Brady 4 game suspension upheld; Will go to court

[Kelly the Dog]

however it could just as easily end in december and sit him for playoff games, if the judge wants to pace it that way.

That is one way that he may be able to get them to settle although I very much doubt it will come to this. He can say sure, go ahead, take this as far as you want, but I will make sure that we only go by the luck of the draw and I will not allow extensions from your lawyers to get this heard after the season is over. If it comes up in November or December or January, that is when we do it.

[JohnC]

I think that's a wild conjecture with zero basis in reality and is totally counterproductive to what the judge is trying to prove and is therefore ridiculous. You're saying, in effect, that since the judge cannot get these two parties to settle out of court so the court doesn't have to put up with this nonsense any more or any longer than it already has, that the judge is going to intentionally rule to keep this case in court for as long as he can as punishment.

 

In the finest sense of the words, in the highest TSW tradition, and with no disrespect whatsoever...

 

Your an idiot.

This case is going to be tried in a civil court. The time lines are very long, especially with the pre-trial requirements. This case is not going to be a priority case for him. Civil trials can end up taking years before they get to the actual trial stage.

 

I was victimized by a credit card theft case more than a year ago. Arrests were made more than nine months ago. The case still has not gone to trial. That was a criminal case in which scheduling is quicker than civil cases. In the Brady case you have two sides with high powered attorneys who are involved in a scorched earth strategy. If you think this case is going to go to trial sooner than a year you are wrong. It is not unusual for civil cases with numerous motions filed can take years before they are heard in a trial setting.

 

Your an idiot.

 

Your childish response is not surprising.

[NoSaint]

That is one way that he may be able to get them to settle although I very much doubt it will come to this. He can say sure, go ahead, take this as far as you want, but I will make sure that we only go by the luck of the draw and I will not allow extensions from your lawyers to get this heard after the season is over. If it comes up in November or December or January, that is when we do it.

set the final hearing date the the friday before the super bowl - neither side would be able to handle the potential drama! could you imagine....

[JohnC]

The last part depends on whether or not Brady is able to play while the case is still going on. If the case goes for a year or two, Brady will play and then could possibly retire before the case is even over. Granted I'm sure it will cost him some coin to keep the case going but I'm sure he can afford it.

If this case goes to trial an injunction would be granted by the judge.

 

Edited August 12, 2015 by JohnC

[Kelly the Dog]

This case is going to be tried in a civil court. The time lines are very long, especially with the pre-trial requirements. This case is not going to be a priority case for him. Civil trials can end up taking years before they get to the actual trial stage.

 

I was victimized by a credit card theft case more than a year ago. Arrests were made more than nine months ago. The case still has not gone to trial. That was a criminal case in which scheduling is quicker than civil cases. In the Brady case you have two sides with high powered attorneys who are involved in a scorched earth strategy. If you think this case is going to go to trial sooner than a year you are wrong. It is not unusual for civil cases with numerous motions filed can take years before they are heard in a trial setting.

 

Your an idiot.

 

Your childish response is not surprising.

There is no civil case. And won't be. This is over before the season on settlement or Berman ruling.

[dave mcbride]

On this issue I am almost diametrically opposed to your position. However, I agree with your assessment that the judge is strenuously doing his best to get the parties to settle to avoid a trial.

 

If this case gets to a trial the terms of the CBA, imbalanced as they are, would compel the judge to side with the league. The judge is signalling to the league that although they might be in a stronger position because of the CBA he can punish their side by delaying their punishment and then take his time scheduling and re-scheduling the trial dates.

 

The reason that the judge is directing a little more attention to the league is not because they are in a weaker legal position but because they are in a stronger position from the legal procedural standpoint. He is indirectly telling them that although your bargaining position is stronger that doesn't mean that your case isn't flawed.

 

This is not a criminal case where trial dates are scheduled on a faster pace. This is a civil issue that could result in trial dates years down the road. Even if a date is scheduled within a year or so the preliminary proceedings could result in the actual trial being scheduled years down the road.

 

This judge is a no nonsense judge who is dealing with two entrenched sides who are willing to take a scorch earth approach.He is not going to be party to such foolishness, at least not in his court.

 

This savvy judge can't make the parties come to an agreement. What he can do and is clearly signal to them that if they don't come to an acceptable agreement he will punish both recalcitrant sides with an open ended process that benefits no one.

Respectfully, John, this makes no sense to me. That's not what's going down right now.

[JohnC]

Respectfully, John, this makes no sense to me. That's not what's going down right now.

Unless there is a settlement between the parties (which I don't see) I don't see a quick settlement. If you disagree I can respect your view.

[26CornerBlitz]

[BuffaloHokie13]

Unless there is a settlement between the parties (which I don't see) I don't see a quick settlement. If you disagree I can respect your view.

I thought there was going to be a ruling by Sept. 4th?

[NoSaint]

I thought there was going to be a ruling by Sept. 4th?

On the injunction, surely, but the whole thing? That would surprise me honestly

[WhitewalkerInPhilly]

I've been trolling Pats fans on PFT. one one them accused me of making leaps of logic with the evidence and I was proud of this one:

 

If while investigniting a Ponzi scheme you found that 11 out of the last 12 earnings reports didnt match up, a forensic accountant runs tests and finds that the companys explanations make no srnse, you find company emails where two guys joke about bonuses they get for extra duty and one calls himself the inflator and when asked for records the CEO first says theyre trade secrets and then tells you that hes burned them

 

Yeah, thats hardly a major leap on logic to make 9 out of 12 people think that its more likely than not that the CEO is likely cooking the books.

[Kelly the Dog]

I thought there was going to be a ruling by Sept. 4th?

There is. Who knows what he is talking about. Brady is not going to take the league to court on a separate legal civil case. That would be potentially career suicide. He wouldn't be able to hide behind his implausible explanations and especially Jastremski and McNally called as witnesses under cross examination.

[NoSaint]

There is. Who knows what he is talking about. Brady is not going to take the league to court on a separate legal civil case. That would be potentially career suicide. He wouldn't be able to hide behind his implausible explanations and especially Jastremski and McNally called as witnesses under cross examination.

didnt you already use that argument before this filing?

[Kelly the Dog]

didnt you already use that argument before this filing?

I said there was not a chance in hell he is going to court about the case 100 times from day one.

Numerous tlimes I said they could go about orocess

[dave mcbride]

I said there was not a chance in hell he is going to court about the case 100 times from day one.

Numerous tlimes I said they could go about orocess

You initially said that there was no chance he'd take it to court. The qualifiers came later, if I recall correctly.

[Kelly the Dog]

You initially said that there was no chance he'd take it to court. The qualifiers came later, if I recall correctly.

No. Untrue. I always always always talking about going to court with the idea that it was about the case and where McNally and Jastremski could be witnesses. That is what I always said and meant. It was always 100% about those two guys testifying under oath. The process issue came later and I said immediately they could go to court over process but no way in hell about the case. If the process stuff came up earlier I would have said the exact same thing. The ONLY reason I ever said he would never go to court was because of the witnesses and he would have to take stand about his lies with those guys having to respond to them for the first time.

[odon59]

I'm a lawyer and I read the briefs filed by Brady and the league last week. I think Brady's arguments are very strong compared to the league's. I'd say 70/30 chance that the judge grants Brady's motion to vacate the suspension. Also, Kelly the Dog, the procedural posture of the federal court litigation doesn't really make the ball boys' testimony relevant. It's all about whether the NFL followed its own policies and the CBA in dishing out this punishment.

[Kelly the Dog]

I'm a lawyer and I read the briefs filed by Brady and the league last week. I think Brady's arguments are very strong compared to the league's. I'd say 70/30 chance that the judge grants Brady's motion to vacate the suspension. Also, Kelly the Dog, the procedural posture of the federal court litigation doesn't really make the ball boys' testimony relevant. It's all about whether the NFL followed its own policies and the CBA in dishing out this punishment.

I know that inside and out. That's not what we were talking about. Another poster said Brady wax going to sue the league in a civil case not the process thing.

[Peter]

Judge Berman:

 

“It looks like they…deflated the game balls? Why would either one of them do that without Mr. Brady’s consent?”

[odon59]

I know that inside and out. That's not what we were talking about. Another poster said Brady wax going to sue the league in a civil case not the process thing.

Well to that end, this is THE CIVIL CASE. Brady doesn't have any other recourse. The CBA bars players from filing some end-around lawsuit to relitigate the underlying facts. Also, in regards to the speculation that the judge could just delay delay delay - that's true but Brady could just file an application for a temporary restraining order or preliminary injunction, which would force the judge to rule quickly. All of this is moot because the judge said he would rule by Sept. 4.

[Kelly the Dog]

Well to that end, this is THE CIVIL CASE. Brady doesn't have any other recourse. The CBA bars players from filing some end-around lawsuit to relitigate the underlying facts. Also, in regards to the speculation that the judge could just delay delay delay - that's true but Brady could just file an application for a temporary restraining order or preliminary injunction, which would force the judge to rule quickly. All of this is moot because the judge said he would rule by Sept. 4.

I understand all of that. Believe me, I have followed this as close as anyone. The other poster was talking, what I called ridiculous, about a new civil case like you just said he couldn't do.

[starrymessenger]

I'm a lawyer and I read the briefs filed by Brady and the league last week. I think Brady's arguments are very strong compared to the league's. I'd say 70/30 chance that the judge grants Brady's motion to vacate the suspension. Also, Kelly the Dog, the procedural posture of the federal court litigation doesn't really make the ball boys' testimony relevant. It's all about whether the NFL followed its own policies and the CBA in dishing out this punishment.

 

As a lawyer you're in a better position to comment on this than most other posters, especially if you have special insight into the practice and procedure of federal courts in adjudicating labour disputes. How exactly did the League fail to observe its own policies and the CBA. Whether it was "fair" or not I think most of us were under the impression that the League had the authority to act as it did. Edited August 12, 2015 by starrymessenger

[K-9]

Judge Berman:

 

“It looks like they…deflated the game balls? Why would either one of them do that without Mr. Brady’s consent?”

"Mr. McNally thought Brady would like it."

 

GO BILLS!!!

[machine gun kelly]

I'll defer to Odon as the expert, but it was interesting Bill Polian commented Brady does not have a leg to stand on. He stated, and I trust his comments, that Goodell was more than within his rights to delve out the suspension given the CBA, and his authority that has been negotiated in this contract.

 

We'll see, and again Odon is an attorney, and I am not. Part of me wants it to get reduced as we are flying up for the game in September, but logically it really helps our cause for the playoffs for him to be gone for four games.

[K-9]

Well to that end, this is THE CIVIL CASE. Brady doesn't have any other recourse. The CBA bars players from filing some end-around lawsuit to relitigate the underlying facts. Also, in regards to the speculation that the judge could just delay delay delay - that's true but Brady could just file an application for a temporary restraining order or preliminary injunction, which would force the judge to rule quickly. All of this is moot because the judge said he would rule by Sept. 4.

Brady and the NFLPA already agreed not to seek a temporary restraining or a preliminary injunction. Both sides have agreed to abide by the final ruling on Sept. 4.

 

GO BILLS!!!

[WhitewalkerInPhilly]

As a lawyer you're in a better position to comment on this than most other posters, especially if you have special insight into the practice and procedure of federal courts in adjudicating labour disputes. How exactly did the League fail to observe its own policies and the CBA. Whether it was "fair" or not I think most of us were under the impression that the League had the authority to act as it did.

Yeah I'd appreciate that too since we keep getting overwhelmed by Brady shills. It's my understanding that the language of the CBA as written means that Goddell is under no obligation to be impartial or fair.

[Mr. WEO]

Yeah I'd appreciate that too since we keep getting overwhelmed by Brady shills. It's my understanding that the language of the CBA as written means that Goddell is under no obligation to be impartial or fair.

 

 

LOL...there you go. I doubt that's the NFL's argument in front of the judge. If so, it's over for them.

[odon59]

How exactly did the League fail to observe its own policies and the CBA. Whether it was "fair" or not I think most of us were under the impression that the League had the authority to act as it did.

Brady's strongest argument is with respect to "Notice." The CBA requires that players have adequate notice, either being verbally informed or receiving notice in writing, as to what conduct they may be disciplined for and the extent of that punishment. Brady makes several arguments as to notice, but the two strongest ones, in my view, are that 1) only teams, not individual players, are subject to punishment for equipment tampering and 2) Brady did not have notice that he could be subject to discipline for being "aware" of the wrongful conduct of others - in this case the ball boys.

 

1) With respect to the argument that Brady didn't have notice that he could be personally punished for equipment tampering, Brady points to the lack of any provision in the CBA for equipment tampering punishment as well as the league's unilateral policy on equipment tampering, which explicitly says that teams are subject to punishment and is silent on players. In response, the NFL argues that it didn't punish Brady under the equipment tampering policy, but rather the suspension is valid because Brady's conduct was detrimental to the league. Conduct detrimental to the league is something that the players do have notice as to their potential punishment. However, keep the idea of "conduct" in mind when reading below:

 

2) "Awareness v. Conduct" - this is where I think Brady, much to my chagrin, has them. The Wells report concludes only that Brady was "more likely than not generally aware." Brady argues that nothing in the CBA or league policies put him on notice that he could be punished for his "awareness" of the conduct of others. Goodell got really slippery when it came to this. In the appeal, Goodell took the evidence in the Wells report along with an "adverse inference" based on Brady destroying his phone, that Brady had in fact been directly involved. So on one hand the league used the Wells report for its fact finding and conclusions, but then on appeal it only used the Wells report for individual facts but came to its own heightened conclusions. So the question for the Judge here is, did Goodell act arbitrarily in going from "generally aware" to actually involved in his findings? I think the answer to that is yes, but we shall see.

[WhitewalkerInPhilly]

 

 

LOL...there you go. I doubt that's the NFL's argument in front of the judge. If so, it's over for them.

No the way they argue it is this:

 

NFLPA: [Part of the disciplinary process they don't like] is unfair!

NFL: You agreed to it. Would you like to give back the extra money you negotiated for so we kept it in? Well tough shat, because you agreed to it.

 

If all business contracts were able to be invalidated because one side gets a better deal they'd be no contracts.

[starrymessenger]

Yeah I'd appreciate that too since we keep getting overwhelmed by Brady shills. It's my understanding that the language of the CBA as written means that Goddell is under no obligation to be impartial or fair.

Well my assumption was that the process, however it might offend someone's sense of "fairness" as not having the trappings and outward appearance of a truly independent proceeding, would pass legal muster if it was contemplated by the CBA and if the participants were not bias, in other words, were not plainly acting fraudulently.

It's possible though that the standard is different and if so it would help advance the discussion if a real expert could weigh in.

[odon59]

Well my assumption was that the process, however it might offend someone's sense of "fairness" as not having the trappings and outward appearance of a truly independent proceeding, would pass legal muster if it was contemplated by the CBA and if the participants were not bias, in other words, were not plainly acting fraudulently.

It's possible though that the standard is different and if so it would help advance the discussion if a real expert could weigh in.

The standard for reviewing an arbitrator's decision is, ironically, whether the decision was "arbitrary or capricious." What that means exactly has been interpreted differently in different forums. Federal courts in Minnesota have been more apt to find in favor of the players, whereas NYC is more league friendly.

[mead107]

No games off for Brady. Imo

[WhitewalkerInPhilly]

Well my assumption was that the process, however it might offend someone's sense of "fairness" as not having the trappings and outward appearance of a truly independent proceeding, would pass legal muster if it was contemplated by the CBA and if the participants were not bias, in other words, were not plainly acting fraudulently.

It's possible though that the standard is different and if so it would help advance the discussion if a real expert could weigh in.

I think the issue is that the CBA allows for binding arbitration on appeals. And the language which includes a "neutral" (IIRC) appears elsewhere and not there.

 

In which case the onus is to prove that it is necessary to undo binding arbitration, which is extraordinarily messy turf.

 

IIRC most of the suspension reductions came from other arbiters on appeal or because the acts were committed before policies were put into place.

 

The personal conduct policy was put into place months before Deflategate. There always has to be a first punishment.

[Mr. WEO]

The standard for reviewing an arbitrator's decision is, ironically, whether the decision was "arbitrary or capricious." What that means exactly has been interpreted differently in different forums. Federal courts in Minnesota have been more apt to find in favor of the players, whereas NYC is more league friendly.

But isn't the bias criteria more favorable to Brady in NY (2nd circuit?) than Minn?

[starrymessenger]

Brady's strongest argument is with respect to "Notice." The CBA requires that players have adequate notice, either being verbally informed or receiving notice in writing, as to what conduct they may be disciplined for and the extent of that punishment. Brady makes several arguments as to notice, but the two strongest ones, in my view, are that 1) only teams, not individual players, are subject to punishment for equipment tampering and 2) Brady did not have notice that he could be subject to discipline for being "aware" of the wrongful conduct of others - in this case the ball boys.

 

1) With respect to the argument that Brady didn't have notice that he could be personally punished for equipment tampering, Brady points to the lack of any provision in the CBA for equipment tampering punishment as well as the league's unilateral policy on equipment tampering, which explicitly says that teams are subject to punishment and is silent on players. In response, the NFL argues that it didn't punish Brady under the equipment tampering policy, but rather the suspension is valid because Brady's conduct was detrimental to the league. Conduct detrimental to the league is something that the players do have notice as to their potential punishment. However, keep the idea of "conduct" in mind when reading below:

 

2) "Awareness v. Conduct" - this is where I think Brady, much to my chagrin, has them. The Wells report concludes only that Brady was "more likely than not generally aware." Brady argues that nothing in the CBA or league policies put him on notice that he could be punished for his "awareness" of the conduct of others. Goodell got really slippery when it came to this. In the appeal, Goodell took the evidence in the Wells report along with an "adverse inference" based on Brady destroying his phone, that Brady had in fact been directly involved. So on one hand the league used the Wells report for its fact finding and conclusions, but then on appeal it only used the Wells report for individual facts but came to its own heightened conclusions. So the question for the Judge here is, did Goodell act arbitrarily in going from "generally aware" to actually involved in his findings? I think the answer to that is yes, but we shall see.

Thanks, that is very helpful. So Brady's position is that as a factual matter he had no knowledge of their wrongdoing but that, in any event, even if he did he is not responsible for their conduct. When hearing the appeal is the Commissioner allowed to make "reasonable" inferences from the facts before him, including for example the testimony of the appellant in the appeal itself, his course of conduct etc...or is he limited to opining only on the adequacy of the decision under appeal?

[odon59]

But isn't the bias criteria more favorable to Brady in NY (2nd circuit?) than Minn?

No Brady would have been better off in Minnesota, which he tried to do. But honestly I don't know how much better off he would have been. The big NYC case that is cited for showing the this region is pro-league is the Maurice Clarrett case, which was an antitrust claim and not a labor dispute.

[starrymessenger]

But isn't the bias criteria more favorable to Brady in NY (2nd circuit?) than Minn?

That would be odd since Brady wanted Minny and the League wanted NY.

[odon59]

Thanks, that is very helpful. So Brady's position is that as a factual matter he had no knowledge of their wrongdoing but that, in any event, even if he did he is not responsible for their conduct. When hearing the appeal is the Commissioner allowed to make "reasonable" inferences from the facts before him, including for example the testimony of the appellant in the appeal itself, his course of conduct etc...or is he limited to opining only on the adequacy of the decision under appeal?

Yes that's basically it. This is a great question that unfortunately I do not know off hand. Below is a quote from the judge in the Peterson case in Minnesota, setting forth the standard of review for arbitration awards.

 

Arbitration awards, however, are not inviolate, and the court need not merely rubber stamp the arbitrator's interpretations and decisions. The court must vacate the award if it fails to “draw its essence” from the agreement, such that the arbitrator imposed “his own brand of industrial justice.” Associated Elec., 751 F.3d at 901. An arbitration award may also be vacated when the arbitrator “exceed[ed] the authority given to him by the CBA or decide[d] matters parties have not submitted to him.” Doerfer Eng'g v. NLRB, 79 F.3d 101, 103 (8th Cir.1996).

 

Nat'l Football League Players Ass'n v. Nat'l Football League, No. CIV. 14-4990 DSD/JSM, 2015 WL 795253, at *5 (D. Minn. Feb. 26, 2015)

[K-9]

Brady's strongest argument is with respect to "Notice." The CBA requires that players have adequate notice, either being verbally informed or receiving notice in writing, as to what conduct they may be disciplined for and the extent of that punishment. Brady makes several arguments as to notice, but the two strongest ones, in my view, are that 1) only teams, not individual players, are subject to punishment for equipment tampering and 2) Brady did not have notice that he could be subject to discipline for being "aware" of the wrongful conduct of others - in this case the ball boys.

 

1) With respect to the argument that Brady didn't have notice that he could be personally punished for equipment tampering, Brady points to the lack of any provision in the CBA for equipment tampering punishment as well as the league's unilateral policy on equipment tampering, which explicitly says that teams are subject to punishment and is silent on players. In response, the NFL argues that it didn't punish Brady under the equipment tampering policy, but rather the suspension is valid because Brady's conduct was detrimental to the league. Conduct detrimental to the league is something that the players do have notice as to their potential punishment. However, keep the idea of "conduct" in mind when reading below:

 

2) "Awareness v. Conduct" - this is where I think Brady, much to my chagrin, has them. The Wells report concludes only that Brady was "more likely than not generally aware." Brady argues that nothing in the CBA or league policies put him on notice that he could be punished for his "awareness" of the conduct of others. Goodell got really slippery when it came to this. In the appeal, Goodell took the evidence in the Wells report along with an "adverse inference" based on Brady destroying his phone, that Brady had in fact been directly involved. So on one hand the league used the Wells report for its fact finding and conclusions, but then on appeal it only used the Wells report for individual facts but came to its own heightened conclusions. So the question for the Judge here is, did Goodell act arbitrarily in going from "generally aware" to actually involved in his findings? I think the answer to that is yes, but we shall see.

Can a player's refusal to comply with the mandatory requirement to cooperate in a league investigation be considered conduct detrimental?

 

Can the texts between Jastremski and McNally that indicate Brady offered various merchandise in exchange for "the deflator" to provide balls inflated to Brady's specifications, lead a reasonable person to conclude that Brady was "generally" aware of McNally's activity?

 

Can the refusal to provide specific phone records from a specific phone later found to be destroyed, also be construed by a reasonable person that Brady was trying to cover up his "general awareness" of the activities?

 

GO BILLS!!!

[odon59]

Can a player's refusal to comply with the mandatory requirement to cooperate in a league investigation be considered conduct detrimental?

 

Not sure there is a requirement, but even if there is, Brady argues that even the Wells report concluded he cooperated in every other way. Your question really comes down to whether Brady has to turn over cell phone records. It's certainly not in the CBA, so your guess is as good as mine.

 

Can the texts between Jastremski and McNally that indicate Brady offered various merchandise in exchange for "the deflator" to provide balls inflated to Brady's specifications, lead a reasonable person to conclude that Brady was "generally" aware of McNally's activity?

 

Sure can and that's basically what the Wells report did. The issue is whether that awareness is culpable.

 

Can the refusal to provide specific phone records from a specific phone later found to be destroyed, also be construed by a reasonable person that Brady was trying to cover up his "general awareness" of the activities?

 

See above.

 

GO BILLS!!!