Brady's suspension lifted

[boyst]

Absolutely disgusting that we are watering down cheating. As much as I want to say I just wish we could all forget this and move on we should not at all. Tom Brady and the New England Patriots cheated and that needs to be remembered.

 

How can we stop talking about it but never forget it?!

[North Buffalo]

It's not really that complex. You throw in a clause that covers everything you didn't think of. I'm sort of amazed they didn't already.

 

In the event that a player commits a crime, violates a stated NFL rule or policy, or conspires with other individuals to violate stated NFL rules or policies which have not been specifically addressed elsewhere within this Collective Bargaining Agreement, the minimum punishment "shall" be a suspension without pay of no less than two regular season or playoff games or a combination thereof, whichever occurs first. The Commissioner shall retain the right to evaluate all cases without known precedent on a case by case basis and implement additional penalties up to and including indefinite suspension without pay. Appeals of punishments in excess of the 2 game minimum shall immediately proceed to binding arbitration be heard by an, independent, qualified, individual of mutual agreement to the League and NFLPA. The arbitrator shall have the authority to render summary judgement and implement punishment no greater than that originally sought by the league and no less than the established 2 game minimum.

 

True but they key is the word "shall", if "may" is used then this paragraphy becomes arbitrary and capricious... and any decent lawyer can drive a truck through it.... wait... ! didn't that just happen????

 

See? Done.

Pain in the neck using iphone on this... Edited September 4, 2015 by North Buffalo

[Kelly the Dog]

Except that the equipment violation clause of the CBA refers specifically to club discipline of players for tampering with club equipment. Not league discipline. There is no league discipline specified in the CBA for equipment tampering.

Thus, why it falls under the "conduct detrimental" catchall, as cheating (and interfering with the officials' duties, for that matter.)

Thanks. That makes sense.

 

How does ANYONE not understand that stealing all of the Championship game balls right before the game, after they have been measured legally, taking them into a bathroom, altering them specifically to circumvent the rules, which you had just legally and specifically asked the officials to place at the lowest legal limits, REGARDLESS OF HOW MUCH IT HELPS YOU, is a punishable act and intolerable?

 

And then, after being caught, spit in the face of the officials and league and investigators by flat denying you didn't do it or anything wrong.

 

That element of it is inarguable.

[dave mcbride]

http://www.si.com/nfl/2015/09/03/deflategate-tom-brady-suspension-overturned-roger-goodell-nfl-nflpa

[Dibs]

http://www.si.com/nfl/2015/09/03/deflategate-tom-brady-suspension-overturned-roger-goodell-nfl-nflpa

According to that article, the NFL can still give out a different punishment to Brady for his offenses. If that is in fact the case, I think they should go with a full 16 game suspension. That'd be sweet.

[Kelly the Dog]

http://www.si.com/nfl/2015/09/03/deflategate-tom-brady-suspension-overturned-roger-goodell-nfl-nflpa

Did you read the analysis of the link you just put here?

 

While the theory makes sense, very little of that article had anything to do with what Berman was charged with ruling on. If anything, that article makes Berman seem like he went rogue. That wasn't at all what he was charged with ruling upon.

 

Granted I agree with you that the NFL made huge mistakes in retrospect, especially concerning Pash and his part in this "independent" investigation. They should have made him available. I assume they just arrogantly figure they didn't need to. None of it would have changed the report.

 

People will scream "How do you know if you don't see the notes?!"

 

Easy. Common sense. Does anyone outside of New England believe in any way that Pash changed Jastremski or MCNally or Brady's testimony that showed him to be good that they intentionally reversed to make Tom Brady look bad? Does anyone truly believe that he was completely innocent and didn't know Jastremski and McNally were letting some air out of the balls, they did this completely on their own, Bradystarted texting Jastremski at 7 am three days in a row and then said he always destroys his phones when he gets a new one (except the last TWO he had that his own team used to say they were being cooperative with the investigation.

 

 

 

But the judge was also WAY out of line. He literally wrote, intentionally, to admonish the NFL, the "Pash/Wells report." That is way, way overboard and not something a judge should do. He was throwing around his displeasure with what the NFL did, rightfully in some elements for sure, Goodell is horrible in PR, but it is NOT in any way the judges prerogative to be making this assumptionsm in court. Regardless of its veracity.

[mannc]

It's based on a fundamental theory of statutory and contractual interpretation. There were two main provisions under the CBA that would appear to apply to what Brady did: the equipment violation provision, and this catch-all "conduct detrimental" provision. When two different provisions of an agreement both appear to be applicable to some situation and you have to figure out which one controls, the provision that is more specific to that situation controls the outcome. Thus, Judge Berman reasoned, the more specific equipment violation provision should govern this situation, not the more general "conduct detrimental" provision.

 

Try this example: suppose a college academic conduct policy said that cheating on an exam results in a grade of zero for that exam, but the policy also had a general provision that provides that engaging in conduct detrimental to the college, as determined by the dean, could result in various punishments, including expulsion from the university. If you decide to cheat on an exam and get caught, and the dean expels you, the college is going to have an awfully hard time justifying that decision. The question becomes, "what did these parties agree to?", and if a rule exists that specifically deals with that particular situation, that rule is the best indicator of what the parties intended to happen in that situation. That's basically what happened here (at least with respect to this part of the decision).

 

Now, I think it's fair to ask whether intentionally tampering with footballs should really be considered an "equipment violation," which could suggest that the more specific equipment violation provision was not applicable here. But that's a different question altogether.

Good post, but what the league did went beyond that. The court was particularly bothered by (1) Goodell equating Brady's offense with a violation of the steroid policy, (2) Wells report and Brady's initial suspension being based on a "competitive integrity" rule that was apparently applicable only to owners and team executives, (3) Goodell denying Brady the opportunity to obtain discovery of potentially relevant documents, (4) Goodell denying Brady the right to put Jeff Pash (a co-author of the Wells report) on the stand, (5) Goodell relying on "factual findings" that were inconsistent with the Wells report with regard to what Brady actually knew or did, (6) the absence of prior suspensions of players or executives for obstructing league investigations, and (7) the absurd conflicts of interest and other blatant stupidity involved in the entire process (Goodell's refusal to recuse himself as arbitrator, and the non-independence of Wells's "independent investigation", including the fact that Wells's law firm amazingly represented the league at the disciplinary hearing). A collossal f-up, all around. Edited September 4, 2015 by mannc

[Pine Barrens Mafia]

!@#$ sending him off as a loser let's send him off on a stretcher. Since the bad guy always wins let's be the bad guy.

[MattM]

It's based on a fundamental theory of statutory and contractual interpretation. There were two main provisions under the CBA that would appear to apply to what Brady did: the equipment violation provision, and this catch-all "conduct detrimental" provision. When two different provisions of an agreement both appear to be applicable to some situation and you have to figure out which one controls, the provision that is more specific to that situation controls the outcome. Thus, Judge Berman reasoned, the more specific equipment violation provision should govern this situation, not the more general "conduct detrimental" provision.

 

Try this example: suppose a college academic conduct policy said that cheating on an exam results in a grade of zero for that exam, but the policy also had a general provision that provides that engaging in conduct detrimental to the college, as determined by the dean, could result in various punishments, including expulsion from the university. If you decide to cheat on an exam and get caught, and the dean expels you, the college is going to have an awfully hard time justifying that decision. The question becomes, "what did these parties agree to?", and if a rule exists that specifically deals with that particular situation, that rule is the best indicator of what the parties intended to happen in that situation. That's basically what happened here (at least with respect to this part of the decision).

 

Now, I think it's fair to ask whether intentionally tampering with footballs should really be considered an "equipment violation," which could suggest that the more specific equipment violation provision was not applicable here. But that's a different question altogether.

In addition to the points raised above, two others:

 

(a) the equipment violation sections always refer to "his" equipment, which to me means a player's uniform--is a ball considered "his" equipment, even for a QB, or is it more likely outside of that?; and

 

(b) even the equipment violation provisions say "including, without limitation" a $25k fine. That clearly allows for other punishment, even in such a case.

[JohnC]

Good post, but what the league did went beyond that. The court was particularly bothered by (1) Goodell equating Brady's offense with a violation of the steroid policy, (2) Wells report and Brady's initial suspension being based on a "competitive integrity" rule that was apparently applicable only to owners and team executives, (3) Goodell denying Brady the opportunity to obtain discovery of potentially relevant documents, (4) Goodell denying Brady the right to put Jeff Pash (a co-author of the Wells report) on the stand, (5) Goodell relying on "factual findings" that were inconsistent with the Wells report with regard to what Brady actually knew or did, (6) the absence of prior suspensions of players or executives for obstructing league investigations, and (7) the absurd conflicts of interest and other blatant stupidity involved in the entire process (Goodell's refusal to recuse himself as arbitrator, and the non-independence of Wells's "independent investigation", including the fact that Wells's law firm amazingly represented the league at the disciplinary hearing). A collossal f-up, all around.

Your post and Go Kiko Go's post #418 are exceptional explanations of what the substative issues were that the judge addressed in his ruling. The clarity of your posts is striking.

 

The league's consistent position before these outside legal authorities is that regardless of the facts and the unfair application of the imbalanced process it has the authority to do whatever it wants to do when it wants to do it. The dispassionate reviewing parties consistently say no you can't. Roger Goodell and the league are 0-6 when their cases are reviewed by outside authorities. What is surprising is that many people don't understand why the arbitrary and capricous rulings of the league are not upheld. What's obvious to some is not obvious to most others.

[JohnC]

In addition to the points raised above, two others:

 

(a) the equipment violation sections always refer to "his" equipment, which to me means a player's uniform--is a ball considered "his" equipment, even for a QB, or is it more likely outside of that?; and

 

(b) even the equipment violation provisions say "including, without limitation" a $25k fine. That clearly allows for other punishment, even in such a case.

I realize you were addressing these two questions to Kiko so I apologize for the intrusion. In both a and b the infractions as specified in the regulations are directed toward the teams and not the players. The ball infractions in the San Diego and Atlanta cases were considered equipment infractions.

 

Regardless what the level of fine is (referring to part b of your question) the penalty is assessed against the team and not the player or even staff member involved in the transgression. My understanding is that there is no rule regarding equipment that applys to players. It is applied to teams. Or another way to look at this issue is that Brady was charged with a rule violation that didn't exist.

[BillsFan-4-Ever]

Do not get confused with the ruling. The judge did not say Tainted Brady was innocent, just that Roger Goodell and the process was in error.

[Go Kiko go]

That's a good explanation but it was pretty clear by both the Wells report and the Vincent letter that the NFL didn't make a choice between one and two. They said you did this wrong (cheating) and you did that wrong (lying and obstructing) and both were punishable offenses. So we are deciding on a punishment that includes both offenses and more. Why does it have to be one or the other?

 

They were not punishing him under one or the other provisions. It was both.

 

Judge Berman discussed that issue. The ultimate question is, what is the basis for the four-game suspension?

 

With respect to Brady's non-cooperation, Judge Berman noted that former NFL Commissioner Tagliabue, in the "bounty-gate" case, stated that, it is "the NFL's practice of fining, not suspending a player" for obstructing an investigation. So, because the CBA requires that a player have fair notice of the type of punishment they could face for certain improper conduct, Brady couldn't have been suspended for his non-cooperation, just fined.

 

With respect to the deflation of the footballs, the Player Policies that dealt with equipment violations provided that "First offenses will result in fines." And, as I discussed in my other post, the Player Policies--not the "conduct detrimental" provision--control the punishment a player would receive for an equipment violation.

 

Thus, Brady couldn't have had notice that violating two rules that could only be punished by fines, with no possibility of a suspension, could lead to him being suspended for four games.

 

Even putting those issues aside, as Judge Berman also recognized, "no NFL policy or precedent notifies players that they may be disciplined (much less suspended) for general awareness of misconduct by others." So, with respect to the equipment violation portion of his punishment, Brady also did not have fair notice that merely being "generally aware" that misconduct was occurring--which is the conclusion the Wells Report reached--could result in any punishment at all.

 

Based on that reasoning, Brady should have only been punished for obstructing the league's investigation, and the punishment for that type of conduct is a fine.

Edited September 4, 2015 by Go Kiko go

[TSOL]

Judge Berman discussed that issue. The ultimate question is, what is the basis for the four-game suspension?

 

With respect to Brady's non-cooperation, Judge Berman noted that former NFL Commissioner Tagliabue, in the "bounty-gate" case, stated that, it is "the NFL's practice of fining, not suspending a player" for obstructing an investigation. So, because the CBA requires that a player have fair notice of the type of punishment they could face for certain improper conduct, Brady couldn't have been suspended for his non-cooperation, just fined.

 

With respect to the deflation of the footballs, the Player Policies that dealt with equipment violations provided that "First offenses will result in fines." And, as I discussed in my other post, the Player Policies--not the "conduct detrimental" provision--control the punishment a player would receive for an equipment violation.

 

Thus, Brady couldn't have had notice that violating two rules that could only be punished by fines, with no possibility of a suspension, could lead to him being suspended for four games.

 

Even putting those issues aside, as Judge Berman also recognized, "no NFL policy or precedent notifies players that they may be disciplined (much less suspended) for general awareness of misconduct by others." So, with respect to the equipment violation portion of his punishment, Brady also did not have fair notice that merely being "generally aware" that misconduct was occurring--which is the conclusion the Wells Report reached--could result in any punishment at all.

 

Based on that reasoning, Brady should have only been punished for obstructing the league's investigation, and the punishment for that type of conduct is a fine.

Wow, really well put. So, essentially, Goodell went rouge.

[Go Kiko go]

Except that the equipment violation clause of the CBA refers specifically to club discipline of players for tampering with club equipment. Not league discipline. There is no league discipline specified in the CBA for equipment tampering.

 

Thus, why it falls under the "conduct detrimental" catchall, as cheating (and interfering with the officials' duties, for that matter.)

 

I believe the specific violation at issue is contained in the "2014 League Policies for Players", which provides that "league discipline may be imposed" for certain equipment violations, and that "First offenses will result in fines."

 

In addition to the points raised above, two others:

 

(a) the equipment violation sections always refer to "his" equipment, which to me means a player's uniform--is a ball considered "his" equipment, even for a QB, or is it more likely outside of that?;

 

This is the real issue that stands out to me. It seems questionable that the "Other Uniform/Equipment Violations" provision, which appears to be directed at players who wear the wrong color shoes or stick sharpies in their socks, applies to the act of deflating footballs below the required level. The full text of this equipment violation provision is in the spoiler tag below:

 

 

"League discipline may also be imposed on players whose equipment, uniform, or On Field violations are detected during postgame review of video, who repeat violations on the same game day after having been corrected earlier, or who participate in the game despite not having corrected a violation when instructed to do so. First offenses will result in fines."

 

 

If that's true, then perhaps the "conduct detrimental" provision--not the equipment violation provision--should have been the basis for his punishment.

 

But even if that's the case, as I just mentioned in a previous post, Judge Berman also recognized that players did not have any notice that they could be punished simply for being "generally aware" of the misconduct of others.

 

So in the end, it doesn't really matter which provision the league used as the basis for Brady's punishment for the deflation of the footballs. If Brady couldn't be punished for being "generally aware" that a rule violation was occurring, the only punishment he could have received was for the obstruction of the investigation, which could only carry a fine.

Edited September 4, 2015 by Go Kiko go

[Pneumonic]

As some of us predicted, after publicly noting that he was "troubled" with the lack of proof of a direct connection between Brady and the alleged activities, Berman lambasted the league, specifically Goodell, for not following the law of fundamental fairness while operating from his authoritative position as arbitrator. This, amongst other things, was enough for Berman to, correctly, vacate the award. Good job!

Edited September 4, 2015 by Pneumonic

[TSOL]

Open question to those far more well informed that I. Where does this leave Goodell? Is he now under immense scrutiny from Kraft and the other owners in the league? Is his job safe because any publicity is good publicity? Or does he have a lot of explaining to do to every single owner, putting his job in jeopardy?

[dave mcbride]

Did you read the analysis of the link you just put here?

While the theory makes sense, very little of that article had anything to do with what Berman was charged with ruling on. If anything, that article makes Berman seem like he went rogue. That wasn't at all what he was charged with ruling upon.

Granted I agree with you that the NFL made huge mistakes in retrospect, especially concerning Pash and his part in this "independent" investigation. They should have made him available. I assume they just arrogantly figure they didn't need to. None of it would have changed the report.

People will scream "How do you know if you don't see the notes?!"

Easy. Common sense. Does anyone outside of New England believe in any way that Pash changed Jastremski or MCNally or Brady's testimony that showed him to be good that they intentionally reversed to make Tom Brady look bad? Does anyone truly believe that he was completely innocent and didn't know Jastremski and McNally were letting some air out of the balls, they did this completely on their own, Bradystarted texting Jastremski at 7 am three days in a row and then said he always destroys his phones when he gets a new one (except the last TWO he had that his own team used to say they were being cooperative with the investigation.

But the judge was also WAY out of line. He literally wrote, intentionally, to admonish the NFL, the "Pash/Wells report." That is way, way overboard and not something a judge should do. He was throwing around his displeasure with what the NFL did, rightfully in some elements for sure, Goodell is horrible in PR, but it is NOT in any way the judges prerogative to be making this assumptionsm in court. Regardless of its veracity.

I know you're not going to agree, but I thought the decision was very well argued. But then - and as you know - I always had very little doubt that the suspension would be vacated. I do not view Jeff Pash to be the benign force you seem to see him as. And federal judges can often be harsh and/or colorful in their language about the parties involved. Scalia's career on the bench is confirmation of that. Berman's language and style are not necessarily typical, but they aren't atypical either. Edited September 4, 2015 by dave mcbride

[K-9]

Good post, but what the league did went beyond that. The court was particularly bothered by (1) Goodell equating Brady's offense with a violation of the steroid policy, (2) Wells report and Brady's initial suspension being based on a "competitive integrity" rule that was apparently applicable only to owners and team executives, (3) Goodell denying Brady the opportunity to obtain discovery of potentially relevant documents, (4) Goodell denying Brady the right to put Jeff Pash (a co-author of the Wells report) on the stand, (5) Goodell relying on "factual findings" that were inconsistent with the Wells report with regard to what Brady actually knew or did, (6) the absence of prior suspensions of players or executives for obstructing league investigations, and (7) the absurd conflicts of interest and other blatant stupidity involved in the entire process (Goodell's refusal to recuse himself as arbitrator, and the non-independence of Wells's "independent investigation", including the fact that Wells's law firm amazingly represented the league at the disciplinary hearing). A collossal f-up, all around.

Certain elements in this post can't be ignored and I think you did a good job highlighting them. The league shot themselves in the foot, for sure. And perhaps that kind of incompetence is deserving of an unfavorable ruling from the court.

 

But the court did not exonerate Tom Brady. Not in the least.

 

GO BILLS!!!

Open question to those far more well informed that I. Where does this leave Goodell? Is he now under immense scrutiny from Kraft and the other owners in the league? Is his job safe because any publicity is good publicity? Or does he have a lot of explaining to do to every single owner, putting his job in jeopardy?

I wouldn't presume for a second that Goodell's prosecution of this case and the league's subsequent appeal of the ruling, aren't a direct reflection of the desires of the majority of the owners. McNair, owner of the Texans, exemplified that in his earlier remarks. There's just been too much stink around that organization for too long to be ignored.

 

GO BILLS!!!

[DC Tom]

 

I believe the specific violation at issue is contained in the "2014 League Policies for Players", which provides that "league discipline may be imposed" for certain equipment violations, and that "First offenses will result in fines."

 

 

"League discipline may also be imposed on players whose equipment, uniform, or On Field violations are detected during postgame review of video, who repeat violations on the same game day after having been corrected earlier, or who participate in the game despite not having corrected a violation when instructed to do so. First offenses will result in fines."

 

 

If that's true, then perhaps the "conduct detrimental" provision--not the equipment violation provision--should have been the basis for his punishment.

 

That document also says:

 

 

 

Fines listed are minimums. Other forms of discipline, including higher fines, suspension, and banishment may also be imposed, based on the circumstances of the particular violation.