Deflation-gate

PACER is one of the places I tried. I used to have access, but my account was old and I had to reapply. They just approved me. Not sure if that means free, or if it just allows me to download documents for a fee. In the meantime I was able to find all the documents I wanted at other sites. The PDFs are out there, but finding them is more difficult than it used to be. Fewer and fewer sites are providing anything for free.--Percy

I'm pretty sure that you must pay a fee for downloading. I'm sure the fee is pretty small, but I don't want to pay it. But you can search for free.

The 2nd U.S. Circuit Court of Appeals has granted Brady's and the NFLPA's request for a two week extension for filing for a rehearing before the full court of 15 judges:

• Tom Brady, NFLPA granted extension in Deflategate battle
  
• Court grants Tom Brady extension to appeal Deflategate decision

The rehearing request would just be an attempt to postpone serving the 4-game suspension, except that the NFLPA/Brady have added lawyer Ted Olson to their legal team. He claims to have prevailed in Supreme Court cases 75% of the time.--Percy

When a request for re-hearing is filed on time, the appellate court is supposed to respond within thirty days of the end of the trial. I assume that the court gets some extra time when there is petition to allow a late filing. (By the way, very little excuse is required for granting an extension as long as you don't wait until the last second to file). But the point is that the delay involved with an unsuccessful petition for a rehearing is minimal.I have to assume that the request for re-hearing is a serious attempt to ask for reconsideration on the merits rather than a stalling tactic. At the very least, the petitioners might put themselves in better position to ask for a stay. Edited by NoNukes, : No reason given.

To be more clear and specific, Brady will take the appeal process as far as he can because a) He believes he was wronged and wants desperately to prevail; and b) If he doesn't prevail then the process might take longer than the rest of his career, or at least a good part of it, rendering the suspension moot or mostly moot.The remaining steps in the process could take a long time because, as mentioned in earlier posts, whoever loses or is turned down will appeal to the Supreme Court. An interesting question is what is the shortest and longest it could take. Here are all the steps I can think of. Steps that are guaranteed to happen are in bold:

1. Brady/NFLPA file for a rehearing before the full Second Circuit by May 23, 2016.
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2. The full Second Circuit accepts or rejects the request. If it's true that they're supposed to respond within 30 days then reasonable estimates of the earliest date would be June 6 and the latest June 30.
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3. The Second Circuit accepts the request for a rehearing and the rehearing takes place. I don't know how long this would take or the details of the process. Brady will request a stay of the suspension if he loses.
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4. The Second Circuit rejects the request for a rehearing. Brady will request a stay of the suspension. I don't know how long this will take.
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5. An appeal is filed with the Supreme Court by either the NFL or NFLPA/Brady, depending upon what went before. I don't know how long this will take.
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6. The Supreme Court considers the request for cert and either accepts or rejects it. I don't know how long this would take.
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7. If the Supreme Court declines to hear the appeal, then the process is over. Brady begins serving his suspension immediately with the next regular season or playoff game.
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8. The Supreme Court accepts the appeal, and the appeal process continues forward. I don't know how long this would take.

The shortest the process could take would be steps 1, 2, 4, 5, 6, 7. I'm going to guess that since the Supreme Court will be at or near the end of its current term by the time they receive a request for cert that they will not decide until the next term, which begins in October. Given that they receive thousands of requests every year, they'll probably take at least until next year to issue decisions about cert. So at a minimum Brady plays this entire season.The longest the process could take would be steps 1, 2, 3, 5, 6, 8. This includes hearings before both the full Second Circuit and the Supreme Court. I'll guess that in this case, even if Brady ultimately loses, he plays out the rest of career until retirement at age 41, three seasons from now.But I'm no expert on the process, so comments/feedback on these guestimates are appreciated.--Percy

Could be shorter. Some other possibilities...Stays are not automatically granted. It is required that the petitioner make some showing that he could win on the merits. In addition, the relative harm to the positions of both parties is also considered to see if a stay should or should not be granted. I note that this is the first time that the case has been in the position where a stay would eliminate any suspension of Brady and also the first time a stay has been requested after a decision on the merits.The fact that a stay would effectively eliminate all of Brady's punishment might weigh against granting the stay. It might even be necessary for Brady to appeal to the Supreme Court in order to get a stay granted. In that case, the entire case may effectively hinge on whether that stay is granted. Either side might give up at that point. If the stay is not granted while the case is in the status where Brady has lost, then Brady's appeal will effectively be over. If the stay is granted, the NFL may take that as a hint that cert will be granted. Generally these things are handled far more quickly than decisions on the merits. As an extreme example, stays in death penalty cases can be granted or denied within hours of receiving the request.Alternatively, the court might feel that Brady's suspension could become a monetary fine possibly approaching four games worth of salary that would lean towards granting a stay. That would remove all urgency from the case. Brady might need to post a fairly large bond in order to receive the stay.Edited by NoNukes, : No reason given.Edited by NoNukes, : No reason given.

Brady renegotiated his contract this off season. I do not recall the exact numbers, but I'm probably not way off if I say that his $16 million salary for the upcoming season was renegotiated down to $1 million with a $15 million bonus. Loss of salary for four games would amount to only $250,000. The articles I've read by legal experts assume the request for a stay would be monetarily based, but I don't know if they knew about Brady's new lower salary.Even if Brady does not receive the stay, I think he'll still exhaust all legal options. It's personal and has been for a while.--Percy

He might well do that. I assume that he will. But hearing a no from the Supreme Court on a preliminary matter might be a sufficient hint that its over. I think a fine of four games salary is probably not a good measure for the bond a court may or may not require of Brady, but I am also not sure that those salary negotiations would limit the size of the fine that can be applied to Brady. I suspect that the size of the fine in lieu of a suspension would be based on Brady's total compensation.ABE:Or at least I can say that such a fine is not ruled out. I don't know what the NFL will ask for. Perhaps there is something in the CBA that covers this? Surely everyone is aware that player salaries have some pretty funky clauses.Edited by NoNukes, : No reason given.Edited by NoNukes, : No reason given.Edited by NoNukes, : No reason given.

Here's a great article that summarizes Deflategate's legal path and explains the legal basis for challenges to arbitration awards. In the author's opinion Brady's challenge "was doomed to failure": He makes a strong case and I agree with him, except that he fails to address what all other similar arguments, including the recent ruling of the 2nd Circuit, fail to address: the origin of this incredible deference to arbitrator rulings. In Message 413 I traced the citations back to their origins and found nothing about such deference. It's been created out of thin air.Deference to arbitration rulings isn't just a Deflategate issue - it affects everyone in this country. If you have a credit card then you agreed to resolve differences through arbitration. If you're employed then you likely agreed to resolve differences through arbitration. If you have a mortgage you likely agreed to resolve differences through arbitration.When the 2nd circuit ruled for the NFL they in essence declared, "Even if Goodell was just making it up as he went along, the CBA doesn't say he can't do that." This reasoning is absurd. Any bargaining agreement that includes arbitration must follow the LMRA (Labor Management Relations Act, also known as Taft-Hartley) and the FAA (Federal Arbitration Act). Let us quote from the oft-cited Steelworkers v. Enterprise Wheel & Car Corp case:

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The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency. Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may, of course, look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.

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This ruling talks of the "essence" of CBA's. There is nothing in the essence of the CBA between the NFL and NLFPA that allows an arbitrator to go off willy-nilly, which is what 2nd Circuit dissenting Judge Katzmann found.It is well worth mentioning that the LMRA amends but does not supersede the NLRA (National Labor Relations Act of 1935). Words like defer, yield, bow and submit do not appear in either agreement in a context where they mean "defer".--PercyEdited by Percy, : Grammar.

In today's National Law Review at was announced that the Consumer Financial Protection Bureau Unveils Proposed Rule Limiting Class Action Waivers, explained here:

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First, the proposed rule would prohibit providers from using pre-dispute arbitration agreements to block consumer class actions and would require providers to insert language into their arbitration agreements reflecting this limitation.

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Second, the proposed rule would require providers that use pre-dispute arbitration agreements to submit various arbitration records to the CFPB. The CFPB would then use the records to monitor arbitration and publish records on its website in some form, with appropriate redactions or aggregation as warranted.

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Keeping in mind that this is just a proposal, in English this means that arbitration agreements would no longer be permitted to rule out class action lawsuits, and that arbitration awards would be tracked so as to detect abuse.The article mentions the possibility that this is more a win for lawyers than consumers, but I think it's a win for both. Companies of all stripes hold discouraging, enigmatic and arcane arbitration processes over the heads of both employees and consumers, and one already needs a lawyer to navigate them. If these rules were already in place then the GM ignition switch and Takata airbag problems might have come to light much sooner.This isn't directly related to Deflategate, but this thread has experienced a great deal of discussion about arbitration.--Percy

Definitely a win for both. Class actions are objected to as producing big bucks for lawyers and small bucks for consumers. No doubt about that. But the typical class action law suit allows recovery in cases were it would be cost prohibitive for a single consumer to sue for anything at all. In situations where that is not the case, consumers can usually opt out of the class action process.The alternative is a sometimes stacked arbitration process from which there is no recourse if the ruling is unfair and in which the party being sued is responsible for choosing the arbitrator. Supposedly arbitration is cheaper, but if there is any significant money at stake, you'll still need a lawyer because the opposition will certainly be represented. Maybe the record keeping provision would be helpful in exposing that kind of abuse.

As expected the other shoe has dropped and the new member of Brady's legal team, Theodore B. Olson, today announced on "Good Morning America" that an en Banc appeal for a hearing before the full 2nd circuit will be filed later today: Tom Brady to ask for second hearing at 2nd CircuitThe grounds for the appeal are:

1. The NFL commissioner, Roger Goodell, conducted an investigation, made a decision and imposed discipline, served as arbitrator for his own ruling, then added new grounds for his original ruling. About this last Katzmann wrote in his dissenting opinion:
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   "When the Commissioner, acting in his capacity as an arbitrator, changes the factual basis for the disciplinary action after the appeal hearing concludes, he undermines the fair notice for which the Association bargained, deprives the player of an opportunity to confront the case against him, and, it follows, exceeds his limited authority under the CBA to decide "appeals" of disciplinary decisions.
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   "The lack of any meaningful explanation in the Commissioner’s final written decision convinces me that the Commissioner was doling out his own brand of industrial justice."

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   I haven't found a definition of "industrial justice," but I've now seen it used often enough that for arbitration awards (the 4-game suspension is referred to legally as an "award") I believe it means granting awards that accord more with personal feelings and judgments than with the actual words and spirit of legal agreements like the CBA.
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2. The NFL commissioner ignored provisions in the CBA concerning equipment violations.

Olson's first grounds conforms pretty well with dissenting judge Katzmann. The second does also, sort of. That has to be explained. Katzmann's dissent only mentions equipment violations in footnotes (see bottom of pages 7 and 8), and he seems to draw a rather fine distinction. He agrees with the majority that the NFLPA's argument that the Player Policies document requires that Brady receive no more than a fine has no merit. But he then goes on to argue that the Commissioner's reasoning indicates that he wasn't actually "construing the CBA," as the NFLPA argues when they contend that the Commissioner's "CBA defiance is only underscored by his reliance on the Steroid Policy."The majority explicitly and at length rejected this argument (see pages 17-19 of 2nd Circuit Brady Reversal) in a frightening example of judicial deference to an arbitrator doing whatever he likes. Rather than seeing the analogy of deflating footballs to steroid use as an example of arbitratorial overreach they deemed it within the arbitrator's prerogative to use whatever analogies he pleases, however flawed, while ignoring this analogy's primary role in justifying Brady's extreme punishment. The much more appropriate analogy is to stickum on receiver gloves, which provides a clear and demonstrated improvement in ball catching, and which has never received more than a small fine for a first offense. The advantage/disadvantage of football pressure in throwing and catching hasn't even been demonstrated. As far as can be discerned at this time it's no more than a personal preference thing, like putters in golf.And of course let's not forget that it hasn't even been proven that any footballs were deflated.I'll review Olson's appeal in detail when it's actually filed and made available, but nothing in this morning's news makes any mention of the policy of extreme deference granted arbitrators, which in my opinion deserves review by the Supreme Court. While I grant the logic of granting deference to arbitrators, it's scary to read rulings that say in effect, "Even if the arbitrator made clear errors of logic and fact, his arbitration award still stands." While appeals courts are supposed to consider errors of process and not of logic and fact, arbitrators aren't stupid, and when their arbitration awards have been challenged in court as often as Goodell's they quickly realize that they can only make up facts, not process.But appeals courts are not blind, or at least they shouldn't be blind, and they must recognize when arbitrators are employing end-around runs by twisting, manipulating or making up facts in order to obtain their desired outcome. That's the imposing his "own brand of industrial justice" portion of the Radio Tel. Broadcast Engineers Union, Local, 1212 v. WPIX, Inc. ruling.--Percy

The petition is impressive. Olson seems a considerable step up in talent: Brady/NFLPA Petition for En Banc RehearingThere are only two grounds in the petition. The details begin on page 8.The appeal first focuses on one facet of the 2nd Circuit majority ruling that I questioned myself. The majority ruled, in effect, that because of the deference granted arbitrators that any power not specifically denied the Commissioner in the CBA was permitted. Katzmann also questioned this in his dissent.The Commissioner's questionable action was adding new grounds for the discipline in his arbitration award, affording Brady no opportunity for a defense. The petition states that the majority ruling conflicts with existing labor law precedent, sowing confusion in the courts and creating problems of arbitration interpretation for employees and employers.The second ground concerns the Brady/NFLPA claim that football deflation was an equipment violation. The petition states that Goodell erred by not addressing this claim, indeed, ignoring it completely.The two grounds lead to identical conclusions, that Goodell administered his own brand of industrial justice.The 2nd Circuit could grant a rehearing before the same 3-judge panel, or grant a rehearing before the full 2nd Circuit, or reject the petition. Before deciding on the petition they might ask the NFL to file a response.--Percy

Sports Illustrated's Michael McCann has written a detailed analysis (Tom Brady faces legal Hail Mary with appeal of Deflategate suspension) of the Brady/NFLPA petition. I'll quote some highlights:

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Unfortunately for Brady, panel rehearings [a rehearing before the same three judge panel] are almost never granted in the Second Circuit.
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Brady’s odds are better, although by no means good, in regards to his accompanying petition for a rehearing en banc. In a rehearing en banc, all of the active judges on the Second Circuit, along with any senior status judges who sat on the three-judge panel in Brady v. NFL, would hear the appeal.
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A vote on whether to grant a rehearing will take time. While there is no required timetable on how quickly the 13 judges will vote on whether to take Brady v. NFL en banc, it will not be instantaneous. In fact, if the 13 judges disagree about whether to rehear the case and if they opt to write accompanying opinions that explain their positions, several months might pass before there is a decision on whether there will be another hearing. This potential delay is meaningful for Brady: His petition automatically stays the suspension until the judges act on it.
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Expect additional court filings before there is any vote. For starters, the NFL will likely be invited by the Second Circuit to file an opposition brief. Such a brief would urge the judges to deny the petition for the rehearing and the accompanying petition for the rehearing en banc. Several non-parties who believe they have a stake in the case might also weigh in by filing amicus curiae briefs. From the Latin amicus curiae meaning friend of the court, an amicus brief is a formal filing that has been authored by a non-party person or group. This non-party purports to have an established stake in the case. The influence of amicus briefs is a source of debate, since judges can ignore these briefs. Nonetheless, some judges have been known to accord them weight.
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As analyzed on SI.com in March, New York Law School Professor Robert Blecker has already authored an amicus brief in the Brady v. NFL appeal. Do not be surprised if othersparticularly pro leagues and players’ associationsfile their own. In other litigations, the NBA, NHL and MLB have filed amicus briefs in each other’s favor. Likewise, the NBPA, NHLPA and MLBPA might submit briefs in favor of Brady...On the other hand, most of those leagues and players’ associations are, like the NFL, based in New York and some of their labor-management disputes have been litigated there. This raises the possibility that the ultimate precedent of Brady v. NFL could impact potential labor-management cases involving other leagues that arise in the Second Circuit. Those leagues and players’ associations might therefore perceive an important stake in how Brady v. NFL is ultimately resolved.

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It would behoove Brady if parties from outside of sports weighed in with amicus briefs. If labor groups, for instance, are concerned by the questionable consistency and problematic notice accorded to Brady, a union member, they might be more inclined to weigh in. The more Brady’s case is viewed as about fundamental principles of labor-management relations and the less about whether a star quarterback should be suspended over a bizarre equipment controversy, the more consequential his case would seem to the 13 judges. In that scenario, Brady would have better his odds that at least seven of the 13 judges will vote yes to grant the rehearing.
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Despite the disheartening landscape for Brady’s petition for an en banc, Brady has at least three reasons to feel somewhat hopeful.

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1. Brady’s petition makes a plausible case that Judges Parker and Chin committed an error of exceptional importance.
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2. Arguably the top two appellate attorneys in the U.S. are advocates in this case.
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3. The odds have been anything but predictive in this case.

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Brady would not be out of options if the Second Circuit’s active judges inform him that they are not interested in further review of his case. As a last resort, Brady could petition the U.S. Supreme Court to intervene. Brady’s attorneys wcould petition U.S. Supreme Court’s justice for the Second Circuit, Ruth Bader Ginsburg, to stay the suspension until the U.S. Supreme Court has acted on the case.
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Unfortunately for Brady, stays are extraordinary measures and are seldom granted, and the Supreme Court only considers approximately 1% of petitions.

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I would like to do a more detailed analysis of the Brady/NFLPA petition, one that examines the case references, but that will depend upon time availability.--Percy

More than 20 engineering and physics professors today filed an amicus brief in support of a rehearing for Tom Brady before the 2nd Circuit:

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Although sensationalized in the press, it was no surprise to any scientist that the Patriots’ footballs lost pressure during the AFC Championship. As the league’s reports recognize, so-called ‘deflation’ happens naturally when any closed vessel, such as a football, moves from a warm environment to a cold one.
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As professors, we cannot fathom how it is permissible to impose punishment for the possibility of a negligible increment of pressure loss, when underinflated footballs are common to NFL games, when laws of physics cause much larger pressure drops, and when the very possibility of an additional increment of pressure loss was generated from assumptions of the league’s choosing rather than data, the brief states. In the name of science, we support the petition for rehearing.
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Courts should not be powerless to consider the absence of scientific proof when a proceeding is so interlaced with laws of science. We support the petition for rehearing.

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Here's another article: Physics, Engineering Professors Admonish NFL’s Science, Support Tom Brady In Amicus Brief With Second CircuitAnd here's a link to the brief itself: Professors' Amicus Brief--Percy