bankshot1 said:
At this point, to this Judge, is the NFLPA/NFL dueling letters drama over?
Or does the NFL have the right to respond to Kessler?
There is always a difficult tension a lawyer faces when deciding whether to try to file another brief, or supplemental authority, or a reply to a reply, or any document that is within the judge's discretion to consider or not. You have to ask, first, "do I have some sort of hook to justify my doing this," and, second, "do I have enough to say that it's worth the possibility that I will annoy the judge."
I think the NFL's original filing was within the bounds. Kessler handed up a document at the hearing citing 19 cases. That was the NFL's "hook" to file a response, and I think it's reasonable -- "they provided you with a bunch of authority on a piece of paper that they didn't give us in advance of the hearing, so we just want to let you know that the authority is not as broad as they suggest." That's reasonable. Also, they got pretty restrictive page limits on the merits, so I don't think this is out of bounds. Do I think the NFL needed to do this? I think, actually, it was a bit of a panic move. (But, there is one thing to keep in mind -- if you lose in the trial court, you cannot argue on appeal things you didn't argue in the trial court. Perhaps they thought that some of their arguments were not sufficiently well preserved to argue on appeal if they lose -- especially this bit about the NFLPA essentially agreeing to a non-neutral. I think they may have thought they needed to do something like this to protect their record.)
Then we get to Kessler's response. Was that in bounds? Probably. It's closer. It does look like a bit of a petulant attempt to get the last word -- and the NFL's view that they were justified by Kessler handing up 19 authorities without notice at the hearing maybe helps support that notion. This is probably why Kessler starts his letter off trying to suggest that the NFL's filing was "belated" and that it simply retreads over matters already briefed. This is Kessler's attempt to justify his sur-reply. That said, his response is short enough, and targeted enough to the NFL's letter, to probably be ok. I think it's professional enough -- as others have noted -- that it's ok. But he was stretching it just a bit here. I'm sure he debated a lot before filing it and decided the benefit was greater than the risk of pissing off the judge. And I do agree he seems to think he has the judge at least leaning his way, so probably thought his risk was lower.
As for whether the NFL has an opening to respond now? I don't think so. They probably need to lick their wounds and retreat. If it were me, I wouldn't file another document unless I thought I had the other side in a clear lie or a clear misrepresentation of the law or a fact. In that case, you can get away with saying words to the effect tat, "they have flatly misled the court and though we are at risk of annoying the court with yet another filing, they have simply mischaracterized the record."
