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Author | Topic: Deflation-gate | |||||||||||||||||||||||
Percy Member Posts: 22508 From: New Hampshire Joined: Member Rating: 5.4 |
Here'a a link to Chief Judge Katzmann's dissent. I hope to review it soon.
--Percy
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Percy Member Posts: 22508 From: New Hampshire Joined: Member Rating: 5.4 |
Sports Illustrated legal expert Michael McCann yesterday reported that Brady has added more talent to his legal team:
quote: Summarizing for the majority whose eyes very reasonably glazed over at my long set of excerpts, Brady is likely to request a rehearing en banc (en banc just means all the judges of a court, instead of just a subset like the three judge panel that just reinstated Brady's suspension). If turned down Brady will appeal to the Supreme Court. If accepted, whoever loses will appeal to the Supreme Court. Will the Supreme Court agree to hear the appeal? Seems unlikely, but the absence of Scalia might increase the odds. With Scalia no longer around to stomp all over the proceedings the judges might feel the time is right to revisit labor arbitration fairness issues. --Percy Edited by Percy, : Remove accidentally repeated paragraph in quote.
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NoNukes Inactive Member |
o 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 I see that the NFLPA has taken on a highly competent appellate attorney who is capable and experienced at handling appeals at the Supreme Court level. That may or may not match Brady's thoughts on the matter. I think you've made an assumption that Brady can get a stay of the current ruling. That is not a given. After all, the season is not going to start for a bit, and the commissioner might chose to concede that Brady can participate in events up until the start of the season. The circuit court might decide that a stay is not needed. If a stay is granted, then the appellate court is unlikely to dally in making a call on the re-hearing. Of course appellate courts can decide to issue a stay and then foot drag with near impunity. I see that the Supreme Court has recently ordered the Fifth Circuit to take on a ruling on a voting rules matter that the circuit court has delayed handling for two years. They've been essentially ordered to resolve the matter in a matter of weeks. So anything is possible. Which brings me to my biggest complaint about this matter. How do we justify dedicating limited court resources to a sporting issue over more important cases anyway? Is any of this stuff really more important than the other cases that are getting bumped off the docket to expedite this matter? Surely not. 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
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NoNukes Inactive Member |
Will the Supreme Court agree to hear the appeal? Seems unlikely, but the absence of Scalia might increase the odds. Why would that be the case? I believe that having a smaller number of justices definitely decreases the odds of cert being granted. Unlike the situation when deciding a case, you don't need a majority of the Justices to agree to grant cert. You simply need four votes. So a single opinionated guy cannot cause the court to reject a hearing of cert. But having a Justice missing reduces the chance of getting four votes. I don't see any history of Scalia badgering other Justices into denying cert. I'd also suggest that it is really unclear how Scalia would vote in this situation. I think it is well established that I don't think much of Scalia's opinion on many matters, but that is not because I believe Scalia is a government stooge or that he always sides with the little man over the big man. Scalia is a wingnut, but I am not sure what the wingnut version of justice is in this instance. Most people, of all political persuasions seem to side with Brady. 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
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Percy Member Posts: 22508 From: New Hampshire Joined: Member Rating: 5.4 |
NoNukes writes: After all, the season is not going to start for a bit, and the commissioner might chose to concede that Brady can participate in events up until the start of the season. This isn't a problem because player suspensions don't begin until the season begins. Players under suspension can participate in all team activities until the season begins. Once the season begins they can no longer participate in team activities or practices, nor even be on team premises, until the suspension expires.
I think you've made an assumption that Brady can get a stay of the current ruling. That is not a given...The circuit court might decide that a stay is not needed. If a stay is granted, then the appellate court is unlikely to dally in making a call on the re-hearing. Recent articles have discussed these possibilities, possibly in some I linked to, but I don't recall which ones now.
Which brings me to my biggest complaint about this matter. How do we justify dedicating limited court resources to a sporting issue over more important cases anyway? Is any of this stuff really more important than the other cases that are getting bumped off the docket to expedite this matter? Surely not. We don't know what other cases are on the docket (is there a list online?), but the arbitration fairness issue seems a worthwhile one to me given how much employers are relying upon it these days. --Percy
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Percy Member Posts: 22508 From: New Hampshire Joined: Member Rating: 5.4 |
NoNukes writes: I believe that having a smaller number of justices definitely decreases the odds of cert being granted. Unlike the situation when deciding a case, you don't need a majority of the Justices to agree to grant cert. You simply need four votes. So a single opinionated guy cannot cause the court to reject a hearing of cert. But having a Justice missing reduces the chance of getting four votes. I don't see any history of Scalia badgering other Justices into denying cert. What I meant was that Scalia's absence might encourage the liberal justices to accept the appeal because it would make an outcome favorable to labor more likely. If Scalia were still around they might feel that success (from a liberal perspective) would be unlikely, and so there would be little point in accepting the appeal. Even if they thought success likely they might think twice about granting cert to this case at the expense of some other with a greater likelihood of success and knowing what a pain Scalia would be through the whole process. Scalia's increasingly acerbic and sarcastic comments during arguments the past few years strongly hints at what went on behind the scenes between he and justices who disagreed with him.
I'd also suggest that it is really unclear how Scalia would vote in this situation. I think it is well established that I don't think much of Scalia's opinion on many matters, but that is not because I believe Scalia is a government stooge or that he always sides with the little man over the big man. Scalia is a wingnut, but I am not sure what the wingnut version of justice is in this instance. My view of Scalia is that he was a deeply conservative justice who, by his own admission, confined his information sources to those who shared his conservative views. The court would very likely divide on ideological grounds on labor arbitration issues, and we know what side Scalia is on. --Percy
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NoNukes Inactive Member |
We don't know what other cases are on the docket (is there a list online?), but the arbitration fairness issue seems a worthwhile one to me given how much employers are relying upon it these days. Circuit Courts are extremely very busy as a rule. Appeal to the court of appeals is a matter of right, and all of the regular Circuit courts have backlogs of cases. I don't know of a free way to get a look at the docket, but you can find lists of the decisions issued by the second circuit here: http://www.ca2.uscourts.gov/decisions.htmlIf you look at the opinions issued within the last 30 days you will find large numbers of cases filed in 2014. Yes there are other 2015 cases as well. This particular case, IMO, is primarily a contract case rather than an arbitration case, but of course that is one point on which you and I disagree. It appears to me that the primary obstacle that Brady faces is the poor bargain negotiated by the players lawyers with respect to disputes over matters "detrimental to the league". The players signed off on a process that gives the Commissioner a tremendous amount of discretion. I certainly would not want to have my livelihood subjected to that process. I'm sure we agree on that. That said, my own suspicion is that the case is getting special attention because of the parties involved. Most parties who have disputes covered by arbitration party are not similarly situated to NFL and the NFLPA. 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
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Percy Member Posts: 22508 From: New Hampshire Joined: Member Rating: 5.4 |
Before I comment on the dissent I want to comment on the majority ruling on the topic of the deference given arbitrators. I waited until I began reading the dissent because it is on this point that Katzmann most strongly disagrees with the majority. Here's a link to the PDF of the majority ruling:
From page 3:
quote: Check. Understood. The courts lean strongly in deference to the arbitrator. But what they say next is incredibly puzzling:
quote: Are they saying they don't view their role as considering any challenges to "the arbitrators procedural rulings," or do they have a special meaning for "second-guess", because procedural grounds are the only ones upon which an arbitration ruling can be challenged. If appeals courts won't consider challenges to an arbitrator's findings of fact, and they won't consider challenges to an arbitrator's procedural rulings, then what is there left to appeal? In the next sentence they explain what they feel is left to appeal:
quote: This is a link to the LMRA, also known as Taft-Harley. It was passed in 1947, nearly 70 years ago. It barely mentions arbitration or arbitrators and not in any substantial way relevant to deference that I can find. The consecutive letters "defer" do not appear in the LMRA. I just finished skimming it and did not see anything particularly relevant to arbitration or deference. I'll try to track down where the LMRA says anything like this by checking the case law they cite in the next sentence:
quote: So off we go to this 30-year old ruling, United Paperworks Int'l Union v. Misco, Inc.. Here's the paragraph containing the rulings first quote:
quote: Look at that last sentence. We understand errors of fact can't be challenged, but apparently the arbitrator can misinterpret the contract any way he pleases and can't be challenged in court. Really? That's kind of unbelievable, so let's trace this back further. The ruling says this has been the law for 30 years before 1987, and their reference is Steelworkers v. Enterprise Wheel & Car Corp. They quote from it (and this should look familiar by now for those who have been keeping up with things):
quote: So off we go to Steelworkers v. Enterprise Wheel & Car Corp to see if we can find where the judges found this in the LMRA. Here's the full paragraph containing those quotes:
quote: The sense of this paragraph stands in stark contrast to the way it was characterized by the majority judges of the Second Circuit. It talks about "informed judgment" and "a fair solution of a problem." An arbitrator must confine himself to "interpretation and application of the collective bargaining agreeing; he does not sit to dispense his own brand of industrial justice." The clear meaning is that arbitrators cannot decide that CBA's mean whatver they say they mean. No connection to the LMRA is ever described or even mentioned, and there is not even a reference to the LMRA in the ruling. Neither the abbreviation "LMRA" nor the full "Labor Management Relations Act" nor "Taft Hartley" appear anywhere in the ruling. Everybody got that? Allow me to shout: THE LMRA NOWHERE STATES THAT ARBITRATORS MUST BE GIVEN BROAD DEFERENCE BY THE COURTS. Now I admit that I've been doing lots of fast reading and searching and could have missed where in the LMRA it says this, so if I'm wrong then someone just point me to the right place in the LMRA. But let's face it - if the LMRA were clear on this point then judges would just reference chapter and verse of the LMRA. But they don't. They instead bury the claim by referencing case law that references other case law that doesn't even mention the LMRA. In subsequent paragraphs the justices explain why they deny the appeal, but the specifics of Steelworkers v. Enterprise do not resemble Brady/NFLPA v. NFL . The only conclusion is that the single case cited by the majority judges of the Second Circuit does not support their see-no-evil, hear-no-evil take on how arbitrators can act with impunity. --Percy Edited by Percy, : Grammar.
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Percy Member Posts: 22508 From: New Hampshire Joined: Member Rating: 5.4 |
NoNukes writes: This particular case, IMO, is primarily a contract case rather than an arbitration case, but of course that is one point on which you and I disagree. *Everybody* disagrees with you.
This particular case, IMO, is primarily a contract case rather than an arbitration case, but of course that is one point on which you and I disagree. It appears to me that the primary obstacle that Brady faces is the poor bargain negotiated by the players lawyers with respect to disputes over matters "detrimental to the league". The primary point of disagreement between the parties can be explained like this:
--Percy
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jar Member (Idle past 425 days) Posts: 34026 From: Texas!! Joined: |
I though players claiming "No Fair!" went out around third grade?
Anyone so limited that they can only spell a word one way is severely handicapped!
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NoNukes Inactive Member |
Scalia's increasingly acerbic and sarcastic comments during arguments the past few years strongly hints at what went on behind the scenes between he and justices who disagreed with him. 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.
If Scalia were still around they might feel that success (from a liberal perspective) would be unlikely, 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. 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. 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
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NoNukes Inactive Member |
he 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.
The NFLPA does not believe they negotiated away fundamental fairness, indeed, that parties to a contract cannot even do that under the FAA, LMRA and US law. The NFL probably agrees with this position 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. 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
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Percy Member Posts: 22508 From: New Hampshire Joined: Member Rating: 5.4 |
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: 22508 From: New Hampshire Joined: Member Rating: 5.4 |
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: 22508 From: New Hampshire Joined: Member Rating: 5.4 |
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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