starrymessenger Posted August 12, 2015 Share Posted August 12, 2015 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) Thanks again. Just a guess on my part but I would have thought that the Commissioner could not be considered to have acted arbitrarily in making reasonable inferences especially since these arbitration appeals seem to allow for new evidence and therefore presumably for findings of fact (unlike what goes on in real appellate courts which strictly review matters of law). Otherwise the person hearing the appeal would be very much hamstrung. As for deciding what is within or without the CBA would seem to involve simply construing the document, though I can appreciate that this exercise might not be straightforward. Link to comment Share on other sites More sharing options...
K-9 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!!! How could the promise of merchandise for footballs inflated to Brady's liking, not be considered inculpable? Any reasonable person could conclude that, imo. GO BILLS!!! Link to comment Share on other sites More sharing options...
odon59 Posted August 12, 2015 Share Posted August 12, 2015 Thanks again. Just a guess on my part but I would have thought that the Commissioner could not be considered to have acted arbitrarily in making reasonable inferences especially since these arbitration appeals seem to allow for new evidence and therefore presumably for findings of fact (unlike what goes on in real appellate courts which strictly review matters of law). Otherwise the person hearing the appeal would be very much hamstrung. As for deciding what is within or without the CBA would seem to involve simply construing the document, though I can appreciate that this exercise might not be straightforward. That could be the case. My overall reading was that the league is quite exposed on this issue, but I could be wrong. Link to comment Share on other sites More sharing options...
WhitewalkerInPhilly Posted August 12, 2015 Share Posted August 12, 2015 Brady cam claim all he likes that he cooperated every other way, but doesn't the fact that his answers regarding contact with the equipment managers belie that? Link to comment Share on other sites More sharing options...
dave mcbride 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. excellent contribution; thanks. Link to comment Share on other sites More sharing options...
dave mcbride Posted August 12, 2015 Share Posted August 12, 2015 (edited) 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. According to this, he's better off in NY: http://sports-law.blogspot.co.uk/2015/08/another-home-field-advantage-for-tom.html . Also: http://sports-law.blogspot.co.uk/2015/07/more-of-brady-bunch.html . Edited August 12, 2015 by dave mcbride Link to comment Share on other sites More sharing options...
starrymessenger Posted August 12, 2015 Share Posted August 12, 2015 According to this, he's better off in NY: http://sports-law.blogspot.co.uk/2015/08/another-home-field-advantage-for-tom.html . Take it with a grain of salt. It would mean that both the League's and Brady's attorneys were out to lunch and that only this guy knows what he's doing. Highly doubtful. Note also his concluding reference to the League's alleged forum shopping. He fails to mention that a Minny Judge rejected the player's bid to have the matter heard in Minnesota because the matter had no legal, factual or logical connection with that jurisdiction. Isn't that forum shopping? This looks a lot like a partisan piece to me. Brady has more trolls than Vladimir Putin. Link to comment Share on other sites More sharing options...
dave mcbride Posted August 12, 2015 Share Posted August 12, 2015 (edited) Take it with a grain of salt. It would mean that both the League's and Brady's attorneys were out to lunch and that only this guy knows what he's doing. Highly doubtful. Note also his concluding reference to the League's alleged forum shopping. He fails to mention that a Minny Judge rejected the player's bid to have the matter heard in Minnesota because the matter had no legal, factual or logical connection with that jurisdiction. Isn't that forum shopping? This looks a lot like a partisan piece to me. Brady has more trolls than Vladimir Putin. Dunno. The irony is that they probably wouldn't have ended up with Doty in Minnesota if reports were to be believed, but with a Bush appointee. With regard to the piece itself, I think it's factually accurate. I think the league may have simply been trying to avoid Doty. NY may not have been perfect, but the other option IIRC was Massachusetts and NY was better from their view. That doesn't mean it was perfect by any means, but I suspect that they thought anything was better than Doty. Your last line is very funny, btw! Edited August 12, 2015 by dave mcbride Link to comment Share on other sites More sharing options...
odon59 Posted August 12, 2015 Share Posted August 12, 2015 (edited) According to this, he's better off in NY: http://sports-law.blogspot.co.uk/2015/08/another-home-field-advantage-for-tom.html . Also: http://sports-law.blogspot.co.uk/2015/07/more-of-brady-bunch.html . This is an interesting read. A cursory look at the 2d Cir (NY) cases cited doesn't reveal they are really that favorable to Brady (one case was non-precedential, meaning it isn't supposed to be cited or relied on in future decisions, and the other actually confirmed the arbitration award, which is what the league wants). Time will tell... By the way, my reasoning for writing my initial post was 1) I had a little bit of knowledge but none of my lawyer friends wanted to talk about it, so I needed a forum, and 2) I wanted to hear a discussion that is more informed that whatever Adam Schefter or Bill Polian decides to spew on ESPN on any given day. I think I succeeded in both, so thanks for engaging! Edited August 12, 2015 by odon59 Link to comment Share on other sites More sharing options...
NoSaint Posted August 12, 2015 Share Posted August 12, 2015 This is an interesting read. A cursory look at the 2d Cir (NY) cases cited doesn't reveal they are really that favorable to Brady (one case was non-precedential, meaning it isn't supposed to be cited or relied on in future decisions, and the other actually confirmed the arbitration award, which is what the league wants). Time will tell... By the way, my reasoning for writing my initial post was 1) I had a little bit of knowledge but none of my lawyer friends wanted to talk about it, so I needed a forum, and 2) I wanted to hear a discussion that is more informed that whatever Adam Schefter or Bill Polian decides to spew on ESPN on any given day. I think I succeeded in both, so thanks for engaging! while we may not be legal experts, plenty here have watched the developments closely and compiled a lot of commentary on it - makes for an interesting talk, if not emotionally invested in the outcome. Thanks for chiming in with your takes! Link to comment Share on other sites More sharing options...
BillsFan-4-Ever Posted August 12, 2015 Share Posted August 12, 2015 too much to read... early reports Berman was hammering the NFL lawyers. if true it's not looking good for those wanting the 4 games to stick! Link to comment Share on other sites More sharing options...
dave mcbride Posted August 12, 2015 Share Posted August 12, 2015 This is an interesting read. A cursory look at the 2d Cir (NY) cases cited doesn't reveal they are really that favorable to Brady (one case was non-precedential, meaning it isn't supposed to be cited or relied on in future decisions, and the other actually confirmed the arbitration award, which is what the league wants). Time will tell... By the way, my reasoning for writing my initial post was 1) I had a little bit of knowledge but none of my lawyer friends wanted to talk about it, so I needed a forum, and 2) I wanted to hear a discussion that is more informed that whatever Adam Schefter or Bill Polian decides to spew on ESPN on any given day. I think I succeeded in both, so thanks for engaging! Thanks! I didn't look at the cases. The linked piece within is by Alan Milstein, who is a very prominent and high powered attorney who has fought the league before (Maurice Clarett). He may well be overly biased. I just don't know enough to judge. Link to comment Share on other sites More sharing options...
Mr. WEO Posted August 12, 2015 Share Posted August 12, 2015 According to this, he's better off in NY: http://sports-law.blogspot.co.uk/2015/08/another-home-field-advantage-for-tom.html . Also: http://sports-law.blogspot.co.uk/2015/07/more-of-brady-bunch.html . That's what I was referring to. Someone posted that a few days back. This is an interesting read. A cursory look at the 2d Cir (NY) cases cited doesn't reveal they are really that favorable to Brady (one case was non-precedential, meaning it isn't supposed to be cited or relied on in future decisions, and the other actually confirmed the arbitration award, which is what the league wants). Time will tell... By the way, my reasoning for writing my initial post was 1) I had a little bit of knowledge but none of my lawyer friends wanted to talk about it, so I needed a forum, and 2) I wanted to hear a discussion that is more informed that whatever Adam Schefter or Bill Polian decides to spew on ESPN on any given day. I think I succeeded in both, so thanks for engaging! Thanks for jumping into this thread! It will be nice to hear some reasoned opinion to balance the "it doesn't matter, he cheated" gang who haven't realized the discussion moved on from that days ago. Keep your posts coming! Link to comment Share on other sites More sharing options...
Augie Posted August 12, 2015 Share Posted August 12, 2015 I'm sick of this and hope Brady wins, only to take such a pounding in the first four games he never steps on the field again. Is that too much to ask? Link to comment Share on other sites More sharing options...
odon59 Posted August 12, 2015 Share Posted August 12, 2015 Thanks! I didn't look at the cases. The linked piece within is by Alan Milstein, who is a very prominent and high powered attorney who has fought the league before (Maurice Clarett). He may well be overly biased. I just don't know enough to judge. Ohhhhhhh that makes so much more sense now. He's been criticized constantly within the sports law community for filing Clarett's suit in Manhattan, where he lost badly on appeal. There is no doubt that the 8th Circuit's antitrust law is much more favorable to plaintiffs, and that was the main claim in Clarrett's suit. Maybe he's just using this to save face? Link to comment Share on other sites More sharing options...
Georgia Bill Posted August 13, 2015 Share Posted August 13, 2015 From today's conference: Judge Berman was hammering NFL regarding where the direct evidence Brady had deflated the footballs was.Daniel Nash: "Maybe the most direct is (Brady) agreed neither McNally nor Jastremski would have deflated the malls (sic) without his direction."Judge Berman: "Is that it?"Nash, later: "Is there a text or email in which Mr. Brady directs" them to deflate the balls? "No." I don't see this going well for the NFL Link to comment Share on other sites More sharing options...
dave mcbride Posted August 13, 2015 Share Posted August 13, 2015 http://mmqb.si.com/mmqb/2015/08/12/nfl-deflategate-tom-brady-roger-goodell-judge-berman-hearing Link to comment Share on other sites More sharing options...
l< j Posted August 13, 2015 Share Posted August 13, 2015 only teams, not individual players, are subject to punishment for equipment tampering I've come around to this position, too. So the entire Patriots roster should be suspended 4 games. kj Link to comment Share on other sites More sharing options...
SRQ_BillsFan Posted August 13, 2015 Share Posted August 13, 2015 Just like the Well's report, the initial punishment, the appeal and now the Frderal Court Appeal it's amazing how many differing views their are. People side with Brady and the NFLPA, and other seemingly normal individuals side with the NFL. Today was a bit different because everyone is trying to decide what the intent was for each question asked by the judge and where this goes next. Whether you side with Brady or not win or lose the court case and he has already lost. Right or wrong it appears the guilt has been decided and put to bed. Any win for Brady now just gets him off on a procedure technicality. This will always taint him, doesn't matter if you thought he was guilty or not cause it will always follow him. The NFL is too big and in a few months it won't matter. They will be in to the next case because there will always be a next case. Attendance will continue to rise and the dollar signs will simply keep increasing. Say what you want about Brady but in the end he isn't bigger than the game. Personally, I hate that the judge is trying to force them to settle. I understand wanting them to settle and it may even be good for the game, but the judge just becomes a 3rd participant. Forcing them to settle, just makes him personality number 3 in this fiasco. It probably would have anyway, but it just makes it seem like a tie without overtime or a shoutout. No matter who wins or loses, I would rather they took it to it's conclusion. This is big league sports, the NFL, it's about winning or losing. I would hate for this to drag out for weeks, months or years. Do I think it's overblown, sometimes. But I'm invested now. Not that I have been on it pins and needles 24x7, but I want a winner not a tie. Link to comment Share on other sites More sharing options...
Pneumonic Posted August 13, 2015 Share Posted August 13, 2015 I found it interesting that Berman spent so much time on the technical facts rather than the implications of the CBA. Thankfully so, for I think he left no question that he sees the conclusions of the Wells report as nothing but a joke. And, correctly so, if one looks at that report objectively. My gut feeling is that Berman will ultimately rule that, while the CBA offers powers and abilities, those in the NFL that apply it, can’t do so with presumptions, mistruths and dishonesty. The NFL’s case seems chalk full of all three to me and, I suspect, Judge Berman. Link to comment Share on other sites More sharing options...
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