered around whether JM could deflate a dozen balls in 90 seconds or whatever. And we all said sure he could, he would just have to be fast. But why would he want to go super fast? He clearly left the locker room well ahead of the officials, he knew the NFCCG was going over and would delay the start of the AFCCG, he could have taken his sweet time in the bathroom if he really wanted to be careful with the deflation.

I hate myself and this is all SO DUMBEST