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Author | Topic: Deflation-gate | |||||||||||||||||||||||||||||||||||||||
Percy Member Posts: 22480 From: New Hampshire Joined: Member Rating: 4.8 |
NoNukes writes: Yes, but again there is no evidence that those justices kowtowed to Scalia when it comes to cert votes. Scalia was often unpleasant, yes. But the Justices still did their jobs.... I don't believe this calculation prevents justices from granting cert. I understand the basis for your opinion, and it is certainly rational, but I don't really think the prospect of not having five votes factors heavily in the vote for granting cert. According to Nina Totenberg (covers the Supreme Court for NPR) Deflategate To The Supreme Court? Nina Totenberg Weighs In, "[The Supreme Court is] not taking any cases of any consequence because they’re afraid they might disagree on it and just be able to reach no conclusion."
And what is a liberal perspective on this case anyway? You seem to be suggesting that there are liberal and conservative opinions on the case that are distinct. Nina Totenberg agrees with you that Supreme Court opinion might not break down along ideological lines, but I think you're both wrong. The court has been voting along ideological lines for a while now, this is a labor versus management issue, so the conservative judges will vote for the NFL, and the liberal justices will vote for Brady/NFLPA. Whichever side gains a convert wins. But the Second Circuit didn't break down along ideological lines, see Track records of judges who’ll decide NFL’s Deflategate appeal:
So maybe you and Nina are right and the Supreme Court also won't divide along ideological lines, but I'd be surprised because that's been their history over the past decade with most issues of an ideological color. --Percy
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Percy Member Posts: 22480 From: New Hampshire Joined: Member Rating: 4.8 |
NoNukes writes: The primary point of disagreement between the parties can be explained like this:
What you have expressed is of course one way the dispute could be summarized. And perhaps you have put forth the way Brady's lawyers would describe the dispute. It is decidedly not the way the other side would describe the disagreement. I just reread the Introduction to the NFL brief for the Second Circuit, and it pretty clearly identifies the question of whether Goodell's rulings lay within an arbitrator's prerogative as the main point of disagreement.
The NFL clearly believes that the players bargained away rights that NFLPA is looking to assert in court and the text of the agreement seems to support that belief. That federal law prevents such a bargain is one of the arguments made by Brady and the NFLPA. Apparently at least a couple of judges as well as the NFL do not agree. Maybe correcting that is what the appeal/re-hearing will be about. If by "correcting that" you mean whether rights to fairness can be bargained away, that would be a good thing. I don't think there's anything in the LMRA or FAA about all this deference that courts claim is due an arbitrator. All this deference seems to be based on a couple or few cases simply stating the arbitratorial privilege out of thin air. I can see courts wanting some protections against a flood of arbitration ruling challenges, but monotonically chanting the mantra "the arbitrator is always right, go away" isn't the right solution. This is something the Supreme Court should reexamine. --Percy Edited by Percy, : Clarify final paragraph.
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Percy Member Posts: 22480 From: New Hampshire Joined: Member Rating: 4.8 |
Here are my comments on the dissenting view of Chief Judge Robert A. Katzmann of the Second Circuit on the NFL v. Brady case. In any quotes from rulings or briefs I will usually leave out the references to case law. A copy of the dissent can be found here:
Katzmann's states the primary basis for his dissent in the first paragraph:
quote: He also expresses concern at the "unprecedented four-game suspension," and the way Goodell likened it to steroid use instead of stickum (used by receivers to help them catch the ball). His comments about deference echo the majority opinion:
quote: I did not remove the case law references in this quote because I'm going to follow them in another attempt to find mentions of the deference due arbitrators in US Law. It seems to me that business entities awareness of this judicial deference would encourage arbitratorial arrogance and inevitable consequential misbehavior. So looking at Brooks Drug Co, here's the full sentence that Katzmann quotes from:
quote: Brooks Drug Co cites more case law to support this assertion, including United Steelworkers of America v. Enterprise Wheel Car Corp. which I've already examined and found that it places at least as much stress on concerns about an arbitrator's "own brand of industrial justice" as about deference to arbitrators. A couple other references also follow that sentence from Brooks Drug Co. One of them is United Paperworks Int'l Union v. Misco, Inc., and I already commented on that in an earlier post, and it supports its assertions by reference to (again) Steelworkers. The other case, Radio Tel. Broadcast Engineers Union, Local, 1212 v. WPIX, Inc., also references Steelworkers. I'll reproduce this quote from Radio because it strongly reinforces the view that judicial deference to arbitrators stems not from law but from judicial dread of being flooded by arbitration appeals (case law references removed, but they're ones we've seen before):
quote: The same cases are cited so often in arbitration cases that I bet judges initial drafts just say "insert standard references here." No one reads them or traces the references back anymore to see what they actually say. But the above quote does say something different and significant, and I'll quote it again:
quote: The origins and foundation of that federal policy? Who knows. It's important to note that any lawyer or judge arguing that arbitrator impunity isn't infinite is fighting an uphill battle, not against law, but against policy and judicial custom and simple expediency. I'm now climbing out of the depths of case law references and returning to the Katzmann dissent. Here on page 2 he states one specific reason for his dissent, that the Commissioner changed the basis of misconduct during arbitration, which goes against the CBA:
quote: While the majority opinion held strictly to the NFL storyline, Katzmann evidently read and understood what the majority did not, as here on page 3:
quote: Katzmann goes on to describe testimony during the arbitration that the majority opinion ignored. Concerning gifts and memorabilia to Jastremski and McNally Brady testified that he distributes gifts and memorabilia to many people, and that he often doesn't even know the names of the recipients. Katzmann also shows how humorous McNally texts taken seriously by the Wells Report and by Goodell were obviously misinterpreted, that McNally testified how they were misinterpreted, and was ignored. One set of humorous texts is so obvious as to deserve mention. McNally's continual demands for Celtics/Lakers tickets were just a running joke. The absurdity of the request alone should be sufficient evidence of a joke, but both Wells and Goodell were intent on reaching incriminating conclusions on all evidence. On page 5 Katzmann explains that Goodell's post-arbitration inferences about Brady's gifts do not by themselves constitute reversible error, but they also denied Brady the right to challenge Goodell's conclusions:
quote: From this point on Katzmann argues that the punishment did not fit the misconduct and was equivalent to the Commissioner handing out "his own brand of industrial justice." He concludes:
quote: Well said. --Percy Edited by Percy, : Left out a close parenthesis.
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Percy Member Posts: 22480 From: New Hampshire Joined: Member Rating: 4.8 |
NoNukes writes: My understanding is that the PACER system for retrieving and filing appellate court briefs is relatively inexpensive,... 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
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Percy Member Posts: 22480 From: New Hampshire Joined: Member Rating: 4.8 |
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:
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
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Percy Member Posts: 22480 From: New Hampshire Joined: Member Rating: 4.8
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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:
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
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Percy Member Posts: 22480 From: New Hampshire Joined: Member Rating: 4.8 |
NoNukes writes: 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. 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
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Percy Member Posts: 22480 From: New Hampshire Joined: Member Rating: 4.8 |
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:
quote: 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". --Percy Edited by Percy, : Grammar.
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Percy Member Posts: 22480 From: New Hampshire Joined: Member Rating: 4.8 |
In today's National Law Review at was announced that the Consumer Financial Protection Bureau Unveils Proposed Rule Limiting Class Action Waivers, explained here:
quote: 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
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Percy Member Posts: 22480 From: New Hampshire Joined: Member Rating: 4.8 |
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 Circuit
The grounds for the appeal are:
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
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Percy Member Posts: 22480 From: New Hampshire Joined: Member Rating: 4.8
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The petition is impressive. Olson seems a considerable step up in talent: Brady/NFLPA Petition for En Banc Rehearing
There 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
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Percy Member Posts: 22480 From: New Hampshire Joined: Member Rating: 4.8 |
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:
quote: 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
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Percy Member Posts: 22480 From: New Hampshire Joined: Member Rating: 4.8
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More than 20 engineering and physics professors today filed an amicus brief in support of a rehearing for Tom Brady before the 2nd Circuit:
quote: Here's another article: Physics, Engineering Professors Admonish NFL’s Science, Support Tom Brady In Amicus Brief With Second Circuit And here's a link to the brief itself: Professors' Amicus Brief --Percy
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Percy Member Posts: 22480 From: New Hampshire Joined: Member Rating: 4.8 |
AZPaul3 writes: Well, that's nice. It' good to have the science on the table. Unfortunately, that table is in a different courtroom and is many months too late. The issues before the 2nd Circuit have nothing to do with deflated footballs. Although the Brady/NFLPA petition does not make errors of fact a grounds, it does mention issues of fact a number of times, as here on page 4:
quote: And the Guidelines for Appeals Courts: Definitions includes category "C. Clearly Erroneous" as a grounds for appeal. The first full sentence of the Standards of Review for Civil Proceedings says, "Findings of fact are reviewed for clear error." An arbitrator not only cannot make up his own process of industrial justice, he can't make up his own facts. The problem with Brady's facts is that they're ones of science and not of simple observation and deduction. Deflategate is not about whether it was Colonel Mustard in the library with the candlestick. It's not about fingerprints and guns and rifling marks and powder burns and blood spatters and DNA, things that although scientific fall into a simple enough category that everyone understands them and they are standard fare in TV crime dramas. But the Ideal Gas Law is evidently pretty challenging for the majority of people. When it first became part of the public debate people as prominent as an MIT professor, Bill Nye, and Neil deGrasse Tyson got it or parts of it wrong (in his defense, Tyson understood all the principles but failed to convert temperatures to degrees Kelvin when applying the Ideal Gas Law). Goodell used the Wells report which used the Exponent report to make up facts about Deflategate. What with two gauges measuring .4 PSI apart, and with referees not being certain which gauge they used for which footballs before the game, and with the initial and final temperature of each football being unknown, and with no direct evidence of ball tampering, and with no direct link between Brady and any tampering by Jastremski and McNally for which there is also no direct evidence, and with a purely natural explanation available, hard conclusions of ball deflation constitute "clear error." So while the petition includes far broader grounds and doesn't mention "clear error," it might possibly influence the court's decision about a rehearing. --Percy
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Percy Member Posts: 22480 From: New Hampshire Joined: Member Rating: 4.8 |
The New England Patriots today filed an Amicus Curiae brief in support of Tom Brady's petition for a rehearing before the full 2nd Circuit.
The brief states that there are two important issues: precedent and fundamental fairness. Concerning precedent the brief states that the 2nd Circuit majority ruling:
quote: Concerning fundamental fairness they say:
quote: The brief discusses issues of fact concerning the Wells report and football PSI in order to stress the magnitude of the Commissioner's error in not making Weiss's notes available. The brief also discusses the "paucity of evidence against Mr. Brady" that he had any "knowledge of or involvement in" football tampering. The brief also draws attention to a misstatement of fact by the Commissioner of which I wasn't previously aware. In his finding Goodell stated that he didn't find credible Brady's statement that he and Jastremski only discussed the preparation of footballs the day after the AFC Championship Game, that he believed they must have also talked about football deflation, and that Brady must therefore have been lying. This was untrue. Brady evidently did testify that he and Jastremski had talked about both football preparation *and* football deflation, but Goodell felt safe in the misrepresention because he didn't know that the transcripts of the arbitration hearing would later be ordered to be made public. Once public the misrepresentation became clear. This may be old news, I don't know, but this is the first I've heard about it. --Percy
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