Sounds about right.WayBackVazquez said:
Fundamental fairness.
He simply didn't get due process.
(And here I was looking for chapter and verse from statutes and case law. For something we all learned in pre-K....)
Sounds about right.WayBackVazquez said:
Fundamental fairness.
If he's referring to standards that apply to litigation .... an expert witnesses' communications with the trial counsel that retained him are protected except for those that identify information that the lawyer provided and the expert considered or identify assumptions that the attorney provided and the expert relied on in forming opinions.One point from the article on something that I might have missed. Wetzel writes: "that the NFL didn't provide attorney notes to the NFLPA in violation of federal standards...."
I recall that the NFL did not provide Wells' interview notes (or other rationale behind the findings in the Wells Report), simply letting the report stand on its own. I also recall that the PA had asked that these notes be released.
My question is: was this, in fact, a breach of federal standards?
And if so, what specific standard was breached and what does that standard require?
Thanks, JD.joe dokes said:If he's referring to standards that apply to litigation .... an expert witnesses' communications with the trial counsel that retained him are protected except for those that identify information that the lawyer provided and the expert considered or identify assumptions that the attorney provided and relied on in forming opinions.
If he's referring to arbitration, then its probably along WBV's fundamental fairness line.
geoduck no quahog said:Why didn't the NFL want Pash to testify under oath? Is there an innocent explanation? There are certainly plenty of non-innocent ones, which we'll never know.
Bleedred said:I asked before, but does anyone know if today's hearing transcripts will be released to the public?
Punchado said:Sounds more to me like this "leak" was made up by the NFL.
Eddie Jurak said:The Jeff Pash thing worries me a bit - if Berman vacates on that ground won't the NFL just stage another farce of a hearing, let Pash testify, and up hold the suspension anyway?
I know, but something about it doesn't seem right. Why would the union suddenly decide it's okay for a player to be suspended for "non-coorperation"? Seems very dangerous to give something that big away. I could understand them agreeing to a fine as a good faith offer but this alone would be a huge win for the NFL in terms of future discipline. It also came just moments before Zolack's interview where he said that Brady was pissed and unwilling to budge at all. Even if we look at it just as a PR move it makes no sense for Brady. Because no one cares if he's being "reasonable." Does the judge even care? Would it truly effect his ruling if he saw that Brady was willing to take a game? I guess the lawyers here would know better (and there seems to be a difference of opinion on the matter) but I think he takes a PR hit for making that offer. The NFL however gets a little boost from it because the story (and there was a headline up on the Huffington Post about that report -- and only that report) says that Brady is willing to admit that he did something wrong. I don't doubt that Schefter had good sources I just can't understand the logic of it from Brady's side.Archer1979 said:
But it was Adam Schefter that broke that one. He's been anything but an NFL-shill since this broke back in January.
He would not be giving them an owner's manual. At most there would be a specification of things the League can/cannot do, and that list likely would be very short.( . ) ( . ) and (_!_) said:
I asked this in the legal thread and didn't get an answer....
If Berman does send this back to arbitration then he can attach "stipulations" to that hearing about what the arbiter can and cannot do. Obviously these stipulations will be grounded within the language of the CBA and what the union is arguing for now. What I am curious about is if he can also stipulate exactly who the arbiter will be or force both sides to agree together on who the arbiter will be?
Besides that fact that this saga would not just go away, this being forced to a truly neutral arbiter would seem like a win for team Brady.
Punchado said:I know, but something about it doesn't seem right. Why would the union suddenly decide it's okay for a player to be suspended for "non-coorperation"? Seems very dangerous to give something that big away. I could understand them agreeing to a fine as a good faith offer but this alone would be a huge win for the NFL in terms of future discipline. It also came just moments before Zolack's interview where he said that Brady was pissed and unwilling to budge at all. Even if we look at it just as a PR move it makes no sense for Brady. Because no one cares if he's being "reasonable." Does the judge even care? Would it truly effect his ruling if he saw that Brady was willing to take a game? I guess the lawyers here would know better (and there seems to be a difference of opinion on the matter) but I think he takes a PR hit for making that offer. The NFL however gets a little boost from it because the story (and there was a headline up on the Huffington Post about that report -- and only that report) says that Brady is willing to admit that he did something wrong. I don't doubt that Schefter had good sources I just can't understand the logic of it from Brady's side.
dcmissle said:He would not be giving them an owner's manual. At most there would be a specification of things the League can/cannot do, and that list likely would be very short.
( . ) ( . ) and (_!_) said:
Should I read into this that it's safe to assume that if a second arbitration hearing happens then it is more probable then not that Goodell will again be the arbiter?
Punchado said:I know, but something about it doesn't seem right. Why would the union suddenly decide it's okay for a player to be suspended for "non-coorperation"? Seems very dangerous to give something that big away. I could understand them agreeing to a fine as a good faith offer but this alone would be a huge win for the NFL in terms of future discipline. It also came just moments before Zolack's interview where he said that Brady was pissed and unwilling to budge at all. Even if we look at it just as a PR move it makes no sense for Brady. Because no one cares if he's being "reasonable." Does the judge even care? Would it truly effect his ruling if he saw that Brady was willing to take a game? I guess the lawyers here would know better (and there seems to be a difference of opinion on the matter) but I think he takes a PR hit for making that offer. The NFL however gets a little boost from it because the story (and there was a headline up on the Huffington Post about that report -- and only that report) says that Brady is willing to admit that he did something wrong. I don't doubt that Schefter had good sources I just can't understand the logic of it from Brady's side.
Otis Foster said:Slight digression...in my jurisdiction's courts, both draft expert opinions and those that were prepared but never used are discoverable. That's state court, not federal.
Berman also focused on how the NFL came up with the four-game standard, drilling Nash over and over about where this number came from, how much of it was about non-cooperation and how much for the footballs.
https://www.facebook.com/AdamSchefter/posts/1007650559287585If Tom Brady's appeal of his four-game suspension is not settled and federal judge has not yet ruled on the case, an NFL source tells ESPN's Sal Paolantonio that Brady's suspension will start on Saturday, Sept. 5. That's the day NFL teams must reduce their rosters to a maxium of 53 players by 4 p.m. ET. What is not known, according to the source, is how the litigation will affect the Patriots' final roster. U.S District Court Judge Richard M. Berman said Wednesday during a hearing on Brady's appeal, that barring a settlement, he hopes to rule by Sept. 4, but that is a quick turnaround for him. Both the NFL and NFLPA have asked the judge to rule by that date, which is six days before the Patriots' season-opener against the Steelers. This means that it's possible that as of Sept. 5, Brady will be barred from entering Gillette Stadium if his case is not decided.
ProFootballTalk @ProFootballTalk 34s34 seconds ago
If Judge Berman doesn't rule by September 4, look for him to issue an injunction allowing Brady to play until a decision is made.
Daniel Wallach @WALLACHLEGAL 7s8 seconds ago
With oral argument now “concluded” (as per today’s order), Judge Berman could use 8/31 conference to issue his ruling
Adam Schefter @AdamSchefter 19s20 seconds ago
Right now, there are no more settlement talks planned between NFL and NFLPA until Aug. 31 court appearance, per sources.
RedOctober3829 said:
To piggyback on your post edmunddantes,
If he drags it out past 9/4, is it because he needed to hear from other parties to determine if RG did not demonstrate fundamental fairness or some other part of the process?WayBackVazquez said:
That's not going to happen. He's not King Solomon; he doesn't need to declare his judgment in front of the people. He'll issue a written order.
I was saying this to Rev a couple of weeks ago -- the media ran with the parties' request that this be finished by Sept. 4, and the initial order setting conferences as though that would be the end of it. I was not at all surprised that Judge Berman added another date to the calendar, and I still would not be surprised if he asks for some testimony.
RedOctober3829 said:If he drags it out past 9/4, is it because he needed to hear from other parties to determine if RG did not demonstrate fundamental fairness or some other part of the process?
If NFLPA loses, will they have time to get an injunction before Week 1 when they to go to appeal the decision?WayBackVazquez said:
I would guess that any additional argument or testimony from here on out (including on 8/31) will be very specifically requested by the judge. I have always thought that the only testimony that would be useful would be from Goodell, and if Berman was seriously considering vacating on evident partiality grounds, he may want to hear from him first.
I still think there's a better than average chance the ruling comes by 9/4, and agree that he would almost certainly issue a TRO if not. (EDIT: agree with dcmissile there)
If Berman hinted at that, might it convince the NFL to settle on terms acceptable to Brady? Can't imagine the league wanting Mr. "Not solution A or solution B but solution C" testifying under oath.WayBackVazquez said:
I would guess that any additional argument or testimony from here on out (including on 8/31) will be very specifically requested by the judge. I have always thought that the only testimony that would be useful would be from Goodell, and if Berman was seriously considering vacating on evident partiality grounds, he may want to hear from him first.
I still think there's a better than average chance the ruling comes by 9/4, and agree that he would almost certainly issue a TRO if not.
RedOctober3829 said:If NFLPA loses, will they have time to get an injunction before Week 1 when they to go to appeal the decision?
Section15Box113 said:Sounds about right.
He simply didn't get due process.
(And here I was looking for chapter and verse from statutes and case law. For something we all learned in pre-K....)
(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
WayBackVazquez said:
I would guess that any additional argument or testimony from here on out (including on 8/31) will be very specifically requested by the judge. I have always thought that the only testimony that would be useful would be from Goodell, and if Berman was seriously considering vacating on evident partiality grounds, he may want to hear from him first.
I still think there's a better than average chance the ruling comes by 9/4, and agree that he would almost certainly issue a TRO if not. (EDIT: agree with dcmissile there)
PedroKsBambino said:
Can you imagine Berman asking for testimony from Pash given today's comments?
WayBackVazquez said:
Frankly, no. The issue re Pash is whether refusing to put him on the stand violated the obligation of fundamental fairness. If so, it may be grounds for vacatur and to order him made available to testify at the rehearing. But nothing he has to say should be particularly relevant to the proceedings here.
Harry Hooper said:If Judge Berman decides on sending it back for a rehearing, can he somehow craft a decision that agrees that per the CBA the Commish is generally entitled to be the arbiter, but in this particular case given the history and now entrenched positions the Brady case should go before some other arbiter?
"I put my evident bias aside, reheard the appeal with a fresh set of ears, and found that my original biased decision was correct."PedroKsBambino said:
I'd imagine a finding of evident bias would make it very difficult for Goodell to rehear the case on remand, wouldn't it? If nothing else, NFL lawyers would prevail on him that it is taunting Berman (and thus courting trouble) to even try to do so
Is there a role for Kraft to play here? If Berman is letting on that he suspects that Pash was illicitly conveying instructions to undermine the fairness of the Wells investigation, in contradiction to what Goodell told Kraft and the rest of the owners he was doing, is this something Kraft can get the other owners to do something about? The other owners might be happy to see the Patriots screwed over, but they might not be so happy about having their employees lying to them.PedroKsBambino said:
Can you imagine Berman asking for testimony from Pash given today's comments?
I suspect he won't because it would lead to an immediate appeal to 2nd circuit on privilege, which is a delay wholly contrary to Berman's apparent goals. However, suggesting he wants to explore Pash's role would (I suspect) terrify the NFL, too.
Assume for a minute this is true. Which presents two hurdles -- the reporter's reliability, and whether he or she is being played in this instance -- but let's just assume it.RedOctober3829 said:Ian Rapaport reports that Brady is willing to pay a huge fine even forfeiting game checks just to get the situation over. He is willing to admit he should've cooperated better with RG and Ted Wells but not going to admit to any wrongdoing.
No.garzooma said:Is there a role for Kraft to play here? If Berman is letting on that he suspects that Pash was illicitly conveying instructions to undermine the fairness of the Wells investigation, in contradiction to what Goodell told Kraft and the rest of the owners he was doing, is this something Kraft can get the other owners to do something about? The other owners might be happy to see the Patriots screwed over, but they might not be so happy about having their employees lying to them.
baghdadjamie said:First I have see someone say that the report that Brady was willing to accept a 1 game suspension. I may have missed a post if this was already discussed here so don't fucking kill me mods.
http://www.bostonherald.com/sports/patriots_nfl/new_england_patriots/2015/08/guregian_tom_brady_is_winning_so_why_should_he
"So, why on earth would the Super Bowl MVP agree to accept a one-game suspension as part of a settlement with the NFL? That Brady might do so - albeit with no admission of guilt - was the gist of several reports that surfaced Wednesday, which the Herald later refuted as being false."
On this statement about some in the NFL thinking it should have been four for each violation, would that suggest bias on the part of the arbiter? Who in the NFL felt that way and were they conveying those thoughts to Goodell?DennyDoyle'sBoil said:This from Wetzel's argument stands out to me.
Some judges like to use oral arguments to obtain concessions that they can then use, because those are much harder to successfully appeal. One possible interpretation of this is that Berman feels he might have something to work with on the footballs, but that reversing the NFL for a non-cooperation punishment is more difficult. Pushing the NFL to say "one for non-cooperation, three for footballs" would have given him something to work with either in an opinion or in settlement talks. The NFL didn't make that rookie mistake. But that doesn't mean they didn't goof. Hard to say until seeing a transcript.
But basically, it kind of goes like this. Having this exactly situation in oral argument is not uncommon for an appellate lawyer. You're defending what happened in the lower court (analogous here) and the judge asks questions that sound as though he's skeptical of one basis for what the lower court did, but maybe not the other. He tries a divide and conquer argument -- maybe to get you to make a concession that makes it easier for him to parse out the two and say that one was error. This is a difficult spot -- it forces you to decide whether to try to save the entire judgment below or risk sacrificing half of it.
Bring it back to the position Nash was in, he needs to decide whether to try to save half or to go for the whole enchilada, knowing that if you guess wrong, you'll get hoisted on your own petard. (Ok, that's enough metaphors.) Clearly his marching orders are to save the whole thing. So, you can't give an answer like, "two for cooperation and two for footballs," because then you've essentially given the judge a roadmap for reversing at least two games. In this case, if you want to go for the whole enchilada, there is a subtle way you have to argue it. Here, what Nash would want to do is argue that 4 games would have been appropriate for either violation. "Commissioner had authority, and would have been well within his discretion to give four games alone for non-cooperation or for the footballs, or in fact even more for either." Now, that answer may cause more difficult questioning, but at least you've avoided a concession that can be used against you. If the judge ain't buying it, he ain't buying it, but at least you haven't made it easier on him to write an appeal-proof decision. The wrong choice would be to argue that it's a combination. That is, you don't want to say something that the judge can say amounts to you saying, "you can't separate them, and it was 4 games for the totality." If that's what you say, it makes it easy on the judge -- he can say, "well, I would have affirmed on lack of cooperation, but the NFL acknowledged at oral argument that the total punishment was based on both, and since they refuse to separate them, the error infects the entire decision, and it must be reversed in total."
It's not clear whether Nash went with the either approach or the combination approach -- from some other tweets or reports on the argument it sounds like he did at least try to take the better path. There was a report that he suggested at one point that some in the league thought it should be 8 games, which would support the "discretion to give 4 games on either" answer. But without seeing the transcript it's hard to say.
Anyway, Berman could just be playing with the NFL. It all could mean nothing. But reading this line of questioning as trying to draw out a concession that's at least partially favorable to Brady/NFLPA sure doesn't seem a stretch to me. And that's ultimately good news, because judges only try to draw concessions from the side they want to make lose.
Other than that bit of tea leaf reading, the only other thing that I'd add about today's proceedings as reported so far is that every second of the two hours not talking about Brady's phone are good seconds, and it sounds like there wasn't a lot of that.
Harry Hooper said:If Judge Berman decides on sending it back for a rehearing, can he somehow craft a decision that agrees that per the CBA the Commish is generally entitled to be the arbiter, but in this particular case given the history and now entrenched positions the Brady case should go before some other arbiter?
DennyDoyle'sBoil said:I think whether or not Pash's testimony would or wouldn't be relevant depends on whether you believe that fairness dictates Brady should have been permitted to argue to the arbitrator that the underlying process was flawed. I actually think there is some traction here. The point I'd try to make is that Brady (like the public) was misled about Wells' independence, and as a result, among other things, he walked into a trap on the "cooperation" problem with respect to his phone. He should have been allowed to explore this to argue it to the arbitrator, and part of the independence argument turned on the extent to which the league's general counsel edited and commented on the report.
You either believe that Wells' independence is or is not relevant, but if you believe it is relevant, then knowing what Pash said or didn't about the draft is significant.
RedOctober3829 said:Ian Rapaport reports that Brady is willing to pay a huge fine even forfeiting game checks just to get the situation over. He is willing to admit he should've cooperated better with RG and Ted Wells but not going to admit to any wrongdoing.
There is no Rev said:This reminds me of Socrates telling the Athenian jury that while he really is obviously innocent, he'd be happy to pay a fine with Plato's money to end things.
I would assume, that in the universe Nash is describing, the eight game suspension was being considered at the Vincent stage of this debacle, not the Goodell stage.pappymojo said:On this statement about some in the NFL thinking it should have been four for each violation, would that suggest bias on the part of the arbiter? Who in the NFL felt that way and were they conveying those thoughts to Goodell?