Deflation-gate

Here'a a link to Chief Judge Katzmann's dissent. I hope to review it soon.--Percy

Sports Illustrated legal expert Michael McCann yesterday reported that Brady has added more talent to his legal team:

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On Friday, Tom Brady and the NFLPA filed a notice of appearance with the U.S. Court of Appeals for the Second Circuit in order to announce that legendary appellate attorney Theodore Ted Olson has joined the legal team.
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The main significance of Olson joining Brady’s legal team is that it increases the likelihood that the team will petition for a panel rehearing and a rehearing en banc.
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Brady and the NFLPA on Friday also requested a 14-day extension to file a petition for a panel rehearing and a rehearing en banc.
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Assuming Brady and the NFLPA petition for a panel rehearing and a rehearing en banc, the petition for panel rehearing would almost certainly be rejected since it would be decided by the same three judges who just voted 2—1 for the NFL. A petition for a rehearing en banc, however, would be a different story. The decision as to whether to grant the rehearing en banc, which would consist of a new appeal hearing before the Second Circuit’s 13 active judges and Judge Parker (a senior status who would be eligible to sit on an en banc rehearing), would be made by the 13 active judges. In the Second Circuit, petitions for a rehearing en banc are only granted about 1% of the time, but the odds should be somewhat higher for Brady. For one, he lost in a split-decision, rather than in a shutout, and the dissenting judge is the court’s Chief Judge. It also stands to reason that some of the 13 active judges may view the legal dispute differently than Judges Parker and Chin.
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If a rehearing is granted, it might not be scheduled until the fall, which would mean an indefinite delay in Brady serving a suspension. In that scenario, Brady’s suspension would be stayed (postponed) until his rehearing is decided. Even with Olson on his side, however, Brady’s odds for a rehearing being granted remain far under 50%.
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In conjunction with a petition to the U.S. Supreme Court, Brady would ask the Second Circuit to stay the imposition of the suspension until the Supreme Court has taken action, which might not be until 2017.
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Yet as sports litigator Alan Milstein, who has litigated against the NFL in the Second Circuit, told SI.com, the Supreme Court might view the Brady case as far more than about the air pressure of footballs. Milstein surmises that the broader issue of adequate due process in arbitration hearingsa fundamental concern for Brady, who contends he was denied sufficient notice and fairnessis one that has recurred in federal court decisions and is ripe for review by the Supreme Court.

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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.--PercyEdited by Percy, : Remove accidentally repeated paragraph in quote.

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.

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.

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. Recent articles have discussed these possibilities, possibly in some I linked to, but I don't recall which ones now. 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

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. 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

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.html
If 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.

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:

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The basic principle driving both our analysis and our conclusion is well established: a federal court's review of labor arbitration awards is narrowly circumscribed and highly deferential - indeed, among the most deferential in the law.

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Check. Understood. The courts lean strongly in deference to the arbitrator. But what they say next is incredibly puzzling:

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Nor is it our role to second-guess the arbitrator's procedural rulings.

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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:

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Our obligation is limited to determining whether the arbitration proceedings and award met the minimum legal standards established by the Labor Management Relations Act ("LMRA").

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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:

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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).

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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:

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Collective bargaining agreements commonly provide grievance procedures to settle disputes between union and employer with respect to the interpretation and application of the agreement and require binding arbitration for unsettled grievances. In such cases, and this is such a case, the Court made clear almost 30 years ago that the courts play only a limited role when asked to review the decision of an arbitrator. The courts are not authorized to reconsider the merits of an award, even though the parties may allege that the award rests on errors of fact or on misinterpretation of the contract.

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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):

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As long as the arbitrator's award "draws its essence from the collective bargaining agreement," and is not merely "his own brand of industrial justice," the award is legitimate.

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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:

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When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There, the need is for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency. Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may, of course, look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.

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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.--PercyEdited by Percy, : Grammar.

*Everybody* disagrees with you. The primary point of disagreement between the parties can be explained like this:

• 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, bringing us to the next point.
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• The Commissioner made rulings that were fundamentally unfair in the Brady arbitration hearing.

--Percy

I though players claiming "No Fair!" went out around third grade?

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.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.

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 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.

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." 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:

• Judge Robert Katzmann, Clinton appointee, mildly liberal, supported Brady/NFLPA
• Judge Barrington Parker, George W. Bush appointee, strongly conservative, supported NFL
• Judge Denny Chin, Obama appointee, mildly liberal, supported NFL

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

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. 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.--PercyEdited by Percy, : Clarify final paragraph.

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:

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When the Commissioner, acting in his capacity as an arbitrator, changes the factual basis for the disciplinary action after the appeal hearing concludes, he undermines the fair notice for which the Association bargained, deprives the player of an opportunity to confront the case against him, and, it follows, exceeds his limited authority under the CBA to decide "appeals" of disciplinary decisions.

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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:

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If the arbitrator acted within the scope of his authority, then his decision is entitled to substantial deference. The award will be upheld so long as the reviewing court finds, at the second step, that the arbitral award "draws its essence from the agreement" and does not reflect "merely an example of the arbitrator's own brand of justice." Brooks Drug Co., 956 F.2d at 25. This guarantees that the parties get what they bargained for, namely, the arbitrator's construction of the CBA. Enter. Wheel & Car Corp., 363 U.S. at 599. In my opinion, the Commissioner's decision fails as to both steps."

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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:

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In other words, we must determine first whether the arbitrator acted within the scope of his authority, and second whether the award draws its essence from the agreement or is merely an example of the arbitrator's own brand of justice.

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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):

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There is strong federal policy to settle labor disputes by arbitration which would be undermined if the courts had final say on the merits of an arbitrator's award. If the courts could intervene on the merits of the award, the speedy, and less expensive, resolution of grievances by arbitration would be frustrated. The reviewing courts are confined to determining whether the award draws its essence from the agreement and whether the arbitrator used his "own brand of industrial justice.

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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:

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There is strong federal policy to settle labor disputes by arbitration...

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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:

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In deciding the appeal, the arbitrator may decide whether the misconduct charged actually occurred, whether it was actually "detrimental" to the League, and whether the penalty imposed is permissible under the CBA. But the arbitrator has no authority to base his decision on misconduct different from that originally charged. When he does so, the arbitrator goes beyond his limited authority, and the award should be vacated.

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I would find that the Commissioner breached that limitation here. I believe there are significant differences between the limited findings in the Wells Report and the additional findings the Commissioner made for the first time in his final written decision.

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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:

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The majority takes the view that the Wells Report's conclusions clearly encompassed a finding that Brady induced and rewarded the deflation of footballs. To the contrary, although the Wells Report described evidence that Brady provided both McNally and Jastremski with gifts and that McNally joked about demanding cash and other memorabilia, it never concluded that it was "more probable than not" that the gifts Brady provided were intended as rewards or advance payment for deflating footballs in violation of League rules. That stands in stark contrast to the Wells Report's clear conclusions, by a preponderance of the evidence, regarding Brady's "knowledge," "approval," "awareness," and "consent."Fairly read, the Wells Report did not put Brady on notice that he was found to have engaged in a quid pro quo.

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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:

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I believe that, had Brady been provided an opportunity to challenge the Commissioner's conclusion on this score, the outcome may have been different.
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Accordingly, I would find that the Commissioner exceeded his authority, to Brady's detriment, by resting Brady's discipline on factual findings not made in the Wells Report.

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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:

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The Commissioner's authority is, as the majority emphasizes, broad.But it is not limitless, and its boundaries are defined by the CBA.Here, the CBA grants the Commissioner in his capacity as arbitrator only the authority to decide "appeals," that is, whether the initial disciplinary decision was erroneous.The Commissioner exceeded that limited authority when he decided instead that Brady could be suspended for four games based on misconduct found for the first time in the Commissioner's decision. This breach of the limits on the Commissioner's authority is exacerbated by the unprecedented and virtually unexplained nature of the penalty imposed.

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Well said.--PercyEdited by Percy, : Left out a close parenthesis.