Brady 4 game suspension upheld; Will go to court

[starrymessenger]

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.

[K-9]

 

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!!!

[odon59]

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.

[WhitewalkerInPhilly]

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?

[dave mcbride]

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.

[dave mcbride]

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

[starrymessenger]

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.

[dave mcbride]

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

[odon59]

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

[NoSaint]

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!

[BillsFan-4-Ever]

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!

[dave mcbride]

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.

[Mr. WEO]

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!

[Augie]

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?

[odon59]

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?

[Georgia Bill]

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

[dave mcbride]

http://mmqb.si.com/mmqb/2015/08/12/nfl-deflategate-tom-brady-roger-goodell-judge-berman-hearing

[l< j]

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

[SRQ_BillsFan]

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.

[Pneumonic]

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.

[timtebow15]

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.

The problem today is that judges routinely go beyond their role. The union agreed to a CBA and the process was followed. Just because you don't have proof because someone did not cooperate with an investigation and lied does not mean you can't deduce what likely happened. Anyone who looks objectively knows two low level Pats employees would never bother to discuss and take footballs aside and deflate them without the knowledge and approval of the QB and/or coach. If they did so they would be canned a long time ago.

 

Obviously they were directed to do so and their texts indicate exactly where the instruction came from. Oh, by the way, that same guy just happened to start destroying his phones as soon as he knew the texts were an issue. There's as much a link here as there is with the PED users in baseball. Did anyone ever SEE them take the PEDs. Of course not but their names were all over it. Just like with Brady. I don't see where there is a lack of proof. No other scenario makes sense other than Brady knew the guys were deflating footballs with his blessing and likely under his direction. If this judge was really interested in what happened he'd be talking to the two fired employees. By the way, why aren't they required to be explaining what the heck happened and why? It's okay they are allowed to disappear and be silent? I wonder what they signed to buy their silence?

[Pneumonic]

The problem today is that judges routinely go beyond their role. The union agreed to a CBA and the process was followed. Just because you don't have proof because someone did not cooperate with an investigation and lied does not mean you can't deduce what likely happened. Anyone who looks objectively knows two low level Pats employees would never bother to discuss and take footballs aside and deflate them without the knowledge and approval of the QB and/or coach. If they did so they would be canned a long time ago.

 

Obviously they were directed to do so and their texts indicate exactly where the instruction came from. Oh, by the way, that same guy just happened to start destroying his phones as soon as he knew the texts were an issue. There's as much a link here as there is with the PED users in baseball. Did anyone ever SEE them take the PEDs. Of course not but their names were all over it. Just like with Brady. I don't see where there is a lack of proof. No other scenario makes sense other than Brady knew the guys were deflating footballs with his blessing and likely under his direction. If this judge was really interested in what happened he'd be talking to the two fired employees. By the way, why aren't they required to be explaining what the heck happened and why? It's okay they are allowed to disappear and be silent? I wonder what they signed to buy their silence?

 

That is the issue it seems.

 

According to the NFL's Nash, the league doesn't need direct proof because the CBA gives Goodell all encompassing power to discipline players as he sees fit.

 

I think today, Berman openly questioned that power by implying that he may be unwilling to uphold an "arbitrary" arbitrator's decision that appears to be in denial of fundamental fairness (ie lacks direct evidence of wrongdoing).

[timtebow15]

 

That is the issue it seems.

 

According to the NFL's Nash, the league doesn't need direct proof because the CBA gives Goodell all encompassing power to discipline players as he sees fit.

 

I think today, Berman openly questioned that power by implying that he may be unwilling to uphold an "arbitrary" arbitrator's decision that appears to be in denial of fundamental fairness (ie lacks direct evidence of wrongdoing).

Well, if you read the texts from the Pats employees and know anything about football I think there is certainly evidence of wrongdoing. Again, why are the Pats employees allowed to remain silent as they know who was directing them to do this? Why were they fired if they didn't do anything wrong? Where are they hiding and why isn't the judge interested in them if he's looking for evidence?

[Orlando Tim]

My personal caveat- I have hated Tommy Boy since Spygate-I was fooled for 6 years about his "amazing story". But to every person that is arguing for Tommy you are either a very casual fan of football or somehow invested in Tommy boy being cleared. I have discussed with dozens of high school football coaches and several college football coaches and asked each if they thought the preponderence of evidence was that Tommy Boy cheated. All said he absolutely cheated and any QB of theirs is well aware of what the football feels like at all times. . So you have the argument from men who have been working in football for a combined 100+ years or you have argument of NFLPA/Brady's lawyers.

 

Now if you want to argue that Brady has too harsh of a punishment that is fine-and probably accurate- but please cut the mularkey of his innocence since this is not a criminal trial.

[Pneumonic]

Well, if you read the texts from the Pats employees and know anything about football I think there is certainly evidence of wrongdoing. Again, why are the Pats employees allowed to remain silent as they know who was directing them to do this? Why were they fired if they didn't do anything wrong? Where are they hiding and why isn't the judge interested in them if he's looking for evidence?

 

I think Berman was very clear on how he felt about this topic when he asked "What is the evidence of a scheme or conspiracy that covers the Jan. 15 game? I’m having trouble finding it..... the Wells report only relates to this one game .... that's the only game we are talking about here ..... whether it happened before not doesn't matter ..... there is no finding that there was anything done by Brady in this game" It makes the deflater texts moot in his eyes.

[Mr. WEO]

 

I think Berman was very clear on how he felt about this topic when he asked "What is the evidence of a scheme or conspiracy that covers the Jan. 15 game? I’m having trouble finding it..... the Wells report only relates to this one game .... that's the only game we are talking about here ..... whether it happened before not doesn't matter ..... there is no finding that there was anything done by Brady in this game" It makes the deflater texts moot in his eyes.

 

 

Cue the "half the suspension is for previous acts" crew.......

[PromoTheRobot]

Anyone post this yet?

 

https://celebrity.yahoo.com/news/ex-nannys-las-vegas-trip-210300692.html

[KingRex]

 

I think Berman was very clear on how he felt about this topic when he asked "What is the evidence of a scheme or conspiracy that covers the Jan. 15 game? I’m having trouble finding it..... the Wells report only relates to this one game .... that's the only game we are talking about here ..... whether it happened before not doesn't matter ..... there is no finding that there was anything done by Brady in this game" It makes the deflater texts moot in his eyes.

I think Berman was also clear when he said NO ONE should assume from his line of questioning that he I going to rule 11 way or the other.

 

Right now, the default is that the NFL has ruled for a 4 game suspension and upheld that suspension on appeal.

 

Brady has now appealed that ruling to the courts and HE IS ASKING the court to step into the free market and reverse the ruling of a business. Its ironic to see some argue that the courts have become to activist and then hypocritically argue that the courts should be activist in this case and step inon Brady's side.

 

Berman questioning the NFL on whether there was specific evidence of Brady breaking the rules himself may easily be a prelude to the NFL tipping him off to make his finding purely on the contractual issue that the NFLPA agreed in the CBA to make the Commish the sole arbiter and base his finding on Brady not co-operating with the investigation as any reasonable partner should have done in his NFL/NFLPA tift.

 

Berman clearly said he thinks a settlement (both sides agree to 2 games) is the better outcome. His questioning the NFL is mostly a sign to me that he needs to make the NFL scared enough to settle because Brady already fears the 4 game default.

[NoSaint]

 

 

Cue the "half the suspension is for previous acts" crew.......

And half for stealing, and half for the cell phone, and half for lying and half for it being the playoffs, and half for the act itself.

 

Even if you address half of those issues he's still facing like 150% suspension for the month

Edited August 13, 2015 by NoSaint

[Pine Barrens Mafia]

[Tuco]

Well, if you read the texts from the Pats employees and know anything about football I think there is certainly evidence of wrongdoing. Again, why are the Pats employees allowed to remain silent as they know who was directing them to do this? Why were they fired if they didn't do anything wrong? Where are they hiding and why isn't the judge interested in them if he's looking for evidence?

This is an important point. Unless some legal expert says I'm wrong here's how I think it goes. For starters I think a lot of people who say the Wells report is crap and doesn't prove anything forget that a big reason the Wells report seems so underwhelming is because of the stonewalling by the parties involved. But we have to remember neither the NFL or Wells has the power of subpoena during their original investigation, since it's not involved with any court. So they are limited in scope to only what they can get from the parties involved who are supposed to be cooperative. In the end, if evidence is limited because of non-cooperation the league has the authority and the justification to make their decision based on what they do have, and also to punish parties for their non-cooperation.

 

In regards to Brady, people like to point to his cell phone and say he shouldn't have had to turn over anything from it. Even if that's the case, there's still the matter of Brady not only lied during his interview, but also refused a follow up interview. This is important but largely forgotten. Follow up questions regarding already told lies could have gone a long way towards getting to the truth, but Wells was denied.

 

Now throw in our two favorite whipping boys, who no doubt thought they were doing great things by helping Brady and the Pats. As employees of the Pats they were to be made available for interviews and cell phone records, which they were. But the same problem exists. Wells discovered things that led him to want to ask more questions. Not only did the Pats say no but once they fired them the league could not touch them. Again, the league has no power of subpoena, and once their employment with the Pats ended, technically the Pats no longer had any authority to compel them to meet with Wells further in the name of cooperation. Here again Wells was limited by the inability to follow up important information.

 

So yes, the Wells report is limited. Mostly due to non-cooperation. As to why we haven't heard from Frick and Frack, it's simply because the NFL has no power to compel them to do anything. I'm sure the NFL would have loved to question them during Brady's appeal, but the NFL didn't have any power to bring them in during the appeal. The appeal wasn't a "retrial" or a new investigation. The appeal was Brady's chance to say, "I believe you're wrong, here's why and here are my witnesses." If Brady doesn't bring them in for the appeal then the NFL's hands are still tied in that regard. The NFL can question Brady's witnesses but not bring in their own,

 

And as far as why don't we hear from them now, despite the Judge's recent questions concerning guilt, etc., the judge and the court's position in this case is not one of finding a verdict of guilty or innocent. The judge will ultimately have to rule on the procedures that were followed and the fairness of punishment as it relates to the CBA and the powers granted to Goodell therein. Frick and Frack would probably have loads of info. But at this point, since, as I said before, the judge's final ruling isn't concerned with guilt or innocence, there really isn't any reason to bring Frick and Frack in. Nor do I think he could force them into his court through a subpoena unless he can somehow show their testimony would have a relevance, not towards guilt or innocence, but in regards to the CBA procedures.

 

And while I do think getting them to testify under oath would be very revealing, the current court procedure is not a trial or a new investigation. Unfortunately, the court's ultimate concern here is with what has already happened, and whether or not it was legal according to labor law.

[BuffaloFan68]

The Patcheatriots are probably cheating in multiple other ways and just haven't been caught yet.

[4merper4mer]

Anyone post this yet?

 

https://celebrity.yahoo.com/news/ex-nannys-las-vegas-trip-210300692.html

So first he cheated then he helped Affleck cheat?

[JohnC]

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.

Thank you for your involvement on this issue. You have been very illuminating. The people on either side of the battlelines who think this is simple clear cut case are wrong.

 

The judge has directed pointed questions to both sides of the aisle that have left both sides squirming. In general it has demonstrated (at least to me) that the league has acted out of proportion to the offense and that their evidence is sketchy. That is not to assume that he is going to eventually side with Brady because the looming issue for him is RG's authority to rule.

 

In your limited posting you have brought a lot of clarity to an issue that has attracted a lot of noise. Agan, thank you and keep posting as the proceedings go on.

[thebandit27]

Thank you for your involvement on this issue. You have been very illuminating. The people on either side of the battlelines who think this is simple clear cut case are wrong.

 

The judge has directed pointed questions to both sides of the aisle that have left both sides squirming. In general it has demonstrated (at least to me) that the league has acted out of proportion to the offense and that their evidence is sketchy. That is not to assume that he is going to eventually side with Brady because the looming issue for him is RG's authority to rule.

 

In your limited posting you have brought a lot of clarity to an issue that has attracted a lot of noise. Agan, thank you and keep posting as the proceedings go on.

 

I have no idea how you concluded that...to me, it looks like the judge is more interested in determining exactly what transpired, so that he can put pressure on the side with the less defensible chain of action to settle.

[JohnC]

 

I have no idea how you concluded that...to me, it looks like the judge is more interested in determining exactly what transpired, so that he can put pressure on the side with the less defensible chain of action to settle.

I don't disagree with your point that the judge is attempting to put pressure on both sides by pointing out weaknesses to each sides arguments.

 

The judge has asked how did the league conclude that there was a consipirancy when there was no specific evidence that suports that conclusion. He also asked how can it be believed that the more deflated balls had an affect on the game when it was the opposite, that Brady performed better with the reinflated balls. The judge has also asked the Brady side very pointed questions regarding the phones and its destruction.

 

The problem that the league has is that they "over punished" (in my opinion) for a transgression involving his participation that has not been clearly proven. If the league would have punished Brady for two games, with a possible reduction to one game under appeal, their position would have been much stronger.

[thebandit27]

I don't disagree with your point that the judge is attempting to put pressure on both sides by pointing out weaknesses to each sides arguments.

 

The judge has asked how did the league conclude that there was a consipirancy when there was no specific evidence that suports that conclusion. He also asked how can it be believed that the more deflated balls had an affect on the game when it was the opposite, that Brady performed better with the reinflated balls. The judge has also asked the Brady side very pointed questions regarding the phones and its destruction.

 

The problem that the league has is that they "over punished" (in my opinion) for a transgression involving his participation that has not been clearly proven. If the league would have punished Brady for two games, with a possible reduction to one game under appeal, their position would have been much stronger.

 

You're not alone in that opinion.

 

Flipping to the other side of the coin: the problem that Brady's side has is that he clearly acted as though he had some skin in the game, and it's my understanding that federal court judges aren't often apt to reward such behavior.

[JohnC]

 

You're not alone in that opinion.

 

Flipping to the other side of the coin: the problem that Brady's side has is that he clearly acted as though he had some skin in the game, and it's my understanding that federal court judges aren't often apt to reward such behavior.

There are no angels sitting in the pews. Both sides manned the barricades instead of sitting down and working things out. Instead of commissioning a multi-million $$$ investigation and elevating the profile of the situation this issue got magnified.

 

My position has been stated many times over. I don't doubt that a transgression occurred. But the transgression that happened was inconsequential as evidenced by how it affected the game i.e. it didn't. If the league would have handled it similarly to other equipment tampering cases this manageable problem could have been dealt with more quickly and simply.

 

In my opinion Goodell was ingratiating himself with a faction of league owners who have felt that New England has a history of stretching the boundaries. It is this undercurrent of resentment that fueled this fury. Goodell played to that sentiment by the way he handled this issue.

 

There is nothing unusual to have tension in a personal or working relationship. When relations are at a normal level minor issues can be satisfactorily worked out. But when the relations are poisonous and there is distrust a small and inconsequential act can spark an avalanche of a response that damages both sides. That's what happened here.

[odon59]

I don't disagree with your point that the judge is attempting to put pressure on both sides by pointing out weaknesses to each sides arguments.

 

The judge has asked how did the league conclude that there was a consipirancy when there was no specific evidence that suports that conclusion. He also asked how can it be believed that the more deflated balls had an affect on the game when it was the opposite, that Brady performed better with the reinflated balls. The judge has also asked the Brady side very pointed questions regarding the phones and its destruction.

 

The problem that the league has is that they "over punished" (in my opinion) for a transgression involving his participation that has not been clearly proven. If the league would have punished Brady for two games, with a possible reduction to one game under appeal, their position would have been much stronger.

It's very common for trial judges to apply pressure on parties to settle by asking questions that aren't necessarily germane to how the case/motion would be decided as a matter of law. In other words, just because Judge Berman asked questions about the evidence and factual conclusions doesn't mean he plans on relitigating the whole thing in his courtroom. Just my two cents.

Edited August 13, 2015 by odon59

[Kelly the Dog]

The judge also said in court yesterday that "The Big Question" in this case is why would Jastremski and McNally do this on their own. If that is the core element and most important issue in his hierarchy, that is bad for Brady.