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Author | Topic: Deflation-gate | |||||||||||||||||||||||||||||||||||||||
Percy Member Posts: 22508 From: New Hampshire Joined: Member Rating: 5.4 |
NoNukes writes: My understanding is that the PACER system for retrieving and filing appellate court briefs is relatively inexpensive,... PACER is one of the places I tried. I used to have access, but my account was old and I had to reapply. They just approved me. Not sure if that means free, or if it just allows me to download documents for a fee. In the meantime I was able to find all the documents I wanted at other sites. The PDFs are out there, but finding them is more difficult than it used to be. Fewer and fewer sites are providing anything for free. --Percy
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NoNukes Inactive Member |
I'm pretty sure that you must pay a fee for downloading. I'm sure the fee is pretty small, but I don't want to pay it. But you can search for free.
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 |
The 2nd U.S. Circuit Court of Appeals has granted Brady's and the NFLPA's request for a two week extension for filing for a rehearing before the full court of 15 judges:
The rehearing request would just be an attempt to postpone serving the 4-game suspension, except that the NFLPA/Brady have added lawyer Ted Olson to their legal team. He claims to have prevailed in Supreme Court cases 75% of the time. --Percy
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NoNukes Inactive Member |
The rehearing request would just be an attempt to postpone serving the 4-game suspension, except that the NFLPA/Brady have added lawyer Ted Olson to their legal team. He claims to have prevailed in Supreme Court cases 75% of the time. When a request for re-hearing is filed on time, the appellate court is supposed to respond within thirty days of the end of the trial. I assume that the court gets some extra time when there is petition to allow a late filing. (By the way, very little excuse is required for granting an extension as long as you don't wait until the last second to file). But the point is that the delay involved with an unsuccessful petition for a rehearing is minimal. I have to assume that the request for re-hearing is a serious attempt to ask for reconsideration on the merits rather than a stalling tactic. At the very least, the petitioners might put themselves in better position to ask for a stay. 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
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Percy Member Posts: 22508 From: New Hampshire Joined: Member Rating: 5.4
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To be more clear and specific, Brady will take the appeal process as far as he can because a) He believes he was wronged and wants desperately to prevail; and b) If he doesn't prevail then the process might take longer than the rest of his career, or at least a good part of it, rendering the suspension moot or mostly moot.
The remaining steps in the process could take a long time because, as mentioned in earlier posts, whoever loses or is turned down will appeal to the Supreme Court. An interesting question is what is the shortest and longest it could take. Here are all the steps I can think of. Steps that are guaranteed to happen are in bold:
The shortest the process could take would be steps 1, 2, 4, 5, 6, 7. I'm going to guess that since the Supreme Court will be at or near the end of its current term by the time they receive a request for cert that they will not decide until the next term, which begins in October. Given that they receive thousands of requests every year, they'll probably take at least until next year to issue decisions about cert. So at a minimum Brady plays this entire season. The longest the process could take would be steps 1, 2, 3, 5, 6, 8. This includes hearings before both the full Second Circuit and the Supreme Court. I'll guess that in this case, even if Brady ultimately loses, he plays out the rest of career until retirement at age 41, three seasons from now. But I'm no expert on the process, so comments/feedback on these guestimates are appreciated. --Percy
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NoNukes Inactive Member |
The shortest the process could take would be steps 1, 2, 4, 5, 6, 7 Could be shorter. Some other possibilities... Stays are not automatically granted. It is required that the petitioner make some showing that he could win on the merits. In addition, the relative harm to the positions of both parties is also considered to see if a stay should or should not be granted. I note that this is the first time that the case has been in the position where a stay would eliminate any suspension of Brady and also the first time a stay has been requested after a decision on the merits. The fact that a stay would effectively eliminate all of Brady's punishment might weigh against granting the stay. It might even be necessary for Brady to appeal to the Supreme Court in order to get a stay granted. In that case, the entire case may effectively hinge on whether that stay is granted. Either side might give up at that point. If the stay is not granted while the case is in the status where Brady has lost, then Brady's appeal will effectively be over. If the stay is granted, the NFL may take that as a hint that cert will be granted. Generally these things are handled far more quickly than decisions on the merits. As an extreme example, stays in death penalty cases can be granted or denied within hours of receiving the request. Alternatively, the court might feel that Brady's suspension could become a monetary fine possibly approaching four games worth of salary that would lean towards granting a stay. That would remove all urgency from the case. Brady might need to post a fairly large bond in order to receive the stay. 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
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Percy Member Posts: 22508 From: New Hampshire Joined: Member Rating: 5.4 |
NoNukes writes: Alternatively, the court might feel that Brady's suspension could become a monetary fine possibly approaching four games worth of salary that would lean towards granting a stay. Brady renegotiated his contract this off season. I do not recall the exact numbers, but I'm probably not way off if I say that his $16 million salary for the upcoming season was renegotiated down to $1 million with a $15 million bonus. Loss of salary for four games would amount to only $250,000. The articles I've read by legal experts assume the request for a stay would be monetarily based, but I don't know if they knew about Brady's new lower salary. Even if Brady does not receive the stay, I think he'll still exhaust all legal options. It's personal and has been for a while. --Percy
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NoNukes Inactive Member |
Even if Brady does not receive the stay, I think he'll still exhaust all legal options. It's personal and has been for a while He might well do that. I assume that he will. But hearing a no from the Supreme Court on a preliminary matter might be a sufficient hint that its over.
I do not recall the exact numbers, but I'm probably not way off if I say that his $16 million salary for the upcoming season was renegotiated down to $1 million with a $15 million bonus. Loss of salary for four games would amount to only $250,000. I think a fine of four games salary is probably not a good measure for the bond a court may or may not require of Brady, but I am also not sure that those salary negotiations would limit the size of the fine that can be applied to Brady. I suspect that the size of the fine in lieu of a suspension would be based on Brady's total compensation. ABE: Or at least I can say that such a fine is not ruled out. I don't know what the NFL will ask for. Perhaps there is something in the CBA that covers this? Surely everyone is aware that player salaries have some pretty funky clauses. Edited by NoNukes, : No reason given. 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
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Percy Member Posts: 22508 From: New Hampshire Joined: Member Rating: 5.4 |
Here's a great article that summarizes Deflategate's legal path and explains the legal basis for challenges to arbitration awards. In the author's opinion Brady's challenge "was doomed to failure":
He makes a strong case and I agree with him, except that he fails to address what all other similar arguments, including the recent ruling of the 2nd Circuit, fail to address: the origin of this incredible deference to arbitrator rulings. In Message 413 I traced the citations back to their origins and found nothing about such deference. It's been created out of thin air. Deference to arbitration rulings isn't just a Deflategate issue - it affects everyone in this country. If you have a credit card then you agreed to resolve differences through arbitration. If you're employed then you likely agreed to resolve differences through arbitration. If you have a mortgage you likely agreed to resolve differences through arbitration. When the 2nd circuit ruled for the NFL they in essence declared, "Even if Goodell was just making it up as he went along, the CBA doesn't say he can't do that." This reasoning is absurd. Any bargaining agreement that includes arbitration must follow the LMRA (Labor Management Relations Act, also known as Taft-Hartley) and the FAA (Federal Arbitration Act). Let us quote from the oft-cited Steelworkers v. Enterprise Wheel & Car Corp case:
quote: This ruling talks of the "essence" of CBA's. There is nothing in the essence of the CBA between the NFL and NLFPA that allows an arbitrator to go off willy-nilly, which is what 2nd Circuit dissenting Judge Katzmann found. It is well worth mentioning that the LMRA amends but does not supersede the NLRA (National Labor Relations Act of 1935). Words like defer, yield, bow and submit do not appear in either agreement in a context where they mean "defer". --Percy Edited by Percy, : Grammar.
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Percy Member Posts: 22508 From: New Hampshire Joined: Member Rating: 5.4 |
In today's National Law Review at was announced that the Consumer Financial Protection Bureau Unveils Proposed Rule Limiting Class Action Waivers, explained here:
quote: Keeping in mind that this is just a proposal, in English this means that arbitration agreements would no longer be permitted to rule out class action lawsuits, and that arbitration awards would be tracked so as to detect abuse. The article mentions the possibility that this is more a win for lawyers than consumers, but I think it's a win for both. Companies of all stripes hold discouraging, enigmatic and arcane arbitration processes over the heads of both employees and consumers, and one already needs a lawyer to navigate them. If these rules were already in place then the GM ignition switch and Takata airbag problems might have come to light much sooner. This isn't directly related to Deflategate, but this thread has experienced a great deal of discussion about arbitration. --Percy
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NoNukes Inactive Member |
The article mentions the possibility that this is more a win for lawyers than consumers, but I think it's a win for both. Definitely a win for both. Class actions are objected to as producing big bucks for lawyers and small bucks for consumers. No doubt about that. But the typical class action law suit allows recovery in cases were it would be cost prohibitive for a single consumer to sue for anything at all. In situations where that is not the case, consumers can usually opt out of the class action process. The alternative is a sometimes stacked arbitration process from which there is no recourse if the ruling is unfair and in which the party being sued is responsible for choosing the arbitrator. Supposedly arbitration is cheaper, but if there is any significant money at stake, you'll still need a lawyer because the opposition will certainly be represented. Maybe the record keeping provision would be helpful in exposing that kind of abuse. 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 |
As expected the other shoe has dropped and the new member of Brady's legal team, Theodore B. Olson, today announced on "Good Morning America" that an en Banc appeal for a hearing before the full 2nd circuit will be filed later today: Tom Brady to ask for second hearing at 2nd Circuit
The grounds for the appeal are:
Olson's first grounds conforms pretty well with dissenting judge Katzmann. The second does also, sort of. That has to be explained. Katzmann's dissent only mentions equipment violations in footnotes (see bottom of pages 7 and 8), and he seems to draw a rather fine distinction. He agrees with the majority that the NFLPA's argument that the Player Policies document requires that Brady receive no more than a fine has no merit. But he then goes on to argue that the Commissioner's reasoning indicates that he wasn't actually "construing the CBA," as the NFLPA argues when they contend that the Commissioner's "CBA defiance is only underscored by his reliance on the Steroid Policy." The majority explicitly and at length rejected this argument (see pages 17-19 of 2nd Circuit Brady Reversal) in a frightening example of judicial deference to an arbitrator doing whatever he likes. Rather than seeing the analogy of deflating footballs to steroid use as an example of arbitratorial overreach they deemed it within the arbitrator's prerogative to use whatever analogies he pleases, however flawed, while ignoring this analogy's primary role in justifying Brady's extreme punishment. The much more appropriate analogy is to stickum on receiver gloves, which provides a clear and demonstrated improvement in ball catching, and which has never received more than a small fine for a first offense. The advantage/disadvantage of football pressure in throwing and catching hasn't even been demonstrated. As far as can be discerned at this time it's no more than a personal preference thing, like putters in golf. And of course let's not forget that it hasn't even been proven that any footballs were deflated. I'll review Olson's appeal in detail when it's actually filed and made available, but nothing in this morning's news makes any mention of the policy of extreme deference granted arbitrators, which in my opinion deserves review by the Supreme Court. While I grant the logic of granting deference to arbitrators, it's scary to read rulings that say in effect, "Even if the arbitrator made clear errors of logic and fact, his arbitration award still stands." While appeals courts are supposed to consider errors of process and not of logic and fact, arbitrators aren't stupid, and when their arbitration awards have been challenged in court as often as Goodell's they quickly realize that they can only make up facts, not process. But appeals courts are not blind, or at least they shouldn't be blind, and they must recognize when arbitrators are employing end-around runs by twisting, manipulating or making up facts in order to obtain their desired outcome. That's the imposing his "own brand of industrial justice" portion of the Radio Tel. Broadcast Engineers Union, Local, 1212 v. WPIX, Inc. ruling. --Percy
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Percy Member Posts: 22508 From: New Hampshire Joined: Member Rating: 5.4
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The petition is impressive. Olson seems a considerable step up in talent: Brady/NFLPA Petition for En Banc Rehearing
There are only two grounds in the petition. The details begin on page 8. The appeal first focuses on one facet of the 2nd Circuit majority ruling that I questioned myself. The majority ruled, in effect, that because of the deference granted arbitrators that any power not specifically denied the Commissioner in the CBA was permitted. Katzmann also questioned this in his dissent. The Commissioner's questionable action was adding new grounds for the discipline in his arbitration award, affording Brady no opportunity for a defense. The petition states that the majority ruling conflicts with existing labor law precedent, sowing confusion in the courts and creating problems of arbitration interpretation for employees and employers. The second ground concerns the Brady/NFLPA claim that football deflation was an equipment violation. The petition states that Goodell erred by not addressing this claim, indeed, ignoring it completely. The two grounds lead to identical conclusions, that Goodell administered his own brand of industrial justice. The 2nd Circuit could grant a rehearing before the same 3-judge panel, or grant a rehearing before the full 2nd Circuit, or reject the petition. Before deciding on the petition they might ask the NFL to file a response. --Percy
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Percy Member Posts: 22508 From: New Hampshire Joined: Member Rating: 5.4 |
Sports Illustrated's Michael McCann has written a detailed analysis (Tom Brady faces legal Hail Mary with appeal of Deflategate suspension) of the Brady/NFLPA petition. I'll quote some highlights:
quote: I would like to do a more detailed analysis of the Brady/NFLPA petition, one that examines the case references, but that will depend upon time availability. --Percy
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Percy Member Posts: 22508 From: New Hampshire Joined: Member Rating: 5.4
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More than 20 engineering and physics professors today filed an amicus brief in support of a rehearing for Tom Brady before the 2nd Circuit:
quote: Here's another article: Physics, Engineering Professors Admonish NFL’s Science, Support Tom Brady In Amicus Brief With Second Circuit And here's a link to the brief itself: Professors' Amicus Brief --Percy
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