Deflation-gate

Your definitions may help you understand lawyers in court (where I doubt the terms come up much anyway), but they won't help you understand use of these terms in lay articles like the ones we've been citing. I told you before, and I thought you agreed, that you can't assume the terms "circumstantial evidence" and "direct evidence" in a lay article are employing your definitions. I think my definitions are much closer to how people use the terms in normal, everyday conversation and writing.It was you who tried to introduce these terms into the discussion. Personally, I prefer different terms. "Direct evidence" is when only deduction is employed, no matter the number of individual pieces of evidence involved. "Indirect evidence" is when at least some inference is employed, again, no matter the number of individual pieces of evidence involved. And "circumstantial evidence" is so variously interpreted that it should be avoided.--Percy

Jeffrey Kessler, Brady's lawyer, today filed a letter with Judge Berman where he pretty much says what I've been saying:

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In addition, the NFL's submission ignores how the denial of fundamental fairness in the arbitration at issue here so closely resembles the denials of fair process in the decisions we presented to the Court.
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The Union may have agreed to Mr. Goodell serving as arbitrator under Article 46, but it did not agree he could abdicate his responsibility as an arbitrator under the LMRA (Labor Management Relations Act) and FAA (Federal Arbitration Act) and conduct fundamentally unfair proceedings in which he cast aside undisputed CBA requirements, adjudicated his own conduct, and issued an unprincipled arbitration award based on his unilateral notions of industrial policy.
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This is exactly the type of ‘extreme’ case that even the NFL now concedes the Court has the power to vacate.

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From the Federal Arbitration Act:

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(a) In any of the following cases the United States court in and for the district wherein the award
was made may make an order vacating the award upon the application of any party to the
arbitration--
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(2) where there was evident partiality or corruption in the arbitrators, or either of them;

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(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon
sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy;
or of any other misbehavior by which the rights of any party have been prejudiced; or

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(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual,
final, and definite award upon the subject matter submitted was not made.

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This excerpt from the FAA reads almost like a list of Goodell's sins. He's guitly of partiality, misconduct, misbehavior, and grossly imperfect execution of his powers.--Percy

I'm talking about the way lay people use the terms, and you're slicing things so fine that "evidence directly linking" and "direct evidence" have two different meanings. I don't believe anyone does that, not even lawyers and judges in the courtroom. You're being absurd.Think about it. Let's say a lawyer in a courtroom could say one of two things:

• "I have direct evidence linking the defendant to the murder."
• "I have evidence directly linking the defendant to the murder."

In your bizarro world he's saying two different things. Get real.--Percy

Your only rebuttal seems to be, "Article 46 means what I think it says and not what you think it says." If you don't engage the substance of my arguments then there's nothing I can reply to.You do ask one good question: Obviously it was considered to be a very rare situation, because in scanning through the List of NFL Suspensions and examining those where there was an appeal, I can't find any where the commissioner served as the hearing officer. Over and over again they appoint a neutral arbitrator. Greg Hardy's appeal was heard by Harold Henderson, who also heard the Adrian Peterson appeal. Ndamukong Suh's appeal was heard by Oakland Raider coach Art Shell. Ray Rice's appeal was heard by former judge Barbara S. Jones. Dashon Goldson's appeal was heard by independent arbiter Matt Birk. Scott Fujita's appeal was heard by former commissioner Paul Tagliabue, as was Will Smith's. Anthony Hargrove's appeal was heard by a neutral appeals panel.I don't have time to continue down the list looking for an instance where the commissioner himself has served as hearing officer, but it is apparently a rare event (I didn't get to the list of drug related suspensions, if it's different I don't know). Again and again they appoint a neutral arbitrator. That the arbitrator be neutral appears to be a very important consideration. Why not in this case?The court system exists to provide justice, in this case to prevent a man from being railroaded with contrived evidence of something that didn't happen and a rigged process. Apparently it is more important to Roger Goodell that he win than to treat the players in his league justly and fairly. It's impossible to know which way the judge will rule, but the more I learn the weaker the NFL's case looks, primarily because the determination of the NFL (primarily Goodell) to operate in a manner absent of fairness and impartiality is so overt and blatant.--Percy

I'm still looking for a copy of the NFL filing rebutting the NFLPA's filing where they detail 19 arbitration cases that were overturned in court, but Rich Levine of Comcast SportsNet New England evidently found a copy and focused on one point in particular in his article Silly Deflategate has taken a serious turn:

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Then yesterday afternoon the league filed another letter to Judge Berman. This one argued that the 19 cases presented by the NFLPA were irrelevant because they involved:

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1) Cases where the arbitrator ignored an express term in the CBA, and in this case Goodell didn’t do that.

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2) Cases where there were extraordinary circumstances, and in this case there are none.

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3) Cases in which there was a neutral arbitrator, and in this case Roger Goodell is not a neutral arbitrator.

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Please take a second and re-read that last one. I’ll even paste it below so your eyes don’t have to back track.

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3) Cases in which there was a neutral arbitrator, and in this case Roger Goodell is not a neutral arbitrator.

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This admission by the NFL that Goodell was not neutral should just about wrap things up for the Brady side. Just my opinion, of course.Levine continues:

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Again, the NFL has gone to federal court and argued that thanks to the CBA the Commissioner is allowed to quite literally do whatever he wants. He can make dangerous assumptions. He can use his unlimited financial resources to massage and manipulate evidence that supports those assumptions. He can then use that manipulated evidence to take drastic and harmful measures against teams and individual players. He can then deny said teams and players a fair appeal process. He can then go right back to federal court and claim that it doesn’t matter because in this case it won’t matter. If Judge Berman can’t find the legal precedent to overturn the NFL’s corruption then his ruling will become the precedent.

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One side wants to interpret the CBA in a vacuum and pretend that no existing precedents or laws apply, and the other side notes that in American law arbitration processes operate under the presumption of fairness and neutrality.--PercyEdited by Percy, : Correction to first sentence.

Stephanie Stradley in yesterday's Houston Chronicle explains Why the Deflategate case matters and along the way reminds us of these questions that were actually posed by Judge Berman:

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Can commissioner Roger Goodell do anything he wants to any player if he merely declares, "It goes to the integrity of the game"?

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How did Goodell pick a four-game suspension versus a fine versus anything other punishment he could pull out of a hat?

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What happens to the next player who is accused of being "generally aware" of a NFL rule violation?

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If Tom Brady's electronic communications were important to a ball deflation conspiracy, why didn't the NFL give notice to Brady and his lawyers of how important it was to its decision?

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Did NFL investigator Ted Wells even know that a miniscule fine schedule existed for equipment violations?

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Why is this even a DeflateGate? There is no evidence in the record that Brady liked playing with footballs below the pressures allowed in the rules. How can the NFL make an inference that because there's evidence Tom Brady liked 12.5-13 psi balls that he truly in his heart wanted them less than that?

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Does it matter at all that the alleged ball deflation scheme didn't seem to affect competitive balance in the Colts-Patriots game?

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If the NFL were so confident in the "independence" of its report, why didn't it allow NFL Senior VP, General Counsel and named co-author Jeff Pash to testify about any alterations he may have made to the document?

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Wells said Brady was "generally aware" of a scheme by others to deflate footballs and "fully cooperated" except for not wanting to provide the contents of his private electronics due to advice of counsel. Goodell ruled that the evidence fully supported his findings that Brady participated in a "tampering scheme" and "willfully obstructed" the investigation. So which is it?

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And why did Wells and Goodell in their findings ignore much of the basic direct evidence that was favorable to Brady?

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Some of them don't seem very significant, such as whether the "competitive balance in the Colts-Patriots game" was affected, but others go to the core of the case against the NFL. Can Goodell really do just whatever he wants, including ignoring the fine schedule for equipment violations, withhold testimony, act arbitrarily, and basically just makes things up as he goes along?As Stradley points out, if the answer is yes then what's happening to Brady can happen to any player in the NFL.--Percy

Do you never tire of being dead wrong? Here's the NFL letter wherein they argue, among other things, that the NFLPA cases cited involve neutral (their italics, not mine) arbitrators, as opposed to the Roger Goodell style of arbitrator:

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All of the cases cited by the NFLPA in support of its evident partiality argument involve neutral arbitrators...

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In other words, they're arguing that the cases cited by the NFLPA don't apply because Roger Goodell is not a neutral arbitrator. Their argument assumes that there can be no expectation of neutrality when the commissioner serves as arbitrator. I thought that was a key part of your whole position, that the CBA should be interpreted in a vacuum as if no other law or case law existed and that therefore the NFLPA agreed to biased and partial arbitration.--Percy

You're impossible to talk to about this. Everyone but you is calling it arbitration. Everyone but you is calling Roger Goodell the arbitrator for Brady's appeal.You're to be credited for trying to clearly define terms, but you're swimming against a torrent in the way language relating to arbitration and evidence is used in the real world. I will continue to use terminology here that conforms pretty closely to the way the media, the lawyers and the judge are using it.--Percy

Great, but you still have a ways to go, e.g.: So you're wrong again because, for example, the NFLPA/Brady lawyer, Jeffrey Kessler, thinks it's arbitration, as I quote from his letter once again:

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The Union may have agreed to Mr. Goodell serving as *arbitrator* under Article 46, but it did not agree he could abdicate his responsibility as an *arbitrator* under the LMRA (Labor Management Relations Act) and FAA (Federal Arbitration Act) and conduct fundamentally unfair proceedings in which he cast aside undisputed CBA requirements, adjudicated his own conduct, and issued an unprincipled *arbitration* award based on his unilateral notions of industrial policy.

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And the NFL also think's it's arbitration, this from the NFL letter:

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The NFLPA submitted a list of nineteen decisions from the Second Circuit and the Southern District of New York in which the court vacated an *arbitration* award. These cases confirm that courts vacate *arbitration* awards only in extraordinary circumstances, none of which are present here. While no one disputes that Judicial deference to *arbitration* awards is not absolute, see Leed Architectural Products, Inc. v. United Steelworkers of Am. Local 6674, 916 F.2d 63 65 (2d Cir. 1990), the Union's statement that "*arbitrations* of this type have been set aside" grossly distorts legal precedent. Hr'g Tr. 6:23-7:1.

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So give it up already. I don't care about who was right and who was wrong, I mostly care about making progress in discussion and developing a mutual understanding, so for God's sake, stop this senseless harping on these picayune definitional things and let some meaningful discussion happen.--Percy

Uh, okay, sure, and the judge's questions make pretty clear whose briefs are the most full of holes and expose their authors to the most embarrassment.The NFL's position is basically, "A limited and literal reading of the CBA that ignores existing laws and case law proves our case." The judge's questions make clear that he believes this outrageous and absurd. True, it may just be posturing in an attempt to move the NFL toward negotiating, but his feelings seem genuine. Those in the courtroom have said that the judge seems pretty upset at the NFL.The point you keep coming back to is that despite what many think looks like very good news for Brady, he could still lose. I think we all understand that. Most people realize that once you get into the legal arena it's a crap shoot where anything can happen.--Percy

You have a nasty habit of ignoring what is actually said while reaching for self-serving interpretations. *Obviously* the commissioner serving as hearing officer *is* exceedingly rare because, as I clearly explained, when I went down the List of NFL Suspensions I couldn't find any appeals where the commissioner served as hearing officer. The list is long so I couldn't go through it to the end, but I went through the last three years. No instances of the commissioner serving as hearing officer.So when you ask: The answer is obvious: I don't know. The only case we know about where the commissioner served as hearing officer is the Brady case, and one can't generalize from a single instance, and obviously it wasn't fair in that case. Article 46 does say that the commissioner can serve as hearing officer at his discretion, but discretion implies the application of judgement, not whim or malice.If I could engage in some analysis, I think what the NFL and the NFLPA envisioned about NFL rulings and the appeal process was the common case where a player is fined and suspended for a dangerous hit recorded by cameras from four or more different angles. The facts of the matter wouldn't be in dispute. They expected that in the appeal process the player would come in and explain himself, saying things like he was sorry, he never intended to make a dangerous hit, there were things about the situation he failed to judge properly and it wasn't on purpose, etc. It seems possible to me that the commissioner could reasonably argue that he was applying proper discretion in appointing himself hearing officer for the appeal of such a case.That's probably the typical case the NFL and NFLPA envisioned when they drafted the current CBA. They didn't expect appeal hearings about domestic disputes or charges of cheating for which no direct evidence exists that there was even cheating.It seems to me that this is more a key issue for your position than mine. You should find some cases, other than the Brady case, where the commissioner has served as hearing officer for an appeal. The more rare it is the more it looks like the commissioner was trying to railroad Brady when he selected himself as hearing officer, that he only did it to assure the outcome.--Percy

I disagree with this characterization, which is just a bald declaration and pretty much ignores what was actually said. If the NFL position (and yours) isn't ignoring "existing laws and case law", then explain how you're taking into account the law of the shop and precedents set by prior cases like the Rice case, and how you're taking into account existing laws like the FAA. This is rendered in NoNuke-ese and I have no idea how to interpret it. Are you still arguing that this isn't arbitration, because if you are would you please drop it? Or are you arguing that the NFLPA is arguing that the commissioner wasn't an arbitrator at the Brady hearing, because if you are then that's just crazy. Or if you mean something else then please explain in English. Since I didn't understand the previous sentence I'm not quite sure what you're saying here, either, but if by "that procedure" you mean that the CBA allows the commissioner to serve as hearing officer at his discretion, then yes, that is true, but only within the constraints of existing laws and case law. This is true, but it isn't a lack on my part. I'm sure it must happen all the time that clauses in contracts unintentionally turn out to be null and void because they conflict with existing laws. Jesus Christ, would you please give it up? The media, lawyers and the judge all consider the appeal an arbitration process. They even use the same language as the FAA (Federal Arbitration Act), referring to Goodell's ruling as an arbitration award. Join the real world, would you? The "above interpretation" (I didn't quote it here) is nonsense. Of course tons of legal commentators think the NFL has a strong case, mainly because the judge is expected to afford the arbitrator's ruling "high deference." But not one legal commentator I'm aware of is reasoning along the same lines you are, namely that it's not an arbitration hearing.--Percy

Hey, I found an ally for you: Rush Limbaugh. In the May 15, 2015, transcript of his radio show he says:

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They're making rumblings that this is gonna happen if they don't get what they want. I mean, Brady is lawyering up for people to do their work in court in penalty phase hearings or appeals or arbitration -- this is not arbitration. It's appeals process. But no, there are people that think this is headed for civil lawsuit territory. And I can't imagine anybody involved in this wants that. I mean, we're not talking about something like what George Stephanopoulos did here. But time will tell.

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Interestingly, if the Brady appeal actually wasn't arbitration then the NFL's primary precedent, the 2001 Supreme Court ruling in MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION v. STEVE GARVEY, cannot apply, since that case was all about arbitration.My own personal guess is that within civil law an appeal like that in the CBA is considered a subclass of a broader class known as arbitration, or perhaps in this context they're synonyms. The other kind of appeal, as when appealing to an appellate court like the U.S. Court of Appeals for the Second Circuit where the loser before Judge Berman will likely appeal, is definitely not arbitration. I think you're confusing the two contexts.There's a lot of discussion in the New England sports media about whether Goodell will lose his job. His contract is up in March of 2019 - will it be renewed? The history of sports commissioners is that they never lose their jobs during a period of prosperity, so he seems likely to remain the NFL commissioner, but there does seem to be growing grumbling among owners about the embarrassing spectacle. Other sports leagues don't have this problem, and there's an increasing perception that Goodell's approach is exacerbating a problem that other leagues handle much better.--PercyEdited by Percy, : Punctuation.

Here are what I thought the most interesting excerpts from the August 19th transcript of the hearing before Judge Berman in New York.

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MR KESSLER: Your Honor, I'm going to start first with the legal standard before you, because, as you know, the NFL's papers heavily, if not almost exclusively, revolve around a single legal argument, which is that this Court should defer to the arbitrator, who, according to the NFL, has virtually limitless power, and the Court should basically defer to that decision. So I want to spend a little bit of time on that argument to start.

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THE COURT: Just so you know, federal judges always have a little difficult with deferring, but that is definitely the legal standard.
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MR KESSLER: Your Honor, what we are arguing is that this case fails the test laid out by the Second Circuit for where the arbitrator is dispensing his own brand of industrial justice. In fact, if you read the NFL's papers, what they basically say is because Commissioner Goodell is the Commissioner, he is entitled to dispense his own brand of industrial justice.

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Let me interject here that I could not find a concise definition of industrial justice (maybe someone can help out and provide one if they have a legal dictionary - I couldn't find it at Law.com or Black's Law Dictionary - Free Online Legal Dictionary), but it sounds like a bad, abuse-of-power type thing.

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MR KESSLER: But the problem with that argument legally is that there is a difference from his role as the disciplinarian at the first level of discipline, which in this case he gave to Mr. Vincent, when he can in fact say what he thinks is conduct detrimental and make his determination, and the role at the second level, which he's assuming here as the arbitrator where he is limited by the law of the Federal Arbitration Act and the Labor Management Relations Act. And this is not an accident, it's because the NFL wants the protections of having an arbitration, because otherwise your Honor knows we could sue directly in federal court for a wrongful act. So they want the protections of arbitration, they must also take the limitations of arbitration that go with it.

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...(moving ahead)...

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THE COURT: Before you get to number two, you would contrast the finding by Mr. Wells with the finding by Mr. Goodell which would appear to be substantially broader than a finding of general awareness.

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MR. KESSLER: Yes, your Honor.

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THE COURT: Indeed, he talks about a scheme, I think he talks about participation, he talks about compensation, he talks about knowledge, et cetera. So there is a bit of a quantum leap, right, from the finding of Mr. Wells and the finding of Mr. Goodell?

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MR. KESSLER: Absolutely, your Honor, and we believe that quantum leap exceeded the Commissioner's authority as the arbitrator on an appeal.
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And the reason is very simple, and there is Supreme Court authority for this, an arbitrator can only decide the issues presented to the arbitrator. What this is under Article 46, and the language is very clear, is an appeal of discipline. So what the arbitrator is deciding is was that discipline correct or not; not is there some other discipline that could be imposed or is there some other basis for it.
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If the NFL wants to -- I want to be clear, if they want to publish new policies that players could be liable for being generally aware, there would probably be a grievance whether that's allowed under the CBA or not, but at least they would provide notice to players. There's no notice of that. So that's our first notice issue.

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...(moving ahead)...

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MR KESSLER (answering a question from the judge): That's correct, your Honor. In other words, they lose either way. If their new position is he just affirmed generally aware, they lose because there's no notice of generally aware. If their alternative position is that the Commissioner found new findings, Peterson is preclusive, he can't make new findings. So either way they are blocked from utilizing those findings as a substitute.

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...(moving ahead to non-cooperation)...

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MR. KESSLER: On notice. The first level it fails at is that Mr. Wells testified that he never gave the player any notice. He was very clear about this, in fact emphatic, that there would be any consequences if he didn't turn over his electronic information.

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And the reason this is significant is that in every other aspect of cooperation Mr. Wells said Mr. Brady was cooperative. So while there is generally an understanding that players have to agree to be interviewed, they have to cooperate. Mr. Brady did all that. What there is not is any specific notice ever given by the NFL specifically on this issue of electronic communications.

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And how do I know that? Judge, in this very case there was another player on the team, the kicker, who also didn't give his electronic communication that was asked for, and there was no penalty imposed on the kicker at all. And there's never been a case in the NFL where anybody has been punished for failure to give electronic communications...Mr. Wells could have said: Mr. Brady, I want you to know that if you don't turn this over, the NFL might consider this to be conduct detrimental in some way and fine you. But he was never told that.
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Is there any such notice of any of these policies that could be applicable to this conduct? The answer is no. Now again, whose failure is that? The NFL publishes these policies. They give these policies to players so they will have notice. It says on the bottom of them: To be retained by the player for the entire season. So they should know about it. So this was their problem in not giving players notice about it.

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The other notice issue is even if I were to be found wrong that there was somehow notice about electronic communications, the problem is, as Commissioner Tagliabue rules in Bounty, that in his 48 years in the league, no player had ever been suspended for obstructing -- and I use the word "obstruct" specifically because Commissioner Tagliabue did -- obstructing or not cooperating with an investigation.

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This is running longer than I thought. I didn't think I'd find so many interesting portions to excerpt. I have to run a few errands now, so I'll post this. If when I return I still find this fascinating I'll post some more.--PercyEdited by Percy, : Correct typo in date in the text of the link.Edited by Percy, : Fix typo in title.

It's like you exist in a vacuum, isolated and insulated from all information about what is happening and what people are saying, and so you are limited to responding about me. You always express yourself forcefully but often in complete ignorance or misapprehension of the actual facts. I suggest you begin making an effort to inform yourself about things, because your error rate has been atrocious.It seems pretty obvious that the NFL has been entirely unprepared to respond to cases of domestic abuse or to conduct an investigation that requires skills more commonly associated with criminal investigators. It doesn't take a rocket scientist to do a little analysis and conclude that the NFL and NFLPA had simpler violations in mind when they wrote the CBA. It's a logical conclusion from the evidence, I've heard similar comments from others, most recently Jonathan Kraft of the Patriot front office, and it is definitely *not* by any means "making stuff up out of whole cloth." The grammar leaves me a bit unsure of the nature of your question, but if I'm guessing correctly then let me explain that a dangerous hit is just an example of the kind of simpler violation the NFL and the NFLPA had in mind when they wrote the CBA. Substance abuse is another type of simpler violation. Why don't you respond to the words of Jeffrey Kessler from last week before the judge:

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...as the arbitrator where he is limited by the law of the Federal Arbitration Act and the Labor Management Relations Act. And this is not an accident, it's because the NFL wants the protections of having an arbitration, because otherwise your Honor knows we could sue directly in federal court for a wrongful act. So they want the protections of arbitration, they must also take the limitations of arbitration that go with it.

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--Percy