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Author Topic:   Deflation-gate
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 271 of 466 (767278)
08-27-2015 2:40 PM
Reply to: Message 270 by NoNukes
08-27-2015 12:11 PM


Re: Best Legal Analysis I've Seen So Far
NoNukes writes:
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.
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."
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?
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.
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.
...
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.
Why don't you respond to the words of Jeffrey Kessler from last week before the judge:
quote:
...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.
--Percy

This message is a reply to:
 Message 270 by NoNukes, posted 08-27-2015 12:11 PM NoNukes has not replied

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 272 of 466 (767316)
08-28-2015 8:52 AM


More Interesting Excerpts from the August 19th Transcript
Here are more interesting excerpts from the August 19th transcript of the hearing before Judge Berman in New York.
quote:
THE COURT: So you're saying player policies is the one policy relating to equipment, uniforms, et cetera, which might include deflating a game ball, is the one that players are on notice of?
MR. KESSLER: Yes.
THE COURT: And if one is found to have violated that policy and is a firts offender, the maximum penalty is a fine, is that right?
MR. KESSLER: Yes. And I will say two more things on this. One is even the player policies don't say you could be punished at all for being generally aware. So there's no notice of that.
And number two, and this is important, the NFL's argument -- and you will hear this from Mr. Nash -- is we don't need to rely on any policies because in the player contract it says the Commissioner could decide what is conduct detrimental and there could be a fine and suspension.
Let me easily demonstrate why that is wrong. The Commissioner could come in tomorrow and say if you take steroids that is also conduct detrimental to the league. The Commissioner could not say that if you took marijuana, which under the substance of abuse poicty says for the first time offense you get no penalty at all, you just go into a testing program, he could not say because I have the power and you are on notice of conduct detrimental that I could say instead of you going just into a program, I'm going to say it's a game suspension. In other words, once you put the players on notice, everything in these policies that has specific fines also could theoretically be conduct detrimental. So this is the normal contract principle of New York that governs the CBA, governed by New York law, which is the specific governs over the general, and because they put in the fines -- this is very important, your Honor, the fines in the player policies are collectively bargained.
THE COURT: I understand that. So the direct question is: Can Mr. Brady be fined under the equipment section of the player policies in this case?
MR. KESSLER: He could be if the finding was not just generally awareness but the finding was that he actually participated in altering his equipment, then as a first-time offender he would be subject to the fine under the player policies.
THE COURT: But within the context of this award, is it possible for the Commissioner to fine Mr. Brady for violation --
MR. KESSLER: I don't believe so because it's a generally aware problem. That problem trumps all the other problems on the notice.
THE COURT: You're saying he can't be punished at all for ball tampering?
MR. KESSLER: Because of -- and remember, this wasn't an accident. The Wells Report took five months of investigation, spent millions of dollars, and Ted Wells, who I have a lot of respect for as a lawyer, came in and honestly said: Your know what, I spent all this money, we did all this work, I looked at, by the way, the electronic communications of all the other employees, and all I could conclude was generally aware. So that's -- this is not a problem in that Mr. Brady's getting away with something, it's a problem that the facts did not support, according to Mr. Wells, anything more. And the Commissioner -- this again was the NFL's decision -- decided to rely on Mr. Wells. Mr. Vincent could have done something else. He could have said: You know what, generally aware is not enough to discipline, but I'm not satisfied, I'm the disciplinarian, I'm going to put Mr. Wells aside and do my factually investigation. He had the authority to do that.
THE COURT: But he didn't.
...(about being generally aware of anything in the AFC game)...
THE COURT: Now I read that, and I don't find any additional comment, certainly not in that sentence, that the general awareness relates to January 18, 2015 AFC game. I may be making more of this than appropriate, but this says release from Patriots' game balls. It does not say, which is the only finding that we're considering, is what happened in the AFC game. Am I making too much of the absence?
MR. KESSLER: No, your Honor, I think that is an outstanding observation. Because what has been lost here, and your Honor is quite right to point this out, the discipline was only with respect to this game. And the reason that's important is much of the evidence cited by Mr. Wells, even for the generally aware finding, has to do with events that have nothing to do with the AFC championship game.
...(about the competitive integrity policy not applying to players)...
MR. KESSLER: And again, perhaps Mr. Wells did not get a clear direction on his mission. So for example, we know he testified that he thought he was proceeding under only the competitive integrity policy, and that's the only policy he knew about, and it was only the day of the hearing when he testified because I informed him and he heard Mr. Vincent's testimony tha tthe first time anyone told him from the NFL: By the way, that policy doesn't apply to players. So there could really be a disconnect between what Mr. Wells thought he was looking at versus what actually ends up being the discipline that Mr. Vincent is applying. That's the leap, that's the chasm they can't jump over.
...(about protocols for measuring football pressure)...
MR. KESSLER: Your Honor, I don't have the time to read the testimony, but Mr. Vincent, Mr. Wells, Mr. Caligiuri, their expert from Exponent, and all the other experts from Exponent, said over and over again under oath that there were no standards, there were no protocols for measuring pressure in footballs either before the game started or after the game started.
The consequence was, according to Exponent, their own expert, and Mr. Wells said this, too, they didn't collect the right information. What the problem was, no one at the NFL knew about the ideal gas law, which is surprising because I think I studied that in ninth grade chemistry...And the basic principle was when you go from a cold locker room to a warm environment, you always lose pressure. [Note: Kessler said it backwards and obviously meant to say a warm locker room to a cold environment] If you go from a dry ball to a wet ball, you always lose pressure. So therefore, thousands of footballs in the NFL over the years have been below the 12.5 standard. I could stat that as a matter of certainty. How do I know? Because there are thousdands of footballs that were put out there which naturally lost pressure. And no one tested them. There had never been, to my knowledge, any ball tested at halftime in the history of the NFL.
So what do the experts do? They said we have to make assumptions. That's what experts do. But assumptions doesn't mean it's a fair and consistent basis for discipline.
Once again I have to run some errands. This is still fascinating to me, I may excerpt more later.
--Percy
Edited by Percy, : Fix typo in title.

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 273 of 466 (767425)
08-29-2015 9:04 AM


Yet More Interesting Excerpts from the August 19th Transcript
Here are yet more interesting excerpts from the August 19th transcript of the hearing before Judge Berman in New York.
On a partial arbitrator:
quote:
MR. KESSLER: On evident partiality, our argument is as follows: Even when you agree to an arbitrator who has an inherent bias, as we did here in the CBA, there's no dispute about that,...
Let me break in here to note that Kessler is conceding that the NFLPA agreed to a biased arbitrator in the CBA, but then Kessler explains that even biased arbitrators are operating under constraints and cannot behave dictatorially:
quote:
MR. KESSLER continues: ...In the Rice case, Commissioner Goodell himself said I will step aside because my conduct is at issue, and he had Judge Jones do this himself.
THE COURT: Judge Jones served as the arbitrator.
MR. KESSLER: Correct. And he [Commissioner Goodell] said I'm recusing myself. And the reason that's significant is he recognizes there are cases where we haven't consented to this bias that he must recuse.
Let me again break in to interject that Kessler is arguing that the NFLPA must consent to a biased arbitrator. This goes back to the question of how much of the prior text the phrase in Article 46 of the CBA, "Notwithstanding the foregoing..." applies to, because early on in that paragraph it stresses the need for consultation with the Executive Director of the NFLPA.
quote:
MR. KESSLER continues: And the question is we have to have -- his power is not limitless, it is limited by the Federal Arbitration Act, the Labor Management Relations Act and the CBA. And that's what he has to understand in terms of this. That's evident partiality.
On Commissioner Goodell's delegation of his disciplinary powers to Troy Vincent:
quote:
MR. KESSLER: We were precluded from making any fact record ont he delegation issue. In fact, the reason, your Honor, you could say shy am I not argying delegation to you? I was never able to present it below. I have no record. I have no facts. All I have is Commissioner Goodell's testimony and his pronouncement that as the arbitrator I find I am credible and I'm telling the truth and I did nothing wrong. That's Commissioner Goodell's finding about himself.
The NFL begins their presentation:
quote:
MR. NASH: Thank you, your Honor. Subject to your Honor's questions, I don't think I will have as long, because I think the answer to most of what Mr. Kessler had to say is found in the legal standard that he can't disagree with, and that is a disappointed grievant in a CBA arbitration, which is what we have here, this was a disciplinary decision that was issued in accordance with the collective bargaining agreement, Mr. Brady was given, as I said last week and as we said in the papers, all of the right available to him under the CBA, we had a hearing and the Commissioner issued a decision that is final and binding.
...
And to that point, your Honor, the question about I think you said the leap from the Wells Report to the Commissioner's judgement, let's be clear here, again this is parsing that is going on. Mr. Kessler comes in and says look at the original disciplinary letter and says it's based on the Wells report and it's just generally aware, and now somehow the Commissioner exceeded his authority based on the evidence presented at the hearing.
First of all, he's misstating the record. The Wells Report also concludes, and I think it does so on page 9, not only that Mr. Bracy was generally aware, but that the actions of the Patriots' employees would not likely have occurred without his knowledge and approval. That's in the Wells Report as well.
But most importanttly, under the CBA, the judgment about Mr. Brady's culpability, his involvement int he ball tampering, his knowledge and awareness and beyond was one for the Commissioner to make. And that was the entire purpose of the appeal hearing. Mr. Brady was given the initial disciplinary letter, his union representative filed an appeal, he had his hearing, and following that hearing, as the Commissioner says in his award, he made judgments based on the facts and the discipline and based on the entire record. It includes the Wells Report, but he is in no way limited to the Wells Report. I find it astonishing that I think he's being criticized here because he considered Mr. Brady's testimony. Well, that was the point of the hearing. That was Mr. Brady's opportunity under the collective bargaining agreement.
In case it isn't clear, Mr. Nash is referring to Brady's testimony at the appeal hearing that he destroyed his phone. Mr. Nash is arguing that Commissioner Goodell was operating well within his rights to include this new information when making his ruling. I think Mr. Kessler would agree, since Mr. Kessler was actually making a different argument, that suspensions for failure to cooperate have never been handed down in the history of the NFL, as former Commissioner Paul Tagliabue made clear in his rulings as arbitrator in another case.
quote:
MR. NASH continues: And this part is quite critical, this idea that the only thing that happened here was that Mr. Brady was generally aware is simply not correct as a matter of the findings int he award. It's not correct -- it's not a correct description of the Wells Report, I would suggest, but the responsibility of Ted Wells and the Wells Report were to document the facts, and the appeal hearing was Mr. Brady's opportunity to put in whatever facts he wanted, and from there the Commissioner was entitled to make a judgment based on the entire factual record. To say that he somehow exceeded his authority by relying on Mr. Brady's testimony in confirming his conclusion -- and let's be clear about their arguments about Peterson and the exceeding authority, the question on appeal here, they have no legal support for that. The only legal support they offer is the Peterson case and, your Honor, I would submit that their description of the Peterson case is not applicable here even if you accept it.
On the issue of notification:
quote:
MR. NASH: But as to this notice issue that they keep saying that is the critical issue, I think one of the critical issues, I think there are a lot of issues that were described as critical by Mr. Kessler, the probelm with their entire argument is it is a question of fact and it is a question of interpretation of the collective bargaining agreement.
...
And on the issue of notice, he issued a clear, reasoned, thorough opinion based on his assessment of all of the record evidence, including Mr. Brady's testimony, and he concluded Mr. Brady was well on notice.
The above is an interestingly flawed argument. Notification is part of process, part of what everyone concedes can be challenged in court, yet Mr Nash is arguing that as part of arbitration that Goodell ruling that Brady had been adequately notified closes the matter. The judge often broke in with questions and comments during Kessler's presentation but seems to be just letting Nash roll on - I'm surprised the judge didn't inquire about this.
quote:
MR. NASH: I was somewhat surprised in the papers that the Players Association filed on Friday that one -- a number of their arguments were well, Mr. Brady denied it under oath, or it's just generally aware that's not enough evidence. Well, no, if you read the award, the award carefully goes through the fact that the Commissioner considered that and did not believe Mr. Brady. He did not believe the explanations for the text messages that showed, despite Mr. Brady's denial that he didn't know Mr. McNally or didn't know who he was and never told anybody about his -- never cared about the ball pressure.
In fact I think one of the most interesting aspects on credibility at the hearing was Mr. Brady said he never really thought about ball deflation. It wasn't really an issue for me. And yet there was substantial evidence to the contrary. There were the texts. Probably the most direct piece of evidence on this point was the text from Mr. Jastremski to Mr. McNally saying that Mr. Brady brought him up and said: You must be under a lot of stress getting them done. Mr. Wells and the Commissioner here as well concluded that he was talking about the fact that Mr. Brady was aware that Mr. McNally was the deflating the footballs.
The above is rather strange, because Mr. Nash had just earlier argued that the facts of the case cannot be reargued, and now he seems to be rearguing the facts. In any event, the text exchange between Jastremski and McNally that Nash is referencing was about the Jets game on October 16, 2014, where the referees had improperly inflated the balls to 16 psi. It was one of McNally's responsibilities to make sure the balls were properly inflated when delivered to the referees, and that's all that "getting them done" refers to. But as the judge has pointed out in open court, the charges relate to the Colts game on January 18, 2015, three months later, not the Jets game.
Why people think it unusual that Brady didn't know McNally, a game-day employee, is difficult to understand. There are only eight home games a year. Probably all he knew was that Jastremski had a guy who came in on game-day for home games to carry footballs around and check the ball pressure.
Anyway, clearly the judge isn't buying it:
quote:
THE COURT: He was involved on January 18, 2015?
MR. NASH: Absolutely, your Honor.
THE COURT: So I asked the same question of Mr. Kessler. When Mr. Wells says that he was generally aware, et cetera, et cetera, he does not say in that sentence of what happened on January 18, 2015. Mr. Goodell clearly does. Right?
MR. NASH: I don't think that's a fair reading of the Wells Report.
THE COURT: That's going to be my question. You think that sentence does mean January 18, 2015 by Mr. Wells?
MR. NASH: Absolutely.
THE COURT: Why doesn't it say that? He's a pretty smart guy, Mr. Wells, I think we all agree, and he says -- let's get it exactly right. He says more probable than not that Tom Brady was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriot's game balls.
To me what is conspicuously absent from that sentence is his finding or a finding without any specific reference to January 18, 2015 game. You think I'm misreading the sentence?
MR. NASH: I think you can't read that one sentence.
THE COURT: So where else does Mr. Wells say that Mr. Brady was generally aware of what they did on January 18, 2015? Anywhere?
MR. NASH: I would suggest that that is the only logical interpretation or understanding of the sentence that you just read. The entire investigation at the very beginning of the report says that the whole purpose of the investigation was to determine whether the footballs used in the AFC championship game, a very significant game, were purposefully deflated, and who was responsible.
He then goes on to make a number of findings about the activities of Mr. McNally and Mr. Jastremski relevant to that game. Mr. McNally going to bathroom. Now I understand, and you asked this question last week, well, he also noted the evidence about the texts that were before the AFC championship game. But that is certainly evidence that supports the idea that when Mr. McNally, for example, went into the bathroom completely out of protocol, that he was carrying out the activities probably that had been done before, but in any event --
THE COURT: That's a bit of a problem, too, "probably been done before," some guy from the Colts say they do it all the time, all that stuff, that's not what's found here. What's found here is that an infraction occurred on January 18, 2015. And I may be misreading, but all I'm trying to point out, to me, and maybe this is a misread, but I think that it's conspicuously absent from Mr. Wells' finding that there's no reference in that key finding, the January 18, 2015 game. Mr. Wells knows better than anybody that that's the game under consideration. And I'm just saying, at least that's the way it struck me, why wouldn't you say -- he's a smart lawyer -- on January 18, 2015.
And the reason you can, I'm sure, and everybody is entitled to interpret it differently, and maybe mine is the minority interpretation, that the report is all about that game and that's what is implied there, but the Wells Report goes back to a Jets game in October 2014 and it goes back to a lot of incidents, so does that finding of generally aware specifically embrace the January 18, 2015 game? You say it does. I say I have some pause because I think the kicker -- not the kicker in football sense, but the real point here, or at least the question that I have in my mind is why didn't he say on January 18, 2015?
MR. NASH: I would suggest if you read the introduction of the Wells Report he explains what he was tasked to do.
THE COURT: I know it.
They continue on in this vein, but clearly the judge is skeptical.
I'm about excerpted out.
--Percy
Edited by Percy, : Fix typo in title.

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 274 of 466 (767647)
08-31-2015 12:17 PM


No Settlement, Judge to Rule by Friday
Judge Berman today announced that the parties were unable to reach a settlement and that he would have a ruling by Friday, September 4, and possibly by tomorrow or Wednesday.
--Percy

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 275 of 466 (767686)
08-31-2015 4:18 PM


Michael Felger Gets it Exactly Right
On today's Felger and Mazz program on WBZ-FM 98.5 The Sports Hub radio Felger gets it exactly right. Sidekick Tony Massarotti explained that he believes Judge Berman will rule for the NFL because the NFLPA bargained away fairness, and Michael Felger replies:
quote:
But that's not the law. That's not the law. The law is that you can bargain away your right to independent arbitration, but you can't bargain away your right to fairness under labor law in the US. And labor law in the US supersedes the CBA no matter what you bargained away. And if Berman believes that Goodell was inherently unfair in his appeal, which he certainly was in some cases, then he can easily rule against the NFL.
Nicely put.
--Percy

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


(1)
Message 276 of 466 (767900)
09-03-2015 10:29 AM


Brady Suspension Overturned
From NBC News: Tom Brady Deflate-Gate: Federal Judge Throws Out NFL Star's Suspension
I haven't found a copy of the ruling yet, I'll post again after I've read it.
--Percy

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 277 of 466 (767903)
09-03-2015 10:51 AM


Initial Excerpts from Berman's Ruling
No one's posted the text of Berman's ruling yet, but a couple images of a few lines have been posted on Twitter, so here they are as I viewed them at Tom Brady Appeal Ruling: Patriots QB’s Four-Game Suspension Nullified:
quote:
Based upon the foregoing and applicable legal authorities, the Court hereby denies the Management Council's motion to confirm the Award and grants the Players Association's motion to vacate the Award, thereby vacating the four-game suspension of Tom Brady, effective immediately.
...
Inc. v. McMahon, 107 S. Ct. 2332, 2340 (1987)). "The deference due an arbitrator does not extend so far as to require a district court to countenance, much less confirm, an award obtained without the requisites of fairness or due process." Kaplan v. Alfred Dunhill of London, Inc., No.
--Percy

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 278 of 466 (767904)
09-03-2015 10:55 AM


Text of Berman's Decision
Here's the text of Berman's decision, I of course haven't read it yet: NFL v. Brady (aka National Football League Management Council v. National Football League Players Association)
--Percy

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 279 of 466 (767913)
09-03-2015 12:37 PM


Notable Excerpts from the Berman Decision
As I read through the Berman decision I'll excerpt notable portions here.
The ruling is at the top of page 3 (bold in original):
quote:
Based upon the foregoing and applicable legal authorities, the Court hereby denies the Management Council's motion to confirm the Award and grants the Players Association's motion to vacate the Award, thereby vacating the four-game suspension or Tom Brady, effective immediately.
In referring to the Well's report, Berman puts the word "independent" in quotes:
quote:
On January 23,2015, the NFL publicly announced that it had retained Theodore V. Wells, Jr. and his law firm to conduct an "independent" investigation, together with NFL Executive Vice President and General Counsel Jeff Pash.
A footnote on page 4 quotes from the NFL's Game Operations Manual about altering equipment like footballs. I've seen this referenced many times but had never seen the actual text, so I include it here:
quote:
Once the balls have left the locker room, no one, including players, equipment managers, ball boys, and coaches, is allowed to alter the footballs in any way. If any individual alters the footballs, or if a non-approved ball is used in the game, the person responsible and, if appropriate, the head coach or other club personnel will be subject to discipline, including but not limited to, a fine of $25,000.
The above is different from what we'd been led to believe by court filings and comments in court, that the NFL's own rules did not allow suspensions, only fines. This seems to leave the door open to discipline beyond a mere fine, but it turns out there's another document that also applies that is mentioned later.
A footnote on page 10 contains an excerpt from the standard NFL Player Contract that makes clear that players, just as much as owners and coaches, can be held accountable for actions contrary to the integrity of the game, a fact Jeffrey Kessler, Brady's lawyer, apparently got wrong. Kessler had claimed that since players are not even aware of the league's Competitive Integrity Policy that they couldn't be held accountable for it, but a very similar requirement is apparently in the standard NFL Player Contract:
quote:
Player recognizes the detriment to the League and professional football that would result from impairment of public confidence in the honest and orderly conduct of NFL games or the integrity and good character of NFL players. Player therefore acknowledges his awareness that if he accepts a bribe or agrees to throw or fix an NFL game; fails to promptly report a bribe offer or an attempt to throw or fix an NFL game; bets on an NFL game; knowingly associates with gamblers or gambling activity; uses or provides other players with stimulants or other drugs for the purpose of attempting to enhance on-field performance; or is guilty of any other form of conduct reasonably judged by the League Commissioner to be detrimental to the League or professional football, the Commissioner will have the right, but only after giving Player the opportunity for a hearing at which he may be represented by counsel of his choice, to fine Player in a reasonable amount; to suspend Player for a period certain or indefinitely; and/or to terminate this contract.
But any set of rules covering multiple documents as with the NFL cannot be wholly consistent. This is from the Player Policies document, and it's very explicit that first offenses for player equipment violations result in fines (bold in original):
quote:
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.
In this excerpt from page 17 Berman is summarizing Goodell's ruling, and he contrasts Goodell's ruling with the statements in the Wells report that Brady was only "generally aware." This probably foreshadows Berman's eventual ruling (bold in original):
quote:
Goodell determined that "the available electronic evidence, coupled with information compiled in the investigators' interviews, leads me to conclude that Mr. Brady knew about, approved of, consented to, and provided inducements and rewards in support of a scheme by which, with Mr. Jastremski's support, Mr. McNally tampered with the game balls." Id. at I 0 (emphasis added). This finding by Goodell goes far beyond the "general awareness" finding in the Wells Report or in Vincent's May II, 2015 Disciplinary Decision Letter to Brady. Compare Award at I 0 with Report at 2 and Vincent Letter to Brady at I.
Here's the full paragraph I excerpted in an earlier post where Berman cites an arbitration case stating the requirement for fairness and due process:
quote:
"Although judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute at issue." Gilmer v. Interstate/Johnson Lane Com., IllS. Ct. 1647, 1655 (1991) (quoting Shearson/Am. Express Inc. v. McMahon, 107 S. Ct. 2332, 2340 (1987)). "The deference due an arbitrator does not extend so far as to require a district court to countenance, much less confirm, an award obtained without the requisites of fairness or due process." Kaplan v. Alfred Dunhill of London, Inc., No. 96 Civ. 259 (JFK), 1996 WL 640901, at *7 (S.D.N.Y. Nov. 4, 1996).
The judge continues on to cite the Federal Arbitration Act and the "law of the shop", both of which I've mentioned several times myself:
quote:
Under the Federal Arbitration Act ("FAA''), "the validity of an award is subject to attack only on those grounds listed in [9 U.S.C.] 10, and the policy of the FAA requires that an award be enforced unless one of those grounds is affirmatively shown to exist." Wall Street Assocs. L.P. v. Becker Pari bas Inc., 27 F .3d 845, 849 (2d Cir. 1994). For example, FAA I 0 provides that the Court may vacate an arbitral award "where the arbitrators were guilty of ... refusing to hear evidence pertinent and material to the controversy." 9 U.S.C. I O(a)(3). The Court may also vacate an arbitral award "where there was evident partiality ... " 9 U.S.C. I O(a)(2).
A "principal question for the reviewing court is whether the arbitrator's award draws its essence from the collective bargaining agreement, since the arbitrator is not free to merely dispense his own brand of industrial justice." 187 Concourse Assocs. v. Fishman, 399 F.3d 524, 527 (2d Cir. 2005) (quoting Saint Marv Home, Inc. v. Serv. Emps. Int'l Union, Dist. 1199, 116 F.3d 41,44 (2d Cir. 1997)). "[A]s the proctor of the bar gain, the arbitrator's task is to effectuate the intent of the parties. His source of authority is the collective-bargaining agreement, and he must interpret and apply that agreement in accordance with the 'industrial common law of the shop' and the various needs and desires of the parties." United States v. Int'l Bhd. of Teamsters, 954 F.2d 801, 809 (2d Cir. 1992) (quoting Alexander v. Gardner-Denver Co., 94 S. Ct. 1011, 1022 (1974)) (emphasis omitted).
It is the "law of the shop" to provide professional football players with advance notice of prohibited conduct and potential discipline. In In the Matter of Reggie Langhorne ("Langhorne"), Arbitrator Richard R. Kasher vacated the discipline of a player who had refused to take part in practice, holding that the player "was entitled at some time to be placed on notice as to what consequences would flow from his refusal to participate in ... practice. Any disciplinary program requires that individuals subject to that program understand, with reasonable certainty, what results will occur if they breach established rules." Slip op. at 25 (Apr. 9, 1994). In NFLMC v. NFLPA (Ricky Brown) ("Ricky Brown"), Arbitrator Michael H. Beck vacated a fine imposed upon a player for missing a mandatory weigh-in, and observed that "adequate notice is the fundamental concept in discipline cases." Slip op. at 10 (July 16, 2010).
Berman continues in the next paragraph quoting Paul Tagliabue about lack of cooperation never being a suspendable offense:
quote:
In the Bounty-Gate case, former NFL Commissioner Paul J. Tagliabue, appointed as arbitrator by Commissioner Goodell after Goodell had recused himself, vacated the suspension of a player who had allegedly obstructed the League's investigation into the New Orleans Saints' bounty program (involving alleged monetary incentives to injure opposing players). Slip op. at I (Dec. II, 2012). Tagliabue stated: "There is no evidence of a record of past suspensions based purely on obstructing a League investigation. In my forty years of association with the NFL, I am aware of many instances of denials in disciplinary proceedings that proved to be false, but I cannot recall any suspension for such fabrication. There is no evidence of a record of past suspensions based purely on obstructing a League investigation." !d. at 13.
This completes Berman's review of the facts and events, and he now begins the analysis section. Here he states that the Award should be vacated and briefly enumerates the reasons, which appear to be strictly limited to process and directly related to fairness and due process issues:
quote:
The Court is fully aware of the deference afforded to arbitral decisions, but, nevertheless, concludes that the Award should be vacated. The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel Jeff Pash; and (C) denial of equal access to investigative files, including witness interview notes.
Here's Berman's ruling against Goodell's justification of four games of suspension because it was like a steroid violation (bold in original):
quote:
The Court finds that no player alleged or found to have had a general awareness of the inappropriate ball deflation activities of others or who allegedly schemed with others to let air out of footballs in a championship game and also had not cooperated in an ensuing investigation, reasonably could be on notice that their discipline would (or should) be the same as applied to a player who violated the NFL Policy on Anabolic Steroids and Related Substances. Brady had no such notice. "When it is clear that the arbitrator 'must have based his award on some body of thought, or feeling, or policy, or law that is outside the contract and not incorporated in it by reference ... the arbitrator has failed to draw the award from the essence of the collective bargaining agreement." In re Marine Pollution Serv .. Inc., 857 F.2d 91, 94 (2d Cir. 1988) (quoting Ethyl Corn. v. United Steelworkers, 768 F.2d 180, 184-85 (7th Cir. 1985), cert. denied I 06 S. Ct. 1184); see also Bounty-Gate, slip op. at 6 ("In other words, rightly or wrongly, a sharp change in sanctions or discipline can often be seen as arbitrary and as an impediment rather than an instrument of change.").
Berman continues on to rule that Brady wasn't provided adequate notice, and that the "conduct detrimental to the league" charge didn't apply because it was in the Competitive Policy that isn't made available to players. Apparently by arguing on that basis, rather than on the basis of the Player Policies document, the NFL loses.
Berman also ruled that the failure of the NFL to permit examination of Pash "was fundamentally unfair and in vioaltion of 9 U.S.C. !O(a)(3)," as was their denial of access to investigative files.
Here's the final paragraph:
quote:
For the reasons stated herein, the Management Council's motion to confirm the arbitration award [ECF No.4] is denied and the Players Association's motion to vacate the arbitration award [ECF No. 28] is granted. Brady's four-game suspension is vacated, effective immediately. The Clerk is respectfully requested to close cases 15 Civ. 5916 and 15 Civ. 5982.
--Percy

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 280 of 466 (767914)
09-03-2015 12:40 PM


NFL Will Appeal
As expected, the NFL has already announced that it will appeal the Berman ruling to the U.S. Court of Appeals for the Second Circuit. Timetables not known yet.
--Percy

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 281 of 466 (767916)
09-03-2015 12:50 PM


DeMaurice Smith Gets to the Heart of the Matter
DeMaurice Smith, Executive Director of the NFLPA, got to the heart of the matter in his statement today:
quote:
This decision should prove, once and for all, that our Collective Bargaining Agreement does not grant this Commissioner the authority to be unfair, arbitrary and misleading. While the CBA grants the person who occupies the position of Commissioner the ability to judiciously and fairly exercise the designated power of that position, the union did not agree to attempts to unfairly, illegally exercise that power, contrary to what the NFL has repeatedly and wrongfully claimed.
--Percy

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 282 of 466 (768023)
09-04-2015 5:52 PM


Changing Disciplinary Procedures
Back in Message 184 I suggested that if the NFL loses the Brady case that Goodell may be amenable to renegotiating the CBA before 2020 when it expires because he sees that the current approach just isn't working, but today's Washington Post reported that it is the owners who may push change (NFL owners to discuss changing Roger Goodell’s role in disciplinary process):
quote:
Owners of NFL teams plan to discuss the possibility of changing Commissioner Roger Goodell’s role in the player disciplinary process, several people familiar with the situation said Friday.
Although it’s uncertain whether Goodell’s authority would be reduced, the decision to reevaluate his role resolving appeals is the first solid sign the outcome of Tom Brady’s court case could have a lasting and significant impact on his position.
...
Another person familiar with the league’s inner workings said Friday it is too soon to know whether enough owners favor such a change for the NFL to engage the players’ union in discussions about possible modifications to the disciplinary process. The union has been pushing for a neutral arbitrator to hear appeals in certain cases of player discipline, replacing Goodell, who currently occupies that role.
--Percy

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 283 of 466 (768043)
09-05-2015 9:32 AM


The NYT Chimes In
Yesterday's New York Times printed an analysis of the recently concluded court proceedings (For His Arrogance in Tom Brady Ruling, Roger Goodell Pays the Price).
As I argued through much of this process, the proceedings were not fair. The judge agreed, and the Times, significantly as home to Patriot archrivals Jets and Giants, also agreed:
quote:
The words fundamentally unfair appear in Berman’s decision, accompanied by a chaser of inadequate and improperly denied. Goodell, the judge noted, tried to dispense his own brand of industrial justice.
That is not legal.
The commissioner and the N.F.L. once again behaved with arrogance cubed. For seemingly the 149th time in the past half-decade, a federal judge has ruled that this management culture of disdain is at odds with legal rules of fair play.
A district court, the judge wrote, will not countenance, much less confirm, an award obtained without the requisites of fairness or due process.
In the wake of the judge's ruling I'm seeing the term "industrial justice" kicked around quite a bit. I still don't know what it means, and I don't think the people using it know, either. It sounds like a bad thing, but in just what way I don't think anyone knows (except the labor lawyers). My guess is that it refers to what happens when businesses tilt the justice they're responsible for, such as disciplining employees, unfairly toward their own best interests. Cracking down on whistle blowers might be an example of imposing "industrial justice."
But I don't really know for sure. It would be welcome if someone could supply a definition.
The Times had no kinds words for either Brady or Belichick:
quote:
The judge’s decision offers no exoneration for Patriots quarterback Tom Brady, who is accused of relying on improperly deflated game balls (Sigmund Freud would have had a field day with the argot of this case). For months, Brady piled the unlikely atop the improbable excuse until the edifice threatened to tumble down atop him. The text messages of the Patriots’ clubhouse men one of whom dubbed himself the Deflator and the quarterback’s sleep-with-the-fishes insistence on destroying his cellphone just before his interview with league investigators: These actions would rouse a sleeping man to a sudden state of deep suspicion.
Brady and his forever scheming coach, Bill Belichick, will not serve as poster boys for a League Innocence Project. The Patriots are a too-clever-by-half franchise, expert at the semi-dirty trick. For now, however, let’s forget these perhaps not entirely trustworthy gentlemen.
The Times singles out NFL executive vice president and general counsel Jeff Pash as being singularly responsible for the disaster in court:
quote:
Berman yanked back the curtain on the N.F.L. If Goodell’s slack-jawed and blandly handsome countenance is the face of the league, its executive vice president and general counsel, Jeff Pash, is described as the true Wizard of Oz, pulling the levers and pushing the buttons on deeply lucrative deals with television networks, marketers and the like.
Pash was the unavoidable man in the deflated balls investigation. When the league appointed the lawyer Theodore V. Wells Jr. to run an independent investigation, Pash served as Wells’s co-lead investigator. When Wells wrote his independent report which came at a cost of several million dollars Pash showed up as an editor. The league insisted there was no conflict to be divined; its man Pash (who is a Harvard-trained lawyer) served as a highly paid copy editor, fiddling with a semicolon here, an adverb there.
Suffice to say, this insistence set fire alarms to clanging in the craniums of Brady’s lawyers. They demanded to cross-examine Pash. No, Goodell ruled, that will not happen.
Berman all but wrinkled his rhetorical nose. With that denial, he wrote, Goodell prejudiced Brady: Commissioner Goodell’s denial of Brady’s motion to compel the testimony of Mr. Pash was fundamentally unfair.
Goodell isn't a lawyer. In his actions during Deflategate he had to rely upon the the advice he received from the lawyers on his staff, and the necessary advice was either absent or very bad. They either advised or in some way allowed Goodell to a) deny Brady the right to cross examine Jeff Pash (co-edited the Wells report, for one); b) deny Brady the right to papers and notes compiled by the investigation; c) impose an unprecedented punishment.
About that last, it is something I have long argued in this thread, that Brady's punishment was far out of proportion to the evidence and the offense, and the judge agreed, criticizing the "generally aware" standard, and casting as outlandish the NFL's comparison of deflating footballs to steroid abuse.
Goodell's job is widely believed to be safe for the next few years until his contract expires in early 2019, but speculation here in New England is that there may be a shakeup in Goodell's support staff. Some of those would be Jeff Pash (executive vice president and general counsel), Gregg Levy (NFL legal counsel) and Mike Kensil (VP of game operations).
--Percy

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 284 of 466 (768047)
09-05-2015 11:21 AM


Brady Not Exonerated?
Was Brady exonerated? No, of course not. Brady was not found not guilty of running a conspiracy to deflate footballs, nor even of Well's charge that he was "generally aware." Judge Berman only found that the NFL had violated the CBA and the FAA (Federal Arbitration Act) when they conducted Brady's arbitration hearing.
Today's Boston Globe makes that point in Ben Volin's article Brady cleared on procedural issues, but that doesn't mean he's innocent. Ben Volin has written neutrally and insightfully on Deflategate since the beginning, and he says:
quote:
But it’s not unreasonable to think that the Patriots were tinkering with the footballs. It’s reasonable to believe that Brady was putting a lot of pressure on McNally and John Jastremski to get the footballs just right after they were overinflated for a game against the Jets in October. So after inspection, McNally would take the footballs and top them off, so to speak, just taking a tick or two more out of them, whether it was in the bathroom, on the sideline, or in some other area of the stadium.
I have to disagree. Brady wasn't exonerated in court of deflating footballs only because he wasn't charged in court with deflating footballs. The court hearings were about the arbitration process. It would be far more accurate to say that it was the NFL's following of the arbitration process that was on trial.
I believe Ben Volin is wrong to state that believing the Patriots tampered with footballs is reasonable. I grant that it's possible, but certainly not reasonable. As I'm fond of saying, things that have actually happened leave evidence behind, and enough evidence can unambiguously reveal past events. But hard evidence of past events is missing in this case. Brady was only found "guilty" by a bunch of biased NFL bozos who know little to nothing about gathering and interpreting evidence.
Unfortunately the law does not allow the NFL's "facts" nor their interpretation of the facts to be challenged in court. But the AEI report says it is very unlikely there was any tampering, and Brady himself said:
quote:
"I have a process that I go through before every game where I go in and pick the balls that I want... Our equipment guys do a great job of breaking the balls in ... When I pick those footballs out at that point, you know to me they're perfect. I don't want anyone touching the balls after that."
Brady knows he likes footballs inflated to around 12.5 psi, and he doesn't know he likes footballs inflated below that pressure because it isn't a pressure he ever knowingly uses in practice or in games. Anyone suggesting that Brady wanted pressure let out of the balls after they'd been given to the referees at a pressure of 12.5 psi and who presumably would have left the pressure alone is actually arguing that Brady was setting himself up to use footballs inflated to a lower pressure than he ever practiced with. That makes no sense.
There's also the absence of any record of the original pressure of the footballs. The halftime measurements indicate loss of pressure in the footballs (ignoring the Ideal Gas Law and the effects of temperature on pressure for the moment) only if you assume the footballs were properly inflated before the game. Given that the referees somehow overinflated Patriot footballs to 16 psi in the October Jets game, it isn't any wild speculation to think that possibly the referees underinflated Patriot footballs in the AFC Colts game. To believe the footballs were deflated requires the assumption that the footballs were properly inflated in the first place.
Repeating what I said earlier, we have to remember that the same NFL incompetents who managed to screw up what should have been a simple and unchallengeable arbitration also ran the investigation. It must be kept in mind that even though Roger Goodell had appointed himself arbitrator so he could insure the outcome, he still wouldn't allow examination of Pash or of the investigation's notes. Had Goodell allowed these things, what would have been revealed that would have threatened Goodell's ability to uphold Brady's four game suspension? Whatever it was, it must have been pretty damning, enough to expose Goodell to charges of being "arbitrary and capricious" had he upheld the suspension anyway.
People will believe what they will, but people who require evidence for what they believe end up believing many fewer things than people willing to accept assumptions and innuendo. The evidence says we don't know what happened, and the scientific evidence says there was very likely no tampering at all.
--Percy

  
Percy
Member
Posts: 22392
From: New Hampshire
Joined: 12-23-2000
Member Rating: 5.2


Message 285 of 466 (768052)
09-05-2015 12:02 PM


The Cell Phone Issue
The Boston sports media has been as hard on Brady about destroying his cell phone as everyone else, but it's yet another issue I disagree with. The NFL says they gave Brady every assurance that his cell phone data would be treated securely and with circumspection so that only information related to football would be examined, and I'm sure they sincerely believed those assurances, but the fact of the matter is that tons of businesses give similar assurances, and as we've seen with all the recent security lapses, such assurances are worth nothing. I'm sure the NFL knows even less about computer security than they do about proper arbitration procedures.
Brady was being extremely prudent to not turn over his phone. The NFL would have taken the cell phone's sim card and downloaded *all* it's data onto a laptop. From there they could run software allowing them to peruse the data and separate out the relevant information from the chaff. To decide whether information is relevant or not they would first have to see it. How trustworthy would the people be who would be reviewing this data? If offered $10,000 to tell what they saw, would they leak it? Would the laptop ever be on the Internet? Could the laptop be stolen?
There's nothing of interest on my private cell phone (it's just a dumb cell phone), but if asked to turn it over for some reason (perhaps my employer is seeking the source of a leak) I would refuse. There's a privacy issue involved. Maybe I'm wrong that there's nothing on it. I've had essentially the same sim card since 1997 (meaning only that when I get a new cell phone the contents of the old sim card are copied to the new sim card), so who knows what's really buried in there. Might it reveal that I was somewhere or called someone that could be portrayed as potentially embarrassing at some time in all those years? Unlikely, but I live a very uncomplicated life. I don't even do texting, relying instead upon email. But if I were Tom Brady I would just assume that somehow in some way people could make data from the cell phone seem embarrassing or incriminating, and I would strongly resist turning the phone over.
I know Jeffrey Kessler said during court hearings that he thinks Brady and his agent mismanaged the cell phone issue, but I strongly disagree. I think if you put me and Kessler and an NFL technical representative in a room that I could ask the NFL representative questions that would convince Kessler that Brady's data would be at risk if he turned his cell phone over to the NFL, or at least that the necessary assurances hadn't yet been provided.
Again, Brady was being extremely prudent to not turn over his cell phone.
--Percy

  
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