Understanding through Discussion


Welcome! You are not logged in. [ Login ]
EvC Forum active members: 107 (8805 total)
Current session began: 
Page Loaded: 12-13-2017 12:23 AM
334 online now:
Chatting now:  Chat room empty
Newest Member: jaufre
Post Volume:
Total: 824,060 Year: 28,666/21,208 Month: 732/1,847 Week: 107/475 Day: 0/17 Hour: 0/0

Announcements: Reporting debate problems OR discussing moderation actions/inactions


Thread  Details

Email This Thread
Newer Topic | Older Topic
  
RewPrev1
...
2526
27
2829
...
32Next
Author Topic:   Deflation-gate
Percy
Member
Posts: 16298
From: New Hampshire
Joined: 12-23-2000
Member Rating: 2.5


Message 391 of 466 (780429)
03-15-2016 10:30 AM
Reply to: Message 389 by NoNukes
03-15-2016 9:44 AM


Re: Science Fair winner:
This is a difference of opinion and not, IMO, an error.

Yes, of course in your opinion it's not an error. That's why your claim that you admit error when shown you're wrong was totally bogus. You just extend the arguing interminably.

The fact that you make a vehement argument does not mean that you've rebutted my point.

There was no vehement argument, and the fact that you refuse to admit obvious error supports my point that you refuse to admit obvious error.

Dissembling isn't lying, it's giving things a false appearance.

What you've just described is lying.

What I've just described is dissembling. Look it up. You seem to have an intense desire to be wrong about simple things. Sports organizations, lawyers, judges, they all think Brady's hearing was arbitration, but you don't, and you're right. And dictionaries and thesauri all agree that dissembling and lying are not synonyms, but you don't, and you're right. Yeah, sure.

Again, those distinctions exist regardless of what you call the procedure. Your insistence on making this about the name only is dissembling.

Yes, of course to you this isn't about the name. In order to be right you've got to bring in a host of other issues, issues hinted at nowhere in any of the deflategate legal proceedings. They're all in your head.

--Percy


This message is a reply to:
 Message 389 by NoNukes, posted 03-15-2016 9:44 AM NoNukes has responded

Replies to this message:
 Message 392 by NoNukes, posted 03-15-2016 1:25 PM Percy has responded

    
NoNukes
Member
Posts: 10116
From: Central NC USA
Joined: 08-13-2010
Member Rating: 1.7


Message 392 of 466 (780468)
03-15-2016 1:25 PM
Reply to: Message 391 by Percy
03-15-2016 10:30 AM


Re: Science Fair winner:
Yes, of course in your opinion it's not an error. That's why your claim that you admit error when shown you're wrong was totally bogus. You just extend the arguing interminably.

Which of course is your opinion. You haven't shown that I'm wrong. You've simply made an argument that I am wrong, while I've made arguments in support of my position.

And of course the text of Article 46 is not an issue that is only in my head. I'm not the only person to cite the article in discussions of the hearing. Your statement to the contrary is simply not correct.

http://www.si.com/...hearing-preview-tom-brady-roger-goodell

quote:
The contractual provision at issue in the NFLs appeal is Article 46 of the collective bargaining agreement (CBA). The league and the NFLPA, of which Brady is a member, signed the CBA in 2011. Article 46 of the CBA empowers Goodell to fine or suspend to a player who engages in conduct detrimental to the integrity of, or public confidence in, the game of professional football. The operative words and phrasesconduct detrimental; integrity; and public confidenceare, as the NFL stresses, intentionally imprecise. It is up to Goodells reasonable judgment to assess and define these words and phrases in individual situations.

quote:
The league insists that the legal question is simply whether Goodell applied Article 46 in a plausible way. To bolster that point, look for Clement to highlight how the NFLPA freely assented to Goodells sweeping authority to handle player disciplinary matters, including by empowering Goodell with wide latitude to draw conclusions from investigations. This far-reaching power is designed, the NFL underscores, to guarantee that Goodell can protect the so-called integrity of the game.

Edited by NoNukes, : No reason given.

Edited by NoNukes, : No reason given.


Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)

History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King

If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams


This message is a reply to:
 Message 391 by Percy, posted 03-15-2016 10:30 AM Percy has responded

Replies to this message:
 Message 393 by Percy, posted 03-15-2016 2:14 PM NoNukes has not yet responded

    
Percy
Member
Posts: 16298
From: New Hampshire
Joined: 12-23-2000
Member Rating: 2.5


Message 393 of 466 (780484)
03-15-2016 2:14 PM
Reply to: Message 392 by NoNukes
03-15-2016 1:25 PM


Re: Science Fair winner:
Are you daft? Have you lost your memory? The statement you're defending yourself against was this one in my Message 377:

Percy in Message 377 writes:

NoNukes writes:

Or perhaps I don't live and breathe the details like you do. When my errors are pointed out, I have no problem acknowledging them.

Yeah, right. I'm still waiting for your acknowledgement of your error about whether Brady's hearing before Goodell was arbitration.

Everyone but you thinks it was an arbitration hearing. The NFL called it arbitration, the NFLPA called it arbitration, Berman called it arbitration, they've all cited the FAA (Federal Arbitration Act), they've all cited other arbitration cases. For example, this is from the recent NFLPA Amended Answer and Counter Claim:

quote:

INTRODUCTION

  1. Commissioner Goodells Award denied the Union and Bradys arbitration appeal of an unprecedented four-game suspension for Tom Bradys purported general awareness that two New England Patriots equipment personnel allegedly deflated Patriots footballs prior to the 2015 AFC Championship Game. [emphasis mine]

Time to admit you were wrong.

--Percy


This message is a reply to:
 Message 392 by NoNukes, posted 03-15-2016 1:25 PM NoNukes has not yet responded

    
Percy
Member
Posts: 16298
From: New Hampshire
Joined: 12-23-2000
Member Rating: 2.5


(1)
Message 394 of 466 (780532)
03-16-2016 8:16 AM


Most analysts thought the questions of the 2nd circuit's 3-judge panel during the NFL's appeal indicated they were leaning toward overturning Judge Berman's ruling. Michael McMcann of si.com last week posted an article that strikes a hopeful note: New hope for Tom Brady? Rethinking the Deflategate appeal, hitting on some of same points I have raised. Some excerpts:

quote:
Several of the factual characterizations made by the judges during last Thursdays hearing seemed to catch NFLPA attorney Jeffrey Kessler and much of the audience by surprise. This was especially true when Judge Chin opined that, the evidence of the ball tampering is compelling, if not overwhelming. This statement expressed a level of certainty in the Patriots and Bradys alleged misconduct far greater than that adopted by Judge Berman. In his 40-page order, Judge Berman highlighted how the Wells Report was dependent on assumptions and speculation. Moreover, during a hearing last August, Judge Berman led NFL attorney Daniel Nash to admit that there was no direct evidence of ball deflation conspiracy. Yet Judge Chin now finds this same evidence overwhelming.
...
Judge Chins certainty in a ball deflation plot largely resembles the view contained in Goodells 20-page final decisionan arbitration awardon July 28, 2015. Goodells decision was based on the Wells Report and on his impressions from serving as the presiding officer at Bradys appeal on June 23, 2015. In the decision, Goodell presented as factual statements that Mr. Brady knew about, approved of, consented to, and provided inducements and rewards in support of a [ball deflation] scheme. Goodell also concluded that with respect to the game balls, Brady engaged in conduct detrimental to the league. Unlike Wells, Goodell portrayed Brady as willing participant in, and key facilitator of, a ball deflation plot rather than a mere witness to it.

McCann makes clear that Judge Chin can rightfully come to completely different conclusions than Judge Berman, but it appears he accepts Goodell's judgment of what Brady did, which goes far beyond the Wells report. It's obvious how disparate are the two conclusions when put one after the other:

  • Wells report: "...it is more probable than not that Tom Brady (the quarterback for the Patriots) was at least generally aware..."

  • Goodell appeal award: "Mr. Brady knew about, approved of, consented to, and provided inducements and rewards in support of a [ball deflation] scheme"

It is such leaps as this that helped prompt Berman to rule that Goodell's denial of access to witnesses and notes hindered Brady's ability to defend himself during the arbitration hearing.

A final excerpt about Judge Chin and the evidence:

quote:
While Judge Chins apparent adoption of Goodells view is permissible, it is nonetheless surprising given what we know about the science of Deflategate. It is even more surprising given that Judge Berman seemed to doubt the NFLs reasoning.

There's much more after this, but more technical and less interesting, so I'll just say that it raises questions about some of the information the NFL presented to the 3-judge panel.

McCann concludes with some views from other attorneys. This one echoes my own thoughts concerning questions about Brady's phone:

quote:
Alan Milstein, an attendee at the Mar. 3 hearing: The judges at oral argument seemed obsessed with Brady's destruction of his phone, a dumb but irrelevant act. Perhaps when they sit down to analyze whether Judge Berman should be reversed as a matter of law, they will find there is no such basis. In any event, they should at least remand for Judge Berman to determine the issue of evident impartiality, which was always the best and easiest issue to justify refusing to certify the arbitration award.

This one echoes my thoughts about Goodell's unjustifiably upping the accusations from the Wells report:

quote:
​Daniel Wallach, an attendee at the Mar. 3 hearing: There were many positives for Brady in the oral argument. Right out of the gate, Judge Katzmann asked whether Bradys right to a fair hearing was compromised by the new factual findings made by Goodell. Both Katzmann and Judge Chin appeared troubled by Goodells escalation from a finding of general awareness to direct participation in a scheme to deflate footballs and also from the leap of 'noncooperation to obstruction (viz-a-viz, the destruction of the cell phone), noting that while Brady could appeal the former (to Goodell), he was precluded from appealing the newer findings. This raises issues of both notice and fundamental fairness, which could tip the balance in Bradys favor. Judge Katzmann even questioned whether you could uphold the discipline on the basis of the new factual findings. This could be a winner for Brady.

This one echoes my thoughts about the judges' comments on the evidence, that the judges were operating out of ignorance:

quote:
Richard Zaiger, former regional director of the Federal Labor Relations Authority: How would Judge Chin be able to make the comment he did about the overwhelming evidence against Brady? If I had to guess, I'd speculate that the judges at most read the briefs and Goodell's decision on appeal and nothing else. If I had to guess, at this point I'd say Berman's decision on notice will not be accepted. The process questions regarding Pash and the documents, however, remain. If those rulings stand then the case could get bucked back to Berman to address the issues Berman did not address and to reevaluate the remedy.

I call attention to the fact that these attorneys are echoing comments I've made myself because when I made them their reasonableness was called into question. That respected attorneys are reaching similar conclusions should put this questioning to rest. This is not to say that I'm right or they're right, only that I wasn't making off-the-wall comments drawn out of thin air.

--Percy

Edited by Percy, : Grammar.


    
Percy
Member
Posts: 16298
From: New Hampshire
Joined: 12-23-2000
Member Rating: 2.5


(1)
Message 395 of 466 (782518)
04-25-2016 2:36 PM


Brady Suspension Reinstated
The United States Court of Appeals for the Second Circuit has today reinstated Brady's four game suspension, here's the ruling: NFL v Brady. I'll have more to say when I've read it, but what this means is that unless Brady chooses to appeal he will sit out the first four games of the 2016 season.

AbE: Apparently the vote was 2-1, the dissent can be found here: Katzmann, Chief Judge, dissenting

--Percy

Edited by Percy, : AbE.


Replies to this message:
 Message 396 by xongsmith, posted 04-25-2016 8:18 PM Percy has acknowledged this reply
 Message 397 by Percy, posted 04-26-2016 7:48 AM Percy has acknowledged this reply

    
xongsmith
Member
Posts: 1825
From: massachusetts US
Joined: 01-01-2009
Member Rating: 3.1


Message 396 of 466 (782547)
04-25-2016 8:18 PM
Reply to: Message 395 by Percy
04-25-2016 2:36 PM


Re: Brady Suspension Reinstated
In many a dark hour
I've been thinkin' about this
That our hero Tom Brady
Was betrayed by a hiss
But I can't think for you
The courts have to explain
Why the NFL Commissioner
Hates the Patriot's Game

- xongsmith, 5.7d

This message is a reply to:
 Message 395 by Percy, posted 04-25-2016 2:36 PM Percy has acknowledged this reply

    
Percy
Member
Posts: 16298
From: New Hampshire
Joined: 12-23-2000
Member Rating: 2.5


Message 397 of 466 (782568)
04-26-2016 7:48 AM
Reply to: Message 395 by Percy
04-25-2016 2:36 PM


Re: Brady Suspension Reinstated
I'll probably start reading the ruling and the dissent later today, but I do have a couple reactions after reading this morning's papers.

The articles I read are uniform in saying that the ruling is unlikely to be appealed or just that Brady should not appeal, but none give any rationale. The ruling can be appealed to either the full Second Circuit or to the Supreme Court. If for no other reason than to earn a further delay, I can't see why Brady wouldn't appeal. Brady is 38, and given how glacially the legal process can move it isn't hard to envision Brady escaping any suspension by simply continuing his appeals until he retires.

My other reaction is more a question. I'm wondering if the ruling's majority opinion makes clear just what a commissioner would have to do to be seen as acting in a biased and unfair manner according to the Federal Arbitration Act (FAA). There must be limits to the arbitrariness of his actions, right? I mean, we don't have to start speculating about absurd actions (capital punishment?) to find ones the Second Circuit would find unfair, do we? Surely there must be actions that aren't absurd but that are actually possible that the Second Circuit would rule against. There must be *some* actions that the FAA provides protections against. So will the ruling provide a hint what they might be? I'll be keeping my eye out.

AbE: The New York Daily News has an article that more informatively discusses Brady's appeal options: Deflategate battle between Tom Brady and NFL could go to Supreme Court

--Percy

Edited by Percy, : AbE.


This message is a reply to:
 Message 395 by Percy, posted 04-25-2016 2:36 PM Percy has acknowledged this reply

Replies to this message:
 Message 401 by NoNukes, posted 04-29-2016 10:06 PM Percy has responded

    
Percy
Member
Posts: 16298
From: New Hampshire
Joined: 12-23-2000
Member Rating: 2.5


Message 398 of 466 (782654)
04-27-2016 7:27 AM


Still Reading the Ruling
I'm up to page 15 of the 2nd Circuit's ruling reinstating Brady's four game suspension. Meanwhile today's papers had a couple good articles. Here are excerpts from Tom Bradys lawyers missed the point: his innocence in the Washington Post. Sorry for the length, I just found much of the article salient:

quote:
they failed to drive home the essential point: How can a player be suspended for conduct detrimental when there was no conduct to begin with?
...
To date, we are still looking for a single shred of credible evidence that any human hand deflated the footballs in that AFC championship game. Where is the conduct? Much less the conduct detrimental?
...
As New York Law School professor Robert Blecker put it, What happened to the deflate part of Deflategate?
...
Thats fine, as long as they have a fair and honest commissioner. But the CBA gives the commissioner disconcertingly vague power to discipline them for conduct detrimental, and its a power Goodell has consistently abused like a third world tyrant.
...
This simply left two of the three judges unpersuaded, to the point of irritability. Time after time in their written opinion, Parker and Denny Chin chided the NFLPA for making a bad deal, with sentences like these:

There is simply no fundamental unfairness in affording the parties precisely what they agreed on.

If it is seriously believed that these procedures were deficient or prejudicial, the remedy was to address them during collective bargaining.

Arbitration is a matter of contract, and consequently the parties to an arbitration can ask for no more impartiality than inheres in the method they have chosen.

In other words, the CBA is written so lousily that when it comes to Goodells powers, it effectively ties the hands of judges and prevents them from intervening even if they wanted to.
...
The remedy for a dissatisfied party, they wrote, is not judicial intervention, but for the parties to draft their agreement to reflect the scope of power they would like their arbitrator to exercise.

According to the judges, there is only one very narrow ground for overturning arbitration: if the arbitrator is guilty of misconduct and violates fundamental fairness.

Goodell was guilty of misconduct: This was the point to be hammered.
...
As Katzmanns dissent recognized, Goodell employed a shifting rationale for Bradys discipline. Goodell strayed far from common sense and from any previous penalty for ball tampering, such as receivers using stickum. There was a lack of any meaningful explanation in the Commissioners final written decision. The punishment was unprecedented and virtually unexplained. Goodells powers are broad, but they shouldnt be limitless.

Yet even Katzmann stopped short of acknowledging what really happened here: Goodell simply made things up as he went along. There is evidence that the Wells Report manufactured or twisted facts to make Brady seem guilty. And lately we have evidence that the NFL has suppressed information that might exonerate him. This season, the NFL spot-checked inflation levels of footballs, and then refused to make the data public. There is only one conceivable rationale for not releasing it, and thats because it makes the specious Wells Report look even more specious, and supports the account of the Patriots and consensus of mainstream scientists: The deflation level of the footballs was because of cold, wet weather and the effects of the Ideal Gas Law.


Another article in the Post, Whats next for Tom Brady after Deflategate setback? argues that the case could go on:

quote:
So the prospects for [an en banc hearing] are dim, but I believe this case, given its high profile, the dissenting opinion and the important issues affecting arbitration [lean] highly in favor of a rehearing, [sports law expert Daniel] Wallach told Scott Zolak and Marc Bertram on 98.5 the Sports Hub. So if any case is going to be reheard this year in the Second Circuit, I think this is going to be the one.

Interesting.

I'm still unclear about how the process goes from here. Since the 3-judge panel remanded the case back to judge Berman, when does that happen, and is that a hearing or just paperwork? If Brady appeals to the full 2nd Circuit or the Supreme Court, is the remanding back to Judge Berman put on hold? Does Brady actually have the option of appealing to the Supreme Court instead of the full 2nd Circuit? If the full 2nd circuit rejects the appeal, does Brady then have the option of appealing to the Supreme Court?

Apparently there's been a lot of legal chatter on local talk radio, but I haven't had time to listen to it.

--Percy


Replies to this message:
 Message 399 by AZPaul3, posted 04-28-2016 4:34 AM Percy has acknowledged this reply

    
AZPaul3
Member
Posts: 3428
From: Phoenix
Joined: 11-06-2006


Message 399 of 466 (782721)
04-28-2016 4:34 AM
Reply to: Message 398 by Percy
04-27-2016 7:27 AM


Re: Still Reading the Ruling
Thank you for all this, btw.

So the court did what courts are most apt to do; rule on as narrow an issue as possible. This one turns on a narrow issue in contract law. Did Goodell act outside the CBA in acting as booth discipliner and arbitrator on the same case? No. Not according to the CBA. The fairness issue, the court seemed to say, was not in their purview.

As I understand the process from here Judge Berman can hold a hearing or just re-issue his opinion in line with the instructions he receives from the Circuit court: the CBA was not violated, uphold the suspension. If Brady appeals to the full Circuit then Berman will probably delay his new ruling pending the appeal. But Brady will need to give Berman notice of the appeal in the next few days. The NFL will be pushing for a quick ruling from Berman.

To appeal to the full Circuit Brady will need grounds to challenge the present ruling as error. Those grounds may be within Katzmann's dissent, which I haven't read. If the full Circuit rejects the appeal then that means the full Circuit finds the grounds cited as insufficient for the appeal. Brady may then go on and appeal to SCOTUS but I'm thinking the Supremes will ultimately find the same deficiency of grounds as did the full Circuit.

Unfair will not be adequate grounds for such an appeal, and Goodell's misconduct will be hard to sustain as grounds since that wasn't challenged as part of the original appeal.

I look forward to your continuing analysis. Thanks again.


This message is a reply to:
 Message 398 by Percy, posted 04-27-2016 7:27 AM Percy has acknowledged this reply

  
Percy
Member
Posts: 16298
From: New Hampshire
Joined: 12-23-2000
Member Rating: 2.5


Message 400 of 466 (782820)
04-29-2016 9:04 AM


Need Briefs
The Second Circuit ruling references the briefs filed by the NFL and the NFLPA, but I can't find copies. I'm continuing to look, but if anyone knows where they please let me know. Thanks.

--Percy


    
NoNukes
Member
Posts: 10116
From: Central NC USA
Joined: 08-13-2010
Member Rating: 1.7


Message 401 of 466 (782872)
04-29-2016 10:06 PM
Reply to: Message 397 by Percy
04-26-2016 7:48 AM


Re: Brady Suspension Reinstated
I have to admit to being drawn back to this group by the Subject heading: Need Briefs. Got a bit of a chuckle out of it. Apparently I am spending too much time around eighth graders these days.

I don't know of any way to get a free electronic copy of the briefs. My understanding is that the PACER system for retrieving and filing appellate court briefs is relatively inexpensive, but I have never been responsible for paying for access. I think you can register and search for the documents for free. Maybe the briefs will eventually turn up on the web for free.

The articles I read are uniform in saying that the ruling is unlikely to be appealed or just that Brady should not appeal, but none give any rationale. The ruling can be appealed to either the full Second Circuit or to the Supreme Court.

Small technical correction. The request to have the full circuit hear the case is actually a petition for a re-hearing rather than yet another appeal. Lest that seem to be nitpicking, understand that the circumstances under which the appellate court will grant a re-hearing are quite limited.

And of course an appeal to the Supreme Court is not granted as a matter of right either.

Not sure what the calculus is regarding whether Brady should appeal. But I'd say that the odds on either the re-hearing being granted or the Supreme Court granting cert. are quite unfavorable. And by that I mean generally speaking and not as a comment on the merits of this particular case.


Under a government which imprisons any unjustly, the true place for a just man is also in prison. Thoreau: Civil Disobedience (1846)

History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people. Martin Luther King

If there are no stupid questions, then what kind of questions do stupid people ask? Do they get smart just in time to ask questions? Scott Adams


This message is a reply to:
 Message 397 by Percy, posted 04-26-2016 7:48 AM Percy has responded

Replies to this message:
 Message 402 by Percy, posted 04-30-2016 8:10 AM NoNukes has responded
 Message 421 by Percy, posted 05-01-2016 10:53 AM NoNukes has responded

    
Percy
Member
Posts: 16298
From: New Hampshire
Joined: 12-23-2000
Member Rating: 2.5


Message 402 of 466 (782883)
04-30-2016 8:10 AM
Reply to: Message 401 by NoNukes
04-29-2016 10:06 PM


Re: Brady Suspension Reinstated
Brady wants to buy as much time as he can, hopefully right up to retirement, so the most important issue, even more important then his chances of having re-hearings or appeals accepted let alone winning, is how long each part of the process will take. To draw the process out as long as possible I think it might be done like this, and I add my guesses of roughly how long each step will take:

  • Apply for a rehearing before the full Second Circuit. Consideration of the application should take some number of months.

  • If accepted then I assume they don't file new briefs, though maybe some sort of amendments or additions are permitted. There will be oral arguments, then the full court has to discuss the case, decide upon a ruling, then have someone write it. If Brady wins then the NFL will appeal to the Supreme Court, and if the NFL wins then Brady will appeal to the Supreme Court. All this should take some number of months.

    Naturally if the application for a re-hearing is rejected then Brady should appeal to the Supreme Court.

  • The Supreme Court will consider whether to hear the appeal, which should take at least some number of months.

  • If the Supreme Court declines to hear the appeal then it's all over and Brady begins serving his suspension immediately.

  • If the Supreme Court decides to hear the appeal, then this could add as much as another year

So I guestimate that Brady could draw the process out at least through the next season, and possibly another season after that.

--Percy


This message is a reply to:
 Message 401 by NoNukes, posted 04-29-2016 10:06 PM NoNukes has responded

Replies to this message:
 Message 403 by AZPaul3, posted 04-30-2016 8:43 AM Percy has responded
 Message 408 by NoNukes, posted 04-30-2016 2:14 PM Percy has responded

    
AZPaul3
Member
Posts: 3428
From: Phoenix
Joined: 11-06-2006


Message 403 of 466 (782887)
04-30-2016 8:43 AM
Reply to: Message 402 by Percy
04-30-2016 8:10 AM


Re: Brady Suspension Reinstated
Or he could stop the appeals, serve out his suspensions and be done with it come October. It will not hang over him for the next year+ and he can concentrate on what he does best - win football games. At the end of his career this episode will still be there but most followers and fans will understand the Goodell overstapped his bounds without cause.

It won't hurt him or his reputation one little bit since we already know nothing happened and the league is full of shit.

Edited by AZPaul3, : No reason given.


This message is a reply to:
 Message 402 by Percy, posted 04-30-2016 8:10 AM Percy has responded

Replies to this message:
 Message 405 by Percy, posted 04-30-2016 9:26 AM AZPaul3 has acknowledged this reply

  
Percy
Member
Posts: 16298
From: New Hampshire
Joined: 12-23-2000
Member Rating: 2.5


Message 404 of 466 (782889)
04-30-2016 9:09 AM


Review of the Second Circuit Majority Ruling
Here are my comments on the ruling of the Second Circuit on the NFL v. Brady case. A copy of ruling can be found here:

http://a.espncdn.com/pdf/2016/0425/BradyRulingReversed.pdf

From page 2:

quote:
We hold that the Commissioner properly exercised his broad discretion under the collective bargaining agreement and that his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness.

Part of the summary on page 3:

quote:
The parties sought judicial review and the district court vacated the award, reasoning that Brady lacked notice that his conduct was prohibited and punishable by suspension, and that the manner in which the proceedings were conducted deprived him of fundamental fairness.

From page 4:

quote:
Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act, U.S.C. 141 et seq. (the "LMRA").

What about the Federal Arbitration Act (FAA)? More from the same paragraph:

quote:
We must simply ensure that the arbitrator was "even arguably construing or applying the contract and acting within the scope of his authority" and did not "ignore the plain language of the contract."United Paperworks Int'l Union v. Misco, Inc., 484 U.S. 29, 38 (1987). These standards do not require perfection in arbitration awards. Rather, they dictate that even if an arbitrator makes mistakes of fact or law, we may not disturb an award so long as he acted within the bounds of his bargained-for authority.

Obviously perfection isn't required in arbitration awards, nor in much else in life, but "fairness" is noteable for its lack of mention in this paragraph and in subsequent paragraphs that I shant quote.

In the "Background" section they describe all the evidence from the NFL's point of view, including how Brady was denied access to NFL VP and General Counsel Jeff Pash or of Paul, Weiss's (a legal firm) internal investigation notes. They don't seem concerned about how badly this handicapped Brady's ability to put a different point of view on the record. This was Brady's only opportunity to put forward his own viewpoint, given that appeals are about process and not evidence. They seemed to accept everything Goodell said and question everything Brady said. They call special attention to Brady's comments about his cell phones, which are problematic, but call no attention to Goodell's many comments that were also problematic. If in the remainder of the ruling I find them questioning anything Goodell did or said I'll be sure to mention it.

They also strictly follow the NFL's point of view concerning the text messages. And despite claiming an understanding of the Ideal Gas Law, they fail to take it into accont when describing the intercepted ball that measured beneath its original 12.5 PSI, believing this indicated deflation instead of just the effects of temperature.

On page 10 they summarize Goodells "equivalent to steroid use" argument without questioning it at all.

This part of their ruling on page 12 probably explains their position, though it makes no sense:

quote:
Because it is the arbitrator's view of the facts and the meaning of the contract for which the parties bargained, courts are not permitted to substitute their own.

Hopefully this becomes more clear as I read on, but I think they're saying that if the arbitrator thinks he has the facts right then he has the facts right, thereby making unfairness impossible. I was hoping they would make clear how, given their stance, an arbitrator could be unfair, but so far, nothing. It's almost as if they believe it impossible for an arbitrator to be unfair. And will they ever mention the FAA?

From page 12:

quote:
As long as the award "'draws its essence from the collective bargaining agreement' and is not merely the arbitrator's 'own brand of industrial justice,'" it must be confirmed.

They never explain how Goodell's actions were not his 'own brand of industrial justice,' i.e., arbitrary, capricious and biased - they just declare that it isn't. This is the last mention of industrial justice in the ruling.

From page 13:

quote:
On this appeal, the Association does not contest the factual findings of the Commissioner.

The "Association" would be the NFL Players Association (NFLPA). It seems disingenuous for the 2nd Circuit to say this. Of course the NFLPA didn't contest the factual findings on appeal: you're not supposed to question the factual findings, just the process. Am I missing something here? Why is the ruling stating this in a way that makes the NFLPA's seem to be conceding that the facts were incontestable? Weird.

Page 15-16 describes the judges' belief that the NFLPA argued one way about the Player Policies at the arbitration hearing before Goodell, and then argued another way in their appeal to the Second Circuit. I went back to the transcript of the arbitration hearing and found that they are incorrect. From page 15 of the ruling:

quote:
During arbitration, the Association disclaimed the applicability of the Player Policies, saying "we don't believe this policy applies either, because there is nothing here about the balls." This change in position is itself grounds for rejecting the Association's argument.

The quoted statement is from Jeffrey Kessler's (NFLPA and Brady lawyer) opening statement in the arbitration hearing before Roger Goodell, but if you read the arbitration hearing transcript beginning at the bottom of page 25 (Brady arbitration hearing transcript), Kessler did say that, but he went on to say much more. He stated that they don't believe the Player Policies apply, noted the Wells Report took the same position, and then he considers the opposite position as if the Player Policy *did* apply. So when the judges cite this from prior law:

quote:
"[A] party 'cannot remain silent, raising no objection during the course of the arbitration proceeding, and when an award adverse to him has been handed down complain of a situation of which he had knowledge from the first.'"

The judges are dead wrong, because Kessler had not been silent about what application of the Player Policy would have meant. They continue:

quote:
We conclude that the equipment provision [of the Player Policy] does not apply and, in any event, the punishments listed for equipment violations are minimum ones that do not foreclose suspensions.

So here they implicitly acknowledge that Kessler wasn't silent about the implications of the Player Policy during arbitration, since here they indicate awareness of his arguements about the "punishments for equipment violations." How could they claim Kessler was silent about the Player Policies while at the same time indicating awareness that he talked about it beyond that first comment? You'd think top judges assisted by some of the most able and ambitious law clerks in the country wouldn't make obvious mistakes like this.

One can imagine that Jeffrey Kessler being furious about this playing fast and loose with the facts in a way that makes it look like he argued inconsistently, and is perhaps encouraging an appeal. No word on that yet.

On page 16 the ruling says:

quote:
But the Association finds language in the "Other Uniform/Equipment Violations" provision that we cannot locate. The provision says nothing about tampering with, or the preparation of, footballs and, indeed, does not mention the words "tampering," "ball," or "deflation" at all.

The judges err here. The NFLPA did not "find language" that was not in in the "Other Uniform/Equipment Violations" on page 15 of the Players Policies. They only summarized in their own words their interpretation of its meaning. They were not quoting from it. A PDF of the Player Policies can be found here:

quote:
http://www.sdnyblog.com/...15/12/NFL-Uniform-Policy-2014.pdf

In addition, the very first sentence of that section refers to the "Uniform Policy" that has all the details and that appears further on at the end of the section on page 24. The word "football" appears several times.

In any case, the NFLPA brief is just stating their opinion that tampering is a type of equipment violation and that it includes ball deflation. For example, filing cleats to a different shape would be an obvious type of equipment tampering, but it isn't explicitly mentioned either.

The Player Policies are ambiguous concerning punishment for first time offenses. While it does say in several places that, "First offenses will result in fines," on page 20 it says:

quote:
Fines listed below are minimums. Other forms of discipline, including higher fines and suspension may also be imposed, based on the circumstances of the particular violation.

So the Player Policies document says both that first offenses are subject to fines, and it says that additional discipline may also be imposed. The court therefore rules that the NFL can impose whatever discipline they feel like. I'm still wondering where issues of fairness enter into this, and am becoming concerned that it's not at all.

On page 16 the ruling says:

quote:
On the other hand, Article 46 gives the Commissioner broad authority to deal with conduct he believes might undermine the integrity of the game.

Will the ruling ever deal with the fairness of the Commissioner declaring that the integrity of the game is whatever he says it is?

On page 19-20 they address the leap Goodell made from Brady being "generally aware" to he "participated in a scheme to tamper with game balls." They don't mention that Goodell also declared that Brady "knew about, approved of, consented to, and provided inducements and rewards of a scheme," so when they defend their version of a lesser leap they almost sound reasonable. Almost. They say that testimony during the arbitration hearing could have convinced Goodell of this more extreme finding, but we have the full transcript of that hearing, and there was no such testimony. The only surprise was Brady's destruction of his cell phone, and the NFL already had all the texts from McNally and Jastremski.

Here's an interesting statement from page 25:

quote:
It is well established that the law permits a trier of fact to infer that a party who deliberately destroys relevant evidence the party had an obligation to produce did so in order to conceal damaging information from the adjudicator.

Professional sports teams demonstrated inability to maintain secrecy seems motivation enough. These judges seem intent at considering only arguments favorable to what they already wanted to rule anyway. Missing is a balanced consideration of both sides of issues that is followed by an explanation of how the balance of conflicting considerations comes out in a certain way. For them only evidence pointing in a certain direction, the NFL version of the evidence, is worthy of consideration.

Finally on page 27 the FAA and fairness makes its first appearance, concerning whether Goodell erred by refusing to make Pasch available to testify (I've removed the references to case law for the sake of readability):

quote:
However, a narrow exception exists under the Federal Arbitration Act ("FAA"), which provides that an award may be vacated where "the arbitrators were guilty of misconduct...in refusing to hear evidence pertinent and material to the controversy." We have held that vacatur is warranted in such a circumstance only if "fundamental fairness is violated."There is little question that the exclusion of the testimony was consistent with the Commissioner's broad authority to regulate procedural matters and comported with the CBA.Thus, the Commissioner's ruling can be revisited in court only if it violated fundamental fairness, and we see no such violation.

That's it. That's all the explanation they provide: They "see no such violation." They continue on for a couple more paragraphs, but just repeating their feeling that if Goodell declared that Pasch's testimony was unnecessary, that's good enough for them.

On page 29 the judges argue similarly concerning the denial of access to investigative files. They say the Commissioner claimed to have not seen these internal files, and therefore they weren't needed by the NFLPA or Brady, either. But what if those files revealed errors or exculpatory evidence that wasn't in the report? What then? The judges don't consider this possibility, just declare that "there is simply no fundamental unfairness in affording the parties precisely what they agreed upon." Except that they didn't precisely agree upon this - there is no detail in the CBA on this point. Goodell might be within his rights to act as he did, but what he did is definitely not "precisely what they agreed upon."

Summarizing, the judges failed to properly consider the constraints of the LMRA and the FAA, with the result that they ruled in favor of Goodell's brand of industrial justice, i.e., doing whatever he wants.

I'll review Chief Judge Katzmann's dissenting opinion next.

--Percy


    
Percy
Member
Posts: 16298
From: New Hampshire
Joined: 12-23-2000
Member Rating: 2.5


Message 405 of 466 (782892)
04-30-2016 9:26 AM
Reply to: Message 403 by AZPaul3
04-30-2016 8:43 AM


Re: Brady Suspension Reinstated
AZPaul3 writes:

Or he could stop the appeals, serve out his suspensions and be done with it come October.

Agreed. That's the "let it go" argument. I don't think it's in his makeup. It's going to take some strong convincing for him to stop.

... the league is full of shit.

Goodell's focus on what he calls "the integrity of the league" has done more to hurt the leagues image than anything any player has done. How can you trust a league management that fights responsibility for concussion effects while persecuting players and coaches for imagined offenses like bounties and deflation. If the NFL product were not so spectacularly successful for owners then Goodell's days would be numbered.

--Percy


This message is a reply to:
 Message 403 by AZPaul3, posted 04-30-2016 8:43 AM AZPaul3 has acknowledged this reply

    
RewPrev1
...
2526
27
2829
...
32Next
Newer Topic | Older Topic
Jump to:


Copyright 2001-2015 by EvC Forum, All Rights Reserved

™ Version 4.0 Beta
Innovative software from Qwixotic © 2017