Register | Sign In


Understanding through Discussion


EvC Forum active members: 65 (9162 total)
7 online now:
Newest Member: popoi
Post Volume: Total: 915,815 Year: 3,072/9,624 Month: 917/1,588 Week: 100/223 Day: 11/17 Hour: 0/0


Thread  Details

Email This Thread
Newer Topic | Older Topic
  
Author Topic:   Deflation-gate
NoNukes
Inactive Member


Message 256 of 466 (767121)
08-26-2015 9:02 AM
Reply to: Message 252 by Percy
08-26-2015 8:36 AM


Re: The NFL Knows Goodell Isn't Neutral
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
This is not an admission by the NFL. This is a characterization by the players of the prior cited cases.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 252 by Percy, posted 08-26-2015 8:36 AM Percy has replied

Replies to this message:
 Message 258 by Percy, posted 08-26-2015 10:21 AM NoNukes has seen this message but not replied

  
Percy
Member
Posts: 22391
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 257 of 466 (767124)
08-26-2015 9:54 AM


A Good Set of Questions
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:
quote:
Can commissioner Roger Goodell do anything he wants to any player if he merely declares, "It goes to the integrity of the game"?
How did Goodell pick a four-game suspension versus a fine versus anything other punishment he could pull out of a hat?
What happens to the next player who is accused of being "generally aware" of a NFL rule violation?
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?
Did NFL investigator Ted Wells even know that a miniscule fine schedule existed for equipment violations?
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?
Does it matter at all that the alleged ball deflation scheme didn't seem to affect competitive balance in the Colts-Patriots game?
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?
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?
And why did Wells and Goodell in their findings ignore much of the basic direct evidence that was favorable to Brady?
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

Replies to this message:
 Message 261 by NoNukes, posted 08-26-2015 11:03 AM Percy has replied

  
Percy
Member
Posts: 22391
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 258 of 466 (767127)
08-26-2015 10:21 AM
Reply to: Message 256 by NoNukes
08-26-2015 9:02 AM


Re: The NFL Knows Goodell Isn't Neutral
NoNukes writes:
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
This is not an admission by the NFL. This is a characterization by the players of the prior cited cases.
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:
quote:
All of the cases cited by the NFLPA in support of its evident partiality argument involve neutral arbitrators...
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

This message is a reply to:
 Message 256 by NoNukes, posted 08-26-2015 9:02 AM NoNukes has seen this message but not replied

  
Percy
Member
Posts: 22391
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 259 of 466 (767128)
08-26-2015 10:32 AM
Reply to: Message 254 by NoNukes
08-26-2015 8:53 AM


Re: The NFL Knows Goodell Isn't Neutral
NoNukes writes:
The commissioner is not an arbitrator at all. There is simply no way to call the section 46 process an arbitration in the strictly legal sense, because it is not such a thing. The CBA does not require arbitration when the league punishes a player. It also does not require arbitration when the coach decides to bench a player or a team decides to cut a player.
You can call the process arbitration if you want, but it is not really any such thing.
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

This message is a reply to:
 Message 254 by NoNukes, posted 08-26-2015 8:53 AM NoNukes has replied

Replies to this message:
 Message 260 by NoNukes, posted 08-26-2015 10:51 AM Percy has replied

  
NoNukes
Inactive Member


Message 260 of 466 (767129)
08-26-2015 10:51 AM
Reply to: Message 259 by Percy
08-26-2015 10:32 AM


Re: The NFL Knows Goodell Isn't Neutral
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.
Not everyone, Percy. When people need to give a detailed legal analysis they do make the distinction and I cited one such analysis here. For other purposes, the name does not matter so much as long as the fact that the process is completely described in article 46. If instead you want to suggest that the process does not follow arbitration rules, the answer is that the process is defined outside of an arbitration process.
Strictly speaking it is an article 46 administrative process for applying punishment. It is pretty much the same process you would experience if your kid got punished by the public school system. You would have a hearing in the superintendent's office and not some outside arbitration. Your recourse after that would be to file a law suit in court unless the school system itself agreed to arbitration. It is silly to pretend that people don't experience punishments under systems that are very similar to the one here. And in this case, the players agreed to the system before hand.
Just to save a second post. I acknowledge here that the you were correct that the NFL says that the other cases involve a neutral arbitrator. But the point is that this case is not really arbitration. The NFL is not admitting that the process is illegal, but that it is an internal process by which the league punishes players and that the process is completely described in the CBA.
Edited by NoNukes, : No reason given.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 259 by Percy, posted 08-26-2015 10:32 AM Percy has replied

Replies to this message:
 Message 262 by Percy, posted 08-26-2015 12:37 PM NoNukes has not replied

  
NoNukes
Inactive Member


Message 261 of 466 (767131)
08-26-2015 11:03 AM
Reply to: Message 257 by Percy
08-26-2015 9:54 AM


Re: A Good Set of Questions
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:
These question are all ones to which each side has answers. Again, there is a reason why we don't resolve cases just by reading one side's briefs.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 257 by Percy, posted 08-26-2015 9:54 AM Percy has replied

Replies to this message:
 Message 263 by Percy, posted 08-26-2015 12:55 PM NoNukes has replied

  
Percy
Member
Posts: 22391
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 262 of 466 (767145)
08-26-2015 12:37 PM
Reply to: Message 260 by NoNukes
08-26-2015 10:51 AM


Re: The NFL Knows Goodell Isn't Neutral
NoNukes writes:
I acknowledge here that the you were correct that the NFL says that the other cases involve a neutral arbitrator.
Great, but you still have a ways to go, e.g.:
But the point is that this case is not really arbitration.
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:
quote:
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.
And the NFL also think's it's arbitration, this from the NFL letter:
quote:
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.
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

This message is a reply to:
 Message 260 by NoNukes, posted 08-26-2015 10:51 AM NoNukes has not replied

  
Percy
Member
Posts: 22391
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 263 of 466 (767152)
08-26-2015 12:55 PM
Reply to: Message 261 by NoNukes
08-26-2015 11:03 AM


Re: A Good Set of Questions
NoNukes writes:
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:
These question are all ones to which each side has answers. Again, there is a reason why we don't resolve cases just by reading one side's briefs.
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

This message is a reply to:
 Message 261 by NoNukes, posted 08-26-2015 11:03 AM NoNukes has replied

Replies to this message:
 Message 265 by NoNukes, posted 08-27-2015 2:51 AM Percy has replied

  
xongsmith
Member
Posts: 2578
From: massachusetts US
Joined: 01-01-2009
Member Rating: 6.8


Message 264 of 466 (767179)
08-26-2015 3:40 PM
Reply to: Message 253 by NoNukes
08-26-2015 8:37 AM


Re: indirect evidence
NoNukes writes:
On the other hand, it is possible to have circumstantial evidence that directly links the defendant to the murder. Fingerprints, witnesses seeing the defendant running away from the scene after some load bang bangs, etc are all indirect evidence.
I can hear the late Rick Danko now:
"Ten years ago on a cold dark night
There was someone killed 'neath the Town Hall light
There were few at the scene but they all did agree
That the man who ran looked a lot like me...."
Note: in the Johnny Cash version, Johnny uses the original "slayer" instead of Danko's "man"
Edited by xongsmith, : indirect deflation

- xongsmith, 5.7d

This message is a reply to:
 Message 253 by NoNukes, posted 08-26-2015 8:37 AM NoNukes has seen this message but not replied

  
NoNukes
Inactive Member


Message 265 of 466 (767216)
08-27-2015 2:51 AM
Reply to: Message 263 by Percy
08-26-2015 12:55 PM


Re: A Good Set of Questions
The NFL's position is basically, "A limited and literal reading of the CBA that ignores existing laws and case law proves our case."
I disagree with this characterization, which in essence considers what happened as if it were a broken arbitration scheme.
The NFL's position is that the section 46 allows the NFL to punish players without arbitration involving an outside arbitrator, and that the player's attempt to point out that the NFL did not actually use an arbitrator is beside the point. In my opinion, the CBA very clearly allows exactly that procedure. You on the other hand cannot seem to give me any explanation why the words giving the Commissioner the discretion to pick himself as the hearing officer for any appeal would ever be applicable. That suggests to me that you are just won't accept what you can read, essentially setting all of those words to have no meaning at all.
Of course I don't consider section 46 to be an arbitration procedure. So I would use stronger language and say that section 46 does not require arbitration in order to apply league punishment to a player. The player instead gets an appeal hearing with his lawyer in front of someone designated by the Commissioner if not the Commissioner himself. There may be no precedent for that simply because the players never signed an agreement supporting the current procedure.
And again, the above interpretation of the CBA is not just my opinion. Any of the legal commentators who indicate that the NFL has a strong case as long as the judge rules on process, must reason along similar lines.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 263 by Percy, posted 08-26-2015 12:55 PM Percy has replied

Replies to this message:
 Message 267 by Percy, posted 08-27-2015 7:52 AM NoNukes has not replied
 Message 268 by Percy, posted 08-27-2015 8:19 AM NoNukes has not replied

  
Percy
Member
Posts: 22391
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 266 of 466 (767224)
08-27-2015 7:23 AM
Reply to: Message 255 by NoNukes
08-26-2015 9:00 AM


Re: Best Legal Analysis I've Seen So Far
NoNukes writes:
Obviously it was considered to be a very rare situation
Calling it obvious is not an argument, and you are ducking the question,...
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:
In which situations, Percy? The agreement says that the Commissioner can be the hearing officer at his discretion in any appeal. Why would that be allowed at all? Why is that statement in the CBA at all? When would it be considered fair?
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

This message is a reply to:
 Message 255 by NoNukes, posted 08-26-2015 9:00 AM NoNukes has replied

Replies to this message:
 Message 270 by NoNukes, posted 08-27-2015 12:11 PM Percy has replied

  
Percy
Member
Posts: 22391
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 267 of 466 (767228)
08-27-2015 7:52 AM
Reply to: Message 265 by NoNukes
08-27-2015 2:51 AM


Re: A Good Set of Questions
NoNukes writes:
The NFL's position is basically, "A limited and literal reading of the CBA that ignores existing laws and case law proves our case."
I disagree with this characterization, which in essence considers what happened as if it were a broken arbitration scheme.
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.
The NFL's position is that the section 46 allows the NFL to punish players without arbitration involving an outside arbitrator, and that the player's attempt to point out that the NFL did not actually use an arbitrator is beside the point.
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.
In my opinion, the CBA very clearly allows exactly that procedure.
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.
You on the other hand cannot seem to give me any explanation why the words giving the Commissioner the discretion to pick himself as the hearing officer for any appeal would ever be applicable.
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.
Of course I don't consider section 46 to be an arbitration procedure.
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?
And again, the above interpretation of the CBA is not just my opinion. Any of the legal commentators who indicate that the NFL has a strong case as long as the judge rules on process, must reason along similar lines.
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

This message is a reply to:
 Message 265 by NoNukes, posted 08-27-2015 2:51 AM NoNukes has not replied

  
Percy
Member
Posts: 22391
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 268 of 466 (767233)
08-27-2015 8:19 AM
Reply to: Message 265 by NoNukes
08-27-2015 2:51 AM


Re: A Good Set of Questions
Hey, I found an ally for you: Rush Limbaugh. In the May 15, 2015, transcript of his radio show he says:
quote:
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.
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.
--Percy
Edited by Percy, : Punctuation.

This message is a reply to:
 Message 265 by NoNukes, posted 08-27-2015 2:51 AM NoNukes has not replied

  
Percy
Member
Posts: 22391
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 269 of 466 (767237)
08-27-2015 10:03 AM


Interesting Excerpts from the August 19th Transcript
Here are what I thought the most interesting excerpts from the August 19th transcript of the hearing before Judge Berman in New York.
quote:
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.
THE COURT: Just so you know, federal judges always have a little difficult with deferring, but that is definitely the legal standard.
...
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.
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.
quote:
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.
...(moving ahead)...
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.
MR. KESSLER: Yes, your Honor.
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?
MR. KESSLER: Absolutely, your Honor, and we believe that quantum leap exceeded the Commissioner's authority as the arbitrator on an appeal.
...
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.
...
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.
...(moving ahead)...
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.
...(moving ahead to non-cooperation)...
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.
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.
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.
...
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.
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.
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.
--Percy
Edited by Percy, : Correct typo in date in the text of the link.
Edited by Percy, : Fix typo in title.

  
NoNukes
Inactive Member


Message 270 of 466 (767251)
08-27-2015 12:11 PM
Reply to: Message 266 by Percy
08-27-2015 7:23 AM


Re: Best Legal Analysis I've Seen So Far
f 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.
Seriously, Percy. That is not analysis. That's you making stuff up out of whole cloth. If it is analysis, show me from what you are analyzing other than your own opinion.
You suggest that an effective way of expressing limiting things to clear cut bad hit scenarios is to say that the Commission can act as a hearing officer in any appeal at his own discretion? That's ridiculous on its face. The text gives the Commissioner unlimited discretion and it would have been a simple matter to reference situations or laws that provided rights that the player's did not waive.
And article 46 itself is not limited to such matters. It covers essentially everything that might result in the league rather than individual teams punishing a player.
Absent some protective law that says otherwise, there is nothing illegal about the players waiving some existing legal remedy or procedure in writing in a negotiated contract. And I don't see any reasonable interpretation of the Article 46 other than that. If there were some limits to the Commissioner's discretion, the reasonable thing to do would be to have at least hinted at them into the agreement. Instead we find that no such limitations are hinted at or expressed in the text.

Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)
History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King
If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams

This message is a reply to:
 Message 266 by Percy, posted 08-27-2015 7:23 AM Percy has replied

Replies to this message:
 Message 271 by Percy, posted 08-27-2015 2:40 PM NoNukes has not replied

  
Newer Topic | Older Topic
Jump to:


Copyright 2001-2023 by EvC Forum, All Rights Reserved

™ Version 4.2
Innovative software from Qwixotic © 2024