I think the law of the shop sort of is the reason Berman can and did determine that proper notice not being given is a reason to vacate. Right?The relevant standards that Judge Berman gave lip service to, but didn't apply are that (1) the award may only be vacated if it does not "draw its essence" from the underlying contract (Enterprise Wheel & Car Corp, 363 U.S. at 597); (2) a court "is notentitled to review the merits of the contract dispute" (W.R. Grace & Co., 461 U.S. at 764; (3) Even if the court thinks the arbitrator got it wrong, he can only reverse the arbitrator if his award showed a "manifest disregard" for the law. (Wilko, 346 U.S. 427); (I could go on like this for quite some time, but the point is that Judge Berman had no business deciding whether proper notice was given, or whether it was even necessary that the rules be published, much less that they had to somehow ste out explicit punishment levels for each offense, he screwed up).
I would think a motion to vacate an arbitrator's decision would fall under the FAA and not hte LMRA (and said as much, but have yet to hear back). I think my friend is a decent labor lawyer. I also know he likes to take contrarian positions for the f of it.As to the not being able to review or cross, I don't think so. Procedural matters are left to the arbitrator to resolve (at least they are in cases not involving rich and famous athletes). You are also correct that rarely, arbitratoin decisions are reversed. But that is usually under the very slightly more lenient standards applied under the federal arbitration act, not the standards applied under Section 301 of the Labor Management Relations Act, another way that Berman screwed up, IMO.
And, just so I'm clear "law of the shop" in the NFL now says it's $50K if you don't hand over your personal cell phone when requested as part of an investigation.Ed Hillel said:He should be able to once the appeals process is over and he loses again there. They'll just go through the process again, and I'd be stunned if they don't at least hit his wallet for not handing over his phone.
Hextall said:
Anybody have comments to refute these reasons the NFL appeal will be successful?
edmunddantes said:Oh I know it's rare to get overturned, but merely stating there are a couple parts where it seems Berman is really stretching some of the cites and comments put in front of him.
Yes it's his perogative as a federal judge, but at the same time, as we just saw, it's possible for that to come back to bite you.
Particularly the case he keeps citing about
Quote
("A failure to discharge this simple duty would constitute a violation of [FAA § I 0( a)(3 )], where [as here] a party can show prejudice as a result.")
Berman nails the first part "failure to discharge this duty... violation" part on multiple spots with Roger in regards to protecting Pash, withholding Wells notes, and document requests.
However, the case and cite he uses appears to have a second part requiring that appellant than shows prejudice as a result.
Now, maybe I'm too far in the weeds here, but Berman than doesn't go far in showing how Brady/Kessler met the second part of that test in his order vacating Goodell.
Not really that important, but if I was worried about where the appeal may go squirrely, these are the areas that would keep me up at night.
twothousandone said:And, just so I'm clear "law of the shop" in the NFL now says it's $50K if you don't hand over your personal cell phone when requested as part of an investigation.
It's not in the CBA, but Favre (and by extension the NFLPA) accepted it. Now Brady -- eventually -- will accept it.
Or, without that as part of the original Brady penalty, and if the process doesn't work it's way through in time, the next time it comes, the NFLPA can say --"there's one player who paid the $50K fine, there's another who wasn't even fined $50K. It ISN'T law of the shop."
The court finds that no player alleged or found to have had a general awareness of the inappropriate ball deflation activities of others or who allegedly schemed with others to let the air out of footballs in a championship game and also had not cooperated in an ensuing investigation, reasonably could be on notice that their discipline would (or should) be the same as applied to a player who violated the NFL policy on Anabolic Steroids or Related Substances.
edmunddantes said:Okay.. reading the document. It's overall really good for Brady/NFLPA, but there are some parts that seem really shaky or not as tight as I would want.
Two parts in particular:
The whole steroids comparison section. It just seems really stretched out by Berman. He's hanging on lot on Goodell was saying they were comparable, but he doesn't make as strong as case as I think you would want.
The end part on the evidence is a little loose too. I might just be missing it in my reading, but Berman nails on multiple occasions the first part of the cite he keeps using
but I don't feel a lot of "there" there in Berman's order on the second part of that cite especially as Berman goes out of his way to not rule on the evident partiality part at all.
Unless this is his way of keeping it in his back pocket if it gets remanded back down to him.
IANAL, but it feels like there are some fairly large bits of wiggle room for a three judge panel (that is not labor friendly) to wiggle their way through in those two parts alone.
edit - I will now stop peeing in the punch bowl of celebration.
Thanks. I think he's just throwing bombs without looking closely at what happened. He just claimed that Brady was represented by his agent... so I will just back away slowly.DennyDoyle'sBoil said:His argument on that makes it hard to take anything else he says particularly seriously.
Sorry. It's throughout that whole section. Page 36, 38, etc.WayBackVazquez said:
It's really helpful (and thus standard practice) to cite to the page number when quoting an opinion.
EDIT: Okay, found it. You're quoting from Berman's summary of IV(C). He detailed the prejudice suffered in the preceding two pages.
WayBackVazquez said:Has anyone figured out the difference(s) between the original order issued and the amended version?
Also, a little odd that it was scanned, rather than PDFed from Word (though it looks like he issued at least one other order in this case in that fashion).
Is this partly sort of the outcome of Nash's refusal to define how many games for deflation ( ahem. Alleged inflation) and how many for non cooperation? (in your opinion with all caveats). And the questioning about "conspiracy" when only one incident was alleged?Ed Hillel said:
Berman intentionally leaves out commas and writes it in this garbled manner to demonstrate just how ridiculous and disjointed the standard is. Love it.
Hextall said:Hi, I'm a lurker, but this thread has been fascinating and extremely informative, so thanks.
(snip)
Anybody have comments to refute these reasons the NFL appeal will be successful?
The rankles part is why I think Berman did a good job getting in some of the more obnoxious parts of the NFL answers during the process into the order.Rovin Romine said:
As Ed points out, it's already been kicked about on this thread. Here's a link to the FAA - 9 USC § 10. https://www.law.cornell.edu/uscode/text/9/10 That's the basic jurisdictional foundation/grounds for vacating.
You can see the court applying 10(a)(3). Caselaw interprets the amount of deference and just what constitutes "any other misbehavior." It's not my area of law, but it seems the court has laid down some solid reasoning.
The Second really has no reason (I can see) to cut against Berman's ruling. I think the only way the NFL wins is if the Second makes some kind of ruling that despite the unfairness of what occurred, it does not rise to the level where circuit courts should be second guessing an arbitrator's decisions. However, these are appellate court judges. I can't imagine that they'll feel much differently than Berman on the basic fundamental fairness of the arbitration process. Very few people will bend over backwards to endorse something that rankles them - and while Berman didn't reach some of the issues, it's pretty clear that, overall, this wasn't a fair process. Affirming on notice will let them make a decision without wading into what are clearly stinky waters.
SumnerH said:
I thought the 2nd district court would be doing a de novo review, meaning that they don't have to start from Berman's conclusions.
Worse. But far from bullet-proof.DrewDawg said:So lawyers...thinking back to where you were when this first got to SDNY and thinking about what you felt Brady's chances at a win were.
Would you say you think the NFL's chances at a win on appeal are better or worse than you felt about Brady's chances back then?
Yup. NFL gets two briefs, the first and last word, in a de novo appeal with a very strict standard in the NFL's favor. NFLPA still needs to convince at least 2 more.Koufax said:I thought that Berman had no jurisdiction to engage in fact finding. He had to stick to the record from the arbitration. Any "findings" were either conclusions of law or ultra vires. Anything Berman concluded can easily be swept away by the court of appeals. (I'm not a litigator so I'm blowing smoke just a bit here. Please kick me if I'm wrong.)
Berman's opinion has persuasive power but is not entitled to any deference of which I am aware. So the chances of a favorable outcome on appeal are, in theory, little different from than the chance was at the district court level. However, the persuasive power of Berman's opinion has to count for something, so maybe it tips the scales from 55-45 to 65-35 in favor of Brady.
Statistics published earlier showing a 9% success rate on appeal undoubtedly include mostly results from trials where fact-finding has occurred, and which courts of appeals are loathe to second-guess. Berman was not supposed to engage in fact-finding, so his opinion is just that -- an opinion.
Please don't keep saying this without citation. There are definitely findings of fact that can be made in review of an arbitral award, and those are reviewed under a clear error standard. Judge Berman made several clear findings of fact, and other arguable ones.DennyDoyle said:Yup. NFL gets two briefs, the first and last word, in a de novo appeal with a very strict standard in the NFL's favor. NFLPA still needs to convince at least 2 more.
Kick. Of course he can make findings of fact. What do you suppose it would be if the NFLPA argued Goodell was evidently partial because he had taken a $1 million payment from Jerry Jones? Berman questioned Goodell who said he never took a dime, but Jones testified he gave him a suitcase full of cash? There is no requirement that he "stick to the record in arbitration," nor that even if he did he can't make findings of fact.Koufax said:I thought that Berman had no jurisdiction to engage in fact finding. He had to stick to the record from the arbitration. Any "findings" were either conclusions of law or ultra vires. Anything Berman concluded can easily be swept away by the court of appeals. (I'm not a litigator so I'm blowing smoke just a bit here. Please kick me if I'm wrong.
How many Second Circuit arbitral vacatur/confirmation decisions have you read? Do you think they always recite the clear error factual finding standard just out of boredom? Or did these all involve DC testimony? There will be deference to Berman's factual findings related to notice and law of the shop, and I am willing to put my money where my mouth is on it. Are you?DennyDoyle'sBoil said:I was only 60 percent wrong.
Berman didn't take testimony. The paper record was quite limited. What fact do you think is going to be disputed that matters on appeal? All the primary issues are legal. Whether the award draws its essence from the CBA is going to be reviewed de novo. Whether the notice that players receive is adequate for a suspension is going to be reviewed de novo. The law of the shop could theoretically have been a question of fact, but he relied on opinions and on this record at most its a mixed question, still reviewed de novo.
Not to get all legal realist here (although as an in-house lawyer, I am inclined toward a vision of the legal world based on leverage), but you two very bright people are having a second-order fight about a first-order question. If the Second Circut panel decides to uphold Berman based on the merits of the arguments before them, they will serendipitously find that Berman's opinion contains material findings of fact to which deference is owed. If they are inclined to rule against based on the merits, they will emphasize the de novo standard.WayBackVazquez said:How many Second Circuit arbitral vacatur/confirmation decisions have you read? Do you think they always recite the clear error factual finding standard just out of boredom? Or did these all involve DC testimony? There will be deference to Berman's factual findings related to notice and law of the shop, and I am willing to put my money where my mouth is on it. Are you?
I agree completely. and that's why I wrote:Joe D Reid said:Not to get all legal realist here (although as an in-house lawyer, I am inclined to toward a vision of the legal world based on leverage), but you two very bright people are having a second-order fight about a first-order question. If the Second Circut panel decides to uphold Berman basin on the merits of the arguments before them, they will serendipitously find that Berman's opinion contains material findings of fact to which deference is owed. If they are inclined to rule against based on the merits, they will emphasize the de novo standard.
DennyDoyle'sBoil said:Yeah, probably, if we can isolate what we're not agreeing about. When you say they will defer to Berman on law of the shop, what does that even mean? He didn't make factual findings. If you're saying they will defer on what Bounty or Peterson means, I'll happily bet on that. If what you're saying is they will have some recitation in their standard of review paragraph that says clear error is the standard for factual findings, I don't know if they will or won't.
My position isn't complicated. There is no significant factual finding lurking in Berman's opinion that should give us much solace in clear error review on appeal, even if there are some theoretically disputed facts. What happened here is the equivalent to cross motions for summary judgment (which obviously would be reviewed de novo). They weren't called that, but there was no evidentiary hearing or bench trial. The parties essentially agreed to resolve the case on an undisputed set of facts, and that's how the second circuit is going to view it in the main. I don't even care about betting. If I'm wrong about that I'll pay a couple hundred to whatever charity you like.
I'm sorry, but not only is this not a "perfect analogy," it's terrible. The odds are nowhere near 50-50.DennyDoyle'sBoil said:This was always a bit like going into game six down 3-2. NFLPA needed to win 2. NFL needs just one. They still have game 7. Admittedly, not a perfect analogy, because if the NFL had won, the NFLPA could have appealed, but it would have been really uphill.
“@PostSports: BREAKING NEWS: NFL owners to discuss changing Roger Goodell’s role in disciplinary process http://t.co/kl2mLteSwg http://t.co/c9DKfzmcMD
dcmissle said:A wise approach would be to start from scratch on discipline, to have a top notch law firm hitherto not connected with the NFL report to a committee of owners, and to work something out with the NFLPA. Like baseball. Ancillary to that effort, the appeal in this case and in the AP case (pending in the 8th Circuit) are dropped. Cherry on sundae would be to remove people with agendas in the NFL office.
But that would be wisdom. I am not holding my breath. At most, we'll likely see RG removed as role of arbitrator in all disciplinary matters -- at gunpoint, no doubt.
The crazy thing here, depending on if and how this actually pans out, is that the players are getting this without having to give up anything at the bargaining table. This is a huge failure on Goodell's part. He could have been firm and made it clear that the CBA prevented him from doing more, but he massively overreached his power.dcmissle said:A wise approach would be to start from scratch on discipline, to have a top notch law firm hitherto not connected with the NFL report to a committee of owners, and to work something out with the NFLPA. Like baseball. Ancillary to that effort, the appeal in this case and in the AP case (pending in the 8th Circuit) are dropped. Cherry on sundae would be to remove people with agendas in the NFL office.
But that would be wisdom. I am not holding my breath. At most, we'll likely see RG removed as role of arbitrator in all disciplinary matters -- at gunpoint, no doubt.
I think this is more about optics than anything else. Why would the NFL owners GIVE away anything? They may take the executioner role from Goodell's J/J/E model and let some ball-boy carry out the rubber stamp role. Real advances may be won at the bargaining table in 5 years, (IIRC?) but this about the PR war that Goodell lost, which embarrassed the owners,(really John Mara in court-what if he had to testify) and the fall-out has to be contained.dcmissle said:A wise approach would be to start from scratch on discipline, to have a top notch law firm hitherto not connected with the NFL report to a committee of owners, and to work something out with the NFLPA. Like baseball. Ancillary to that effort, the appeal in this case and in the AP case (pending in the 8th Circuit) are dropped. Cherry on sundae would be to remove people with agendas in the NFL office.
But that would be wisdom. I am not holding my breath. At most, we'll likely see RG removed as role of arbitrator in all disciplinary matters -- at gunpoint, no doubt.
bankshot1 said:I think this is more about optics than anything else. Why would the NFL owners GIVE away anything? They may take the executioner role from Goodell's J/J/E model and let some ball-boy carry out the rubber stamp role. Real advances may be won at the bargaining table in 5 years, (IIRC?) but this about the PR war that Goodell lost, which embarrassed the owners,(really John Mara in court-what if he had to testify) and the fall-out has to be contained.
Perhaps we could rehabilitate his analogy by saying that this is like the 2004 ALCS: once the MFY lost Game 6, they were all but dead in Game 7.Ed Hillel said:I'm sorry, but not only is this not a "perfect analogy," it's terrible. The odds are nowhere near 50-50.
Rovin Romine said:I think the import of that is even if the Second reverses, they pretty much have to remand to Berman to address that issue. So, Berman can have another run at Goodell on other grounds, which would result in a second appeal, and which could stick.
The more I think about it, the more I think that Berman has, in essence, fundamentally decided the issue and is keeping his options open in case of an appeal. I don't see this playing out well for Goodell. But sometimes we get legal decisions because a party is too stupid to quit and cut their losses.
The problem is, this is far from certain. Appellate courts employ all kinds of exceptions to evade the general rule that a court should not decide an issue not passed on in the court below. Of those, the ones that come to mind that an unfriendly panel here could assert are (1) the correct result is "clear"; (2) the matter concerns a purely legal question; or (3) the factual record is sufficiently developed that the COA can decide the matter without wasting judicial resources on remand.bob burda said:
I've been trying to follow along here with all the arguments, but this portion of Rovin Romine's post a little bit upthread is maybe the most important one I've seen - I've researched the thread to see if anyone has elaborated on this idea- I hope I'm not rehashing anything, but this merits some elaboration:
While the NFL's deep pockets and atavism toward the NFLPA seem without limits, they are really up against it and are going to spend even more resources regardless of the standard of review and likelihood of success in the 2d Circuit on appeal. Rovin Romine's point quoted above was consistent with a "(gasp)whoa!" moment I had when reading Berman's specific language about not deciding all the claims raised. My take was that Berman had cherry picked what he thought were the worst errors in the arb process, passing on what he thought were other significant problems presenting more thorny legal issues. This almost guarantees a remand on those remaining issues if there is a reversal.....and as RR notes, then you have to go through another appeal, one which seems inevitable regardless of who wins round 2 in front of Berman.
To my knowledge, there's not any dispute about the facts surrounding the evident partiality argument. If the 2nd Circuit wants to reach it (either way), I think they have enough there already.bob burda said:My impression is that Berman's tone during argument and in the decision strongly suggests he thinks there was "evident partiality." I don't know enough about labor law or appellate decisions in that area to have a firm idea on this, but my guess is an "evident partiality" finding requires quite a bit of digging through the record, a little subjectivity to go with your objectivity etc, so I expect there could be all kinds of different views of this issue making it perhaps a very loose hook on which to hang one's hat. If the NFL loses that fight in a second round after a remand, it will be couched in even uglier language about them - and while Roger might not care, I think many owners would. As I see it, the NFL is fighting a battle to get to another round where it is likely the SDNY would again hand their heads to them - so their end game has to be to outlast all of this with a final/ultimate vindication after a second appeal.
Harry Hooper said:Florio on his Thursday radio show said whichever side loses in the appeal (either 2 judges to 1, or 3-0) can then ask for a review by all 22 judges sitting on the 2nd Circuit. Only after that is there a chance of it rising to the Supreme Court. Is Florio right?