TB Suspension: Cheater free to play again

[PedroKsBambino]

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.

It's Exponent. They will cheat---the video will show someone taking balls with deflation needles and pumps already inserted in them and show the person touching all 12-14 to start the pump with a clock running in the background.

Or perhaps they'll state that their test made 'simplifying assumptions' such as assuming that the test is occurring on a body in motion traveling near the speed of light, so time slows down.

Or they'll cite "reliable external Exponent research partner 'Jets4EvaKensil' " as certifying that he personally completed the test within the stated parameters

 

[djbayko]

It's Exponent. They will cheat---the video will show someone taking balls with deflation needles and pumps already inserted in them and show the person touching all 12-14 to start the pump with a clock running in the background.

Or perhaps they'll state that their test made 'simplifying assumptions' such as assuming that the test is occurring on a body in motion traveling near the speed of light, so time slows down.

Or they'll cite "reliable external Exponent research partner 'Jets4EvaKensil' " as certifying that he personally completed the test within the stated parameters

I imagine the video sped up 1.5x with Benny Hill music.

 

[Steve Dillard]

The Feinberg brief is the most important development for the en banc. This is a guy who makes his bones as the arbitrator of choice -- or the equivalent -- for virtually every major non-judicial mechanism. He oversaw the claims process for the Agent Orange, 9/11 (I personally had a hearing to "appeal" a Cantor Fitzgerald widow's determination to him), and lately the BP oil spill. His assertions about fairness, his implicit and explicit condemnation of this "appeal" is concise and really at the heart of everyone's objections (even the technical ones Kessler and Olsen are presenting). I haven't had time to connect the 3 degrees of Ted Olsen to find out how they got him, but his willingness to rock the boat when he is otherwise a very corporate guy (which is why BP and the others are willing to appoint him to oversee the claims processes) is amazing. It must catch the attention of the entire banc.

My favorite is the notion of bias. While it is hard in itself to show improper bias, Feinberg's two paragraph takedown is far more concise than the Pats' amicus' whining about the factual determinations.

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.

 

[WayBackVazquez]

The Feinberg brief is the most important development for the en banc. This is a guy who makes his bones as the arbitrator of choice -- or the equivalent -- for virtually every major non-judicial mechanism. He oversaw the claims process for the Agent Orange, 9/11 (I personally had a hearing to "appeal" a Cantor Fitzgerald widow's determination to him), and lately the BP oil spill. His assertions about fairness, his implicit and explicit condemnation of this "appeal" is concise and really at the heart of everyone's objections (even the technical ones Kessler and Olsen are presenting). I haven't had time to connect the 3 degrees of Ted Olsen to find out how they got him, but his willingness to rock the boat when he is otherwise a very corporate guy (which is why BP and the others are willing to appoint him to oversee the claims processes) is amazing. It must catch the attention of the entire banc.

My favorite is the notion of bias. While it is hard in itself to show improper bias, Feinberg's two paragraph takedown is far more concise than the Pats' amicus' whining about the factual determinations.

Although I'm sure he has relationships at GDC (I know he's served as the party arbitrator for my firm in the past), he also has a relationship with Kraft. I know for example they've worked together in connection with both the Kennedy Library and the One Fund. I am almost certain they are friends, and wouldn't be surprised if Feinberg just picked up the phone.

 

[Otis Foster]

Feinberg's brief succinctly states wha t I've struggled to articulate: allowing a non-neutral person to arbitrate doesn't give him the power to act with overt bias. We'll see.

 

[Harry Hooper]

Feinberg's brief succinctly states wha t I've struggled to articulate: allowing a non-neutral person to arbitrate doesn't give him the power to act with overt bias. We'll see.

Again, though, isn't that much of the terrain that Berman covered? As a layman, I don't see any newness there. His other line of thought about how allowing the decision to stand will greatly reduce the acceptance/use of arbitration and ultimately clog up courts nationwide was more novel.

 

[OCST]

It really, really would have been swell to have this stuff on the appeal itself.

Better late than never, but better then than now.

Oh well. Lol boo hoo.

 

[geoduck no quahog]

I'm fascinated by law. It never occurred to me that the precedent could involve the integrity of arbitration as a process. I assumed since the Player's Association agreed to have the Commissioner arbitrate that they were obliged to live with whatever bias he introduced to the process. It's clear that the arguments above state that regardless of any incestuous relationship, the Arbitrator remains obliged to act fairly.

I still don't understand how "integrity of the game" fits into all of this as a rebuttal. If I recall, the NFL presumed that the integrity clause gave the Commissioner broad powers and that his findings fell within that scope.

 

[dcmissle]

It really, really would have been swell to have this stuff on the appeal itself.

Better late than never, but better then than now.

Oh well. Lol boo hoo.

It's a dagger, isn't it?

Especially since we lost 2 to 1, and much of the artistry we have seen the past few weeks could have flipped one of the two. That's all we needed.

 

[BroodsSexton]

Ken Feinberg is a pretty big deal. To have one of the foremost arbitrators in the country come out against a decision that defers to the arbitrator, i.e., effectively take a position against his own interest, is a bright red flag. Very interesting. He's effectively a judge calling out one of his brethren for being biased and a threat to the judicial system. I think the significance of that may resonate with many of the judges. Feinberg certainly didn't need to stick his neck out on this one.

Doubt it changes anything, but I was wrong about the appeal.

 

[djbayko]

It's a dagger, isn't it?

Especially since we lost 2 to 1, and much of the artistry we have seen the past few weeks could have flipped one of the two. That's all we needed.

I choose to believe that we were never flipping those 2 judges. In that case, the en banc petition would have been DOA, since we would have already shot our wad. This will help me sleep tonight

 

[awallstein]

I assumed since the Player's Association agreed to have the Commissioner arbitrate that they were obliged to live with whatever bias he introduced to the process.

I think it comes down to the players being obliged to live with the level of bias inherent in their agreement.

There's a disagreement about what that level is, and/or whether Goodell's conduct exceeded it, but it's certainly nice to have Feinberg weigh in.

 

[Average Reds]

It's a dagger, isn't it?

Especially since we lost 2 to 1, and much of the artistry we have seen the past few weeks could have flipped one of the two. That's all we needed.

The level of deference shown to the arbitrator by the majority was such that their votes appear to have been baked in before the briefs were even filed. So I'm not sure that it would have changed anything.

I will say that Feinberg's argument about the unintended impact on arbitration as a dispute resolution vehicle is one that should have traction. But I don't know if he even thinks to make that argument without the majority opinion to tee up the issue.

 

[Steve Dillard]

The standard of deference as to bias was an issue that I had hoped would get more traction given Parker's prior writings on this
http://sonsofsamhorn.net/index.php?threads/sons-sam-and-horn-l-l-p-brady-case-legal-issues-only.10455/page-39#post-1593923

That Feinberg takes it on directly allows the Second Circuit, if it wants, to provide more guidance to the whole issue. That is the sort of issue that could justify accepting en banc, or later, petitions for cert.

 

[Eddie Jurak]

I will say that Feinberg's argument about the unintended impact on arbitration as a dispute resolution vehicle is one that should have traction. But I don't know if he even thinks to make that argument without the majority opinion to tee up the issue.

Is it a legitimate argument? I mean, it sounds legitimate, but is there a legitimate threat to arbitration here or is Brady's team simply milking the appearance of one?

 

[Average Reds]

Given the definition of arbitration as a dispute resolution forum accepted by both parties, it's a legitimate argument by definition.

Whether it proves to be persuasive is a different question.

 

[TheoShmeo]

Is it a legitimate argument? I mean, it sounds legitimate, but is there a legitimate threat to arbitration here or is Brady's team simply milking the appearance of one?

It's an advocacy piece. So it naturally paints a parade of horribles if this decision is allowed to stand.

That said, if deference to arbitration principles means that the arbitrator can do essentially whatever he wants, and ignore any pretense of having a fair process and following prescribed penalties, then I think that it's fair to suggest that this ruling could be applied to other contexts and be used to harm other, less able to defend themselves, employees.

Let's face it. Goodell truly did back into a result here. Only a Pats Hater could deny that, in my view. He saw that his initial basis for culpability -- more probable than not having general awareness of the wrongdoing done by others -- was so flimsy that he had to invent the notion that Tom participated in a ball deflation scheme without any evidence in the record to support than and without any notice to Tom that he was going in that direction. That nonsense truly speaks to the inherent unfairness here and if the Judges believe that the deference principle could lead to similarly unfair results in other contexts, it could move them.

Then again, while Feinberg is the perfect guy to make the point at this point, I don't think it was totally unmade by Kessler. Perhaps that's wrong and I know the emphasis is much finer now. My point is that as much as I am loving the Greek Chorus impact of the various briefs, I believe that the only points that are truly new are the ones in the Professors' brief with the overwhelming science in the Pats' favor and the very pointed remarks in the Pats' brief which essentially expose the NFL's and Clement's lies and other assorted BS.

 

[JokersWildJIMED]

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.

It seems that there are Two possibilities (1) nothing happened (i.e. Margin of error) or (2) Jastremski simply retested each ball and a whisper of air was released upon such re-testing.

 

[TheoShmeo]

This article summarizes the four amicus briefs and links them:

http://www.patspulpit.com/2016/6/1/11827204/deflategate-heres-how-the-afl-cio-kenneth-feinberg-patriots-and

 

[edmunddantes]

1st. I thought I saw somewhere that Feinberg even raised a prior Second Circuit decision regarding changing of award basis (resulted in vacatur) that none of the other parties brought up yet? Was that true?

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.

People have even noted it before in this thread, but it's gotten lost. There is something even more damning to the 0.14 numbers.

If you've ever been involved in any true testing program, you know that a measuring device has a limit of precision. A lot of these numbers thrown around by exponent and others rely on the second decimal that is way beyond the capability of a perfectly calibrated device to get with more than +1/2 of the smallest displayed division (yet alone Walt's devices that have been bouncing around in his luggage probably for years). If you start putting the error bars on the numbers pulled by exponent, pretty much all the measurements than overlap right back into the "good" range, but we already know exactly what exponent was doing. Still it's worth remembering for your normal day to day life that there are limits to how precisely things can be measured (and people will try to take advantage of you in your ignorance).

 

[PaulinMyrBch]

I think the scenario as it sits today is the best we can hope for at this stage. In light of the 4 briefs filed, coupled with Ted Olson, I think we've got a good chance of at least the court asking the NFL to file a response. If that happens, the filings that show up as Amicus briefs supporting them will be interesting. NFL has some strong ties and I'm curious to see who shows up on their behalf. Hoping it gets to that stage obviously.

 

[Shelterdog]

It's a dagger, isn't it?

Especially since we lost 2 to 1, and much of the artistry we have seen the past few weeks could have flipped one of the two. That's all we needed.

The one thing I'm most curious about is whether Olsen's decision to emphasize arbitrator impartiality is because he thinks that's the best argument (and that Kessler & Co had erred by relying so heavily on notice) or because he thinks that's the way to go because he needs a hail mary (and also because ripping Goodell's credibility is good for his client even if they don't get the rehearing).

One thing that always sat poorly with my about the appellate decision is that majority ruled (in a fairly cursory manner) on partiality despite the fact that Berman had not ruled on it. I suspect Olsen seems it the same way--partiality is a real issue, it was never analyzed by the district court, but two panel members decided to opine on partiality without addressing the various issues raised by Feinberg?

 

[Hoodie Sleeves]

People have even noted it before in this thread, but it's gotten lost. There is something even more damning to the 0.14 numbers.

If you've ever been involved in any true testing program, you know that a measuring device has a limit of precision.

I haven't been able to find the specific gauges that show up in the Wells report for sale anywhere, but I've seen a lot of similar ones, and the precision seems to be somewhere in the +/- .5-1 psi range for these sort of gauges - so yeah, the whole thing is absolute nonsense. (And we're talking uncertified precision here)

 

[garzooma]

Is it a legitimate argument? I mean, it sounds legitimate, but is there a legitimate threat to arbitration here or is Brady's team simply milking the appearance of one?

There was a series of articles in the NYT a few months ago on inequities in arbitration. And there were bills introduced in the Senate to curtail arbitration clauses (here's one). So I think it's fair to say that chipping away at arbitration is a real thing.

 

[Norm loves Vera]

I thought the submission deadline was yesterday, but another Amicus Brief submitted per Wallach:



Daniel Wallach ‏@WALLACHLEGAL
BREAKING: New amicus filing in #Deflategate from the “Scholars of Labor Law and Industrial Relations” (great name!)

 

[NW Sox Fan]

I haven't been able to find the specific gauges that show up in the Wells report for sale anywhere, but I've seen a lot of similar ones, and the precision seems to be somewhere in the +/- .5-1 psi range for these sort of gauges - so yeah, the whole thing is absolute nonsense. (And we're talking uncertified precision here)

Not to mention that the initial readings were estimates and not recorded. Nonsense indeed.

 

[RedOctober3829]

 

[RedOctober3829]

 

[BaseballJones]

During this whole process, has anyone filed an amicus brief on behalf of the NFL? Because it seems like EVERYONE that is weighing in on this (in terms of filing briefs) is saying the NFL is in the wrong.

 

[Preacher]

University of Indiana? At least get the name of the school correct.

 

[Seabass]

During this whole process, has anyone filed an amicus brief on behalf of the NFL? Because it seems like EVERYONE that is weighing in on this (in terms of filing briefs) is saying the NFL is in the wrong.

I read somewhere (maybe Wallach?) that Omni Consumer Products and The Umbrella Corporation were going to co-sign an amicus supporting the NFL.

 

[ifmanis5]

During this whole process, has anyone filed an amicus brief on behalf of the NFL? Because it seems like EVERYONE that is weighing in on this (in terms of filing briefs) is saying the NFL is in the wrong.

I think Martin Shkreli, C. Montgomery Burns and Big Tobacco filed for the NFL.

 

[Omar's Wacky Neighbor]

I thought the submission deadline was yesterday,

So did Wallach: he was counting down to midnight (or whenever the deadline supposedly was) yesterday.

I think Martin Shkreli, C. Montgomery Burns and Big Tobacco filed for the NFL.

Add Nathan Thurm to that list.

 

[WayBackVazquez]

I thought the submission deadline was yesterday, but another Amicus Brief submitted per Wallach:

University of Indiana? At least get the name of the school correct.

The deadline was yesterday by my count under rule 29 (you get 7 days from the filing of the principal brief ,+1 because Monday was a a holiday.) . Looks like it was written by a fourth year associate who may have dropped the ball. I'd bet this one gets denied leave.

 

[nighthob]

I read somewhere (maybe Wallach?) that Omni Consumer Products and The Umbrella Corporation were going to co-sign an amicus supporting the NFL.

I'm half tempted to write one for Omni Consumer Products on the deleterious impact an overturning of the appeals court decision would have on our new line of roboarbitrators.

 

[Eddie Jurak]

During this whole process, has anyone filed an amicus brief on behalf of the NFL? Because it seems like EVERYONE that is weighing in on this (in terms of filing briefs) is saying the NFL is in the wrong.

I heard that Vladimir Putin and Kim Jong-un will be cosigning an amicus on behalf of the NFL.

 

[nighthob]

I heard that Vladimir Putin and Kim Jong-un will be cosigning an amicus on behalf of the NFL.

Completely untrue, the NFL supports the American military which is encroaching on Russian borders.

 

[mwonow]

Completely untrue, the NFL supports the American military which is encroaching on Russian borders.

Yeah, but the NFL's support is pay-for-play. Maybe they can find a company specializing in mercenaries to write an amicus? It would also pave the way for replacement soldiers - um, players - when the CBA expires and the next lockout starts...

 

[djbayko]

I heard that Vladimir Putin and Kim Jong-un will be cosigning an amicus on behalf of the NFL.

I would have thought their strong Trump ties would have put them in Brady's corner. Sad!

 

[Otis Foster]

Erik Prince and Blackwater are available.

At a price.

Up front.

Payable in bitcoin.

 

[Harry Hooper]

Wallach is not being quite accurate to state that the latest brief was filed by a group of law school professors.

Add Nathan Thurm to that list.

Indeed

 

[Captaincoop]

nm - see below

 

[Shelterdog]

Take with a grain of salt, but I'm hearing from a source at the NFL office that the en banc petition has been denied.

The appeal of the NFL concussion settlement was denied en banc today. Hopefully that's what your source had heard.

 

[ifmanis5]

Erik Prince and Blackwater are available.

At a price.

Up front.

Payable in bitcoin.

Blackwater no longer exists but I'm guessing Halliburton could throw something together.

 

[Captaincoop]

The appeal of the NFL concussion settlement was denied en banc today. Hopefully that's what your source had heard.

This was it - and why the grain of salt was required.

 

[ifmanis5]

The Nathan Thurm skit is an all timer. Best fictional lawyer character other than maybe Lionel Hutz and Saul Goodman.

 

[awallstein]

To sum up the various amicus briefs:

Goodell’s award is the equivalent of a $5000 ticket for riding in the back-seat of a car traveling 70 mph on I-90.

 

[Koufax]

More like 2 years of jail time.

 

[Eddie Jurak]

To sum up the various amicus briefs:

Goodell’s award is the equivalent of a $5000 ticket for riding in the back-seat of a car traveling 70 mph on I-90.

I think you left out a couple of zeros. And the penalty was for driving 58 mph in a 55 mph zone. As documented by a radar gun with a margin of error of +/- 5 mph.

 

[amarshal2]

Wallach is not being quite accurate to state that the latest brief was filed by a group of law school professors.

Zimbalist is an economist who focuses on sports.