Go Kiko go

I believe the specific violation at issue is contained in the "2014 League Policies for Players", which provides that "league discipline may be imposed" for certain equipment violations, and that "First offenses will result in fines." This is the real issue that stands out to me. It seems questionable that the "Other Uniform/Equipment Violations" provision, which appears to be directed at players who wear the wrong color shoes or stick sharpies in their socks, applies to the act of deflating footballs below the required level. The full text of this equipment violation provision is in the spoiler tag below: If that's true, then perhaps the "conduct detrimental" provision--not the equipment violation provision--should have been the basis for his punishment. But even if that's the case, as I just mentioned in a previous post, Judge Berman also recognized that players did not have any notice that they could be punished simply for being "generally aware" of the misconduct of others. So in the end, it doesn't really matter which provision the league used as the basis for Brady's punishment for the deflation of the footballs. If Brady couldn't be punished for being "generally aware" that a rule violation was occurring, the only punishment he could have received was for the obstruction of the investigation, which could only carry a fine.

Judge Berman discussed that issue. The ultimate question is, what is the basis for the four-game suspension? With respect to Brady's non-cooperation, Judge Berman noted that former NFL Commissioner Tagliabue, in the "bounty-gate" case, stated that, it is "the NFL's practice of fining, not suspending a player" for obstructing an investigation. So, because the CBA requires that a player have fair notice of the type of punishment they could face for certain improper conduct, Brady couldn't have been suspended for his non-cooperation, just fined. With respect to the deflation of the footballs, the Player Policies that dealt with equipment violations provided that "First offenses will result in fines." And, as I discussed in my other post, the Player Policies--not the "conduct detrimental" provision--control the punishment a player would receive for an equipment violation. Thus, Brady couldn't have had notice that violating two rules that could only be punished by fines, with no possibility of a suspension, could lead to him being suspended for four games. Even putting those issues aside, as Judge Berman also recognized, "no NFL policy or precedent notifies players that they may be disciplined (much less suspended) for general awareness of misconduct by others." So, with respect to the equipment violation portion of his punishment, Brady also did not have fair notice that merely being "generally aware" that misconduct was occurring--which is the conclusion the Wells Report reached--could result in any punishment at all. Based on that reasoning, Brady should have only been punished for obstructing the league's investigation, and the punishment for that type of conduct is a fine.

It's based on a fundamental theory of statutory and contractual interpretation. There were two main provisions under the CBA that would appear to apply to what Brady did: the equipment violation provision, and this catch-all "conduct detrimental" provision. When two different provisions of an agreement both appear to be applicable to some situation and you have to figure out which one controls, the provision that is more specific to that situation controls the outcome. Thus, Judge Berman reasoned, the more specific equipment violation provision should govern this situation, not the more general "conduct detrimental" provision. Try this example: suppose a college academic conduct policy said that cheating on an exam results in a grade of zero for that exam, but the policy also had a general provision that provides that engaging in conduct detrimental to the college, as determined by the dean, could result in various punishments, including expulsion from the university. If you decide to cheat on an exam and get caught, and the dean expels you, the college is going to have an awfully hard time justifying that decision. The question becomes, "what did these parties agree to?", and if a rule exists that specifically deals with that particular situation, that rule is the best indicator of what the parties intended to happen in that situation. That's basically what happened here (at least with respect to this part of the decision). Now, I think it's fair to ask whether intentionally tampering with footballs should really be considered an "equipment violation," which could suggest that the more specific equipment violation provision was not applicable here. But that's a different question altogether.

This is an oversimplification, but a CBA is like a contract between the league and the players. The judge held that the type of punishment imposed on Brady breached the "contract." This has nothing to do with whether or not Brady actually broke the rules. When one party breaches a contract, you can seek relief from the courts to enforce the agreement. The court didn't "overstep its bounds." This is what courts are for.

Did you bother to read the basis for the quote that you posted? The author claims that it was "understandable" for Brady to contact Jastremski after the deflation story broke, because, according to the author, "of course Brady would want to find out what the heck was going on and talk to Jastremski" and, after news broke about the extent to which the Patriots balls were deflated, "Brady would reasonably want to ask more questions" of Jastremski. Except that Brady testified that he "was unable to recall any specifics of [his] discussions" with Jastremski and Brady "suggested that their principal subject was preparation of game balls for the Super Bowl." (those quotes are from Goodell's recent decision on Brady's appeal). So, contrary to this author's contention, Brady claims that these discussions were not about the news that was breaking about the deflated footballs. Nonetheless, the author claims that "the NFL . . . said the daily discussions [between Brady and Jastremski] were proof of guilt" and that the NFL thus found Brady guilty for "reacting in an understandable fashion." Except that's not what the NFL concluded. The conclusion the NFL reached was that Brady was being untruthful, because the "extraordinary volume of communications during the three days following the AFC Championship game undermines any suggestion that the communications addressed only preparation of footballs for the Super Bowl rather than tampering allegations." Thus, it was not the fact that Brady and Jastremski spoke frequently after the deflation story broke; instead, it was the fact that Brady appeared to have been untruthful by claiming that their conversations were about preparing balls for the Super Bowl, rather than discussing the deflation story. It was just more support for the NFL's conclusion that Brady was being evasive and uncooperative.

In a way. The focus now is whether the NFL had the authority to give Brady the discipline they gave him, and whether it was appropriate for Goodell to be the person to hear Brady's appeal of his punishment.

That's a far too narrow view of Brady's argument. His argument is that the punishment he received--in type and scope--is outside the bounds of the type of punishment a player could reasonably anticipate receiving for this kind of rule violation, regardless of whether this particular rule violation had ever occurred before. Do you think the league could have elected to ban Brady from the National Football League for life if they had elected to, simply because the NFL is writing on a blank slate? I would say "of course not", which suggests that there is some range of punishments that would be reasonable, based on prior, analogous rule violations. Brady's claim is that this punishment is so far removed from types of punishments a player could reasonably expect to receive for this kind of rule violation--based on the CBA itself and prior rule violations--that the NFL has exceeded its authority under the CBA.

No problem. I grabbed it from Pacer, so unfortunately there isn't any public link. But isn't Brady's contention that he didn't believe he was required to provide his phone, so, according to him, he believed he could destroy his phone at that time without repercussions? As I understand it, the need for the forensic analyst only arose after, according to him, he learned that he may be punished for failing to turn over the contents of his phone and attempted to salvage whatever data could be recovered.

I found his original declaration (exhibit 3) and his credentials (exhibit 4). His original declaration appears to just pertain to Brady's email account. He states that his firm was retained in May 2015, and on June 3, 2015, he performed a search of Brady's email account for certain keywords. His declaration is dated June 15, 2015. The supplemental declaration (exhibit 6), which pertains to the forensic examination of Brady's phones, provides the same dates for his retention and examination of the two phones (May 2015 and June 3, 2015, respectively). That declaration is dated June 19, 2015.

Does any part of the record indicate that Maryman prepared an expert report that was filed in connection with the arbitration proceeding? If so, do you have an exhibit number? The NFLPA filed over two hundred exhibits with their answer to the NFL's complaint before the SDNY, and the numbering corresponds to the numbering of the exhibits at the arbitration hearing.

For anyone who's curious, the first twenty or so paragraphs of the NFLPA's answer that they filed today to the NFL's complaint give a pretty good summary of the reasons the NFLPA and Brady believe that his suspension should be overturned.

They're advancing a few arguments based on the central theme that the punishment falls outside the bounds of the CBA: They argue that the CBA requires that players have "advance notice" of potential discipline, and that Brady lacked notice of the following aspects of his punishment: "(i) suspending Brady for claimed "general awareness" of alleged misconduct by other people, an unknown disciplinary standard never previously applied to players in the history of the NFL; (ii) suspending Brady despite the fact that the Player Policies provide only for specified fines for any type of equipment violation; (iii) subjecting Brady to the Competitive Integrity Policy, which applies only to Clubs-not players; and (iv) suspending Brady for alleged non-cooperation, when a fine is the only penalty that has ever been upheld in such circumstances." They also argue that the CBA requires "fair and consistent treatment" of all rule violations and that "the ball pressure 'testing'" on which the punishment was based "did not generate reliable information because of its failure to implement any protocols for collecting such information."

Exactly. Encouraging parties to settle is part of any dispute that comes before the federal courts.

There are also Brady's other claims that the penalty imposed is inconsistent with the terms of the CBA (either because the CBA didn't provide for an individual player, rather than a team, to be punished for an equipment violation or because the extent of the punishment was not consistent with the CBA provisions). But yeah, there doesn't appear to be any basis for the judge to have to wade into the underlying scientific evidence.

That's not the end of the inquiry. A court "may make an order vacating [an arbitration] award upon the application of any party to the arbitration . . . where there was evident partiality or corruption in the arbitrators." 10 U.S.C. § 10(a)(2). The mere fact that the parties chose a particular arbitrator through the collective bargaining process does not insulate the arbitrator from a charge of bias.

Yeah, i would take all of this talk about New York courts having more favorable law than Minnesota with a big grain of salt. Nothing I've read suggests that these courts differ in any significant way in the way that the evaluate these kinds of cases. Just because they describe the law using different words (which is what most of that article is based on), doesn't necessarily mean they intend to apply different legal standards.

The second part of that article--where the author talks about this so-called "heightened bar" to showing that an arbitrator was biased--is a serious misreading of those cases. Those cases deal with arbitration arrangements where each party to the arbitration gets to pick their preferred arbitrator, and then those two arbitrators select a third arbitrator, and case is heard by the resulting group of three arbitrators. For example, under that kind of arrangement, Brady would have picked one arbitrator, the NFL would have picked one arbitrator, and those two arbitrators would have picked a third arbitrator, and together those three people would have heard Brady's appeal. That's not what happened here. As one of the courts observed, in those arrangements, "it is industry custom that party arbitrators are frequently not required or expected to be neutral for ruling on disputes" and "each party is most likely to select someone that ... might see the case a little more from the perspective of the party that appointed the Arbitrator." That's a completely different type of arbitration arrangement than the one here, where there was only one arbitrator--Goodell.

More or less. He said: "While this litigation is ongoing, it is appropriate (and helpful) for all counsel and all parties in this case to tone down their rhetoric," and he ordered that, "if they have not already done so, the parties and counsel are directed forthwith actively to begin to pursue a mutually acceptable resolution of this case." He also observed that, between these parties, "the earth is already sufficiently scorched, in the Court's view," and cautioned the parties to adhere to the Court's rules. The Court is holding two conferences with the parties in the coming weeks, ostensibly to engage in settlement discussions (among other things), but given that the Court appears amenable to expediting this process and attempting to reach a decision relatively quickly, I would be surprised if the parties reach a settlement. I think they'd rather just roll the dice with the judge.

Depends on the judge's preferences. The judge is calling the August 12th conference a "status/settlement" conference, but the focus will likely be on settlement. Different judges have different approaches to settlement discussions; some will only speak to all of the parties together, in which case it might be conducted in open court. Others take a more active mediation role, and will speak with the parties separately in turn, which usually occurs in private. Given the intense media interest, I would bet that Judge Berman will conduct the August 12th conference in private. The August 19th conference is styled as a "status/settlement/oral argument" conference, which, if the parties will be giving argument on their respective positions, will likely be open, at least in part, to the public. No cameras allowed in federal court in the Southern District of New York, as far as I know.

That's not really a fair characterization of the Second Circuit's "serious question" doctrine. The Second Circuit had the occasion to re-examine the standard extensively, and observed that, "ecause the moving party must not only show that there are 'serious questions' going to the merits, but must additionally establish that 'the balance of hardships tips decidedly' in its favor, . . . its overall burden is no lighter than the one it bears under the 'likelihood of success' standard." Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010). The VCG court also recognized that in "seven of [the court's] sister circuits, and in the Supreme Court itself," there is a "considerable history" of applying "flexible standards" when confronting requests for preliminary injunctions. Wright and Miller agree, stating that "[t]he courts use a bewildering variety of formulations of the need for showing some likelihood of success—the most common being that plaintiff must demonstrate a reasonable probability of success. But the verbal differences do not seem to reflect substantive disagreement." 11A Charles Alan Wright and Arthur R. Miller, Federal Practice and Procedure § 2948.3. I also think you're giving short shrift to Brady's ability to show irreparable harm. The Eighth Circuit, in connection with the 2011 lockout lawsuit, found irreparable harm simply because players couldn't participate in off-season activities, observing that both sides "likely will suffer some degree of irreparable harm." Brady v. National Football League, 640 F.3d 785, 793 (8th Cir. 2011). The dissenting judge went a step further, finding that "there can be little dispute that the off-season is an abundantly busy period for veterans and rookies alike. . . . Even the brief stay . . . will deprive the players of 'irreparable opportunities to develop their skills as football players and to otherwise advance their NFL careers.'" Justice Stevens, acting as circuit justice for the Sixth Circuit, once found irreparable harm in the possibility that an athlete would be impeded from participating in the 1992 U.S. Olympic Trials. Reynolds v. Int'l Amateur Athletic Fed'n, 505 U.S. 1301, 1302 (1992). How do you compensate a starting NFL quarterback with money for missing a quarter of a season? How do you measure that loss? To me, irreparable harm would be the easy part of Brady's request for an injunction. My guess is because section 10 of the Federal Arbitration Act provides that a party to an arbitration may seek relief from a federal court when, among other things, "there was evident partiality or corruption in the arbitrators." As the Supreme Court has observed, "[w]e cannot believe that it was the purpose of Congress to authorize litigants to submit their cases and controversies to arbitration boards that might reasonably be thought biased against one litigant and favorable to another." Commonwealth Coatings Corp. v. Cont'l Cas. Co. That's assuming the FAA applies here. I know very little about the law of arbitrations and absolutely zero about labor law, so it may not and I may be completely wrong. Perhaps I'm missing something, but how would Brady's attempt to forum-shop his way into Minnesota withstand jurisdiction and venue challenges? Starting with Goodyear Dunlop Tires Operations, S.A. v. Brown and continuing with Daimler AG v. Bauman, the Supreme Court has sharply curtailed the ability of courts to assert general jurisdiction over corporations. For a corporation to be subject to hailed into a particular state, it's not enough that the corporation have "continuous and systematic" contacts with the state; the corporation's contacts must be "so continuous and systematic" with the state for the corporation to be "fairly regarded as at home" there, in the way that an individual is "at home" in their state of domicile. Can the NFL be characterized as "at home" in Minnesota? If so, is the NFL "at home" in every state that hosts an NFL franchise? That would seem to flout the reasoning of these two cases. (Of course, there is no suggestion that any part of Brady's case had anything to do with Minnesota, so there would be no basis for specific jurisdiction). I also can't see a Minnesota case surviving venue challenges--both on the grounds that Minnesota is not a proper venue, and the grounds that Minnesota is not a convenient forum. Then, ​even if the case survives these challenges, the whole theory of filing in Minnesota seems to be that the NFLPA wants to get the case assigned to Judge Doty. But the odds that his name comes up on the wheel and gets the case assigned to him is only 1 in 11.

He absolutely was not. He was allowed to omit information that was "not responsive" which means "not relevant to the investigation." See my example above about an email that discussed both the condition of the footballs and opponent strategy.

This is literally trial practice 101. This is how discovery in every civil case in the United States functions. Both sides are obliged to turn over information to each other that may have relevance to the matter, even if that information is damaging. If they don't, and it comes out later that they withheld information, they get sanctioned. The league's investigation, of course, was not a judicial proceeding, but the CBA and league policies have effectively created a process that mimics how discovery works in a civil trial. He doesn't get to "censor" what he submits. He gets to review all the information he has that is relevant to the investigation, and then is permitted to redact information that is not relevant to the investigation. But for each bit of information he redacts, he would have to describe what the information was and explain why he redacted it (e.g., not relevant to the investigation, involved privileged communication with his attorneys, etc.). It looks like Wells may have even been willing to relax Brady's obligation to explain the basis for his redactions (see your quote below that Wells was willing to "take [his] word that [he gave] what's responsive"). "Responsive" is a legal term of art that encapsulates the process I described above. Basically, he has to search through all his communications, identify those that are relevant to the league's investigation (even if they reflect negatively upon him), and then provide them to the league, subject to his ability to redact information contained in those communications that is not relevant to the investigation (for example, an email discussing the condition of footballs may also contain discussions about the Patriots' strategy for a particular opponent. He could redact the strategy portion, and then provide the email in its redacted form.)

Presumably, the league's request to Brady was something to the effect of, "all correspondence, regardless of form, relating to the preparation of footballs, whether for use in practice environments or game play, specifically but not limited to the air pressure levels of those footballs, as well as any correspondence relating to this investigation or the subject matter thereof." Brady, according to the statements of Wells and others, refused to turn over any communications that were responsive to such a request; he did not merely fail to turn over "the same texts" the NFL had obtained from other parties. This is the basis of a finding that he failed to cooperate.

I think the key thing to remember is that there were two, independent bases for Brady's punishment: (1) Brady's role in the deflation of the footballs, and (2) Brady's violation of league policy by failing to turn over electronic evidence. Brady could contest the factual sufficiency of either of the league's conclusions. If Brady solely contests (1), that is, whether the league had a sufficient factual basis to conclude that Brady violated the inflation rules, then I agree with everything you wrote. But if Brady contests (2), that is, whether the league had a sufficient basis to conclude that Brady violated the league policy's related to cooperating with a league investigation investigation, Brady could make the content of the messages relevant by claiming that he only withheld messages that had nothing to do with the investigation. In other words, his claim would be: "the league's request for messages from me encompassed messages far beyond the scope of the investigation. My withholding of those messages doesn't constitute a failure to cooperate, because the league couldn't properly request messages that had nothing to do with the investigation." From the statements of Brady's agent, it seems like this was at least part of the reason Brady didn't turn those messages over. If Brady advances this argument, the content of the messages he withheld are relevant to determining whether Brady sufficiently engaged in the cooperation the league requires of its players. I guess the one-sentence version is: if Brady claims that he shouldn't be punished for failing to cooperate because the texts he withheld were irrelevant to the investigation and therefore couldn't properly be requested from him, we have to see the content of those messages to evaluate Brady's claim.

I think there's some room for creativity here. One of the grounds on which Brady would likely challenge his discipline is whether the league had sufficient factual basis to support the punishment, is it not? Take a moment to follow me down this inferential path... (1) Troy Vincent stated that an "important consideration" in Brady's punishment was Brady's failure to comply with the league's Integrity of the Game Policy by "fail[ing] to produce any electronic evidence." (2) Brady's agent suggested that the reason he failed to turn over the evidence was because "the scope that they asked for was actually very, very wide"; in effect, that some of the information the league sought was not relevant to the investigation. (3) Brady could argue that he did not in fact violate the league's Policy by withholding information because the league's request for information was overly broad and improper under the Policy, and he only withheld information the league sought that was not relevant to the investigation. In effect, he lodged a meritorious objection to the discovery the league sought during the disciplinary proceeding, meaning that he did not "fail to cooperate." (4) If so, Brady could effectively put the content of his messages into issue. In other words, if Brady argues that the part of his punishment that was based on his failure to cooperate was not justifiable because the only information he withheld from the league was information that had no relevance to the investigation, the content of those messages now becomes relevant to his claim. I say all that on pure speculation having no familiarity with the CBA or league policies. Thoughts from you two on the musings of the esteemed Missouri Supreme Court? http://forums.twobillsdrive.com/topic/178360-nflpa-files-appeal-of-bradys-4-game-suspension/?view=findpost&p=3567418