Kelly the Dog Posted August 12, 2015 Share Posted August 12, 2015 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. Link to comment Share on other sites More sharing options...
starrymessenger Posted August 12, 2015 Share Posted August 12, 2015 (edited) 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 Link to comment Share on other sites More sharing options...
K-9 Posted August 12, 2015 Share Posted August 12, 2015 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!!! Link to comment Share on other sites More sharing options...
machine gun kelly Posted August 12, 2015 Share Posted August 12, 2015 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. Link to comment Share on other sites More sharing options...
K-9 Posted August 12, 2015 Share Posted August 12, 2015 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!!! Link to comment Share on other sites More sharing options...
WhitewalkerInPhilly Posted August 12, 2015 Share Posted August 12, 2015 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. Link to comment Share on other sites More sharing options...
Mr. WEO Posted August 12, 2015 Share Posted August 12, 2015 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. Link to comment Share on other sites More sharing options...
odon59 Posted August 12, 2015 Share Posted August 12, 2015 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. Link to comment Share on other sites More sharing options...
WhitewalkerInPhilly Posted August 12, 2015 Share Posted August 12, 2015 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. Link to comment Share on other sites More sharing options...
starrymessenger Posted August 12, 2015 Share Posted August 12, 2015 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. Link to comment Share on other sites More sharing options...
odon59 Posted August 12, 2015 Share Posted August 12, 2015 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. Link to comment Share on other sites More sharing options...
mead107 Posted August 12, 2015 Share Posted August 12, 2015 No games off for Brady. Imo Link to comment Share on other sites More sharing options...
WhitewalkerInPhilly Posted August 12, 2015 Share Posted August 12, 2015 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. Link to comment Share on other sites More sharing options...
Mr. WEO Posted August 12, 2015 Share Posted August 12, 2015 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? Link to comment Share on other sites More sharing options...
starrymessenger Posted August 12, 2015 Share Posted August 12, 2015 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? Link to comment Share on other sites More sharing options...
odon59 Posted August 12, 2015 Share Posted August 12, 2015 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. Link to comment Share on other sites More sharing options...
starrymessenger Posted August 12, 2015 Share Posted August 12, 2015 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. Link to comment Share on other sites More sharing options...
odon59 Posted August 12, 2015 Share Posted August 12, 2015 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) Link to comment Share on other sites More sharing options...
K-9 Posted August 12, 2015 Share Posted August 12, 2015 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!!! Link to comment Share on other sites More sharing options...
odon59 Posted August 12, 2015 Share Posted August 12, 2015 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!!! Link to comment Share on other sites More sharing options...
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