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Author | Topic: Deflation-gate | |||||||||||||||||||||||||||||||||||||
Percy Member Posts: 22500 From: New Hampshire Joined: Member Rating: 4.9 |
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: 22500 From: New Hampshire Joined: Member Rating: 4.9
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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: 22500 From: New Hampshire Joined: Member Rating: 4.9
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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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Percy Member Posts: 22500 From: New Hampshire Joined: Member Rating: 4.9 |
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: 22500 From: New Hampshire Joined: Member Rating: 4.9 |
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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Percy Member Posts: 22500 From: New Hampshire Joined: Member Rating: 4.9 |
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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Percy Member Posts: 22500 From: New Hampshire Joined: Member Rating: 4.9 |
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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Percy Member Posts: 22500 From: New Hampshire Joined: Member Rating: 4.9 |
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: 22500 From: New Hampshire Joined: Member Rating: 4.9 |
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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Percy Member Posts: 22500 From: New Hampshire Joined: Member Rating: 4.9 |
Here'a a link to Chief Judge Katzmann's dissent. I hope to review it soon.
--Percy
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Percy Member Posts: 22500 From: New Hampshire Joined: Member Rating: 4.9 |
Sports Illustrated legal expert Michael McCann yesterday reported that Brady has added more talent to his legal team:
quote: Summarizing for the majority whose eyes very reasonably glazed over at my long set of excerpts, Brady is likely to request a rehearing en banc (en banc just means all the judges of a court, instead of just a subset like the three judge panel that just reinstated Brady's suspension). If turned down Brady will appeal to the Supreme Court. If accepted, whoever loses will appeal to the Supreme Court. Will the Supreme Court agree to hear the appeal? Seems unlikely, but the absence of Scalia might increase the odds. With Scalia no longer around to stomp all over the proceedings the judges might feel the time is right to revisit labor arbitration fairness issues. --Percy Edited by Percy, : Remove accidentally repeated paragraph in quote.
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Percy Member Posts: 22500 From: New Hampshire Joined: Member Rating: 4.9 |
NoNukes writes: After all, the season is not going to start for a bit, and the commissioner might chose to concede that Brady can participate in events up until the start of the season. This isn't a problem because player suspensions don't begin until the season begins. Players under suspension can participate in all team activities until the season begins. Once the season begins they can no longer participate in team activities or practices, nor even be on team premises, until the suspension expires.
I think you've made an assumption that Brady can get a stay of the current ruling. That is not a given...The circuit court might decide that a stay is not needed. If a stay is granted, then the appellate court is unlikely to dally in making a call on the re-hearing. Recent articles have discussed these possibilities, possibly in some I linked to, but I don't recall which ones now.
Which brings me to my biggest complaint about this matter. How do we justify dedicating limited court resources to a sporting issue over more important cases anyway? Is any of this stuff really more important than the other cases that are getting bumped off the docket to expedite this matter? Surely not. We don't know what other cases are on the docket (is there a list online?), but the arbitration fairness issue seems a worthwhile one to me given how much employers are relying upon it these days. --Percy
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Percy Member Posts: 22500 From: New Hampshire Joined: Member Rating: 4.9 |
NoNukes writes: I believe that having a smaller number of justices definitely decreases the odds of cert being granted. Unlike the situation when deciding a case, you don't need a majority of the Justices to agree to grant cert. You simply need four votes. So a single opinionated guy cannot cause the court to reject a hearing of cert. But having a Justice missing reduces the chance of getting four votes. I don't see any history of Scalia badgering other Justices into denying cert. What I meant was that Scalia's absence might encourage the liberal justices to accept the appeal because it would make an outcome favorable to labor more likely. If Scalia were still around they might feel that success (from a liberal perspective) would be unlikely, and so there would be little point in accepting the appeal. Even if they thought success likely they might think twice about granting cert to this case at the expense of some other with a greater likelihood of success and knowing what a pain Scalia would be through the whole process. Scalia's increasingly acerbic and sarcastic comments during arguments the past few years strongly hints at what went on behind the scenes between he and justices who disagreed with him.
I'd also suggest that it is really unclear how Scalia would vote in this situation. I think it is well established that I don't think much of Scalia's opinion on many matters, but that is not because I believe Scalia is a government stooge or that he always sides with the little man over the big man. Scalia is a wingnut, but I am not sure what the wingnut version of justice is in this instance. My view of Scalia is that he was a deeply conservative justice who, by his own admission, confined his information sources to those who shared his conservative views. The court would very likely divide on ideological grounds on labor arbitration issues, and we know what side Scalia is on. --Percy
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Percy Member Posts: 22500 From: New Hampshire Joined: Member Rating: 4.9 |
Before I comment on the dissent I want to comment on the majority ruling on the topic of the deference given arbitrators. I waited until I began reading the dissent because it is on this point that Katzmann most strongly disagrees with the majority. Here's a link to the PDF of the majority ruling:
From page 3:
quote: Check. Understood. The courts lean strongly in deference to the arbitrator. But what they say next is incredibly puzzling:
quote: Are they saying they don't view their role as considering any challenges to "the arbitrators procedural rulings," or do they have a special meaning for "second-guess", because procedural grounds are the only ones upon which an arbitration ruling can be challenged. If appeals courts won't consider challenges to an arbitrator's findings of fact, and they won't consider challenges to an arbitrator's procedural rulings, then what is there left to appeal? In the next sentence they explain what they feel is left to appeal:
quote: This is a link to the LMRA, also known as Taft-Harley. It was passed in 1947, nearly 70 years ago. It barely mentions arbitration or arbitrators and not in any substantial way relevant to deference that I can find. The consecutive letters "defer" do not appear in the LMRA. I just finished skimming it and did not see anything particularly relevant to arbitration or deference. I'll try to track down where the LMRA says anything like this by checking the case law they cite in the next sentence:
quote: So off we go to this 30-year old ruling, United Paperworks Int'l Union v. Misco, Inc.. Here's the paragraph containing the rulings first quote:
quote: Look at that last sentence. We understand errors of fact can't be challenged, but apparently the arbitrator can misinterpret the contract any way he pleases and can't be challenged in court. Really? That's kind of unbelievable, so let's trace this back further. The ruling says this has been the law for 30 years before 1987, and their reference is Steelworkers v. Enterprise Wheel & Car Corp. They quote from it (and this should look familiar by now for those who have been keeping up with things):
quote: So off we go to Steelworkers v. Enterprise Wheel & Car Corp to see if we can find where the judges found this in the LMRA. Here's the full paragraph containing those quotes:
quote: The sense of this paragraph stands in stark contrast to the way it was characterized by the majority judges of the Second Circuit. It talks about "informed judgment" and "a fair solution of a problem." An arbitrator must confine himself to "interpretation and application of the collective bargaining agreeing; he does not sit to dispense his own brand of industrial justice." The clear meaning is that arbitrators cannot decide that CBA's mean whatver they say they mean. No connection to the LMRA is ever described or even mentioned, and there is not even a reference to the LMRA in the ruling. Neither the abbreviation "LMRA" nor the full "Labor Management Relations Act" nor "Taft Hartley" appear anywhere in the ruling. Everybody got that? Allow me to shout: THE LMRA NOWHERE STATES THAT ARBITRATORS MUST BE GIVEN BROAD DEFERENCE BY THE COURTS. Now I admit that I've been doing lots of fast reading and searching and could have missed where in the LMRA it says this, so if I'm wrong then someone just point me to the right place in the LMRA. But let's face it - if the LMRA were clear on this point then judges would just reference chapter and verse of the LMRA. But they don't. They instead bury the claim by referencing case law that references other case law that doesn't even mention the LMRA. In subsequent paragraphs the justices explain why they deny the appeal, but the specifics of Steelworkers v. Enterprise do not resemble Brady/NFLPA v. NFL . The only conclusion is that the single case cited by the majority judges of the Second Circuit does not support their see-no-evil, hear-no-evil take on how arbitrators can act with impunity. --Percy Edited by Percy, : Grammar.
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Percy Member Posts: 22500 From: New Hampshire Joined: Member Rating: 4.9 |
NoNukes writes: This particular case, IMO, is primarily a contract case rather than an arbitration case, but of course that is one point on which you and I disagree. *Everybody* disagrees with you.
This particular case, IMO, is primarily a contract case rather than an arbitration case, but of course that is one point on which you and I disagree. It appears to me that the primary obstacle that Brady faces is the poor bargain negotiated by the players lawyers with respect to disputes over matters "detrimental to the league". The primary point of disagreement between the parties can be explained like this:
--Percy
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