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Author | Topic: Deflation-gate | |||||||||||||||||||||||||||||||||||||
Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
This is a difference of opinion and not, IMO, an error. Yes, of course in your opinion it's not an error. That's why your claim that you admit error when shown you're wrong was totally bogus. You just extend the arguing interminably.
The fact that you make a vehement argument does not mean that you've rebutted my point. There was no vehement argument, and the fact that you refuse to admit obvious error supports my point that you refuse to admit obvious error.
Dissembling isn't lying, it's giving things a false appearance. What you've just described is lying. What I've just described is dissembling. Look it up. You seem to have an intense desire to be wrong about simple things. Sports organizations, lawyers, judges, they all think Brady's hearing was arbitration, but you don't, and you're right. And dictionaries and thesauri all agree that dissembling and lying are not synonyms, but you don't, and you're right. Yeah, sure.
Again, those distinctions exist regardless of what you call the procedure. Your insistence on making this about the name only is dissembling. Yes, of course to you this isn't about the name. In order to be right you've got to bring in a host of other issues, issues hinted at nowhere in any of the deflategate legal proceedings. They're all in your head. --Percy
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NoNukes Inactive Member |
Yes, of course in your opinion it's not an error. That's why your claim that you admit error when shown you're wrong was totally bogus. You just extend the arguing interminably. Which of course is your opinion. You haven't shown that I'm wrong. You've simply made an argument that I am wrong, while I've made arguments in support of my position. And of course the text of Article 46 is not an issue that is only in my head. I'm not the only person to cite the article in discussions of the hearing. Your statement to the contrary is simply not correct. Deflategate is back: Previewing NFL's appeal hearing vs. Brady - Sports Illustrated
quote: quote: Edited by NoNukes, : No reason given. 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
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
Are you daft? Have you lost your memory? The statement you're defending yourself against was this one in my Message 377:
Percy in Message 377 writes: NoNukes writes: Or perhaps I don't live and breathe the details like you do. When my errors are pointed out, I have no problem acknowledging them. Yeah, right. I'm still waiting for your acknowledgement of your error about whether Brady's hearing before Goodell was arbitration. Everyone but you thinks it was an arbitration hearing. The NFL called it arbitration, the NFLPA called it arbitration, Berman called it arbitration, they've all cited the FAA (Federal Arbitration Act), they've all cited other arbitration cases. For example, this is from the recent NFLPA Amended Answer and Counter Claim:
quote: Time to admit you were wrong. --Percy
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0
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Most analysts thought the questions of the 2nd circuit's 3-judge panel during the NFL's appeal indicated they were leaning toward overturning Judge Berman's ruling. Michael McMcann of si.com last week posted an article that strikes a hopeful note: New hope for Tom Brady? Rethinking the Deflategate appeal, hitting on some of same points I have raised. Some excerpts:
quote: McCann makes clear that Judge Chin can rightfully come to completely different conclusions than Judge Berman, but it appears he accepts Goodell's judgment of what Brady did, which goes far beyond the Wells report. It's obvious how disparate are the two conclusions when put one after the other:
It is such leaps as this that helped prompt Berman to rule that Goodell's denial of access to witnesses and notes hindered Brady's ability to defend himself during the arbitration hearing. A final excerpt about Judge Chin and the evidence:
quote: There's much more after this, but more technical and less interesting, so I'll just say that it raises questions about some of the information the NFL presented to the 3-judge panel. McCann concludes with some views from other attorneys. This one echoes my own thoughts concerning questions about Brady's phone:
quote: This one echoes my thoughts about Goodell's unjustifiably upping the accusations from the Wells report:
quote: This one echoes my thoughts about the judges' comments on the evidence, that the judges were operating out of ignorance:
quote: I call attention to the fact that these attorneys are echoing comments I've made myself because when I made them their reasonableness was called into question. That respected attorneys are reaching similar conclusions should put this questioning to rest. This is not to say that I'm right or they're right, only that I wasn't making off-the-wall comments drawn out of thin air. --Percy Edited by Percy, : Grammar.
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0
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The United States Court of Appeals for the Second Circuit has today reinstated Brady's four game suspension, here's the ruling: NFL v Brady. I'll have more to say when I've read it, but what this means is that unless Brady chooses to appeal he will sit out the first four games of the 2016 season.
AbE: Apparently the vote was 2-1, the dissent can be found here: Katzmann, Chief Judge, dissenting --Percy Edited by Percy, : AbE.
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xongsmith Member Posts: 2587 From: massachusetts US Joined: Member Rating: 6.5 |
In many a dark hour
I've been thinkin' about this That our hero Tom Brady Was betrayed by a hiss But I can't think for you The courts have to explain Why the NFL Commissioner Hates the Patriot's Game - xongsmith, 5.7d
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
I'll probably start reading the ruling and the dissent later today, but I do have a couple reactions after reading this morning's papers.
The articles I read are uniform in saying that the ruling is unlikely to be appealed or just that Brady should not appeal, but none give any rationale. The ruling can be appealed to either the full Second Circuit or to the Supreme Court. If for no other reason than to earn a further delay, I can't see why Brady wouldn't appeal. Brady is 38, and given how glacially the legal process can move it isn't hard to envision Brady escaping any suspension by simply continuing his appeals until he retires. My other reaction is more a question. I'm wondering if the ruling's majority opinion makes clear just what a commissioner would have to do to be seen as acting in a biased and unfair manner according to the Federal Arbitration Act (FAA). There must be limits to the arbitrariness of his actions, right? I mean, we don't have to start speculating about absurd actions (capital punishment?) to find ones the Second Circuit would find unfair, do we? Surely there must be actions that aren't absurd but that are actually possible that the Second Circuit would rule against. There must be *some* actions that the FAA provides protections against. So will the ruling provide a hint what they might be? I'll be keeping my eye out. AbE: The New York Daily News has an article that more informatively discusses Brady's appeal options: Deflategate battle between Tom Brady and NFL could go to Supreme Court --Percy Edited by Percy, : AbE.
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
I'm up to page 15 of the 2nd Circuit's ruling reinstating Brady's four game suspension. Meanwhile today's papers had a couple good articles. Here are excerpts from Tom Brady’s lawyers missed the point: his innocence in the Washington Post. Sorry for the length, I just found much of the article salient:
quote: Another article in the Post, What’s next for Tom Brady after Deflategate setback? argues that the case could go on:
quote: Interesting. I'm still unclear about how the process goes from here. Since the 3-judge panel remanded the case back to judge Berman, when does that happen, and is that a hearing or just paperwork? If Brady appeals to the full 2nd Circuit or the Supreme Court, is the remanding back to Judge Berman put on hold? Does Brady actually have the option of appealing to the Supreme Court instead of the full 2nd Circuit? If the full 2nd circuit rejects the appeal, does Brady then have the option of appealing to the Supreme Court? Apparently there's been a lot of legal chatter on local talk radio, but I haven't had time to listen to it. --Percy
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AZPaul3 Member Posts: 8551 From: Phoenix Joined: Member Rating: 4.9 |
Thank you for all this, btw.
So the court did what courts are most apt to do; rule on as narrow an issue as possible. This one turns on a narrow issue in contract law. Did Goodell act outside the CBA in acting as booth discipliner and arbitrator on the same case? No. Not according to the CBA. The fairness issue, the court seemed to say, was not in their purview. As I understand the process from here Judge Berman can hold a hearing or just re-issue his opinion in line with the instructions he receives from the Circuit court: the CBA was not violated, uphold the suspension. If Brady appeals to the full Circuit then Berman will probably delay his new ruling pending the appeal. But Brady will need to give Berman notice of the appeal in the next few days. The NFL will be pushing for a quick ruling from Berman. To appeal to the full Circuit Brady will need grounds to challenge the present ruling as error. Those grounds may be within Katzmann's dissent, which I haven't read. If the full Circuit rejects the appeal then that means the full Circuit finds the grounds cited as insufficient for the appeal. Brady may then go on and appeal to SCOTUS but I'm thinking the Supremes will ultimately find the same deficiency of grounds as did the full Circuit. Unfair will not be adequate grounds for such an appeal, and Goodell's misconduct will be hard to sustain as grounds since that wasn't challenged as part of the original appeal. I look forward to your continuing analysis. Thanks again.
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
The Second Circuit ruling references the briefs filed by the NFL and the NFLPA, but I can't find copies. I'm continuing to look, but if anyone knows where they please let me know. Thanks.
--Percy
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NoNukes Inactive Member |
I have to admit to being drawn back to this group by the Subject heading: Need Briefs. Got a bit of a chuckle out of it. Apparently I am spending too much time around eighth graders these days.
I don't know of any way to get a free electronic copy of the briefs. My understanding is that the PACER system for retrieving and filing appellate court briefs is relatively inexpensive, but I have never been responsible for paying for access. I think you can register and search for the documents for free. Maybe the briefs will eventually turn up on the web for free.
The articles I read are uniform in saying that the ruling is unlikely to be appealed or just that Brady should not appeal, but none give any rationale. The ruling can be appealed to either the full Second Circuit or to the Supreme Court. Small technical correction. The request to have the full circuit hear the case is actually a petition for a re-hearing rather than yet another appeal. Lest that seem to be nitpicking, understand that the circumstances under which the appellate court will grant a re-hearing are quite limited. And of course an appeal to the Supreme Court is not granted as a matter of right either. Not sure what the calculus is regarding whether Brady should appeal. But I'd say that the odds on either the re-hearing being granted or the Supreme Court granting cert. are quite unfavorable. And by that I mean generally speaking and not as a comment on the merits of this particular case. 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
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
Brady wants to buy as much time as he can, hopefully right up to retirement, so the most important issue, even more important then his chances of having re-hearings or appeals accepted let alone winning, is how long each part of the process will take. To draw the process out as long as possible I think it might be done like this, and I add my guesses of roughly how long each step will take:
So I guestimate that Brady could draw the process out at least through the next season, and possibly another season after that. --Percy
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AZPaul3 Member Posts: 8551 From: Phoenix Joined: Member Rating: 4.9 |
Or he could stop the appeals, serve out his suspensions and be done with it come October. It will not hang over him for the next year+ and he can concentrate on what he does best - win football games. At the end of his career this episode will still be there but most followers and fans will understand the Goodell overstapped his bounds without cause.
It won't hurt him or his reputation one little bit since we already know nothing happened and the league is full of shit. Edited by AZPaul3, : No reason given.
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
Here are my comments on the ruling of the Second Circuit on the NFL v. Brady case. A copy of ruling can be found here:
http://a.espncdn.com/pdf/2016/0425/BradyRulingReversed.pdf From page 2:
quote: Part of the summary on page 3:
quote: From page 4:
quote: What about the Federal Arbitration Act (FAA)? More from the same paragraph:
quote: Obviously perfection isn't required in arbitration awards, nor in much else in life, but "fairness" is noteable for its lack of mention in this paragraph and in subsequent paragraphs that I shant quote. In the "Background" section they describe all the evidence from the NFL's point of view, including how Brady was denied access to NFL VP and General Counsel Jeff Pash or of Paul, Weiss's (a legal firm) internal investigation notes. They don't seem concerned about how badly this handicapped Brady's ability to put a different point of view on the record. This was Brady's only opportunity to put forward his own viewpoint, given that appeals are about process and not evidence. They seemed to accept everything Goodell said and question everything Brady said. They call special attention to Brady's comments about his cell phones, which are problematic, but call no attention to Goodell's many comments that were also problematic. If in the remainder of the ruling I find them questioning anything Goodell did or said I'll be sure to mention it. They also strictly follow the NFL's point of view concerning the text messages. And despite claiming an understanding of the Ideal Gas Law, they fail to take it into accont when describing the intercepted ball that measured beneath its original 12.5 PSI, believing this indicated deflation instead of just the effects of temperature. On page 10 they summarize Goodells "equivalent to steroid use" argument without questioning it at all. This part of their ruling on page 12 probably explains their position, though it makes no sense:
quote: Hopefully this becomes more clear as I read on, but I think they're saying that if the arbitrator thinks he has the facts right then he has the facts right, thereby making unfairness impossible. I was hoping they would make clear how, given their stance, an arbitrator could be unfair, but so far, nothing. It's almost as if they believe it impossible for an arbitrator to be unfair. And will they ever mention the FAA? From page 12:
quote: They never explain how Goodell's actions were not his 'own brand of industrial justice,' i.e., arbitrary, capricious and biased - they just declare that it isn't. This is the last mention of industrial justice in the ruling. From page 13:
quote: The "Association" would be the NFL Players Association (NFLPA). It seems disingenuous for the 2nd Circuit to say this. Of course the NFLPA didn't contest the factual findings on appeal: you're not supposed to question the factual findings, just the process. Am I missing something here? Why is the ruling stating this in a way that makes the NFLPA's seem to be conceding that the facts were incontestable? Weird. Page 15-16 describes the judges' belief that the NFLPA argued one way about the Player Policies at the arbitration hearing before Goodell, and then argued another way in their appeal to the Second Circuit. I went back to the transcript of the arbitration hearing and found that they are incorrect. From page 15 of the ruling:
quote: The quoted statement is from Jeffrey Kessler's (NFLPA and Brady lawyer) opening statement in the arbitration hearing before Roger Goodell, but if you read the arbitration hearing transcript beginning at the bottom of page 25 (Brady arbitration hearing transcript), Kessler did say that, but he went on to say much more. He stated that they don't believe the Player Policies apply, noted the Wells Report took the same position, and then he considers the opposite position as if the Player Policy *did* apply. So when the judges cite this from prior law:
quote: The judges are dead wrong, because Kessler had not been silent about what application of the Player Policy would have meant. They continue:
quote: So here they implicitly acknowledge that Kessler wasn't silent about the implications of the Player Policy during arbitration, since here they indicate awareness of his arguements about the "punishments for equipment violations." How could they claim Kessler was silent about the Player Policies while at the same time indicating awareness that he talked about it beyond that first comment? You'd think top judges assisted by some of the most able and ambitious law clerks in the country wouldn't make obvious mistakes like this. One can imagine that Jeffrey Kessler being furious about this playing fast and loose with the facts in a way that makes it look like he argued inconsistently, and is perhaps encouraging an appeal. No word on that yet. On page 16 the ruling says:
quote: The judges err here. The NFLPA did not "find language" that was not in in the "Other Uniform/Equipment Violations" on page 15 of the Players Policies. They only summarized in their own words their interpretation of its meaning. They were not quoting from it. A PDF of the Player Policies can be found here:
quote: In addition, the very first sentence of that section refers to the "Uniform Policy" that has all the details and that appears further on at the end of the section on page 24. The word "football" appears several times. In any case, the NFLPA brief is just stating their opinion that tampering is a type of equipment violation and that it includes ball deflation. For example, filing cleats to a different shape would be an obvious type of equipment tampering, but it isn't explicitly mentioned either. The Player Policies are ambiguous concerning punishment for first time offenses. While it does say in several places that, "First offenses will result in fines," on page 20 it says:
quote: So the Player Policies document says both that first offenses are subject to fines, and it says that additional discipline may also be imposed. The court therefore rules that the NFL can impose whatever discipline they feel like. I'm still wondering where issues of fairness enter into this, and am becoming concerned that it's not at all. On page 16 the ruling says:
quote: Will the ruling ever deal with the fairness of the Commissioner declaring that the integrity of the game is whatever he says it is? On page 19-20 they address the leap Goodell made from Brady being "generally aware" to he "participated in a scheme to tamper with game balls." They don't mention that Goodell also declared that Brady "knew about, approved of, consented to, and provided inducements and rewards of a scheme," so when they defend their version of a lesser leap they almost sound reasonable. Almost. They say that testimony during the arbitration hearing could have convinced Goodell of this more extreme finding, but we have the full transcript of that hearing, and there was no such testimony. The only surprise was Brady's destruction of his cell phone, and the NFL already had all the texts from McNally and Jastremski. Here's an interesting statement from page 25:
quote: Professional sports teams demonstrated inability to maintain secrecy seems motivation enough. These judges seem intent at considering only arguments favorable to what they already wanted to rule anyway. Missing is a balanced consideration of both sides of issues that is followed by an explanation of how the balance of conflicting considerations comes out in a certain way. For them only evidence pointing in a certain direction, the NFL version of the evidence, is worthy of consideration. Finally on page 27 the FAA and fairness makes its first appearance, concerning whether Goodell erred by refusing to make Pasch available to testify (I've removed the references to case law for the sake of readability):
quote: That's it. That's all the explanation they provide: They "see no such violation." They continue on for a couple more paragraphs, but just repeating their feeling that if Goodell declared that Pasch's testimony was unnecessary, that's good enough for them. On page 29 the judges argue similarly concerning the denial of access to investigative files. They say the Commissioner claimed to have not seen these internal files, and therefore they weren't needed by the NFLPA or Brady, either. But what if those files revealed errors or exculpatory evidence that wasn't in the report? What then? The judges don't consider this possibility, just declare that "there is simply no fundamental unfairness in affording the parties precisely what they agreed upon." Except that they didn't precisely agree upon this - there is no detail in the CBA on this point. Goodell might be within his rights to act as he did, but what he did is definitely not "precisely what they agreed upon." Summarizing, the judges failed to properly consider the constraints of the LMRA and the FAA, with the result that they ruled in favor of Goodell's brand of industrial justice, i.e., doing whatever he wants. I'll review Chief Judge Katzmann's dissenting opinion next. --Percy
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
AZPaul3 writes: Or he could stop the appeals, serve out his suspensions and be done with it come October. Agreed. That's the "let it go" argument. I don't think it's in his makeup. It's going to take some strong convincing for him to stop.
... the league is full of shit. Goodell's focus on what he calls "the integrity of the league" has done more to hurt the leagues image than anything any player has done. How can you trust a league management that fights responsibility for concussion effects while persecuting players and coaches for imagined offenses like bounties and deflation. If the NFL product were not so spectacularly successful for owners then Goodell's days would be numbered. --Percy
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