Brady/Goodell Round 1 | Page 2 | The Boneyard

Brady/Goodell Round 1

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TasteofUConn said:
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". :rolleyes: 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."
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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.
 
fleudslipcon said:
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?
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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.
 
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?
 
nomar said:
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.
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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?
 
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?
 
intlzncster said:
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?
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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.
 
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donyell34 said:
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?
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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.
 
nomar said:
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.
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Good stuff on the legalese. Law is so goshdarn confusing for a layman.
 
nomar said:
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.
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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.:)
 
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.
 
mauconnfan said:
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.
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Dude, I glaze over almost every time. I really should start reading law text books before going to bed.
 
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fleudslipcon said:
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.:)
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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 said:
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.
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Nomar, what is the timetable for this type of appeal? Can the NFL expedite it?
 
nomar said:
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.
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Thanks for the discount.
 
nomar said:
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?
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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.
 
NJHusky said:
Nomar, what is the timetable for this type of appeal? Can the NFL expedite it?
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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.
 
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intlzncster said:
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?
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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.
 
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.
 
TasteofUConn said:
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.
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I think the judge's analysis is legally correct, not just pretext. But you are correct that he knows that the league set out to catch the Patriots at something and made it up from there. It attempted to collect evidence of that something and mostly failed (why did they stop testing the Colts balls after 4 of 5 of those were underinflated again?). Manipulated the evidence with illogical assumptions, such as the referee using the gauge he says wasn't the one he used. Then decided that vague partial conversations from Brady to guys who inflate footballs, about inflation of footballs (which is completely fine, since that is their job) none of which suggest anything about doing it after giving the balls to the referees, is somehow a smoking gun. Then they yell about a guy who's wife is the worlds #1 model, destroying his phone not long after the Fappening leak of celebrity photos and videos.

Meanwhile, the NFL rules explicitly call for a small fine for this conduct, even if proved clearly. Yes, he knew all that, and even then the process the league used was so flawed that his analysis is spot on. The reason it works that way is simply that if the league had evidence it wouldn't have followed such an unfair process. It wouldn't have needed to.
 
a) PV/T = const

b) refs did not establish a chain of custody for the balls.


QED
 
HuskyHawk said:
I think the judge's analysis is legally correct, not just pretext. But you are correct that he knows that the league set out to catch the Patriots at something and made it up from there. It attempted to collect evidence of that something and mostly failed (why did they stop testing the Colts balls after 4 of 5 of those were underinflated again?). Manipulated the evidence with illogical assumptions, such as the referee using the gauge he says wasn't the one he used. Then decided that vague partial conversations from Brady to guys who inflate footballs, about inflation of footballs (which is completely fine, since that is their job) none of which suggest anything about doing it after giving the balls to the referees, is somehow a smoking gun. Then they yell about a guy who's wife is the worlds #1 model, destroying his phone not long after the Fappening leak of celebrity photos and videos.

Meanwhile, the NFL rules explicitly call for a small fine for this conduct, even if proved clearly. Yes, he knew all that, and even then the process the league used was so flawed that his analysis is spot on. The reason it works that way is simply that if the league had evidence it wouldn't have followed such an unfair process. It wouldn't have needed to.
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Hence the observation by Nomar (see his first post in this thread) that Berman made a comment regarding the 2nd half of the game, which, as you lawyers expressed, was outside the purview of the arbitration review (confined to procedure) but not out of bounds in regards to his personal observations. It's a shame for Brady that this observation could not have been part of the record. As I've suggested in another post in this thread I feel the NFL is not determined to keep Brady from playing but is going through all this drama to give the public the impression that the NFL has turned the corner regarding scandals. There is nothing more effective than going after one of the greatest stars of the game to make this point. If there was a serious concern about cheating then there would not have been such blatant incompetence.
 
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Time to turn the page our esteemed lawyers. Patriots win ; patriots win.
 
Fun watching the other lawyers weigh in.

I'm not sure there is as big of a void between Nomar & McCracken and The Law Offices of Frank Ivy as they might believe.

Nomar and Ern are technically correct, of course; but I think brother Ivy is merely echoing the truism that if you give the court a reason to want to rule in your favor, it will find a way.
 
As many said on the radio yesterday as I was driving, and some were from the Pats area of the world, Brady was guilty of something but the NFL did an awful job with their penalties. Hence most just think Goodell and the NFL needed to be dosed with reality, it was unfair what they handed out and I agree. I'm good with that, but in the end the hatred for Goodell and NFL with their severe penalties took away from what did happen.

But who cares I wanted him to play against the Cowboys anyway so it's time for football. (seems way too early doesn't it?) Really glad it's pretty much over with. But if fat mouth Kraft keeps throwing out victory jabs it's going to come back to haunt him.
 
8893 said:
but I think brother [Taste] is merely echoing the truism that if you give the court a reason to want to rule in your favor, it will find a way.
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Amen Brother, Amen.
 
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