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Author | Topic: Deflation-gate | |||||||||||||||||||||||||||||||||
Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0
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The AFL-CIO yesterday filed an Amicus Curiae brief in support of Tom Brady's petition for a rehearing before the full 2nd Circuit. This adds to the two amicus briefs already filed by professors and by the New England Patriots, and in this case adds some substantial weight.
The brief is so short and cogent that I shall simply quote from it. This is from the introductory letter:
quote: This is from the body of the brief:
quote: --Percy Edited by Percy, : Typo.
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
Kenneth Feinberg yesterday filed an Amicus Curiae brief in support of Tom Brady's petition for a rehearing before the full 2nd Circuit. This adds to the three amicus briefs already filed by professors, by the New England Patriots, and by the AFL-CIO. Kenneth Feinberg served as a negotiator in some famous victims cases, such as 9/11, the BP oil spill, and the Boston Marathon bombing, and as arbitrator in cases involving the Zapruder film and Holocaust legal fees.
His brief is phrased in more legalistic language than the others and so I won't quote from it, but with this fourth friend of the court brief and Brady's own brief a clear consensus of legal opinion against the NFL is emerging:
Fairness has always been the key issue at the center of Deflategate. In science we like to say that the most extreme claims require the best evidence. In the law we'd like to believe that the most extreme penalties also require the best evidence, but now after nearly a year and a half there is no evidence of purposeful deflation and no evidence of Brady involvement. ESPN's Kevin Seifert comments along the same lines today:
quote: But courts of appeal do not rule on matters of fact. At best they might accept arguments on issues of fact as indications of bias. We're left hoping that Goodell's own arrogance caused him to commit violations that finally result in the correct penalty, i.e., none, even though the erroneous original finding can never be changed, at least not in the eyes of the NFL. --Percy Edited by Percy, : Name correction in last point of list: "Troy Vincent" => "Jeff Pash"
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
Will it never end? How many friend of the court briefs supporting Brady are going to be filed?
However many it ends up being, yet another Amicus Curiae brief was filed yesterday in support of Tom Brady's petition for a rehearing before the full 2nd Circuit. I don't have time just at the moment to read and summarize this, but I will get to it as soon as time makes itself available. --Percy Edited by Percy, : Grammar.
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
Strangely I can't find the article now, but Brady's legal team requested the amicus briefs from the professors, the AFL-CIO, Ken Feinberg and the Patriots. While several of the briefs were very well argued (I'm thinking of those from the AFL-CIO, Feinberg, and the law and industrial relations professors), that they were solicited and not spontaneous diminishes their value in my eyes. That doesn't make what they say less convincing, but it does put their motives into question, especially the AFL-CIO's, who explicitly stated their high level of concern about the impact on labor arbitration going forward. If their concern was so great, why did they have to wait to be asked before filing the brief?
When Brady first filed his petition for a rehearing the odds for success were put at around 1% or less. But as the specific legal issues become more and more clear in people's minds they've been thinking the odds are increasing. Myself I put them at 50/50 about now. The judges on the 2nd Circuit have to be considering the possibility that if the ruling is allowed to stand then the future will find them reviewing cases that cite Brady v. NFL, not a very tantalizing prospect. On the other hand maybe they're thinking the Supreme Court should look it, if they so choose. --Percy
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
NoNukes writes: but it does put their motives into question What questions would you ask about their current motives? You're so literal sometimes. "Putting their motives into question" doesn't mean there are questions for them. It means that they stated motives (particularly in the case of the AFL-CIO) that could be called into question. If you want it phrased as a question then I guess it would be, "Doesn't the fact that you had to be asked to submit your brief mean that you overstated your level of concern about the impact of the Brady ruling on the future of arbitration?"
Myself I put them at 50/50 about now. You have some sense about these things? While I was never able to put anywhere near as fine a point on things as Kessler and Olson and the better amicus briefs, I did identify the key issues through each part of the process, so I'm pretty confident that the odds are way better than the thousand-to-one odds for most petitions for rehearing. As just a sports case it wouldn't have much of a chance, but emphasizing the impact to arbitration across the labor/management spectrum greatly improves the chances. Plus the dissenting judge was the chief judge of the 2nd Circuit. He'll be arguing for a rehearing, and a few of those amicus briefs will allow him to make extremely effectively argued points. I especially liked this from the AFL-CIO brief:
quote: That's pretty much sums up what I've been trying to say in this thread. It's interesting to note that the various briefs for rehearing state the same thing about neutral arbitrators in different terms. The AFL-CIO brief stresses that the Commissioner did not act as a neutral arbitrator, but Goodell is not a neutral arbitrator. As head of the NFL he is definitely a non-neutral arbitrator. The Feinberg brief correctly notes Goodell's non-neutral status, and makes clear that the appointment of non-neutral arbitrators is not uncommon, but makes the further point that a status of non-neutrality does not remove the arbitrator's obligation to act without bias. The AFL-CIO brief doesn't make the "non-neutral but unbiased" distinction and just uses the term "neutral" to imply a requirement that all arbitrators be unbiased. I prefer Feinberg's approach. --Percy
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
NoNukes writes: I think my question has merit. Your question indicated a misunderstanding of what the term "called into question" means. You're a "literally interpret everything" machine.
Your estimate was a fifty percent chance. That's about 500 times as large as the odds you are quoting for the typical petition. Yes, way better than the usual odds. Naturally there's no way anyone could know the actual odds, I just used the term 50/50 in the sense of a toss-up. You have just *got* to get a better feel for when people are just talking casually and stop taking everything so literally. "Omigod, he mentioned an actual number, I'll challenge it. Is that 50.0%? How do you know it's not 50.1%?" How many of those petitions are you familiar with? I admit that I've never read a rehearing petition for anything other than the Federal Circuit, but I'm not speculating beyond saying that rehearings are historically rarely granted. At least when you opine on the Supreme Court you have some familiarity with the personalities. My guess is that you know nothing about this particular court and even less regarding the relative merit of this petition and those others. Well, good luck with your guesses. One of us was right about the science, right about arbitration, and right that the big issue is fairness, and it wasn't you. --Percy
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0
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NoNukes writes: There is nothing personal at stake here. Since there's nothing personal at stake here then maybe the next time you have a guess that I "know nothing" about something you could keep it to yourself. I know you don't have the same level of interest that I do and that you're not as informed, and I think that's fine. One would think that that would make you more circumspect with comments like I "know nothing," but it doesn't seem to. Plus your greater knowledge about the law seems to give you a false confidence that more often leads you to error than insight once you step away from legal minutia. I do not spew uninformed and unsupported opinions into my messages. I'm obviously very interested in Deflategate because I believe Tom Brady got a raw deal, so I read a lot on both sides of the issue (the New York and Buffalo papers are good for anti-Patriot perspectives), and I form my opinions out of what I read. I'm not alone in believing that the odds are closer to 50/50 now, for example see Brady Getting a Rehearing 'Closer to a Toss-up' Now. There have been a couple articles that included information about the makeup of the 2nd Circuit and how they might vote on the petition (can't seem to find them now). I don't mind having my opinions challenged, but I'm not going to remain silent when told I "know nothing." I'm going to object, on two grounds. First, I know much more than nothing about Brady's petition chances, but I consider that the minor ground. Much more important, second but not lesser, such accusations have no place in dispassionate and objective debate. If by evidence and argument you show that someone knows nothing, fine. I did already explain what "calling their motives into question" means when I said it could be phrased like this: "Doesn't the fact that you had to be asked to submit your brief mean that you overstated your level of concern about the impact of the Brady ruling on the future of arbitration?" --Percy
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
However Brady fares before the 2nd Circuit and (if necessary) the Supreme Court, it seems inevitable that it will be the enduring judgment of most of the country that Brady is guilty of football tampering, and that this is further evidence that the "Cheatriots" deserve their reputation.
It also seems inevitable that Goodell's reputation as a clown when it comes to administering justice within the NFL will be just as enduring. A couple recent articles make clear why it is deserved:
The first article, written by lawyer/arbitrator David Evans, speaks for itself:
quote: The second article requires a bit of explanation. It notes the parallels between the Brady case and the Richie Incognito case. When I was listing prior Goodell misadventures the case of Richie Incognito did not come to mind, but now because of a suit brought by former Miami offensive line coach Jim Turner we can see the parallels to Deflategate. Lawyer Ted Wells was the independent investigator in both cases, and as Turner bluntly put it, "Independent investigator my [butt]." In a sport as coarse as football where the most common word of sneaked recorded conversations is "bleep" it defies belief that a player could be suspended for verbal abuse and harassment of a teammate, yet that's what happened to Rickie Incognito. When the accusations came to light he was suspended from the Miami Dolphins for the rest of the 2013 season. The NFL hired Ted Wells to investigate, and one result was that the Dophins fired offensive line coach Jim Turner, who was also found culpable. Turner filed suit against Ted Wells and his law firm in mid-2015. The charges in the Turner lawsuit parallel the Brady claims, that a "high ranking National Football League official...attended many of the interviews conducted during their supposedly independent investigation." During Deflategate arbitration Brady was denied access to the internal notes and communications from the NFL's law firm, one of the chief grounds of the appeal challenge to the 2nd Circuit. Turner had no arbitration hearing because as a coach he is not a member of the NFLPA and has no right to arbitration, but he has filed for discovery of this same information, and Wells is fighting it tooth and nail (his attempt to avoid discovery has already been denied by the court once, but last week he filed another request). One wonders why and can be forgiven for suspecting that the information will further document a pattern of NFL behavior designed to yield the result they want while denying people due process. --Percy
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
Columnist Robert Parry of Consoritumnew.com has a new theory: Deflategate Twist: 31 NFL Teams Are Cheating
The accusations of cheating are just exaggeration, but he does have an interesting theory. Goodell has relentlessly pursued Brady and the Patriots with charges and penalties for cheating because that's what the majority of his employers want. Barry claims that a preponderance of the management organizations of the 32 teams are pressuring Goodell to do this, and that explains why none of the evidence has held up. Barry quotes Mike Reiss's report that, "I think Goodell would do it [end Deflategate] if that's what 31 other ownership groups wanted, but it was clear as a possible settlement was recently explored behind the scenes that the majority of owners want the full penalty for Brady and the Patriots. Goodell is following their lead." Barry then argues that, "the Management Council, which controls [Goodell's] $35 million salary, urged him to view the absence of two Patriots equipment employees at the appeal hearing as proof of Brady’s guilt..." Recall that Officials Locker Room attendant McNally and Equipment Manager Jastremski are accused of conspiring with Brady to implement a scheme to deflate footballs. As part of their evidence the NFL cites text messages between McNally and Jastremski after the Jets game earlier in the season when the balls were discovered to have been overinflated by more than 3 PSI. Barry then introduces a new argument:
quote: When looked at in this light it's fairly convincing. The text messages in the Wells Report after the October 17, 2014, Jets game (see page 5) have a bewildering number of interpretations given their lack of specificity but look damning until one realizes that there is no mention of how McNally screwed up in not deflating the footballs to Brady's desired level. Not just that, but rereading these texts again after all this time it is apparent that both McNally and Jastremski believe the referees to be the last ones to have adjusted ball inflation. And in this exchange it is clear that McNally's plan is to overinflate the footballs even more than the previous week (it reads very strangely, and I think gross exaggeration of counterproductive intent must just be McNally's style):
But fatally damning for the NFL position as stated by Wells (though only to the interested public, since this isn't reviewable by the courts, though the courts could send this back to the NFL to rehear the arbitration) is the glaring contradiction that Barry next notes but which somehow have been missed until now. According to the Wells Report, "It was the first time in [Walt] Anderson‟s nineteen years as an NFL official that he could not locate the game balls at the start of a game." So if McNally, Jastremski and Brady had developed a scheme to deflate footballs after they'd been checked by the officials and before they reached the field, then the AFC Championship Game was the first time they'd ever succeeded, and what's more, it required an unexpected confluence of circumstances, as described by Barry:
quote: And as I myself have stated several times, it would make no sense for Brady to have underinflated footballs at home but not away where he wouldn't have the benefit of the home locker room attendant, because of the inconsistency. So while I don't believe that the other 31 owners are cheating, I do think they are encouraging Goodell to come down hard on Brady and the Patriots, that Goodell made that need very apparent to Wells, and that that explains why the improving understanding of the evidence is running so strongly against the NFL. --Percy Edited by Percy, : Typos.
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
NoNukes writes: I have no evidence for this one way or the other, but I've always assumed that Goodell was doing what the owners want with regards to pursuing this matter. Not sure what you mean by "pursuing this matter," so just to be clear, the article wasn't suggesting that Goodell pursued the Deflategate charges at the behest of owners. It was suggesting that Goodell orchestrated a ruling of guilty at the behest of owners. --Percy
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
NoNukes writes: I've expressed my own opinion. If it is not the same as the one expressed in the article, that's fine too. But what's your opinion? It can't be known unless you reveal what you meant by "pursuing this matter?" Without that information no one can know your opinion or whether it agrees with the article. If "pursuing this matter" means pursuing the Deflategate charges, then you don't agree with the article's main premise, while if it means orchestrating a ruling of guilty then you do agree. Myself, I don't think the evidence is conclusive, just that it's an interesting theory. I *do* believe that Goodell is bozo enough to screw up the investigation and arbitration efforts without much encouragement, but whether a subset of owners gave him an extra push, who knows. --Percy
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
NoNukes writes: My comment is not a rebuttal of the articles premise. It expresses a related but distinct idea. But for the record, by pursuing the matter, what I am referring to is the fact that the owners appear to want a tough, management favorable punishment system, and that they negotiated for exactly that in the protective bargaining agreement. Goodell has by now, had several opportunities to drop the matter, but has taken none of them. Okay, I get it.
The CBA, as written, allows Goodell the final say if he so elects, accordingly, little orchestration was even needed. Goodell could have listened to anything, met with anyone, and reviewed anything short of a confession by the Patriots owner that he deflated the footballs, and pronounced the same conclusion. You seem to be saying that the investigative process and Goodell's performance as an arbitrator could have been even worse than they were. I guess that would have made the legal process easier. As it is, most of the briefs have argued that agreement to a non-neutral arbitrator does not relinquish rights to fairness and due process. Arbitrators have broad discretion and can even fail in according with these rights, but within bounds. Recent articles have not been as sanguine as me about Brady's chances. I see fewer signs now of the optimism that emerged during the flood of amicus briefs. My assessment of Brady's petition chances have diminished somewhat. --Percy
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
NoNukes writes: However IMO, it will be difficult/impossible to argue successfully that the mere fact that Goodell was the hearing officer is outside of the agreement or that it was not what the parties meant when the agreement was signed. Brady/NFLPA isn't arguing this, and none of the amicus briefs argue this position. You may be thinking of things I said a while back before I understood the CBA.
Who is writing about this stuff nowadays? Aren't most folks watching hockey, basketball, or baseball? The amicus briefs generated a flurry of articles and responses, things seem to be quiet again now. --Percy
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
NoNukes writes: Yes, and things you continued to say after I pointed out the text in Article 46. It's nearly impossible to tell when you've dropped or conceded an issue. Sorry - you were right. --Percy
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Percy Member Posts: 22490 From: New Hampshire Joined: Member Rating: 5.0 |
Tom Brady returned to the field yesterday in a game between the New England Patriots and the Cleveland Browns. When asked about Deflategate at the post game press conference Brady said, "I'm moving on."
--Percy
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