Deflation-gate

Of course Brady would seek the injunction but it may not be granted. The standard for granting a pre trial injunction is irreperable harm and substantial chance of prevailing on the merits.As for arbitration, the process by which the NFL issued Brady's unishment is not arbitration. There was no arbitration. Just an internal process, an internal appeal, and then a court review. I have seen no indication that either party is surprised by proceedings so far. Edited by NoNukes, : No reason given.

You're missing something somehow. Correct. Incorrect. Brady's appeal is, for some reason probably known only to the Gods of the law or at least of the CBA, deemed to be arbitration and for which Roger Goodell appointed himself arbitrator. The news accounts have referred to this process in various ways, including "appeal" and "arbitration hearing," but Goodell has always been described as playing the role of arbitrator. Where have you been? The NFLPA has been squealing like a greased pig that Goodell does not have the right to appoint himself arbitrator of a decision he made himself. Much of what you've been saying throughout this thread consists primarily of you applying logic and your knowledge of the law, and it all seems remarkably uninformed of the actual particulars of this specific case. Why don't you glance through the CBA and see if *you* can uncover the part that grants Goodell this right.--Percy

The original decision was rendered by Vincent and not Goodell.Secondly being angered and complaining about the process does not mean that there was surprise over the process.In a previous situation, Goodell actually did review his own decision. If the players were surprised this time, they are idiots.I am away from my computer and cannot do a proper link, but the dispute and appeal process is described in article 46 of the CBA. Nothing unforseeable about Goodell hearing the appeal. I would not call that process arbitration unless an outside arbiter was used.Edited by NoNukes, : No reason given.Edited by NoNukes, : No reason given.

Well, that's a bit of an incomplete argument. That's just the NFL position. Do you even know the NFLPA position? "Surprise" was your word, and now you're just playing semantic games. The NFLPA does not agree that the CBA gives Goodell the right to arbitrate his own decisions. They obviously do not believe they signed away the rights of the players to fundamental fairness. Don't you agree that this involves an issue of fundamental fairness revolving around neutrality and lack of bias? Does it really make sense to you that anyone would agree that the guy reaching the conclusion of guilt should also hear the appeal? But it is also described in article 43, which is where arbitrators are mentioned. How do those two articles play off against each other? Maybe you wouldn't call it arbitration, but everyone else is. I think if you read the relevant text of the CBA you'll find that things aren't as clear cut as you think. Understandably the NFL would like to ignore article 43, but it exists nonetheless.--Percy

I'm not ignoring article 43. But article 43 clearly does not apply unless arbitration is used. Attempting to call the process arbitration is what causes you to look at 43. But what is clearly going on here is an internal process where the league/commissioner applies punishment to a player. The entire process for that is described in section 46 and does not require arbitration at all.Using lay definitions here clearly leads to the wrong answer. What I see is that I'm not allowing you to play games. Of course 'surprise' was my word. It's also the word I used before you asked me if I had heard about the player's complaining. I'm defending my position and not the position you are assigning to me.My position is that the particular process being used is spelled out in a negotiated agreement that both sides and their attorneys had an opportunity to read before signing. I am not claiming that the NFLPA likes that position. But if there is any surprise at this point, the reflects pure stupidity. Even the press seemed to know what to expect from the process even before the Wells report came out. Well, rather than just having one side's position in this thread we appear now to have both sides' positions established. I don't see anything wrong with that.

After reading through the CBA some more I think I can straighten out the confusion.It appears that the NFL and NFLPA, even in their official communications, use the word "arbitrator" to refer to both an actual arbitrator in an arbitration dispute under Article 43, and to a hearing officer for an appeal under Article 46. Further, the NFLPA sometimes refers to the appeal process as an "arbitration appeal." No wonder there's so much confusion.So when the NFLPA charged that NFL commissioner Roger Goodell should not have appointed himself arbitrator for the Article 46 hearing, what they really meant is that he should not have appointed himself hearing officer. Their rationale for this position is as follows (from the NFLPA letter to Troy Vincent: Notice of Arbitration Appeal of Tom Brady):

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Second, Mr. Brady's discipline cannot be sustained for the additional reason that it contravenes the governing CBA requirement of fair and consistent treatment. See Rice at 16; Bounty at 4. Your decision to suspend Mr. Brady for four games i.e., one-quarter of the NFL season for his alleged "general aware[ness] of the actions of the Patriots' employees involved in the deflation of the footballs" and "failure to cooperate fully and candidly with the [Wells] investigation" is grossly inconsistent with the League's prior disciplinary treatment of similar alleged conduct, including lack of cooperation and not complying with League rules regarding game balls or other equipment. The law of the shop from Bounty, Rice, and other proceedings requires that this unfair and inconsistent treatment of Mr. Brady an exponential change in the severity of the punishment without notice or due process be vacated. Indeed, no player in the history of the NFL has ever received anything approaching this level of discipline for similar behavior a change in sanctions squarely forbidden by the CBA and the law of the shop.
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In light of the above, the NFLPA believes that neither Commissioner Goodell nor anyone with close ties to the NFL can serve as arbitrator in Mr. Brady's appeal under governing legal standards. The credibility and testimony of both you and Commissioner Goodell will be at issue in the hearing as well as numerous procedural issues regarding your testimony and the testimony of the Commissioner. Thus, this matter is similar to the Rice appeal, where Commissioner Goodell properly concluded that a neutral with no ties to the League, Judge Barbara Jones, should be appointed as Hearing Officer to afford Mr. Rice a lawful hearing before an impartial and to maintain the integrity of the proceedings.

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So here the NFLPA is arguing, as I have argued, that they did not believe that they were negotiating away principles of fundamental fairness when they allowed the sentence, "Notwithstanding the foregoing, the Commissioner may serve as hearing officer in any appeal under Section 1(a) of this Article at his discretion," to be included in Article 46 of the CBA. After all, earlier in the same paragraph it talks about consulting with the Executive Director of the NFLPA concerning the appointment of hearing officers. They clearly didn't believe that such fundamental principles of fairness and justice as not letting the same person serve as both judge and jury had to be protected with specific language yet again.I wasn't able to find a clear and concise definition of "law of the shop," but I'm guessing that it means that past decisions form the precedent for future policies. I'm not playing games, but it sure seems as if you are. If you have a plain meaning then speak plainly. As I said, "surprise" is your word, but you originally said that neither party was surprised at the proceedings thus far. I pointed out that the NFLPA is very surprised that the NFL thinks it fair and just for Goodell to arbitrate a challenge to his own ruling, and now you're deeming it stupidity that they hold a different interpretation as you and the NFL. Again, I'm not playing games here. I'm just following what you say.--Percy

I think the context under which I used the term surprise is missing here. The procedure being used here is well spelled out in the CBA, and in fact has been used before. Neither side should be surprised that Article 46 procedures are being used here.The press may be calling the hearing officer an arbitrator, and that's fine unless you are having a discussion about the details. I don't find this argument the least bit credible. What did the NFLPA think that the quoted sentence meant?

You're being ambiguous again. Either you failed to read the post you're replying to, or you're saying in an obscure way that the NFLPA was wrong in their letter to refer to the hearing officer as an arbitrator. How does a statement of unbelief followed by a rhetorical question constitute an argument? I already explained what they thought it didn't mean, that it didn't mean that they were giving up their fundamental right to fairness, lack of bias, and justice. I keep saying this over and over again, but you never say much. Should I just assume that you believe people can sign a contract where they give up such rights?Say your boss gives you a bad review and you decide to challenge it. Is it a valid labor contract that says that the person hearing your challenge is that exact same boss? Wouldn't that fall under illegal labor practices?The NFL is very aware of this weakness in their case. That's why they're saying that it was actually Troy Vincent who handed out the fine and suspension, not Goodell. That way they can claim that Goodell is reviewing Vincent's rulings, not his own. Of course, it's all just the same NFL front office, and that claim is just a shell game. The NFLPA letter I linked to and quoted from explains this, but you're responding as if you hadn't read a word of it. That's why I don't understand why you keep replying as you do. It's as if you don't read much of what I post.--Percy

Calling the hearing officer an arbitrator is of no consequence whatsoever. Who really cares what the guy is called. But not understanding that you are having a hearing rather than an arbitration is beyond ridiculous. Maybe I could understand being caught off guard once, but the procedure we are discussing has been used several times. The CBA contains an explicit statement that the Commissioner can appoint himself as a hearing officer. I can understand the NFLPA arguing that such a procedure is unfair. But I don't find it credible that their lawyers thought the statement did not mean exactly what it says. I don't know. What if the process instead was that the boss of my boss would decide the appeal?I'm not an expert in employment law. But that said, it would not be all that surprising to find that there was a level of internal review before there was any appeal outside of the company. That is the process I see described in section 46. What I would expect under that process is that the NFL would pick one or more hearing officers, each of whom is likely to be NFL staff including the Commissioner. Isn't that exactly what you read?I know even less about union/employer law. Maybe there should be an additional level of appeal, but I see no reason why two levels of internal review would be illegal. In this case, perhaps the only level of external review is to appeal to district court exactly as Brady has done.Does that mean that there is anything wrong with the union asking for arbitration. No. Is it possible that the NFL's procedure won't pass muster in court? Of course that's possible. I've even read some commentary from one lawyer that such a process would not pass muster in his state and recommending that the NFLPA try to file there (in Missouri) for that reason. But I don't see any way that the NFLPA can claim not to have agreed to the current procedure as written in section 46.Edited by NoNukes, : add some additional info re Missouri law.

You're just getting more confusing. I said you were ambiguous and gave two possible interpretations of what you said. Your reply is even more baffling than your prior ambiguity. I have no idea what you're trying to say or why you said it. All that's apparent is that you're taking every opportunity to blast the NFLPA for stuff you've imagined they've done. You're just repeating yourself over and over again without addressing the issues about fairness and impartiality that were raised. Well, in that case why are you so sure the NFLPA position is wrong? Obtaining an impartial hearing officer would still leave it as an internal review. Uh, no. And it isn't what the NFLPA reads either. There's nothing that says hearing officers have to be drawn from NFL staff. No one's questioning the legality of the number of levels of internal review. They're questioning the fairness and impartiality of the process. My understanding is that the appeal is binding, which is why Brady and the NFLPA can challenge only on process, such as the law of the shop and the presumption and expectation of fairness and impartiality. You're spending all your time ignoring the fairness/impartiality question. Did the NFLPA really believe they were agreeing to allow the commissioner to act in an overtly unfair and biased manner? I don't think even the NFL believe the CBA gives the commissioner that power. The only reason the NFL is behaving this way is because the commissioner and his closest advisers are blind to their blatant bias, but everyone else can see it. Even people who think Brady is guilty as hell understand how wrong it is to let the commissioner hear appeals of his own rulings.--Percy

What I said was that the use of the term arbitrator is irrelevant and that the NFLPA's use of the term meant nothing. I'm blasting you trying to insist that the process is arbitration. That does not seem to be the NFLPA's position.Actually, you seem to be the one saying that an organization that agreed to let Goodell decide these cases is incompetent, not me. And if there is one thing that is clearly not ambiguous, it is that the current agreement does allows Goodell to be a hearing officer. Well no. I address that issue separately. I maintain my point that the NFLPA cannot claim that they did not agree to a punishment process that includes the Commissioner himself serving as hearing officer. Wrong meaning what Percy? I see three possible questions here.1. Whether the NFLPA understood and agreed to the procedure.
2. Whether the procedure is legally enforceable
3. Whether the procedure is fair without regard to 1 and 2.It seems to me that you are making statements about all three of the above. My response is that they definitely agreed to the procedure, which is something I think would be taken into account when considering if such an agreement is enforceable. As to point 3, yeah I see that the agreement really is not fair to the player involved, but that may not affect either 1 or 2. It might mean that the NFLPA accepted a bad bargain that perhaps allowed them to gain some other benefit. That's the NFL's position. But even if the review is process, it is still possible for the judge to over the egregiously bad fact finding as a misuse of the process. Also if the facts, even taken as the NFL found them do not support conclusions reach, the judge can make rulings on that basis. But that might just send the issue back to the NFL for review. The agreement does not give NFLPA any ability to challenge the picking of hearing officers and explicitly states that the Comissioner can be a hearing officer. And oh, look, that's exactly what happened.Here is a link to an article that discusses this situation in some length. The author talks about fairness and legal sufficiency. I think he does a fair job and I largely agree with his reasoning. He highly recommends that the NFL use an impartial arbitrator.I note that this is an article written prior to Goodell's affirming of the punishment. It's pretty clear that the author was well aware that the Commissioner or a commissioner designee was going to do the review. 403 Forbidden Edited by NoNukes, : Some re-editing at 12:17. Not too much.

It's not my position either. I was just reporting the facts, that the NFLPA, even in it's official correspondence, refers to the process in various ways, including calling the hearing officer an "arbitrator" and calling the appeal an "arbitration appeal." I said that that was the source of much confusion about whether the appeal was arbitration or not. No, I'm not saying that. It's like you don't read much of what I post. Since no one is disputing this, I have no idea why you're stating it.What I did say is that the NFLPA does not believe the CBA permits Goodell to act as hearing officer in cases where it would be unfair and partisan. The way you phrased this reflects your bias. It isn't whether the NFLPA "understood and agreed to the procedure." The issue is whose interpretation of the CBA is correct. You have to include your point 3 with your point 1, which would turn it into this:

1. Whether the hearing officer must be fair and impartial.

This is nice progress - something we agree on. This seems doubtful. It seems to me that he could use facts not supporting conclusions or punishment as evidence of unfairness and bias, but not as sufficient reason by itself for ruling against the NFL. Here's the relevant language from the CBA:

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(a) Hearing Officers. For appeals under Section 1(a) above, the Commissioner shall, after consultation with the Executive Director of the NFLPA, appoint one or more designees to serve as hearing officers. For appeals under Section 1(b) above, the parties shall, on an annual basis, jointly select two (2) or more designees to serve as hearing officers. The salary and reasonable expenses for the designees' services shall be shared equally by the NFL and the NFLPA. Notwithstanding the foregoing, the Commissioner may serve as hearing officer in any appeal under Section 1(a) of this Article at his discretion.

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I suppose that "consultation" portion could be interpreted in various ways. Does the "Notwithstanding the foregoing" phrase nullify even the "consultation" portion, or just the details about selecting hearing officers. In any case, an NFL that ignores very strongly expressed concerns about fairness and impartiality from the Executive Director of the NFLPA, which is what happened, couldn't really be seen as behaving fairly and impartially. The Commissioner announced his intentions early on that he would appoint himself to hear any appeal, right after Brady's agent announced that there would be an appeal, so of course the author was "well aware." The NFLPA's letter to the NFL informing them of the impending appeal already knew Goodell intended to hear the appeal, since the letter included a clause arguing against it. And way before this they had already figured out that Goodell intended to appoint himself hearing officer for the inevitable appeal when he delegated his authority for imposing fines and suspensions for Deflategate to Troy Vincent. Obviously he only did this so he could later argue that since he wasn't the one who imposed the fines and suspensions that he was therefore a fair and impartial hearing officer. You've either forgotten all this or haven't followed events very closely. Which is understandable. Up here in New England we have a big stake in this - down there in North Carolina I'm surprised anyone cares. Thanks for the article, but first let's note that you opened by telling me that were blasting me for "trying to insist that the process is arbitration," and now you're closing by citing an article that refers to the process as arbitration and whose author is Chairman of the Board of Directors of Arbitration Resolution Services. I don't pretend to understand the niceties of legal terminology, but clearly your author sees the NFL appeal process as a form of arbitration.I'd be remiss to not mention one puzzling thing in the article. The author seems familiar with NFL procedures as they are actually followed, but he says that the case would be assigned randomly to one of the two currently serving appeals officers. The CBA says that that's the approach only for appeals under Section 1(b). Brady's appeal is under Section 1(a), and in that case there's supposed to be a consultation with the Executive Director of the NFLPA. I wonder if the author just slipped up, or if he's just describing the way the NFL actually does things regardless of what the CBA really says.But I like a great deal what he says about the Missouri case. That court seems to have the core issues well in mind, and their ruling even uses the term "unconscionable," which you helped me understand. Apparently, failing to take into account issues of fairness and impartiality is unconscionable in Missouri, and (in my view) everywhere whether courts and the NFL admit it or not.And I liked even more his closing paragraph, from which I'll excerpt a little:

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Moreover, it just doesn’t seem right. Perceptions of fairness cry out for an independent arbitrator here.

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--Percy

Complete crap. This set of definitions is totally made up and does not reflect even a lay understanding of the law.

Really, Percy So who posted this? (Emphasis added by me) And yet quite clearly the NFLPA did indeed agree to a process in which Goodell can be the final decider. The procedure has been part of the CBA for about four years. Anyone can read it. If you have an argument that Section 46 does not allow the Commissioner to serve as hearing officer, you have yet to present it. So far you've at best expressed that it should not be allowed. I have at least provide you with a lawyer's interpretation that agrees with my own. Quite frankly, the text is crystal clear. Isn't that what they would claim about every case where section 46 was used? There is nothing to suggest that they are correct. Yeah, I do discount this as anything more than a briefing position. It's garbage. If I recall correctly, he claims to be stating the process given by the league office. Perhaps he erred. He also pointed out the major distinction. The Missouri case was with regards to an employee who signed a contract of adhesion (take it or leave it). In this case, the players had substantial bargaining power and signed a negotiated contract. In short, the author understands exactly what the player's signed even if their lawyers now claim ignorance or to have a different understanding.

Thank you for that insightful analysis. I believe my definitions are clear, accurate enough and very useful for lay purposes. You can convince me otherwise, but not with content-free posts like this.--Percy