#DFG: Canceling the Noise

[Shelterdog]

So, if he's saying he may issue ruling today, his mind is made up right? In that case, do we lean back on that last transcript?

 
No--we don't know if Berman was tough last time because he thinks the NFL has the worse case or because he was trying to make the more obstinate side cave.
 
However, I can't imagine he'd look kindly on things if the NFL is requiring an admission of guilt. It's a facially unreasonable request in a civil case.

 

[ilol@u]

I have a bad feeling that Berman is going to uphold the suspension. Every step of this saga for the past 7 months has been nothing but nutpunches. From the incorrect data, to the biased "investigation", to the original punishment, appeal of the punishment, etc.

 

[DJnVa]

I have a bad feeling that Berman is going to uphold the suspension. Every step of this saga for the past 7 months has been nothing but nutpunches. From the incorrect data, to the biased "investigation", to the original punishment, appeal of the punishment, etc.

 
 
#HOTTAKEZ
 

 

[Morning Woodhead]

I have a bad feeling that Berman is going to uphold the suspension. Every step of this saga for the past 7 months has been nothing but nutpunches. From the incorrect data, to the biased "investigation", to the original punishment, appeal of the punishment, etc.

 
And all those kicks to the nuts were overseen by the NFL.  Now that the decision is out of their hands, I expect a fair and rational ruling. 

 

[dcmissle]

I have a bad feeling that Berman is going to uphold the suspension. Every step of this saga for the past 7 months has been nothing but nutpunches. From the incorrect data, to the biased "investigation", to the original punishment, appeal of the punishment, etc.

It could go either way, and it's time for folks posting here to internalize that and act accordingly.

 

[ifmanis5]

I have a bad feeling that Berman is going to uphold the suspension. Every step of this saga for the past 7 months has been nothing but nutpunches. From the incorrect data, to the biased "investigation", to the original punishment, appeal of the punishment, etc.

Yeah, it's been worst case scenario the entire time so far. But that's because RG was running the show. It's out of his hands now. We'll see.

 

[Jimbodandy]

I have a bad feeling that Berman is going to uphold the suspension. Every step of this saga for the past 7 months has been nothing but nutpunches. From the incorrect data, to the biased "investigation", to the original punishment, appeal of the punishment, etc.

 
All within NFL's domain, not in the real world.  Not a good assumption on your part.  If your bad feeling is based on the law, that's a different story. 

 

[HomeBrew1901]

It could go either way, and it's time for folks posting here to internalize that and act accordingly.

This place is going to be an absolute shitshow (well worse than usual) if Berman rules against Brady in any way. 

 

[Steve Dillard]

I think his mind has been made up for some time, and the opinion has been in the works for several weeks.

One outcome or another, I expect the ruling sooner than later. Tom Brady did not waste his time, and I expect Judge Berman to return the courtesy.

 
I've had cases before Crotty (SDNY) where we leave the courthouse, pickup our cell phones downstairs, and the electronic order/decision pings through

 

[MuppetAsteriskTalk]

 Whatever happens, we can be thankful to Judge Berman for how he handled this.

 

[DJnVa]

McCann saying that it's "more probable than not" Brady is playing Week 1.

 

[bankshot1]

Any tea leaves to be read, by Berman ruling relatively quickly?  If Berman upholds, and its done sooner rather than later  does this give Brady more time get an injunction?

 

[LuckyBen]

So if Brady wins, what kind of of timeline would we be looking at, when the NFL would inevitably appeal the decision? Berman obviously has moved pretty quickly, would the next appeal take longer?

 

[lambeau]

Jay Feely is on the NFLPA executive committee, so he's Mara's opposite number--a principal in the case.

 

[dirtynine]

 Whatever happens, we can be thankful to Judge Berman for how he handled this.

 
 
I agree. It's been a rational proceeding.  I have faith that even a pro-NFL ruling will be solidly based in both law and reason, and that it will at least be legally explainable and thoughtfully composed by the Judge.  
 
I'm hopeful for the opposite (any ruling that doesn't simply rubber-stamp the NFL's actions) because, based on a lot of the discussion here I don't think the rational/legal window for the NFL is open very far.  It's not shut completely, though, so there's certainly room for anxiety. 
 
All of this is grounded on a lot of the analysis by smart folks here (thanks for that), which I tend to trust pretty implicitly. 

 

[bakahump]

 
 
I agree. It's been a rational proceeding.  I have faith that even a pro-NFL ruling will be solidly based in both law and reason, and that it will at least be legally explainable and thoughtfully composed by the Judge.  
 
I'm hopeful for the opposite (any ruling that doesn't simply rubber-stamp the NFL's actions) because, based on a lot of the discussion here I don't think the rational/legal window for the NFL is open very far.  It's not shut completely, though, so there's certainly room for anxiety. 
 
All of this is grounded on a lot of the analysis by smart folks here (thanks for that), which I tend to trust pretty implicitly. 

...or  Queue the NWO Music and Berman heal turn in 3....2....1
 
 
No for what its worth I agree.  Logic and fairness has been refreshing.

 

[TheoShmeo]

I agree with DCM in that Berman has already decided.  He's just finalizing the opinion now and as others have said, it could come out any time in the next few days.
 
I also think that whatever perceptions he has about the NFL's unreasonable settlement conditions will not be the tipping point now.  His perception of their demeanor overall will matter but that the settlement did not get done today or the NFL's insistence on Tom admitting guilt is not all that relevant at this stage in that Berman has almost certainly already decided.
 
Secondary impact of the ruling?  Huge spike in prices on the secondary market if Tom is playing.

 

[Dehere]

I agree. It's been a rational proceeding.  I have faith that even a pro-NFL ruling will be solidly based in both law and reason, and that it will at least be legally explainable and thoughtfully composed by the Judge.  

 
This is where I'm at. If the NFL wins it will be a pyrrhic victory as I think Berman's opinion will be sharply critical of the league. Pats fans may have to content themselves with Goodell only being humiliated by a federal judge.

 

[jsinger121]

Gary Myers‏@garymyersNYDN

NFLPA attorney Jeff Kessler just told me, "I trust the court will give us a just result."

 

[HomeBrew1901]

 

Gary Myers‏@garymyersNYDN

NFLPA attorney Jeff Kessler just told me, "I trust the court will give us a just result."
 

Do you expect him to say anything different?

 

[Myt1]

Well, I think the point is that it's markedly different from what the NFL has been leaking. One seems to be an expression of weakness, and the other strength.

 

[RedOctober3829]

How will the ruling be given?  Will it be uploaded like the briefs have been?

 

[dcdrew10]

So if Brady wins, what kind of of timeline would we be looking at, when the NFL would inevitably appeal the decision? Berman obviously has moved pretty quickly, would the next appeal take longer?

I wonder if the NFL would definitely appeal if Berman rules for Brady. I think they will, but it might satisfy the owners who want this to be done with if they just let it go and Goodell can say "for the good of the game and the league I'm letting this go so we can focus on the season. However, it is evident that Tom Brady lead the conspiracy to deflate the balls and this court ruling does not constitute a presumption of innocence, it is merely a technical ruling...."

Goilodell could keep waging the PR war.

 

[The Big Red Kahuna]

It could go either way, and it's time for folks posting here to internalize that and act accordingly.

 
That ship sailed once I blew my load everywhere reading your post in the "Put your Legal Chops to Use" thread... 

 

[H78]

Screw what the NFL's leaking. These are the same guys who continue to troll the Patriots with every Tom-Brady-related Tweet since this whole PR war began. They're embarrassingly unprofessional and it's *shocking* how low of a standard they hold themselves to in the public eye.

I love football but would be perfectly fine seeing the NFL go down in flames over the next ten years to another upstart league.

 

[Ed Hillel]

I agree, dcdrew, if Berman issues a scalding decision in favor of Brady, I think you'll see more owners publicly pushing the league not to appeal. Whether it works is another story...

 

[Captaincoop]

So either the court vacates Brady's suspension and he plays in the opener, or the court rules for the NFL, the NFLPA appeals, an injunction is granted, and Brady plays for the entire season while the case makes its way to court.
 
Right?

 

[Ed Hillel]

Screw what the NFL's leaking. These are the same guys who continue to troll the Patriots with every Tom-Brady-related Tweet since this whole PR war began. They're embarrassingly unprofessional and it's *shocking* how low of a standard they hold themselves to in the public eye.

I love football but would be perfectly fine seeing the NFL go down in flames over the next ten years to another upstart league.

I think Myt1 was suggesting the NFL has been leaking info designed to diminish the PR hit if Berman rules against them.

 

[mwonow]

I wonder if the NFL would definitely appeal if Berman rules for Brady. I think they will, but it might satisfy the owners who want this to be done with if they just let it go and Goodell can say "for the good of the game and the league I'm letting this go so we can focus on the season. However, it is evident that Tom Brady lead the conspiracy to deflate the balls and this court ruling does not constitute a presumption of innocence, it is merely a technical ruling...."

Goilodell could keep waging the PR war.

 
Based on behaviour to date, either/or might be giving RG too much credit. Why not go on the PR offensive AND the legal attack all at the same time?
 
Assuming, of course, a positive ruling for Team Brady. Else, PR will be insufferable all on its own

 

[dcdrew10]

Again I stress that I don't think the NFL would drop it if they did get ruled against, but they still have an out where they can continue to smear Brady and make Goodell look "reasonable" and make some owners out to be the mediators and influential to the fans who don't have a dog in the fight. 

 

[dcmissle]

Any tea leaves to be read, by Berman ruling relatively quickly?  If Berman upholds, and its done sooner rather than later  does this give Brady more time get an injunction?

Those stay papers almost certainly already drafted, just like the opinion. The NFLPA and TB have two high powered law firms at their disposal.

 

[Average Reds]

I wonder if the NFL would definitely appeal if Berman rules for Brady. I think they will, but it might satisfy the owners who want this to be done with if they just let it go and Goodell can say "for the good of the game and the league I'm letting this go so we can focus on the season. However, it is evident that Tom Brady lead the conspiracy to deflate the balls and this court ruling does not constitute a presumption of innocence, it is merely a technical ruling...."

Goilodell could keep waging the PR war.

 
I think there's a misunderstanding of what Berman is going to rule on that underlies this post.  He may very well vacate the suspension, but in that case my understanding is that Brady's case would go back to the NFL, which would then appoint another arbitrator to hear Brady's case.  (Unless Goodell decides to hear it again, which would be high comedy.) 
 
The point is that even if the NFL decides not to appeal, the case will continue to drag on.  And because Berman's decision will necessarily be important in defining the scope of Goodell's disciplinary authority, I would say that the chances of his decision being appealed by one side or the other is about 99.9999% no matter how much the owners want this to be over with.

 

[Eddie Jurak]

 
I think there's a misunderstanding of what Berman is going to rule on that underlies this post.  He may very well vacate the suspension, but in that case my understanding is that Brady's case would go back to the NFL, which would then appoint another arbitrator to hear Brady's case.  (Unless Goodell decides to hear it again, which would be high comedy.) 
 
The point is that even if the NFL decides not to appeal, the case will continue to drag on.  And because Berman's decision will necessarily be important in defining the scope of Goodell's disciplinary authority, I would say that the chances of his decision being appealed by one side or the other is about 99.9999% no matter how much the owners want this to be over with.

It depends. If he rules that the NFL did not give proper notice, then there is no way to remedy that with a just arbitration hearing.

 

[dcdrew10]

 
I think there's a misunderstanding of what Berman is going to rule on that underlies this post.  He may very well vacate the suspension, but in that case my understanding is that Brady's case would go back to the NFL, which would then appoint another arbitrator to hear Brady's case.  (Unless Goodell decides to hear it again, which would be high comedy.) 
 
The point is that even if the NFL decides not to appeal, the case will continue to drag on.  And because Berman's decision will necessarily be important in defining the scope of Goodell's disciplinary authority, I would say that the chances of his decision being appealed by one side or the other is about 99.9999% no matter how much the owners want this to be over with.

 
I am aware that if he vacates it goes back to the NFL for a "new" penalty consideration. And the point still stands in this regard; will they suspend him again and start the process over or just fine him and let it go and what is the better move from the PR standpoint? The average person with no stake in the case will see a federal judge vacating the suspension as the judge saying Brady is innocent. If the ruling is vacated and NFL lets it go (i.e., no fine, just suspension for non-compliance) it allows them to control the narrative and work the PR. Berman shutting down/slowing the leaks and the transcripts from the appeal getting leaked coincided with the PR pendulum swinging against the NFL. The NFL lost control of how the story was told. They did a lot better when they had that control.

 

[dcmissle]

Somebody just PM'ed me asking whether he should keep Phone handy because this could come out today.

Yes, it very well could.

 

[dirtynine]

Too bad there's no double jeopardy in the CBA.

 

[RG33]

I am aware that if he vacates it goes back to the NFL for a "new" penalty consideration. And the point still stands in this regard; will they suspend him again and start the process over or just fine him and let it go.

It has been covered ad nauseum in the legal thread.

 

[OnWisc]

 
I think there's a misunderstanding of what Berman is going to rule on that underlies this post.  He may very well vacate the suspension, but in that case my understanding is that Brady's case would go back to the NFL, which would then appoint another arbitrator to hear Brady's case.  (Unless Goodell decides to hear it again, which would be high comedy.) 
 
The point is that even if the NFL decides not to appeal, the case will continue to drag on.  And because Berman's decision will necessarily be important in defining the scope of Goodell's disciplinary authority, I would say that the chances of his decision being appealed by one side or the other is about 99.9999% no matter how much the owners want this to be over with.

While I think the chances of this are unlikely, I believe someone pointed out that Berman could point to something like the fact that Wells never told Brady the phone would be an issue, and since Brady cannot now go un-destroy the phone and use it to exonerate himself, that the NFL can't just redo it with another arbitrator.

Probably not much of a chance of this happening even if the ruling is in Brady's favor, but I don't think it's wholly outside the realm of possibility that the NFL doesn't simply get to tee up a do-over. Especially with the concerns Berman's voiced in the first place.

 

[Average Reds]

While I think the chances of this are unlikely, I believe someone pointed out that Berman could point to something like the fact that Wells never told Brady the phone would be an issue, and since Brady cannot now go un-destroy the phone and use it to exonerate himself, that the NFL can't just redo it with another arbitrator.

Probably not much of a chance of this happening even if the ruling is in Brady's favor, but I don't think it's wholly outside the realm of possibility that the NFL doesn't simply get to tee up a do-over. Especially with the concerns Berman's voiced in the first place.

 
Pretty much agree with your take. 
 
Having said this, my assumption is that no matter what Berman rules, the issue is so far beyond Brady and both sides are now so dug in that they almost don't have a choice except to play it out to a final legal conclusion. 
 
This ruling will, in many ways, help to define the Commissioner's disciplinary authority under the CBA.  I'd be shocked if it is not appealed by one or even both sides as far as possible.

 

[Myt1]

I think Myt1 was suggesting the NFL has been leaking info designed to diminish the PR hit if Berman rules against them.

Yes. Thank you.

 

[twothousandone]

Goilodell could keep waging the PR war.

But it would be against Tom Brady and the NFLPA with a court ruling on "their side," which is a tougher sell. It would be against a Tom Brady who has reporters gathered around him EVERY DAY. (Unlike Roger, who is available every day.) It would be against a Tom Brady who, toward the end of a convincing victory (Hi, Indy!) could be seen on camera squeezing the football, tossing it to an opposing coach and saying "call me a cheater, now." With Bob Kraft echoing those statements in his own post-game interviews.

It might not be in the Patriots best interests to act that way, therefore they might not. But the NFL would no longer have the advantage of leaking stuff as the Patriots and Brady and the NFLPA wonder what's going on.

if Berman upholds, isn't he, in effect, saying that Article 46 gives Goodell the right to haul any player before him, suspend that player for any length of time based on any real or merely imagined offense, and then uphold his own suspension on appeal?

I think upholding creates a far more damning precedent and I can't imagine Berman going that far.

I'd guess that, if he confirms the arbitration award, Berman wouldn't be ruling in favor of the NFL as much as he would be ruling in favor of collective bargaining agreements, and their arbitration provisions. He's said enough to poke holes in the NFL process, but he has not said as much on notice, inconsistent punishment, the fairness of the appeal, and Goodell's bias.

 

[ifmanis5]

I think Myt1 was suggesting the NFL has been leaking info designed to diminish the PR hit if Berman rules against them.

And Judge Berman better have his personal affairs in order. NFL will leak whatever dirty laundry they can find on him.

 

[Shelterdog]

And Judge Berman better have his personal affairs in order. NFL will leak whatever dirty laundry they can find on him.

 
The NFL would have to be the dumbest fucking organization in the world to do this.  I can't imagine what would happen to an organization that starting spying and leaking info on a federal judge. 

 

[thehitcat]

 
The NFL would have to be the dumbest fucking organization in the world to do this.  I can't imagine what would happen to an organization that starting spying and leaking info on a federal judge. 

So you're saying there's a chance...  :nsmith:

 

[Captaincoop]

And Judge Berman better have his personal affairs in order. NFL will leak whatever dirty laundry they can find on him.

 
I bet this is the first time this federal judge has ever been involved in a case featuring wealthy and powerful people.

 

[Stitch01]

Was going to post the same thing. A Berman dirty laundry leak after ruling against the NFL is on the very short list of things that would get Goodell fired right quick.

 

[dcmissle]

 
I bet this is the first time this federal judge has ever been involved in a case featuring wealthy and powerful people.

Well done.

 

[Myt1]

And Judge Berman better have his personal affairs in order. NFL will leak whatever dirty laundry they can find on him.

Dude. Maybe switch to decaf.

 

[bowiac]

I bet this is the first time this federal judge has ever been involved in a case featuring wealthy and powerful people.

I do kind of suspect the NFL is run by an unusually stupid group of people relative to the quality of advisors that usually accompanies such wealth.

 

[Average Reds]

Was going to post the same thing. A Berman dirty laundry leak after ruling against the NFL is on the very short list of things that would get Goodell fired right quick.

 
Going to go out on a limb and say that ifmanis5 was probably joking about that.