Go Kiko go
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That's a good explanation but it was pretty clear by both the Wells report and the Vincent letter that the NFL didn't make a choice between one and two. They said you did this wrong (cheating) and you did that wrong (lying and obstructing) and both were punishable offenses. So we are deciding on a punishment that includes both offenses and more. Why does it have to be one or the other?
They were not punishing him under one or the other provisions. It was both.
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.
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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.Tuco nailed it. I have no idea how you can read that and overturn the case. Its BS but they agreed to it.
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.
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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.Unless the by-laws or CBA violates the constitution of the United States, a court should have no jurisdiction on a company of any sort... and that's what the NFL is. This is disappointing as I believe courts are overstepping their bounds to get some limelight. Forget the specific violation - what the judge has essentially said, and with past 5 rulings being overturned - its OK to cheat, it's OK to not cooperate with your employer, it's OK to falsify or destroy evidence. At some level, it feels like a microcosm of what ails society today.
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.
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So the league created fake duress for Brady via false evidence and then found him guilty for reacting to it in an understandable fashion. This is a rather aggressive interrogation tactic generally reserved for murder investigations, terrorist questionings and "Law & Order" reruns. It isn't how anyone would normally expect the league office to act when trying to determine the inflation levels of footballs.
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.
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is it just me ? and yes probably so, but has the train gone so far off the track the issue is no longer Brady exerted some control over ball pressures?
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.
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You want him to get off on some sort of weird technicality?
If a guy gets caught cheating in a way that has never been discovered before, it is the league's fault for not imagining the specific way the cheater would cheat? BS. The league is the boss. Brady should shut up and take his punishment.
You
him.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.
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Thanks. Did you get this on Pacer or is it linked anywhere?
It is interesting. If Brady and his attorneys really were interested in not providing his phone to Wells, they could have hired this guy to do this search before March 6 (the date of the interview and destruction of the phone).
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.
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Exhibit 6 is the supplemental declaration of Brad Maryman. With any luck, that attaches the report or sets forth the pertinent information. Presumably, there is an original declaration. I have not seen the exhibit number yet.
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.
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Do any of you guys know when Brad Maryman (Brady's computer forensics expert) was hired?
Do any of you guys have copy of Maryman's expert report or know the date of the report?
The reason why I ask is that Maryman was hired to search the phones for electronic information responsive to Wells' requests. As has been confirmed, Brady's phone was destroyed on March 6 (the day he was being interviewed by Wells). Wells' request had been propounded prior to then.
Even though it was Brady's (supposed) practice to destroy his phones when he got a new one, the prior phone (the one used through November 2014 was available for the forensic expert.
Interestingly, in part of his testimony, Brady testified: "So I have always old the guy who swaps them out for me, make sure you get rid of the phone." Transcript at 91 (emphasis added).
Yet, when he had the subject phone destroyed on the day that he was being interviewed and after already receiving the document request, he had his "assistant" do it. Transcript at 105-06.
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.
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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.
7. Tom Brady quarterbacks the New England Patriots and is one of the most successful players—on and off the field—in NFL history. This past February, he led the Patriots to their fourth Super Bowl championship during his tenure with the team, tying him for the most all-time Super Bowl victories by a quarterback.
8. Following the 2015 AFC Championship Game, the NFL launched an investigation into whether the Patriots footballs were improperly deflated below the pressure range (“PSI”) permitted by NFL rules. Goodell commissioned one of the League’s regular outside law firms, Paul, Weiss, Rifkind, Wharton & Garrison (“Paul, Weiss”), led by partner Theodore Wells, to co-lead the “Deflate-gate” investigation along with NFL Executive Vice President and General Counsel Jeffrey Pash (the “Wells-Pash Investigation”). The League and Paul, Weiss have publicly touted the Wells-Pash Investigation as “independent.”
9. The investigation was conducted, and punishments imposed, under the NFL’s Policy on Integrity of the Game & Enforcement of Competitive Rules (“Competitive Integrity Policy”). Id. However, by its own terms, the Competitive Integrity Policy applies to Clubs—not players. Accordingly, the Competitive Integrity Policy was never given to players as part of the Player Policies that are distributed to players before each season, and it is undisputed that Brady never saw the Competitive Integrity Policy prior to these proceedings. NFLPA Ex. 210, Award at 17 n.19.
10. On May 6, many months and many millions of dollars in legal fees later, Paul, Weiss and the NFL issued the “Wells Report” summarizing the findings from their investigation. The NFL’s General Counsel Jeffrey Pash reviewed and commented on the purportedly independent Wells Report before its public release. The Report concluded that it was “more probable than not” that two Patriots equipment employees—John Jastremski and Jim McNally— had violated the Competitive Integrity Policy by “participat[ing] in a deliberate effort to release air from Patriots game balls after the balls were examined by the referee” prior to the start of the AFC Championship Game. NFLPA Ex. 7, Wells Report at 2. The Wells Report reached this conclusion notwithstanding the denials of Jastremski and McNally and the absence of any other witness or document directly supporting the claims of ball deflation. Moreover, even though footballs are expected to naturally deflate when moving from a warm locker room to a cold- weather environment (like the AFC Championship Game), the Wells Report concluded that human intervention was “more probable than not” based on a statistical and scientific analysis. At the same time, however, the Wells Report conceded that this analysis rested on numerous “assumptions”—because of the League’s failure to record the necessary data—and that “varying the applicable assumptions can have a material impact upon the ultimate conclusions.” Id. at 13.
11. With respect to Brady’s alleged role, the Wells Report findings were even more limited. The Report concluded it was “more probable than not that Brady was at least generally aware” of the alleged misconduct by McNally and Jastremski. Id. at 17 (emphasis added). The Wells Report did not find that Brady actually knew about any ball deflation at the AFC Championship Game; it did not find that Brady directed or authorized any ball deflation; nor did it find that Brady even had any knowledge of the Competitive Integrity Policy pursuant to which he was punished and the Wells-Pash Investigation was conducted.
12. After the Wells Report was released, the Union and Brady waited to see what, if any, action Commissioner Goodell would take. As the Commissioner, Goodell—and no one else—has the exclusive authority under the CBA to take certain disciplinary actions against players for conduct detrimental to the League. But, in this case, Goodell improperly abdicated his CBA role and delegated his disciplinary authority to NFL Executive Vice President Troy Vincent.
13. Vincent, invoking the Competitive Integrity Policy, and resting solely on the limited factual conclusions from the Wells Report about Brady’s alleged “general awareness” suspended Brady for four games. NFLPA Ex. 10. The applicable League Policies for Players (“Player Policies”) were not even mentioned in Vincent’s disciplinary letter. Vincent also based this punishment on Brady’s purported failure to cooperate with the Wells-Pash Investigation. Id. The full extent of the alleged “non-cooperation” found by Wells, and cited by Vincent, was Brady declining, on the advice of his agents who were also acting as his attorneys, to respond to Wells’ requests to produce certain of his private text messages and e-mails. Id.
14. On May 14, 2015, Brady timely appealed his suspension. Goodell decided to serve as the arbitrator. Brady and the NFLPA moved for his recusal because, among other things, Goodell had directed the unlawful delegation of his CBA disciplinary authority to Vincent. Thus, as arbitrator, Goodell would have to determine the facts and CBA legality of his own conduct. Moreover, Goodell was an essential witness on the delegation issue and could not lawfully serve as both arbitrator and fact witness in the same proceeding. NFLPA Ex. 11. The Commissioner nonetheless rejected the recusal request. NFLPA Exs. 157, 160.
15. On June 23, 2015, Goodell held the arbitration. See NFLPA Ex. 204. The hearing defied any concept of fundamental fairness. Prior to the hearing, Goodell had ruled that Brady and the Union could not question essential witnesses, denied them access to the investigative files underlying the Wells Report (which were nonetheless available to the NFL’s counsel at the arbitration), and summarily rejected Brady’s unlawful delegation argument without considering any evidence (other than “facts” decreed by Goodell himself in his decision). At the hearing itself, Paul, Weiss—the purportedly “independent” law firm whose findings about Brady were being challenged—abandoned all pretense of objectivity, and actively participated as counsel for the NFL conducting direct and cross-examinations of witnesses (including Brady’s). A Paul, Weiss partner represented the NFL for most of the hearing, even though he was a signatory to the Wells Report and his law partner (Wells) was a fact witness at the same hearing. Paul, Weiss also conducted the hearing while in possession of critical evidence—including interview summaries of key witnesses—that Brady had requested but the NFL refused to give him.
16. In addition, the arbitration established that the NFL had no procedures whatsoever for collecting information essential to determining whether the Patriots balls had deflated due to environmental factors or human intervention. In fact, just one week ago, the NFL let it be known that it is for the first time implementing procedures for ball pressure testing—a stark concession that it had no procedures in place when the data on which Brady’s punishment was based was collected. The League’s admitted failure to timely implement any such data collection protocols caused the League’s scientific and statistical consultants to make a multitude of unsupported assumptions and rendered their analysis utterly unreliable as a fair and consistent basis for imposing discipline.
17. And, the hearing confirmed all of the undisputed facts about the lack of proper notice.
18. On July 28, 2015, Commissioner Goodell issued the Award upholding Brady’s suspension. Goodell’s Award is little more than a rehash of the Wells Report, plus new and unfounded and provocative attacks on Brady’s integrity. At the same time, the Award ignores the fundamental legal arguments presented by the Union which require that the Award be set aside.
19. For example, the Award disregards the myriad defects in notice—contending that Brady’s knowledge that, in the broadest sense, he could be suspended for “conduct detrimental” eliminated the need for the League to provide any notice about which policies could be applied, and what the potential penalties for violations of the applicable policies might be. But this contention had already been rejected by the ruling in Peterson (which the Award also ignores), where the domestic violence conduct at issue constituted conduct detrimental under any policy, but where the punishment had to be vacated because it violated the essence of the CBA requirement that Peterson have advance notice of the policy and penalties to which he could be subjected. NFLPA Ex. 153.
20. Here, the applicable policy concerning equipment tampering was contained in the Player Policies, but the Award ignores the terms of those Policies because they provide only for fines for a first time offense—a punishment Goodell apparently deemed insufficient. NFLPA Ex. 114 at 15. The Award also ignores Vincent’s application of a “generally aware” disciplinary standard that was pulled from whole cloth without notice and applied to a player for the first time in NFL history.
21. The most the Award has to say about notice is to try to deny, in a single footnote, that neither the Competitive Integrity Policy nor any other policy was applied. NFLPA Ex. 210, Award at 17, n.19. Putting aside that this assertion belies the arbitration record that Vincent did apply the Competitive Integrity Policy to Brady and punished Brady for being generally aware that Patriots equipment personnel violated that policy, it does not save the Award from vacatur. According to the Award, Brady was purportedly suspended for conduct detrimental without application of any particular policy. But there is a specific Player Policy concerning player equipment violations, and that policy only provides notice of fines for violations of that policy, not of suspensions for being generally aware of someone else’s violation. This is just the type of blatant notice defect which resulted in vacatur in Peterson. There, Peterson had notice of one version of the Personal Conduct Policy distributed to players, only to have the Commissioner retroactively apply a different version of the Personal Conduct Policy, with different rules and penalties, that was not promulgated until after the conduct at issue.
22. The Award also makes much of Brady’s purported non-cooperation, including a brand new, hyperbolic and baseless accusation—that played no part in the discipline imposed by Vincent—that Brady “destroyed” his cell phone after being advised by his agents-lawyers not to turn over private communications to the NFL’s outside law firm. This issue is a complete red herring because the NFL already had all of the relevant text communications by Brady from other Patriots personnel—a fact established by Brady’s telephone records, which were produced at the hearing, and which showed the time and date of every text and phone call to or from Brady and Patriots personnel (or anyone else) during the relevant period. NFLPA Exs. 1, 3.
23. But most importantly for purposes of this Answer and Counterclaim, Goodell’s decision on the punishment for alleged non-cooperation yet again violated the CBA requirement of notice. As his predecessor, Commissioner Paul Tagliabue, ruled when he served as a CBA arbitrator in the so-called “Bounty-gate” matter:
There is no evidence of a record of past suspensions based purely on obstructing a League investigation. In my forty years of association with the NFL, I am aware of many instances of denials in disciplinary proceedings that proved to be false, but I cannot recall any suspension for such fabrication. There is no evidence of a record of past suspensions based purely on obstructing a League investigation.
NFLPA Ex. 113, Bounty, slip op. at 13 (2012) (Tagliabue, Arb.).
24. The Award further ignores the testimony of Wells himself that he never once told Brady that discipline could flow from declining to produce his personal text messages or e-mails:
I want to be clear—I did not tell Mr. Brady at any time that he would be subject to punishment for not giving—not turning over the documents. I did not say anything like that.
Hr’g Tr. 336:15-23 (Wells).
25. With respect to the other grounds for vacatur, the Award also turns a blind eye to the NFL’s undisputed failure to implement procedures for testing the footballs at the AFC Championship Game such that there was no fair and consistent basis for the NFL to base any punishment on its consultants’ “assumptions” about that testing; ignores the procedural defects depriving Brady of a fundamentally fair hearing; and says nothing about Goodell’s evident partiality.
26. In a public statement issued on July 29, Patriots Owner Robert Kraft summarized the Award as follows:
[Rather than make this post longer than it already is, I removed the transcription of Kraft's press conference remarks]
27. As in Peterson, a Federal Court should again vacate the Award, which (i) violates the CBA law of the shop requirement of notice and express CBA terms, (ii) violates the CBA law of the shop requirement of fairness and consistency, (iii) is the product of fundamentally unfair proceedings, and (iv) was issued by an evidently partial arbitrator.
28. Because the Award was issued on the eve of the 2015 NFL season, it will irreparably harm Brady if he misses games while the Court considers the merits of this dispute. The NFLPA and Brady will file motions seeking relief prior to September 4, 2015, when the Patriots begin final preparations for their first regular season game.
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That's interesting. In effect they would be asserting that the CBA actually prohibited the specific penalty imposed on the player. Intuitively I would expect this to be a legitimate ground for the appeal, if established to be the case. On the other hand I don't see how that would have anything to do with the issue of bias, which has been widely reported to be the sole matter to be considered in the appeal.
JMO but I would expect that the League's general supervisory authority would be such as to negate Brady's arguments regarding adequate notice/precedent but i don't know.
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."
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Possible I guess but I'm not so sure. I would expect that encouraging the parties to come to a negotiated settlement is procedurally part of any labour dispute that comes before the court.
Exactly. Encouraging parties to settle is part of any dispute that comes before the federal courts.
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The only substantive issue before the judge, as I understand it, is whether due process was observed. In order to succeed Brady must establish bias on the part of the Commissioner. That can happen even when the properly appointed arbitrator is an interested party, in other words it can happen whether the decision maker is an interested or a third party. That makes sense since any arbitrator, whether "interested" or not, can hypothetically be biased.
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.
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Goodell as the arbitrator is something was was collectively bargained for an explicitly included in the latest CBA. Impartial or not, he was granted authority by the NFLPA to act in the manner in which he did for the Deflategate ruling.
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.
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Thanks for that clarification. A couple of us were wondering why the Brady camp would not choose NY if that were the case.
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.
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The latest on the courts: http://sports-law.blogspot.co.uk/2015/08/another-home-field-advantage-for-tom.html
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.
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You and me both. I really don't even care. Apparently the judge told both sides to quit crying like babies and settle the case?
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.
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will this court be open to the public?
Judge wants Goodell, Brady in court Aug. 12, 19
CSpan? maybe? I'd love to see it
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.
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I wrote this at SabreSpace and someone asked me to post it here:
Very materially. In the Second Circuit (for the rest of the board, that's where this is playing out, if this was filed in Manhattan): a party must demonstrate (1) irreparable harm absent injunctive relief and (2) either (a) a likelihood of success on the merits, or (b) a serious question going to the merits to make them a fair ground for trial, with a balance of hardships tipping decidedly in the plaintiff’s favor.
Lots of circuits do not have the "serious question" option.
Now let's analyze: What's the irreparable harm? Not his lost salary, because money is never, ever considered "irreparable harm." Not likely his reputation, since at the end of the day, he could still be vindicated by a verdict in his favor. It's got to be the opportunity to play. With a normal occupation, that won't fly, since the real opportunity is to earn money (again, never, ever considered "irreparable harm"),but maybe with a waning football career, he's got something. Maybe.
The second prong of the test: Overturning an arbitrator's decision is hard, so he probably doesn't have a likelihood of success on the merits. But one basis for overturning an award is arbitrator bias, and he may try to argue that Goodell is biased. That's at least a serious question going to the merits. Now we're down to a balance of hardships, and whether it tips decidedly in his favor, and I have no idea. The league has a serious interest in wanting to effectively and efficiently discipline cheaters. Brady has an interest in playing football. Don't know what a judge is going to do there.
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.
Thanks for posting. Why is the issue of Goodell's bias a "serious question going to the merits" if the CBA the players agreed to expressly grants RG the authority to oversee appeals? The "he's biased" assertion is nothing more than another "I didn't do it" assertion. I read the SI.com article with the legal analysis, but who would truly believe that RG wants to see the league's bell cow QB be suspended? I believe the NFL's decision on the appeal was brilliantly crafted to place the majority of blame squarely upon Brady's specific actions to impede the investigation. How does any RG bias even play into that?
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.
Makes sense from the NFLPA's perspective.
This is lawyering 101.
Whether or not the NFL's action will be merged with the NFLPA's (and critically, the venue of said action) remains to be seen.
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.
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The point is that he was allowed to leave out incriminating evidence.
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.
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It's a bizarre request by Wells to say send me everything relevant to this investigation but then say...."I'll even let you choose what to reveal I and will be satisfied that that's all there there is." And is a player obligated to incriminate himself in an investigation?
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.
Then why allow him to censor what he will submit? Common sense suggests he's not going to give extra information, so why penalize him when he doesn't?
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").
You give me documents that are responsive to this investigation and I will take your word that you have given me what's responsive." And they still refused."
And I understand this is not a criminal case, but nor is it a civil case. I was just asking if it is reasonable for a person to be compelled to incriminate himself.
"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.)
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Brady can assume that Wells has his texts to these 2 guys. Wells issued his report of (essentially) guilt based on these texts. Brady giving the same texts or refusing to give them made no difference in the finding of guilt. Wells had everything he needed to conclude what he concluded. He was able to tack on the "noncooperative" part somewhat gratuitously, as BRady's refusal had little to no impact on the outcome of Well's investigation.
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.
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I think there's a big gap in that path. Really, you're bringing up two different issues:
1) Was it reasonable for Wells to ask for the texts that he did? And,
2) Was there sufficient evidence for the punishment?
If the defendant (NFL) petitions for a subpoena for the text records, the court will want to know why they are relevant to the civil case. If the answer is, "we believe there is relevant evidence that would have helped the investigation," the actual content would not have any relevance for the civil case. Why they thought the texts would have helped the investigation would be the point of contention-- not what is contained in them, after the fact. That same point also applies to the question of sufficient evidence. If Wells never saw them, then they weren't part of the evidence. The question in the civil trial is not whether or not Brady is guilty-- he won't be the one on trial-- it's whether the NFL had sufficient evidence at the time to reach their conclusions, and mete out their punishment. Any evidence that has been, or could be uncovered, after the fact, is irrelevant to those questions. The only ruling the court could make regarding the texts is whether Wells was reasonable in his attempts to see them, and if it was reasonable to assume, at the time, that Brady was withholding information.
That's my take, anyway. But, you may be onto something in terms of there being room for creativity. But, Brady's team would have to seriously screw up to somehow open the door for the actual contents of those texts to become relevant, imo.
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.
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Please describe any civil suit that Brady could bring against the NFL that would allow the NFL to subpoena something from Brady?
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.
So about the only thing left is for Brady to convince the court that the appeal was tainted by having Goodell hear it. That's an uphill climb for several reasons, the first of which is the CBA clearly states the commissioner will hear any appeal.
Now, this is where Vilma won in court by saying Goodell was so involved with the investigation and since Goodell handed down the punishment he couldn't possibly be unbiased during an appeal. But this time around Goodell has been more careful about all this. He hired Wells do do his thing and then, more importantly but we're all ignoring it, he actually had Troy Vincent hand out the punishment to Brady. This is going to be a whole extra wall for Brady to climb when arguing that Goodell could be impartial and shouldn't have heard the appeal. We like to say Goodell gave the suspension but technically it was handed out by Vincent and then appealed to Goodell.
Be that as it may, I have a hard time finding any leg for Brady to stand on. Prejudice based on a disproportionate punishment compared to other cases? Something procedural relating to due process? Some violation of the CBA that I haven't heard about? I honestly don't know.
Thoughts from you two on the musings of the esteemed Missouri Supreme Court?
Brady's suspension lifted
in The Stadium Wall Archives
Posted · Edited by 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:
"League discipline may also be imposed on players whose equipment, uniform, or On Field violations are detected during postgame review of video, who repeat violations on the same game day after having been corrected earlier, or who participate in the game despite not having corrected a violation when instructed to do so. First offenses will result in fines."
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.