TB Suspension: Cheater free to play again

Steve Dillard

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I was thinking about this from the NFLPA perspective, and how to combat this weak bargaining power. Can they set up a fund from future revenues (taxes) on player earnings, one that would essentially pay the current players their lost wages? If one presumes that the players would get more out of a deal, a portion of that would be due to the sacrifice of the current players, and hence warrant a union surcharge. The union would still have to find a way to borrow against that income stream, but I bet an arrangement could be made -- essentially issuing bonds to investors backed by the tax stream. If you consider a 8 year CBA, that is enough of a time to generate a good guarantee for the current players, even if they lose a full season. This would be larger than the ordinary strike fund that is not usually well funded.

Also, I wonder if the owners have more to lose this time, with the higher TV stream. A strike will cause them greater loss to the owners (though, if I recall, they had an agreement that required the networks to pay them even in the event of a strike).
 

yep

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...I would rather the NEP forfeit the 1st 4 games on principle, keep everyone healthy, and finish 12-4...
The part of my personality that is responsible for some of my best life stories loves this idea of forfeiting the first 4 games. That part of me is also responsible for some of my worst decisions, but still.
 

crystalline

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The part of my personality that is responsible for some of my best life stories loves this idea of forfeiting the first 4 games. That part of me is also responsible for some of my worst decisions, but still.
If you were an owner, forfeiting games would be a horrible decision, because it would piss off your business partners and lose you money.

But luckily, we are all fans. So we couldn't care less how much money Bob Kraft makes. We care about Tom Brady's legacy and reputation more than we care about Kraft's bottom line, and more than we care about one game this season. Therefore I too am rooting for a one-time forfeit.

Come on the field, hold up a "Free Tom Brady, Goodell only cares about $$ and the CBA" sign, and then walk right off. The main losers are the owners.


That's exactly right, and it's all the fault of the NFLPA for agreeing to such a draconian CBA.
Ergh. Pete Rozelle. Paul Tagliabue. Forced out because of money. Goodell maximizing owner profit in CBA. Old commissioners cared more about the game. Goodell twisting intent of CBA.

The players put those clauses in the CBA back when commissioners cared about things besides maximizing owners' short term profits. Hard for me to really tear up the NFLPA over this.
 
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awallstein

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I think there's some serious under-appreciation here of the NFLPA's predicament in terms of its realistic leverage. Player careers in the NFL are typically remarkably short, many less than a couple seasons.

Imagine the NFL being shut down for an entire year. There'd be a considerable back-log of talent waiting its turn. This just isn't the case with baseball or basketball, certainly not to anywhere near the same degree.

As far as the whole "non-guaranteed contracts" gripe, much of the money is in fact guaranteed; and as to the considerable portion that isn't, how could it be otherwise? When one player goes down, the next man has to step up, and he too needs to be paid. That money has to come from somewhere.

And given that these owners force the union to scrounge and scrape for every last player-safety measure, there're only so many horses left to trade to keep Roger's absurdity in check.
 

dcmissle

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Agree they are not striking over this. If my math is right, there are almost 1,700 players on NFL rosters. This is not the ground to fight on. Players will be fortunate to fend off another money grab by the owners when the next round of negotiations come around. This is a weak Union and probably inherently so given the structure of the sport and the length of playing careers. And they are up against 32 gangsters.

Now that said, the NFL would be smart to agree to a few structual changes -- like employing an arbitrator other than Goodell in every case. But players will be lucky to get that, and I wouldn't bet on it.
 

yep

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If you were an owner, forfeiting games would be a horrible decision, because it would piss off your business partners and lose you money...
Among the many reasons why I do not own an NFL team, one of them is undoubtedly the fact that a significant part of my personality would seriously consider boycotting the first four games in the most obnoxious fashion possible. I.e., something like, letting the stadium fill up, the TV intro happen, the teams take the field, and then, at the coin-toss, just announce "we forfeit this game", and have the team jog back to the locker room, change, and leave the stadium.

The good news is that I am not in any danger of buying the New England Patriots franchise before the start of the season, so everyone can calm down.
 

dcmissle

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Another reason is any owner who forfeited games to protest a disciplinary matter would lose his franchise. The other 31 would have the team appraised, forcibly buy him out, then sell it to someone else. Doubt it? Read the NFL Constitution sometime. Donald Sterling redux. And there isn't a court in this country that would set that aside.
 

simplyeric

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He could absolutely try. I mean, that's basically what he did in the Ray Rice case, and that was overturned on appeal due to violation of double jeopardy due process protection.

http://www.npr.org/sections/thetwo-way/2014/11/28/367240936/ray-rice-reportedly-wins-appeal-and-is-reinstated-by-nfl

He's an asshole, but he's not dumb enough to try that here, especially with there being no "new" information and no public momentum behind it.
Ok now we're making progress on my question.
So it seems that RG might be on questionable legal ground if he, in December following failed appeals, tried to increase TB's penalty.
So now my question is: is there a case to be made that a post-season suspension constitutes an increased penalty relative to the first four games of the regular season?
Would it be enough of a legal question that the NFLPA could get a stay on that action?

What I'm getting at is, people are concerned that continuing the appeals process leaves the team too vulnerable to a post-season suspension.
Is there a specific procedural mechanism that reduces that risk, and does an increased penalty leave that door open?
I juat feel that you'd be able to convince a judge that post season games would not be equivalent to 'first four of the regular season'.
 

Bergs

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Another reason is any owner who forfeited games to protest a disciplinary matter would lose his franchise. The other 31 would have the team appraised, forcibly buy him out, then sell it to someone else. Doubt it? Read the NFL Constitution sometime. Donald Sterling redux. And there isn't a court in this country that would set that aside.
Well that's a real buzzkill, man.
 

dhappy42

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Another reason is any owner who forfeited games to protest a disciplinary matter would lose his franchise. The other 31 would have the team appraised, forcibly buy him out, then sell it to someone else. Doubt it? Read the NFL Constitution sometime. Donald Sterling redux. And there isn't a court in this country that would set that aside.
Forfeits are a fantasy, but how could the league punish the owner if the players forfeited the game?
 

Papelbon's Poutine

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If you were an owner, forfeiting games would be a horrible decision, because it would piss off your business partners and lose you money.

But luckily, we are all fans. So we couldn't care less how much money Bob Kraft makes. We care about Tom Brady's legacy and reputation more than we care about Kraft's bottom line, and more than we care about one game this season. Therefore I too am rooting for a one-time forfeit.

Come on the field, hold up a "Free Tom Brady, Goodell only cares about $$ and the CBA" sign, and then walk right off. The main losers are the owners.




Ergh. Pete Rozelle. Paul Tagliabue. Forced out because of money. Goodell maximizing owner profit in CBA. Old commissioners cared more about the game. Goodell twisting intent of CBA.

The players put those clauses in the CBA back when commissioners cared about things besides maximizing owners' short term profits. Hard for me to really tear up the NFLPA over this.
The only owner losing money in that scenario is Bill Bidwell from the concessions when people leave.
 

Hoya81

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Forfeits are a fantasy, but how could the league punish the owner if the players forfeited the game?
The league bylaws give the commissioner wide discretion regarding matters deemed "conduct detrimental" to the best interests of football. If the league felt that Kraft supported or failed to inhibit a forfeit or similar demonstration, they have the power to take action.
 

djbayko

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Ok now we're making progress on my question.
So it seems that RG might be on questionable legal ground if he, in December following failed appeals, tried to increase TB's penalty.
So now my question is: is there a case to be made that a post-season suspension constitutes an increased penalty relative to the first four games of the regular season?
Would it be enough of a legal question that the NFLPA could get a stay on that action?

What I'm getting at is, people are concerned that continuing the appeals process leaves the team too vulnerable to a post-season suspension.
Is there a specific procedural mechanism that reduces that risk, and does an increased penalty leave that door open?
I juat feel that you'd be able to convince a judge that post season games would not be equivalent to 'first four of the regular season'.
Not a lawyer, but it seems like a huge stretch to me. As someone else pointed out above, the original decision is ambiguous. Nothing in there precludes the games from being postseason games. The only thing that's clear is that he's free to participate in preseason games.

Tom Brady chose to extend this to pursue legal options. If he chooses to extend it again and it bites him in the ass timing wise, we're at the mercy of RG.
 

Average Reds

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Ok now we're making progress on my question.
So it seems that RG might be on questionable legal ground if he, in December following failed appeals, tried to increase TB's penalty.
So now my question is: is there a case to be made that a post-season suspension constitutes an increased penalty relative to the first four games of the regular season?
Would it be enough of a legal question that the NFLPA could get a stay on that action?

What I'm getting at is, people are concerned that continuing the appeals process leaves the team too vulnerable to a post-season suspension.
Is there a specific procedural mechanism that reduces that risk, and does an increased penalty leave that door open?
I juat feel that you'd be able to convince a judge that post season games would not be equivalent to 'first four of the regular season'.
He can absolutely seek to impose the punishment during the playoffs because (having read the notice) that is consistent with the nature the original punishment. Your feelings on this matter do not change that fact.

This isn't difficult. People need to move off this point.
 

pappymojo

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I dont think it the Patriots' nature to forfeit, but I could see them opening their first offensive possession with 10 players on the field or something similar.
 

Ed Hillel

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I dont think it the Patriots' nature to forfeit, but I could see them opening their first offensive possession with 10 players on the field or something similar.
I could possibly see this happening if Bill Belichick died and was replaced by a teenager.
 

TheoShmeo

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Seriously? There is no chance this happens.
Yep. If there is any FU element -- and there really wont be, they will just go about their business -- it would be precisely the opposite. Meaning that they would do all they can to hammer the Cards. But again, this will be business as usual when they get on the field. I would like to see them blow off the NFL Network at all turns, however.
 

doc

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The best revenge is to continue what we have done since 2001, just win baby.

 

dcmissle

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Forfeits are a fantasy, but how could the league punish the owner if the players forfeited the game?
This was true as of October 2012:

According to Elias, of 183 teams to start 0-4 prior to 2012, only '92 Chargers made postseason #Saints #Browns
Players are competitive; they have pride; they want playoff checks; they want rings.

So apart from the potential impact on the franchise and Krafts, in what universe do 52 NFL players sign off on flushing a season?
 

simplyeric

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He can absolutely seek to impose the punishment during the playoffs because (having read the notice) that is consistent with the nature the original punishment. Your feelings on this matter do not change that fact.

This isn't difficult. People need to move off this point.
You don't think that's a debatable point at all? That regular season games are the same as post season games? I think it's clear that people understand that "missing games" is not the same as "missing work" for a regular person.
Since the suspension was very explicit about it being "the first four games of the regular season", that's not just a timing thing that can float, that's also a potentially quantitiave thing. He's distinguishing between pre-season games...why? Because suspending from pre-season doesn't matter. Suspending from post-season matters more than regular season, and good lawyer could probably convince a judge of that.

You've said it's the same. Why do your feelings on the matter create that fact?
Or...what fact proves that they are the same?

edit: for example, there's bonus money involved in playoff games. Switching the suspension from regular season to post-season changes the dollar value of the suspension. And changes the "career" value of the suspension.

If you want to move off the point, feel free. If noone wants to talk about it, it will go away.
Instead, we can talk about the likelihood of the Patriots forfeiting games, and what would happen if yep owned the Patriots.
 
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TheoShmeo

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If we have learned one thing through this abomination, it's that RG has incredibly wide powers. As others have said, if Tom decides to roll the dice and proceed in a way that delays his suspension to a really bad time for the Pats, then I think he's stuck with whatever the consequences are.

Step back a moment. RG punished him initially for more probably than not being generally aware of wrong doing done by others. He then changed the goal posts. He found more active involvement by Tom without new evidence. He imposed penalties when more narrow ones were in the agreement. He did not share evidence with Tom. He used Paul Weiss as advocates and as independent investigators. Exponent's process was laughable. The whole thing is really a joke.

And the Second Circuit said that the players gave all of this to Roger. To me, this is not a close question. Goodell can move the penalties to later in the season or the playoffs if he chooses and a Court would say (a) the agreement gives him that discretion and (b) Tom assumed the risk when he took actions that created that timing possibility.
 
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simplyeric

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If we have learned one thing through this abomination, it's that RG has incredibly wide powers. As others have said, if Tom decides to roll the dice and proceed in a way that delays his suspension to a really bad time for the Pats, then I think he's stuck with whatever the consequences are.

Step back a moment. RG punished him initially for more probably than not being generally aware of wrong doing done by others. He then changed the goal posts. He found more active involvement by Tom without new evidence. He imposed penalties when more narrow ones were in the agreement. He did not share evidence with Tom. He used Paul Weiss as advocates and as independent investigators. Exponent's process was laughable. The only thing is really a joke.

And the Second Circuit said that the players gave all of this to Roger. To me, this is not a close question. Goodell can move the penalties to later in the season or the playoffs if he chooses and a Court would say (a) the agreement gives him that discretion and (b) Tom assumed the risk when he took actions that created that timing possibility.
I am under the impression that the CBA gives Goodell the ability to impose penalties however he sees fit, but that once imposed he can't really change them mid stream.
If the answer is simply "no court will agree that post-season games are in increased penalty compared to regular season games", then so be it.
But if RG wanted to suddenly change the penalty to, say, 8 games, wouldn't that invite additional appeals that could at least have some traction?
(He could have imposed 8 games at the beginning, I get that, but he can't change it now.)
 

djbayko

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You don't think that's a debatable point at all? That regular season games are the same as post season games? I think it's clear that people understand that "missing games" is not the same as "missing work" for a regular person.
Since the suspension was very explicit about it being "the first four games of the regular season", that's not just a timing thing that can float, that's also a potentially quantitiave thing. He's distinguishing between pre-season games...why? Because suspending from pre-season doesn't matter. Suspending from post-season matters more than regular season, and good lawyer could probably convince a judge of that.

You've said it's the same. Why do your feelings on the matter create that fact?
Or...what fact proves that they are the same?

edit: for example, there's bonus money involved in playoff games. Switching the suspension from regular season to post-season changes the dollar value of the suspension. And changes the "career" value of the suspension.

If you want to move off the point, feel free. If noone wants to talk about it, it will go away.
Instead, we can talk about the likelihood of the Patriots forfeiting games, and what would happen if yep owned the Patriots.
It's far too easy for them to argue that the original intent was to suspend Brady for 4 "meaningful" games or something like that, and that if the violation had happened earlier or later, the letter would have included playoff games. There's nothing in the original punishment which disputes this. As a matter of fact, I'm pretty sure that would have been the case. I wouldn't spend too much time on this fantasy.
 

Bleedred

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I am under the impression that the CBA gives Goodell the ability to impose penalties however he sees fit, but that once imposed he can't really change them mid stream.
If the answer is simply "no court will agree that post-season games are in increased penalty compared to regular season games", then so be it.
But if RG wanted to suddenly change the penalty to, say, 8 games, wouldn't that invite additional appeals that could at least have some traction?
(He could have imposed 8 games at the beginning, I get that, but he can't change it now.)
You can keep asking the question, but knowledgeable lawyers who practice in this space have answered it. Please give it up.
 

pappymojo

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A postseason suspension would probably save Tom Brady some money (not that he would prefer it).
 
Asked and answered.

He specified 4 games. He did not preclude the postseason. He did preclude the preseason.
In addition, Roger Goodell compared the infraction to PED usage so it would make sense to compare Brady's punishment to the agreement governing PED suspensions. In those cases, suspensions are for "regular and/or postseason games."
If the NFL does not distinguish the relative importance of games for other suspensions, I don't see why they would for Brady.
 

twoBshorty

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Brady on Facebook a few minutes ago:

I'm very grateful for the overwhelming support I've received from Mr. Kraft, the Kraft family, coach Belichick, my coaches and teammates, the NFLPA, my agents, my loving family and most of all, our fans. It has been a challenging 18 months and I have made the difficult decision to no longer proceed with the legal process. I'm going to work hard to be the best player I can be for the New England Patriots and I look forward to having the opportunity to return to the field this fall.
 

PseuFighter

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"I'm very grateful for the overwhelming support I've received from Mr. Kraft, the Kraft family, coach Belichick, my coaches and teammates, the NFLPA, my agents, my loving family and most of all, our fans. It has been a challenging 18 months and I have made the difficult decision to no longer proceed with the legal process. I'm going to work hard to be the best player I can be for the New England Patriots and I look forward to having the opportunity to return to the field this fall."

just now on brady's facebook.
 

nattysez

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Shocking to say the least.
Why? I think folks on this thread explained that any further appeals that resulted in a stay would put the post-season at risk if he lost. This is the smart play for the overall good of the team.
 

BaseballJones

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Wow. I'm surprised. Very surprised.

Legal question: Since this is no longer about Brady, but about the CBA and the powers of the commissioner, could the NFLPA keep the fight going? Or is this decision Brady's and Brady's alone?
 

djbayko

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The legal part is, but unfortunately it'll remain a story until he's back on the field. Only to be talked about more if Jimmy G does amazing or poor.
Plus, next year's draft.

This will be talked about for many years, hopefully every time Brady and the Patriots are in the Super Bowl.
 

Tyrone Biggums

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I hate seeing that dirty smug on Goodells face knowing that the only crime by Brady was being on a dominant Patriots squad. I hope his jets go 0-16. The league has bent over backwards for them between this and Sheldon Richardsons BS suspension. Unbelievable how he's not gone for the season.
 

WayBackVazquez

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Honestly, if I'm advising Brady, I think the en banc petition is the end of the road. The likelihood of a cert grant and then a reversal is extremely small, and much smaller than the odds of the timing setting him up for a suspension at a much worse time than the beginning of the season.
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.
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.
Yes, shocking.
 

dcmissle

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Wow. I'm surprised. Very surprised.

Legal question: Since this is no longer about Brady, but about the CBA and the powers of the commissioner, could the NFLPA keep the fight going? Or is this decision Brady's and Brady's alone?
Without Brady, I don't believe you have a case in controversy to keep this alive. You need injury. Brady has injury -- damage to his pocketbook, and an inability to play. The Union really doesn't other than adverse precedent, which is generally insufficient to keep something like this alive.

In any event, you can be sure TB consulted the NFLPA and that they are one the same page. Case over.
 

luqin

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I am surprised he didn't mention that he feels he did nothing wrong, and didn't violate any rules, but is accepting the punishment so that he can finally put it behind him. Maybe he is guilty. It will certainly be perceived that way by the general public.
 

djbayko

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I am surprised he didn't mention that he feels he did nothing wrong, and didn't violate any rules, but is accepting the punishment so that he can finally put it behind him. Maybe he is guilty. It will certainly be perceived that way by the general public.
Jesus. How many times does he have to say it?

After 18 months, the people having that perception were not going to be swayed one way or another by whatever Tom Brady said in a Facebook post.
 

edmunddantes

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Without Brady, I don't believe you have a case in controversy to keep this alive. You need injury. Brady has injury -- damage to his pocketbook, and an inability to play. The Union really doesn't other than adverse precedent, which is generally insufficient to keep something like this alive.

In any event, you can be sure TB consulted the NFLPA and that they are one the same page. Case over.
Not so fast...

After careful consideration and discussion with Tom Brady, the NFLPA will not be seeking a stay of the four game suspension with the 2nd Circuit. This decision was made in the interest of certainty and planning for Tom prior to the New England Patriots season. We will continue to review all of our options and we reserve our rights to petition for cert to the Supreme Court.


Not saying they will, but it's only "mostly dead" at this point.
 

simplyeric

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Asked and answered.

He specified 4 games. He did not preclude the postseason. He did preclude the preseason.
You can keep asking the question, but knowledgeable lawyers who practice in this space have answered it. Please give it up.
Ok I promise, last one:
He specified "first four games of the regular season". Where does that preclude pre-season in a way that does not preclude post-season?
Unless the "post season" is a "regular season" game. Does the CBA or NFL rules state that?

The answers have had a bit of a range of seriousness to them (e.g. "RG can do whatever he wants!",which is clearly not the case).

Anyway, obviously it doesn't matter at this stage.