Brady/Goodell Round 1

[nomar]

It's surprises me the judge was talking about Brady's second half performance and how he doesn't think deflated footballs gave the Patriots a competitive advantage. Is it normal for a judge to talk about irrelevant stuff like this?

I thought it was weird. I was in an "overflow" room where we were watching it on a monitor and there were dudes in Brady jerseys high-fiving each other, and I was thinking to myself, "This has nothing to do with whether Brady's rights under the CBA were violated."

Courts can do a lot of things "in the interests of justice," and if there are enough indications to suggest a party was railroaded, then the judge might see fit to raise them. But here, whether or not the deflated footballs gave Brady a competitive advantage seemed to be completely besides the point. This proceeding wasn't about the evidence, it was about the procedure.

 

[ctchamps]

The court can't, and didn't, say "I would have reached a different conclusion." The default posture of the courts when considering arbitration awards is deference, and the courts won't consider the weight of the evidence. But when there are procedural defects - misconduct by the trier of fact, corruption, declining to consider evidence/witnesses - the court can vacate the award. It's why a motion in limine in an arbitration is typically a waste of time - an arbitrator's going to let it all come in so no one one can claim unfairness.

Just for edification, how does a court determine misconduct by the trier of fact, corruption, declining to consider evidence/witnesses without considering the weight of the evidence?

 

[nomar]

You know, I loaded this page before I logged in and had the misfortune of seeing somebody's post who I had put on ignore. He claimed to have "skimmed" the judge's opinion, and then he highlights 3 points that are ripped almost directly from a Ian Rappaport Tweet, which tweet reads . . . "The 3 main points Berman made in nullifying the suspension: 1. No notice of discipline; 2. No testimony from Pash; 3. No access to files." If not that, definitely some other Internet source. Nice work claiming others' thoughts as your own.

I read the whole opinion - did not just "skim it". Have no doubt that the judge ruled against the NFL because they had no evidence. Whatever grounds he flagged as the pretext for his decision, it all comes back to a complete lack of evidence, and he would not have overturned it if they had the goods on Brady. On page 27 of the opinion, the Judge notes: "With respect to "general awareness" of others' misconduct . . . Brady had no notice that such conduct was prohibited . . . ."

That was the Judge's method of saying, "you have no evidence that Brady did anything wrong, and your pathetic payed dog desperation conclusion of "general awareness" does not legally cut it."

You're saying his entire legal analysis, which focuses solely on procedure and not on evidence (he accepts all factual findings in the arbitral award as true), is pretextual? I'm just wondering if you're a Patriots fan (serious question).

Even if someone read every word of Berman's decision, he'd report that those 3 grounds are what Berman based his decision on, since they're what Berman says he based his decision on:

The Court is fully aware of the deference afforded to arbitral decisions, but, nevertheless, concludes that the Award should be vacated. The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four-game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel Jeff Pash; and (C) denial of equal access to investigative files, including witness interview notes.

The weakness of the evidence may have pushed Berman in that direction, but we have different interpretations of the word "pretext." He obviously found legitimate procedural defects, or he wouldn't have overturned the award. Do you know how many times district court uphold crappy arbitral awards? All the time.

 

[nomar]

Just for edification, how does a court determine misconduct by the trier of fact, corruption, declining to consider evidence/witnesses without considering the weight of the evidence?

A court can't disagree with an arbitrator's factual findings or his decisions on how to weigh certain evidence.

Corruption is another matter. But if you're going to argue, in a federal court, that an arbitrator was corrupt, be prepared to back it up with a powerful witness or document, or you will be raked over the coals.

 

[ctchamps]

First of all, there are different standards of review, depending on the jurisdiction. But under all of them, a court can't disagree with the arbitrator's factual findings or his decisions on how to weigh certain evidence.

Corruption is another matter. But if you're going to argue, in a federal court, that an arbitrator was corrupt, be prepared to back it up with a powerful witness or document, or you will be raked over the coals.

Thanks. Corruption was the primary focus in my question.

My guess is that given the power Goodell has regarding these matters, and given the legal support I'm sure he has, this is all a * show, to appease the public. It wrecks Brady's reputation but he gets to play, the fans will do the punishment and the NFL cannot be accused of sitting idly by like they did in the domestic abuse issues.

There is a reason Goodell is 0 for in these arbitration cases.

 

[BigErnMcCracken]

You know, I loaded this page before I logged in and had the misfortune of seeing somebody's post who I had put on ignore. He claimed to have "skimmed" the judge's opinion, and then he highlights 3 points that are ripped almost directly from a Ian Rappaport Tweet, which tweet reads . . . "The 3 main points Berman made in nullifying the suspension: 1. No notice of discipline; 2. No testimony from Pash; 3. No access to files." If not that, definitely some other Internet source. Nice work claiming others' thoughts as your own.

I read the whole opinion - did not just "skim it". Have no doubt that the judge ruled against the NFL because they had no evidence. Whatever grounds he flagged as the pretext for his decision, it all comes back to a complete lack of evidence, and he would not have overturned it if they had the goods on Brady. On page 27 of the opinion, the Judge notes: "With respect to "general awareness" of others' misconduct . . . Brady had no notice that such conduct was prohibited . . . ."

That was the Judge's method of saying, "you have no evidence that Brady did anything wrong, and your pathetic payed dog desperation conclusion of "general awareness" does not legally cut it."

You can't really be a practicing lawyer, because this entirely off base. Had there been no procedural deficiencies and Berman vacated based solely on his read of the evidence he would be at odds with an entire body of law and would have been reversed almost without a second thought.

One of the reasons parties pay to arbitrate is that they are secure in knowing that - barring some compromise of the fundamental fairness of the proceedings - the results of that arbitration are going to have the same effect as a binding court judgment. If a judge can simply say "I think the arbitrator got this one wrong" then the entire arbitration process is of no effect. Before you spout off, know something for me one time.

Incidentally, the below is verbatim from the ruling:

The Court is fully aware of the deference afforded to arbitral decisions, but, nevertheless, concludes that the Award should be vacated. The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (fourgame suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel Jeff Pash; and (C) denial of equal access to investigative files, including witness interview notes.

So I don't know what the ____ you're going on about Ian whoever.

 

[BigErnMcCracken]

Just for edification, how does a court determine misconduct by the trier of fact, corruption, declining to consider evidence/witnesses without considering the weight of the evidence?

It's a question of procedure rather than evidence. So a party who wins at arbitration will file a motion to confirm the arbitration award, which basically stamps it with the imprimatur of the court that it's a binding ruling.

The opposing party, if they believe that the process was in some way tainted, will file a motion to vacate the award and state their grounds for doing so. As Nomar said, in 99.9% of cases the judge will basically rubber stamp the arbitrator's ruling. If the party moving to vacate can demonstrate that the arbitrator was corrupt, that he declined to hear material evidence, etc. then they've got a shot. If their argument boils down to "the judge got this one wrong!" the court will always say "Hey, maybe so, but it's out of my hands to do anything about it - you agreed to arbitrate, live with it."

In other words, the court is not going to examine the sufficiency of the evidence, but will consider the manner in which the proceedings were held.

 

[donyell34]

Gotta love the attorneys and there lawyer speak. Bottom line "it's over. Appeal will take years and overturning an existing verdict in this case will never happen. NFL really should stand down the more they carry on the worst they look. Sorry patriot haters we have our QB and you cackling jet fans don't. Ironic wouldn't say?

 

[intlzncster]

A court can't disagree with an arbitrator's factual findings or his decisions on how to weigh certain evidence.

Corruption is another matter. But if you're going to argue, in a federal court, that an arbitrator was corrupt, be prepared to back it up with a powerful witness or document, or you will be raked over the coals.

So how likely is this ruling to hold up to another appeal? What's the process? Are other judges even more loath to overturn 'lesser' judges rulings than they are to defy arbitration rulings?

 

[mbt0512]

Any insight as to whether the NFL's appeal is likely to be heard by the higher court? I assume that court would have the option to decline or no?

 

[nomar]

So how likely is this ruling to hold up to another appeal? What's the process? Are other judges even more loath to overturn 'lesser' judges rulings than they are to defy arbitration rulings?

Don't know. I said earlier:

"Now, without having read anything in full (the CBA, the Wells Report, Berman's decision), and having failed to predict this, I'm in no position to gauge the likelihood of success on an appeal. But I'm sure an appeal would not be without some merit."

The process is that it goes to the Second Circuit. You can request an expedited appeal. My guess is the NFL won't get one. If the Second Circuit panel reverses Berman, the NFL could always suspend Brady later. Assuming he's still playing...

The standard of review is more flexible, overall, for Circuit Courts reviewing District Court opinions than for District Courts reviewing arbitral awards.

 

[nomar]

Gotta love the attorneys and there lawyer speak. Bottom line "it's over. Appeal will take years and overturning an existing verdict in this case will never happen. NFL really should stand down the more they carry on the worst they look. Sorry patriot haters we have our QB and you cackling jet fans don't. Ironic wouldn't say?

Gosh, I'm so sorry we're trying to provide some context. I guess we should just shut up and listen to your crack legal advice. You saying that "overturning an existing verdict in this case will never happen" is like me walking into the OR during a heart transplant and telling the cardiac surgeon where to cut. I might be right, but I have no basis for saying it.

 

[intlzncster]

Gosh, I'm so sorry we're trying to provide some context. I guess we should just shut up and listen to your crack legal advice. You saying that "overturning an existing verdict in this case will never happen" is like me walking into the OR during a heart transplant and telling the cardiac surgeon where to cut. I might be right, but I have no basis for saying it.

Good stuff on the legalese. Law is so goshdarn confusing for a layman.

 

[nomar]

Good stuff on the legalese. Law is so goshdarn confusing for a layman.

For lawyers too -- even if they're smart (and they're not all smart).

 

[ctchamps]

Don't know. I said earlier:

"Now, without having read anything in full (the CBA, the Wells Report, Berman's decision), and having failed to predict this, I'm in no position to gauge the likelihood of success on an appeal. But I'm sure an appeal would not be without some merit."

The process is that it goes to the Second Circuit. You can request an expedited appeal. My guess is the NFL won't get one. If the Second Circuit panel reverses Berman, the NFL could always suspend Brady later. Assuming he's still playing...

The standard of review is more flexible, overall, for Circuit Courts reviewing District Court opinions than for District Courts reviewing arbitral awards.

First time I'm enjoying learning about the legal process. I've always respected it but it was like eating spinach when I was a kid. Just to be clear will the Circuit Court still be limited to procedure or can it examine sufficiency of evidence?

Thanks to you and @BigErnMcCracken for taking the time to respond to my inquiry. BTW I'm hoping this is free legal advice. If not no need to answer.

 

[mauconnfan]

I was with lawyers for Title 19 and trust funds all morning and thank God for you guys. There's a damn reason you need to go to school for so damn long it's very confusing as intzncster mentioned to the layman.

 

[intlzncster]

I was with lawyers for Title 19 and trust funds all morning and thank God for you guys. There's a damn reason you need to go to school for so damn long it's very confusing as intzncster mentioned to the layman.

Dude, I glaze over almost every time. I really should start reading law text books before going to bed.

 

[mauconnfan]

Dude, I glaze over almost every time. I really should start reading law text books before going to bed.

Why?

 

[nomar]

First time I'm enjoying learning about the legal process. I've always respected it but it was like eating spinach when I was a kid. Just to be clear will the Circuit Court still be limited to procedure or can it examine sufficiency of evidence?

Thanks to you and @BigErnMcCracken for taking the time to respond to my inquiry. BTW I'm hoping this is free legal advice. If not no need to answer.

You're getting the family discount: 100% off.

The Second Circuit's review will be limited to the sole question of whether Judge Berman erred in vacating the arbitral award on the basis of the procedural defects identified in his decision.

 

[NJHusky]

You're getting the family discount: 100% off.

The Second Circuit's review will be limited to the sole question of whether Judge Berman erred in vacating the arbitral award on the basis of the procedural defects identified in his decision.

Nomar, what is the timetable for this type of appeal? Can the NFL expedite it?

 

[ctchamps]

You're getting the family discount: 100% off.

The Second Circuit's review will be limited to the sole question of whether Judge Berman erred in vacating the arbitral award on the basis of the procedural defects identified in his decision.

Thanks for the discount.

 

[TasteofUConn]

You're saying his entire legal analysis, which focuses solely on procedure and not on evidence (he accepts all factual findings in the arbitral award as true), is pretextual?

Absolutely. The judge thinks the NFL is entirely full of s---t because they went after Brady without having any evidence against him, and he worked backwards from the result he wanted to figure out how to best write it up. That happens every day in law. The bigger the case, the more often it happens. When I read the gold cases, the abortion cases, the commerce clause cases, and others, it became painfully clear to me that that is how most of the big decisions are reached by the Supreme Court. They figure out the result they want, and then they go backwards from that conclusion and fit the facts and laws to it.

Surely you don't think it's a coincidence that "liberal" judges tend to "interpret" laws in a way that leads to liberal results and "conservative" judges "interpret" the laws in ways that lead to conservative results? Do you?

It's a wonderful fiction that they beat into your head when you're a young lad and you don't know squat about anything. Courts are impartial. Courts apply the law. Courts follow the rules.

Big buckets of baloney. When it comes to matters of social import, most judges do whatever they want, regardless of the rules and procedures and laws. But they are smart people, and they write opinions to explain why they did what they did, never having the cajones to admit, "this is the result I wanted, the rest doesn't matter to me."

That's what happened here. The Judge clearly saw that the entire prosecution of Brady by Goodell was a legal and scientific embarrassment, and he decided to remedy it.

I have zero doubt that, IF the NFL had the evidence, the Judge would have ruled in their favor and would not have overturned their arbitrament on cleverly worded pretexts.

Really - the Judge said that Brady did not have notice that being "generally aware of the misdeeds of others" was punishable. Come on. Just think about that.

The NFL facts were this:

1. Brady had a part in deflating the balls.
2. Brady was punished for that.

Sure, on paper the Judge "accepted" those facts, because that's the game he has to play when writing his opinion. But when he then says that the NFL did not give notice that being "generally aware" of the misdeeds of others is punishable, isn't that really him saying, "I'm not buying your conclusion that Brady had a part in deflating the balls"?

Of course it is.

 

[nomar]

Nomar, what is the timetable for this type of appeal? Can the NFL expedite it?

They can request an expedited appeal. Because of the notoriety of the case, maybe they'll get it. Normally, a party wouldn't get one in this kind of situation. The equities aren't in their favor. As I said earlier, the NFL can always suspend Brady later if they get a reversal, so what's the rush?

If it's not on the expedited appeal schedule, they get in line with everyone else. Could take a few months, could take a year. Our firm is waiting to argue a couple appeals at the 2nd Circuit that were filed well over six months ago.

 

[HuskyHawk]

So how likely is this ruling to hold up to another appeal? What's the process? Are other judges even more loath to overturn 'lesser' judges rulings than they are to defy arbitration rulings?

Close to 100% likely that Berman is upheld on appeal. He was very careful not to wade into areas that might lead to him being overturned (yes I read the whole thing and I'm a lawyer too). There were several issues Brady raised that Berman simply said he didn't need to rule on in order to reach his decision. Those issues would have been far more problematic for him. By avoiding those, I think his decision is very solid. I can't see the 2nd Circuit overturning him.

The ruling is a good read and he made sure to include via the footnotes, some exchanges that illustrated just how ridiculous the NFL process was. I mean, one of the lead attorneys who prepared the "independent" Wells report, was acting as counsel for the league in cross examining Brady in his appeal hearing. That's not just unreasonable but grossly incompetent.

 

[BigErnMcCracken]

Frank, you should just admit when you're out of your depth. If your posts reflect your actual understanding, there is zero chance that you've ever briefed a motion to vacate an arbitration award and if you have, your motion was summarily denied. You're talking about an extremely limited area of the law where the grounds for judicial action are not only exceedingly limited but also technically specific. You're just wrong. You'll never concede it, because that's your shtick.