#DFG: Canceling the Noise

[allstonite]

If I'm representing Tom, I really want to establish that the delay between the hearing date and ruling is on the NFL. Which means I may have to refute the fig leaf the NFL will try to throw over this -- "oh, we were negotiating..." Response -- "actually, your honor, we were not ... We received a last minute settlement overture two days before the ruling came down, and we promptly rejected it and indicated what might be acceptable.""

The NFL has been slow walking this decision, I think. I make them pay a price for that.

 
Related to this, I recall someone earlier said a judge wouldn't look favorably on Goodell delaying for no apparent reason other than putting pressure on Brady since he will be up against the start of the season. Is this still true? If they do end up keeping it at 4 games, wouldn't that look even worse? What was the point of delaying for over a month to review your own punishment and not changing a thing?

 

[dcmissle]

We can respectfully agree to disagree on the point, and move on.

 

[Average Reds]

The back channel or counsel distinction is not relevant in my view.  Meaning that I totally leave open the possibility that it is going through counsel and only through counsel.  That said, it would not remotely surprise me in the real world if it went through back channels too.  
 
The point, to me, is much less HOW the offers are being communicated than the fact that an offer for a settlement offer (reduction in games in exchange for "global peace" and no further court process) has likely been made to Tom and the NFLPA.
 
I have rarely been part of any settlement offer that allowed for the possibility of further litigation.  People settle in order to put something completely to bed, with some rare exceptions. 

 
I am trying to be gentle, but this is breathtaking.
 
We - you and I - went back and forth on this very topic, and at the core of the issue we were disagreeing about was my contention that Goodell wouldn't use a back channel like Kraft (which was your speculation) to communicate with Brady.  So forgive me if I find it hard to take this seriously.

 

[TheoShmeo]

But why should Goodell be allowed to take owner's opinions on the weight of the evidence or the punishment?  The owners are not qualified to rule on the former, and the latter is delegated to Goodell, not specific "influential" owners.  While not a court process, the appeals process is something that is governed by the CBA and labor law.  

It's not so much a question of what Goodell should be allowed to do.  It's what he will do.  He's a political animal and gets paid a massive salary at the sufferance of his bosses, the owners.  How could he not take into account their views if they offer them?
 
Yes, the process is wildly tainted.

 

[TheoShmeo]

 
I am trying to be gentle, but this is breathtaking.
 
We - you and I - went back and forth on this very topic, and at the core of the issue we were disagreeing about was my contention that Goodell wouldn't use a back channel like Kraft (which was your speculation) to communicate with Brady.  So forgive me if I find it hard to take this seriously.

You're being rather dramatic.
 
I said that seeing Kraft and Goodell talking suggested to me that Kraft was serving as a go between.  I STILL think that is a distinct possibility.
 
But the point I made then and am making now was always more focused on the nature of the offer than the mode of communication.  And some folks made good points about Kraft not wanting to get involved.  I get those points.  I am not persuaded by them but they are well understood.
 
Hysteria aside, the main point then and now is that Goodell will only reduce to 1 or 2 games if Tom agrees to put his litigation weapons down.  Many here disagreed with that notion. 
 
Nothing changes the fact that I would be shocked, as most people would be I think, if RG did anything else but rubber stamp the decision and brace himself for the litigation that will follow. 

 

[dcmissle]

 
Related to this, I recall someone earlier said a judge wouldn't look favorably on Goodell delaying for no apparent reason other than putting pressure on Brady since he will be up against the start of the season. Is this still true? If they do end up keeping it at 4 games, wouldn't that look even worse? What was the point of delaying for over a month to review your own punishment and not changing a thing?

I don't know that the content of the decision matters as much as the timing.

Federal judges are experienced people. They usually well know when parties drag their feet, and they can figure out the purpose of such foot dragging and who it's designed to hurt.

I said before that the NFL bears the risk of any time crunch here. If the case is filed and assigned to me, I grant the temporary injunction.

As it is, camp opens in one week. If the decision came down today and a lawsuit were filed tomorrow, you likely would not get a ruling on a PI motion for two weeks.

There is no mystery about what's going on. Who does this hurt?

It's interesting because any judge assigned to this case could with one stroke of his or her pen kick this matter out of the 2016 season entirely. And there is not a damn thing the NFL could do about it.

 

[TheoShmeo]

We can respectfully agree to disagree on the point, and move on.

That's fine.  I'm a big fan of your posts in this thread and have a lot of respect for your views in general, fwiw.
 
But I have one question.  Does your practice include appearing in front of Judges in absence of juries with any degree of frequency, whether state  or federal?

 

[dcmissle]

I have briefed and argued about 45 appeals, most of them in Federal Circuit courts, the balance before state supreme and intermediate appellate courts.  I also parachute into trial courts to argue dispositive motions. 
 
Thanks for agreeing to the ceasefire.  Your perspective on this cluster**** is valuable.
 
Some day we'll get back to discussing football.

 

[Average Reds]

You're being rather dramatic.
 
I said that seeing Kraft and Goodell talking suggested to me that Kraft was serving as a go between.  I STILL think that is a distinct possibility.
 
But the point I made then and am making now was always more focused on the nature of the offer than the mode of communication.  And some folks made good points about Kraft not wanting to get involved.  I get those points.  I am not persuaded by them but they are well understood.
 
Hysteria aside, the main point then and now is that Goodell will only reduce to 1 or 2 games if Tom agrees to put his litigation weapons down.  Many here disagreed with that notion. 
 
Nothing changes the fact that I would be shocked, as most people would be I think, if RG did anything else but rubber stamp the decision and brace himself for the litigation that will follow. 

 
Nobody disagreed that he would be willing to do that.  I saw it (and still see it) as something that may hurt him in the long run.
 
What we have now is a leak that is presumably from the NFL saying that Brady's side made an offer.  Of course, the terms of the offer were for no suspension at all, which can't be much of a deal from Goodell's perspective.  If Goodell has made an offer of a 1 or 2 game suspension but no appeal, my guess is that we'll eventually find out and it will make Goodell look very bad indeed.

 

[TheoShmeo]

I have briefed and argued about 45 appeals, most of them in Federal Circuit courts, the balance before state supreme and intermediate appellate courts.  I also parachute into trial courts to argue dispositive motions. 
 
Thanks for agreeing to the ceasefire.  Your perspective on this cluster**** is valuable.
 
Some day we'll get back to discussing football.

Cool.  My experience is much more tilted to the the "trial court" (in my case the bankruptcy court) than appellate courts.
 
That MIGHT explain our difference in perspectives, at least in part.

 

[dcdrew10]

The leak that NFLPA offered a settlement is nearly 100% certain to be from the NFL.  And will likely generate a pretty negative response from Brady's camp, I suspect, which might take the form of a public statement, or might take the form of a counter-leak

 
If Brady's camp does this and really wants to set the whole thing on fire they'll put out a brief response about how the "Commissioner offered to reduce my suspension only if I lied to the my family, my team, and the public, by claiming involvement in and responsibility for the deflation of footballs. The science shows the balls were not deflated artificially and I will not throw my reputation away for the sake of convinience. I look forward to the commissioners ruling of my appeal and the eventual resolution of this situation."
 
It kills me that Kraft took his lumps and didn't fight back; it seemingly only encouraged the other owners to keep pushing. It also seems so short sighted that the other owners want to do even more damage to one of the biggest money making teams; they get a cut of the Pats' revenue and their teams could potentially lose out on playoffs if they have division opponents that face a Brady-less Pats. The NFL seems intent to do as much damage and to itself and everyone in the vacinity as possiblle. It's like watching Carl Spackler hunting for gophers.

 

[TheoShmeo]

 
Nobody disagreed that he would be willing to do that.  I saw it (and still see it) as something that may hurt him in the long run.
 
What we have now is a leak that is presumably from the NFL saying that Brady's side made an offer.  Of course, the terms of the offer were for no suspension at all, which can't be much of a deal from Goodell's perspective.  If Goodell has made an offer of a 1 or 2 game suspension but no appeal, my guess is that we'll eventually find out and it will make Goodell look very bad indeed.

In my experience, the leaks and news of settlement discussions are way more often than not inaccurate.  The cases that I have been involved with over the years that have been followed by the media -- and this is no humblebrag as there are several services that follow virtually all mid-sized and large corporate bankruptcy cases -- have featured wildly inaccurate accounts of many aspects of settlement offers.  My point is that I don't think we really know who offered or didn't made offers, and much about what the actual terms might have been.  Reporters frequently get fed misinformation or simply don't understand or are not privy to all of the pertinent information.
 
I do think some here thought that RG would not so condition his offer.  For example, some questioned whether he even could make such an offer since he is both the judge and a litigant, effectively. 

 

[allstonite]

I don't know that the content of the decision matters as much as the timing.

Federal judges are experienced people. They usually well know when parties drag their feet, and they can figure out the purpose of such foot dragging and who it's designed to hurt.

I said before that the NFL bears the risk of any time crunch here. If the case is filed and assigned to me, I grant the temporary injunction.

As it is, camp opens in one week. If the decision came down today and a lawsuit were filed tomorrow, you likely would not get a ruling on a PI motion for two weeks.

There is no mystery about what's going on. Who does this hurt?

It's interesting because any judge assigned to this case could with one stroke of his or her pen kick this matter out of the 2016 season entirely. And there is not a damn thing the NFL could do about it.

 
Thanks. That's interesting. I was just thinking with how insane it would look to not change a thing after waiting this long to review his own decision. But then I remembered nothing about this has been sane.
 
It has been said before many times but trying to explain this to someone makes you seem like a crazy person. I once got denied from a bar after a Sox game because I looked too drunk when I hadn't even started drinking yet. As I got angrier pleading my case to the bouncer I realized I was making myself look more and more drunk. Explaining Ballghazi feels exactly like that. 

 

[ElcaballitoMVP]

And that's exactly why the NFL and the media are so fucked up. Continually getting your actions overturned by a court should make you lose your job. And be burned at the stake in the press in the process

 
It really is hilarious, isn't it? The NFL would rather go to court and lose instead of making the right decisions. Over and over and over again. I'd say it's unbelievable, but we're long past that. 
 
I wonder if this would be the tipping point for the media, though. If this goes to court and the suspension gets wiped out completely, the NFL has to explain why they spent months and months and millions of dollars to investigate air in a football but still couldn't understand the Ideal Gas Law or even come up with a reasonable penalty akin to the Favre penalty. If the NFL upholds the 4 games suspension, everyone will think the NFL equates Hardy/Domestic Violence = Brady/Deflategate, which I can only hope would lead to an incredibly awkward and amazing grilling of Rog by Rachel Nichols at his next press conference. 

 

[twothousandone]

If this goes to court and the suspension gets wiped out completely, the NFL has to explain why they spent months and months and millions of dollars to investigate air in a football but still couldn't understand the Ideal Gas Law or even come up with a reasonable penalty akin to the Favre penalty.

No, they don't. And it's their money and time to spend.

If the NFL upholds the 4 games suspension, everyone will think the NFL equates Hardy/Domestic Violence = Brady/Deflategate, which I can only hope would lead to an incredibly awkward and amazing grilling of Rog by Rachel Nichols at his next press conference.

Not everyone will think that. I would love to see Rachel Nichols back at it, too. But this is far from the worst PR black eye the NFL and Roger Goddell have had.

 

[TheoShmeo]

 
It really is hilarious, isn't it? The NFL would rather go to court and lose instead of making the right decisions. Over and over and over again. I'd say it's unbelievable, but we're long past that. 
 
I wonder if this would be the tipping point for the media, though. If this goes to court and the suspension gets wiped out completely, the NFL has to explain why they spent months and months and millions of dollars to investigate air in a football but still couldn't understand the Ideal Gas Law or even come up with a reasonable penalty akin to the Favre penalty. If the NFL upholds the 4 games suspension, everyone will think the NFL equates Hardy/Domestic Violence = Brady/Deflategate, which I can only hope would lead to an incredibly awkward and amazing grilling of Rog by Rachel Nichols at his next press conference. 

I doubt it. I think the sensible members of the media (Sally Jenkins and a few others) would point out the insanity of all of this and further question Goodell.
 
Most of the others will continue to reach for the low hanging fruit.  It's especially hard for me to see the media having a group epiphany in the context of anything that is favorable to the Patriots.  That context does not sell or generate clicks.

 

[Bleedred]

 
It really is hilarious, isn't it? The NFL would rather go to court and lose instead of making the right decisions. Over and over and over again. I'd say it's unbelievable, but we're long past that. 
 
I wonder if this would be the tipping point for the media, though. If this goes to court and the suspension gets wiped out completely, the NFL has to explain why they spent months and months and millions of dollars to investigate air in a football but still couldn't understand the Ideal Gas Law or even come up with a reasonable penalty akin to the Favre penalty. If the NFL upholds the 4 games suspension, everyone will think the NFL equates Hardy/Domestic Violence = Brady/Deflategate, which I can only hope would lead to an incredibly awkward and amazing grilling of Rog by Rachel Nichols at his next press conference. 

Simple response by RG and the NFL.  Brady's actions go directly to the integrity of the game played on the field.  Hardy's do not.  I'm not saying it's right, but they are very easy to distinguish.  

 

[deanx0]

Simple response by RG and the NFL.  Brady's actions go directly to the integrity of the game played on the field.  Hardy's do not.  I'm not saying it's right, but they are very easy to distinguish.  

 
Not only that, but they can point to the tougher penalty guidelines going forward on the domestic violence front and that any future transgression by Hardy or any other player would be met with a much harsher response from the league.

 

[steveluck7]

I doubt it. I think the sensible members of the media (Sally Jenkins and a few others) would point out the insanity of all of this and further question Goodell.
 
Most of the others will continue to reach for the low hanging fruit.  It's especially hard for me to see the media having a group epiphany in the context of anything that is favorable to the Patriots.  That context does not sell or generate clicks.

I think, if as DC mentioned, a judge grants the injunction and a hearing / ruling is not made until early 2016, the NFL runs the risk of people starting to say things like "you've dragged this out for a full year over the air pressure in footballs?"
Then there's also the question as to whether or not the NFL will conduct and season-long studies re: the effects of temp on the footballs to finally settle "the science."  If they do, we all know what the results will show. if they don't, are they admitting that it didn't really matter?
 
In short, i wonder if this could become the low hanging fruit

 

[Tyrone Biggums]

I know the Greg Hardy thing is Apple's and Oranges and Goodell wants the "shield" protected at all costs. But public perception will see two suspensions and two numbers 4 and 4. 4 games for Hardy 4 games for Brady. Based on that alone Goodell has to at least cut this in half. The four game suspension when looking at it (deflating football's) looks stupid. Again I'm not trying to compare the two since one had a different set of circumstances than the other but Goodell is all about perception.

As for the integrity of the game argument between the two it would be met with immediate boycotting by women's groups around the country. Goodell can't be that stupid...err never mind

 

[Bleedred]

http://www.newsday.com/sports/football/joe-theismann-tom-brady-innocent-in-deflategate-1.10668516

 

[Average Reds]

This is just from a single page of posts and it was easy to find.  I could find many more.
 

DrewDawg, I don't think the lines are that brightly drawn.  Goodell could have made it clear to Kraft that he's only going to reduce the amount of games if Brady agrees not to sue.  The intermediary between Goodell and Brady/NFLPA could be anyone and Kraft is a reasonably likely candidate given his interest in the outcome and his relationship with both Goodell and Brady.
 
Said differently, I don't see Kraft as a principal here.  I see him as a potential facilitator.   

Average Reds, I think the contingent offer gets conveyed privately and likely not directly. 
 
To me, the time to discuss that offer was between the hearing and the ruling.  In other words, now.  That's the time for RG to be able to say that he considered it all, and he's prepared to reduce it to X but only if Tom agrees not to fight. 
 
To be clear, this is not something that I think would be done publicly and "officially".  And if a deal got done, it would be presented as an agreed solution...there would be no discussion of how the offer was first presented to Tom.  The result would be a reduction to X and no more litigation, but we would not hear that Tom could have only had that deal if he so agreed.  At least, not until that gets leaked down the road.

Average Reds, The settlement offer would not be used as evidence against Goodell or the NFL for a number of reasons.  One, if one is made, it would likely be floated by an intermediary rather than made directly by Goodell.  Two, even if that was not the case, Federal Rule of Evidence 408 (and there are state law analogs) makes such offers inadmissible.  Now it's true that FRE 408 may not be applicable yet in that there is no pending litigation, but if the NFL had its finger prints on an offer, it would likely be said orally or in writing (if there was a writing) that the offer is not admissible under FRE 408 and analogous state law, etc.  Attorneys rarely try to introduce offers as indicators of guilty or liability, and most judges will shut that down right away.
 
I don't know why that contingent offer doesn't make sense to you (or anyone else).  In Goodell's shoes, if I was inclined to reduce Brady's sentence, the last thing I would want would be for Brady to still fight me in Court.  AND I would rather end this embarrassing part of their history now than allow it to fester, if I possibly could.  AND, much more importantly, unless I had my head firmly up my ass (a definite possibility), I would realize that there is a better than 0% possibility of things going very badly in court.   

 
I mean, I could go on and find any number of posts to back this up.  But the reality is that you were rather firm in your contention that any contingent offer would be presented directly to Brady through an intermediary and not through counsel.  Later in the thread, you even cited the strategy of employing "plausible deniability" as a reason for being certain that no offer would go through counsel.
 
Then today you posted this:
 

The back channel or counsel distinction is not relevant in my view.  Meaning that I totally leave open the possibility that it is going through counsel and only through counsel.  That said, it would not remotely surprise me in the real world if it went through back channels too.  
 
The point, to me, is much less HOW the offers are being communicated than the fact that an offer for a settlement offer (reduction in games in exchange for "global peace" and no further court process) has likely been made to Tom and the NFLPA.
 
I have rarely been part of any settlement offer that allowed for the possibility of further litigation.  People settle in order to put something completely to bed, with some rare exceptions. 

 
You can patronize me all you want and call me "dramatic" or characterize what I was saying as "hysteria" but the fact remains that as late as 7:52 am today, you were saying that a contingent offer was being communicated through a third party - "through whoever" was how you put it.  And you are trying to re-create history to fit with the facts as they emerge.

 

[ElcaballitoMVP]

I doubt it. I think the sensible members of the media (Sally Jenkins and a few others) would point out the insanity of all of this and further question Goodell.
 
Most of the others will continue to reach for the low hanging fruit.  It's especially hard for me to see the media having a group epiphany in the context of anything that is favorable to the Patriots.  That context does not sell or generate clicks.

 
Yeah, you're probably right. Wishful thinking, I suppose. The only reason I was hoping this could be a tipping point is because of how high profile this whole thing has been. It dominated the Super Bowl, it's been in the news for months, and the NFL spent millions on an investigation that was ripped apart by just about anyone who bothered to read and understand it. How can they say they did the right thing if it gets wiped out completely by a judge? How do they justify what they spent on the Wells report? 
 

Simple response by RG and the NFL.  Brady's actions go directly to the integrity of the game played on the field.  Hardy's do not.  I'm not saying it's right, but they are very easy to distinguish.  

 
Oh how I love that excuse. And I agree that this is exactly how they'd frame it. But you are going to have a lot of people say 4 games is 4 games. Brady = Hardy. That's going to be the view people take from it. Esp if Goodell holds strong on 4 games, it goes to court and the NFL loses. If that happens, it's going to look like someone who might have knowledge of someone else doing something possibly illegal to the air in the footballs is said to be doing the same damage to the shield as a woman beating, life-threatening, idiot. Integrity of the game my ass. 

 

[MarcSullivaFan]

Also, in this circumstance it absolutely matters what channel the settlement offer goes through. Both as to admissibility (see my point about 408 above) and because direct negotiation with the employee is prohibited by the NLRA. Theo has had some interesting points to make but he's utterly ignoring anything beyond his professional frame of reference, which is one of the reasons we keep going in circles on this issue.

 

[DennyDoyle'sBoil]

Two pages on the "source" that supposedly fed Florio and ESPN a story about a "settlement"?  
 
I just don't understand when in the course of the 200 or so pages that have been written about deflategate that we finally conclude that these guys will call anyone a "source," that these "sources" have their own motivations and are frequently uninformed, and that it's more likely than not that their reports are wrong.  This is all, very likely, horseshit and speculation by people who have no fucking idea what they are talking about or have an agenda.  From the "settlement" to the owners to the rest of it.
 
Occam's razor:  The league, via Covington, is drafting an opinion that will affirm the suspension and try the best it can to fix or moot errors that have been identified in the Wells Report, blunt procedural errors, and create a document that will stand as best it can on things that are harder to review (like credibility).  It is taking a while because this has become more than about Brady -- this is now lined up as something of a make-or-break test case about the commissioner's authority.  This is not the ideal case to litigate that issue, so they are being careful with it.  And maybe they are also happy letting Brady and the Patriots twist in the wind a bit, while also making it so that the timing of the appeal coincides with the football season, when everybody stops giving a shit about anything but what's on the field.
 
I will be happy if I'm wrong.  Do I think the NFL, or more appropriately the lawyers at Covington and Pash are having a bit of a difficult time with this one?  Yes, of course.  One the one hand, they have a case with holes in it, and they don't really want this to be the test case on issues that are vitally important to their client.  On the other, they have a client for whom the issue seems to be personally important and whose reputation and job will take a serious hit, not to mention his standing with some of his biggest powerful constituents, if he backs down.  They have the equally pesky problem that they docked the team two draft picks and a shitload of money, making it hard to backtrack.  That is not an enviable spot, so the notion that they might like to find some face saving way out this has some intuitive appeal.  But there is absolutely nothing to suggest there is a compromise to be had here, and I think Florio has had it right the entire way.  They will affirm the suspension, do the best they can to make it bulletproof, and then ride out the appeal during the season.  

 

[canvass ali]

 
It really is hilarious, isn't it? The NFL would rather go to court and lose instead of making the right decisions. Over and over and over again. I'd say it's unbelievable, but we're long past that. 
 
I wonder if this would be the tipping point for the media, though. If this goes to court and the suspension gets wiped out completely, the NFL has to explain why they spent months and months and millions of dollars to investigate air in a football but still couldn't understand the Ideal Gas Law or even come up with a reasonable penalty akin to the Favre penalty. If the NFL upholds the 4 games suspension, everyone will think the NFL equates Hardy/Domestic Violence = Brady/Deflategate, which I can only hope would lead to an incredibly awkward and amazing grilling of Rog by Rachel Nichols at his next press conference. 

 
I don't think it's the tipping point but it's part of the narrative shift.  I don't see it as a see-saw rocking on a fulcrum but more like a slow-moving blob migrating from one place inside the lava lamp to another.  This has been developing slowly, first with Sally Jenkins and Florio, and more recently from more main-stream company men like Peter King on the Mike and Mike broadcast--it's becoming safer by the day and a less brazen act to question the NFL party line in print, as Goodell appears increasingly indecisive. 

 

[Leather]

Sports media isn't like "real" news organizations in that their viewership doesn't care, by and large, about accuracy or accountability.   Sports media is, unto itself, entertainment and has been increasingly so over the past 20 years.   
 
The media has no interest at all in "getting to the bottom" of deflategate, or seeking "justice" for Brady, or any of that.  They love this shit because it gives them easy, popular, story lines.   Taking down Goodell would be killing the golden goose.  
 
There will never be a "tipping point" where the media decides that the sanctity of the game and fair play and standing up for wronged millionaire athletes is more important than making sure they have high profile and well paying jobs at the end of the year.  Asking when the media will start asking the NFL tough questions about why Goodell runs such an entertaining enterprise is a pipe dream.  

 

[TheoShmeo]

Average Reds, that's a lot of effort.  Peace!
 
My very first point, in the first line you bolded, was that it could be made by ANYONE and that Kraft is a reasonably likely candidate.
 
And I also made the point that I did not think it would be made directly by Goodell.
 
And privately.
 
I still think all of those things.  I think an agent or someone on behalf of Goodell would convey the offer.  Kraft, informally, lawyers, NFL personnel are all possibilities.  Counsel is indeed a likely possibility.
 
To me, the main thing is not who makes the offer.  It's that the contingent offer would be made and I would guess has been made (and rejected).

 

[AB in DC]

Holy crap, could you guys give it a rest already?  Please? 

 

[Myt1]

And people disagreed with you on that main point for a number of reasons, including that it could weaken the NFL's legal position and might look bad in the court of public opinion. And you responded to those criticisms by saying that Brady wouldn't want to embarrass Kraft, and besides, settlement negotiations aren't admissible anyway.

And now MSF has told you repeatedly that the sort of back channel negotiation you've suggested would be an unfair labor practice in a federal matter that will very specifically be about unfair labor practices. And we've also pointed out that, as both a legal and a practical matter, settlement offers aren't inadmissible.

Which means that people's initial reasons for suggesting that Goodell wouldn't (or shouldn't) do what you would say would still be viable. So circling back to your original point and acting as if the intervening posts don't matter at all doesn't help you.

You have some valuable perspective on these issues. But you're repeatedly posting things that just aren't correct, and it bogs things down when we have to correct you for the lay posters who are following along.

This isn't a bankruptcy case. And that's ok. But for the sake of what is already a mess of a thread, you've got to stop trying to shoehorn this entire thing into your not particularly relevant experience.

 

[Bleedred]

And people disagreed with you on that main point for a number of reasons, including that it could weaken the NFL's legal position and might look bad in the court of public opinion. And you responded to those criticisms by saying that Brady wouldn't want to embarrass Kraft, and besides, settlement negotiations aren't admissible anyway.

And now MSF has told you repeatedly that the sort of back channel negotiation you've suggested would be an unfair labor practice in a federal matter that will very specifically be about unfair labor practices. And we've also pointed out that, as both a legal and a practical matter, settlement offers aren't inadmissible.

Which means that people's initial reasons for suggesting that Goodell wouldn't (or shouldn't) do what you would say would still be viable. So circling back to your original point and acting as if the intervening posts don't matter at all doesn't help you.

You have some valuable perspective on these issues. But you're repeatedly posting things that just aren't correct, and it bogs things down when we have to correct you for the lay posters who are following along.

This isn't a bankruptcy case. And that's ok. But for the sake of what is already a mess of a thread, you've got to stop trying to shoehorn this entire thing into your not particularly relevant experience.

This.   Theo, please stop arguing with those who have the goods on you on this one particular matter.  Let's move forward.  

 

[djbayko]

...and it bogs things down when we have to correct you for the lay posters who are following along.

This stuff has been discussed so much that even us lay posters can spot an invalid post. The thread has become a virtual whack-a-mole of bad legal theories and asked/answered questions.

On another note, can someone answer this for me? Let's say this appeal decision drags out, leaving insufficient time for the legal process to play out before the start of the season. Wouldn't Brady then be forced to serve all/part of his suspension, even before a final judgement is made? How is that fair?

(ducks)

 

[Myt1]

MSF and DC will have this better than I, but that would almost certainly force Brady's hand to go to federal court to request an injunction, and would likely add another claim of an unfair labor practice. If I recall correctly, the NLRB . . .

/hits you in the head with a frying pan.

 

[MarcSullivaFan]

If only I could find a way to charge someone for all the time I've spent in this thread.

 

[lithos2003]

If only I could find a way to charge someone for all the time I've spent in this thread.

 
You could bill the NFL - they're into throwing money away lately.

 

[Myt1]

Client development. Now go pinch your nipples while you read Machinists.

 

[ALiveH]

Sports media is paid off by the NFL to a large extent.  Your only hope is if it becomes a national media story & national outcry.
 
If the courts do wipe the suspension and completely trash the wells report, there's also the uncomfortable question of why the fine & picks forfeited are allowed to stand as punishments.
 
The picks are kind of a big deal.  The last time we were stripped of a pick we had been to 4 out of 8 previous super bowls and won 3 of them.  In the ensuing 6 years we only made it once and lost that one.  We had to endure a brutal 7-year championship drought.

 

[dcmissle]

Two pages on the "source" that supposedly fed Florio and ESPN a story about a "settlement"?  
 
I just don't understand when in the course of the 200 or so pages that have been written about deflategate that we finally conclude that these guys will call anyone a "source," that these "sources" have their own motivations and are frequently uninformed, and that it's more likely than not that their reports are wrong.  This is all, very likely, horseshit and speculation by people who have no fucking idea what they are talking about or have an agenda.  From the "settlement" to the owners to the rest of it.
 
Occam's razor:  The league, via Covington, is drafting an opinion that will affirm the suspension and try the best it can to fix or moot errors that have been identified in the Wells Report, blunt procedural errors, and create a document that will stand as best it can on things that are harder to review (like credibility).  It is taking a while because this has become more than about Brady -- this is now lined up as something of a make-or-break test case about the commissioner's authority.  This is not the ideal case to litigate that issue, so they are being careful with it.  And maybe they are also happy letting Brady and the Patriots twist in the wind a bit, while also making it so that the timing of the appeal coincides with the football season, when everybody stops giving a shit about anything but what's on the field.
 
I will be happy if I'm wrong.  Do I think the NFL, or more appropriately the lawyers at Covington and Pash are having a bit of a difficult time with this one?  Yes, of course.  One the one hand, they have a case with holes in it, and they don't really want this to be the test case on issues that are vitally important to their client.  On the other, they have a client for whom the issue seems to be personally important and whose reputation and job will take a serious hit, not to mention his standing with some of his biggest powerful constituents, if he backs down.  They have the equally pesky problem that they docked the team two draft picks and a shitload of money, making it hard to backtrack.  That is not an enviable spot, so the notion that they might like to find some face saving way out this has some intuitive appeal.  But there is absolutely nothing to suggest there is a compromise to be had here, and I think Florio has had it right the entire way.  They will affirm the suspension, do the best they can to make it bulletproof, and then ride out the appeal during the season.  

Nice post. Allow me a thought.

I don't think the League is much worried about losing in district court. It would attempt to distinguish and disagree with the decision in later cases. Life would go on.

It would be very worried about losing at the Circuit Court level, in this case likely the 1st or 8th. Both are good courts. Effectively a decision by either would settle things because, the massive egos involved notwithstanding, the Supreme Court is likely to have zero interest in this.

But the NFL can control that risk. If it believes its hand is weak after a loss, it can choose not to appeal.

On the other hand, I do believe the League's lawyers are trying to establish some aggressive precedent here -- on the right to demand personal records in an investigation; on this "general awareness" crap. It would be a nice weapon to bludgeon players with down the line. It would also send a message about being named a plaintiff in labor lawsuits against the NFL.

So it's like, if we lose, okay, we'll make the same arguments anyway. If we win, we'll ram this precedent down everybody's throat.

Nice people.

 

[DennyDoyle'sBoil]

Good points.  I would add I don't think Goodell wants to lose his right to hear appeals, though, which I think matters to him and this may not be the ideal case to fight on that issue.

 

[Hoya81]

The next CBA negotiations are going to be a bloodbath. The NFL offices are going out of their way to undermine their working relationship with the NFLPA.

 

[Bleedred]

The next CBA negotiations are going to be a bloodbath. The NFL offices are going out of their way to undermine their working relationship with the NFLPA.

Maybe.  The question is if the NFLPA's leadership can convince the players that the arbitrary nature of the commissioner's powers are a serious enough issue to fight in the negotiations, or if they just want to get paid.   You'd think the leadership could make a general point:  "hey, if they can fuck with tom brady, they can fuck with all of you too."  But I for one am not convinced that the players themselves give much of a shit.

 

[allstonite]

Maybe.  The question is if the NFLPA's leadership can convince the players that the arbitrary nature of the commissioner's powers are a serious enough issue to fight in the negotiations, or if they just want to get paid.   You'd think the leadership could make a general point:  "hey, if they can fuck with tom brady, they can fuck with all of you too."  But I for one am not convinced that the players themselves give much of a shit.

 
I agree they should fight for this in the next round of negotiations but I can't fault the NFLPA too much for it not being an issue last time. It looks ridiculous now but Goodell doing what ever he wants with punishments wasn't really an issue prior to the last lockout. The union then was fighting for more important things like health care after retirement and better benefits for retired players and an increase in pay. The NFLPA is so weak it has to pick its battles. 

 

[nattysez]

I don't think this was posted already -- apologies if I missed it.
 

Per @Edwerderespn, Tom Brady willing to pay fine for non- cooperation in DeflateGate. Same as Favre/TextGate in 2010. http://es.pn/1MnETAn 

 
 
The report says that the union thinks they can get a deal done where Brady pays a fine for "non-cooperation" and is otherwise vindicated in terms of charges that he knew anything about deflation.  Werder also says that the Pats seem to be preparing as if Brady is going to start Week 1.

 

[Hoya81]

I don't think this was posted already -- apologies if I missed it.
 
 
 
The report says that the union thinks they can get a deal done where Brady pays a fine for "non-cooperation" and is otherwise vindicated in terms of charges that he knew anything about deflation.  Werder also says that the Pats seem to be preparing as if Brady is going to start Week 1.

Kessler and the NFLPA lawyers probably figure that the most likely scenario is that the suspension gets thrown out in court and sent back to Goodell with directions that punishments can't exceed the Farve precedent. They decide to float the deal to see if the NFL wants to avoid the bad press and the NFL burned them.

 

[PedroKsBambino]

Two pages on the "source" that supposedly fed Florio and ESPN a story about a "settlement"?  
 
I just don't understand when in the course of the 200 or so pages that have been written about deflategate that we finally conclude that these guys will call anyone a "source," that these "sources" have their own motivations and are frequently uninformed, and that it's more likely than not that their reports are wrong.  This is all, very likely, horseshit and speculation by people who have no fucking idea what they are talking about or have an agenda.  From the "settlement" to the owners to the rest of it.
 
Occam's razor:  The league, via Covington, is drafting an opinion that will affirm the suspension and try the best it can to fix or moot errors that have been identified in the Wells Report, blunt procedural errors, and create a document that will stand as best it can on things that are harder to review (like credibility).  It is taking a while because this has become more than about Brady -- this is now lined up as something of a make-or-break test case about the commissioner's authority.  This is not the ideal case to litigate that issue, so they are being careful with it.  And maybe they are also happy letting Brady and the Patriots twist in the wind a bit, while also making it so that the timing of the appeal coincides with the football season, when everybody stops giving a shit about anything but what's on the field.
 
I will be happy if I'm wrong.  Do I think the NFL, or more appropriately the lawyers at Covington and Pash are having a bit of a difficult time with this one?  Yes, of course.  One the one hand, they have a case with holes in it, and they don't really want this to be the test case on issues that are vitally important to their client.  On the other, they have a client for whom the issue seems to be personally important and whose reputation and job will take a serious hit, not to mention his standing with some of his biggest powerful constituents, if he backs down.  They have the equally pesky problem that they docked the team two draft picks and a shitload of money, making it hard to backtrack.  That is not an enviable spot, so the notion that they might like to find some face saving way out this has some intuitive appeal.  But there is absolutely nothing to suggest there is a compromise to be had here, and I think Florio has had it right the entire way.  They will affirm the suspension, do the best they can to make it bulletproof, and then ride out the appeal during the season.  

Well said.   The only thing that I find puzzling is why Pash and Covington weren't able to influence the initial process to be more credible.  But, that's life as GC/outside counsel for a fourth-rate PR hack I suppose...

 

[NavaHo]

A Steelers fan I know brought this up to me. When I got done bitching about every single aspect of this process, I was told to shut up and deal with it because Roethlisberger got suspended four games and there was no physical evidence against him either. So, do I kill him or kill myself?

 

[Myt1]

Well, there's physical evidence that the woman actually exists, which is more than we have here.

 

[dcmissle]

I don't think this was posted already -- apologies if I missed it.
 
 
 
The report says that the union thinks they can get a deal done where Brady pays a fine for "non-cooperation" and is otherwise vindicated in terms of charges that he knew anything about deflation.  Werder also says that the Pats seem to be preparing as if Brady is going to start Week 1.

Jake Bequette gets to the Pro Bowl and named All Pro before that deal gets done. But a fella can dream.

 

[nighthob]

A Steelers fan I know brought this up to me. When I got done bitching about every single aspect of this process, I was told to shut up and deal with it because Roethlisberger got suspended four games and there was no physical evidence against him either. So, do I kill him or kill myself?

Since he's equating sexual assault with being generally aware of the ideal gas law he's clearly Goodell's target audience.

 

[amarshal2]

A Steelers fan I know brought this up to me. When I got done bitching about every single aspect of this process, I was told to shut up and deal with it because Roethlisberger got suspended four games and there was no physical evidence against him either. So, do I kill him or kill myself?

 
Most Steelers fans I know admit he's guilty of at least one of the charges.  This is closer to Hardy than it is to Brady.