#DFG: Canceling the Noise

Is there any level of suspension that you would advise Tom to accept?


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Red(s)HawksFan

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This seems quite Belichickian, doesn't it?  The NFLPA brings Kessler on in part because he's experienced with successfully taking the NFL to court.  Now they hire a guy with loads of experience in the federal appellate court system to help handle the appeal.
 

dcmissle

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Winston and Strawn kept it in house. (Kessler's firm).

He seems more than capable. Besides, TB's lawyers at Gibson Dunn will probably have major input.

So this will be well briefed and argued on both sides.

What it comes down to now -- who sits on the 3-member panel, and that's a crap shoot at this point. There is a flavor for every taste on that court.
 

BroodsSexton

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Trial court practice and appellate court practice are two distinct skill sets. Trial court lawyers take and defend discovery, examine witnesses and handle evidence, and make tactical calls on how to build the record, while preserving issues for appeal that may or may not ever get argued.  The appeal process is about "tuning" the law (as much as correcting trial court errors).  Appellate lawyers are generally more steeped than trial court lawyers in the nuances of prior cases and precedent, so that they can bring out the finer points in the legal issues on appeal, and assist the appeals court in reaching the correct decision (advocating for their client, of course).  Appellate practice is generally thought of as more cerebral.  Trial court lawyers are often thought of as fighters with flair.  These are gross generalizations, and there are many, many good trial lawyers who handle their own appeals, as well as appellate lawyers who appear in the trial courts.
 
In this case, the trial court practice wasn't so different than appellate practice, given the procedure as actually overseen by Judge Berman (i.e., there was no discovery, there was no evidentiary hearing, the record was set during arbitration).  But Judge Berman could have gone in a different direction--as many were hoping for--permitting some (limited) discovery, and perhaps taking some live testimony. Kessler would have been the guy to handle all of that, and of course--knowing the arbitration record because he built it--was well positioned to argue the legal issues as well.  
 
As Myt1 notes, it is very common to bring on another attorney for the appeal, who brings a deeper appellate court perspective to the briefing and experience in panel arguments.  Typically you want someone with experience in the court where the appeal is pending, who may know the judges' interests and proclivities (so it's unlikely that Johnson's Supreme Court experience really means that much here).  The cynic says that it doesn't hurt to add another billing code to the matter (as dcmissile notes, it's still in-house--just a partner of Kessler's).  I'm sure Kessler would do just fine with the Second Circuit.
 

SeoulSoxFan

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Big article on how ESPN "can't be trusted" to cover the NFL:
 
http://www.truth-out.org/news/item/32958-protecting-the-shield-why-espn-can-t-be-trusted-to-cover-the-nfl
 
The argument that ESPN was showing its independence from the NFL by anonymously quoting an owner's controversial opinion is the height of irony. More than anything, the report served the NFL by deflecting the narrative away from Goodell's embarrassing loss in federal court, which, curiously, occurred just five days prior to the publication of the OTL report.
 
Football is just a game, but the stories are not. The public, which helps subsidize the league with billions in tax dollars, has a right to know the truth about the league. But, despite the occasional critical report, it is wrong to expect it from ESPN.
 
The station claims its "reputation and credibility with viewers, readers and listeners are of paramount concern." But that isn't true. The paramount concern for ESPN (and its parent company, Disney) will always be its bottom line. And investigating wrongdoing of a company with which you have invested billions clearly does not serve this priority.
 
ESPN should, at a minimum, disclose the details of its enormous vested interest before reporting any serious story about the league. ESPN should be transparent about this and stop pretending to be an independent source of journalism about the NFL.
 
Truthout.org is a "progressive" non-profit group. Its report on BP Oil Spill has been cited by the 60 Minutes, per Wiki: https://en.wikipedia.org/wiki/Truthout
 

TheWizard

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drbretto

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Wouldn't the loss on the appeal have been the best time for Goodell to just let this go and move on? Even *I'm* sick of this shit already. 
 

ifmanis5

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drbretto said:
Wouldn't the loss on the appeal have been the best time for Goodell to just let this go and move on?
Of course. RG isn't going to do that, though. I hope he gets trounced again as he deserves it. 
 
The lawyers can chime in on this amateur opinion, but from what I read of the Berman decision, it had a pretty case closed vibe to it. I'd be surprised at a reversal.
 

edmunddantes

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ifmanis5 said:
Of course. RG isn't going to do that, though. I hope he gets trounced again as he deserves it. 
 
The lawyers can chime in on this amateur opinion, but from what I read of the Berman decision, it had a pretty case closed vibe to it. I'd be surprised at a reversal.
Bonus is that if Berman's original sticks, it will have some precedent value in any future cases. Which will most assuredly end up in the NFL's backyard as the NFLPA is not going to try to escape from it. 
 
This could really backfire on the NFL's part. It could even help to remove it as a serious bargaining chip from their side in the next CBA and move it into the NFLPA's side. 
 
All depends on the selection of the judge's now. 
 

Saints Rest

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At what point in any case, and this one in particular, does the appeals process end?  In other words, regardless of the outcome of this appeal, is there another appeal layer to follow?  Does that layer only apply to the NFLPA if they lose (in other words, could the NFL lose again and still appeal further up the chain)?  Could this case go all the way to the Supreme Court? (Pardon the idiocy of my questions)
 

Red(s)HawksFan

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Super Bowl week is going to be grand if it begins with the appellate court ruling against the NFL, and ends with Tom Brady raising Lombardi trophy number five and MVP trophy number four.
 

Leather

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It could be appealed to the SC, but they would have to accept it, and I doubt that they would.
 
For all intents and purposes, this is the end of the line, unless it gets remanded back down to the district level on some issue.
 

edmunddantes

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Red(s)HawksFan said:
Super Bowl week is going to be grand if it begins with the appellate court ruling against the NFL, and ends with Tom Brady raising Lombardi trophy number five and MVP trophy number four.
Not going to happen. Super Bowl week is earliest hearing can occur. Decision will be weeks to months after that. 
 

BroodsSexton

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Saints Rest said:
At what point in any case, and this one in particular, does the appeals process end?  In other words, regardless of the outcome of this appeal, is there another appeal layer to follow?  Does that layer only apply to the NFLPA if they lose (in other words, could the NFL lose again and still appeal further up the chain)?  Could this case go all the way to the Supreme Court? (Pardon the idiocy of my questions)
Either party can ask the Supreme Court to hear an appeal after this review. The likelihood of the Supreme Court granting that request is very low. If the Supreme Court declines to hear an appeal, it's over.
 

Kevin Youkulele

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BroodsSexton said:
Either party can ask the Supreme Court to hear an appeal after this review. The likelihood of the Supreme Court granting that request is very low. If the Supreme Court declines to hear an appeal, it's over.
The losing party could also petition for rehearing en banc (where all the second circuit judges hear it, not just a panel of three) before petitioning the Supreme Court.  But like with the Supreme Court, granting this kind of petition is discretionary and rare.  There are 13 judges on the court, so usually the petitioner has to convince 7 of them that the original panel got it badly wrong/set a bad precedent/disregarded prior precedent/something like that (or that it's a really important case, but that mostly applies to constitutional issues or something like the Obamacare statutory interpretation case, where the DC Circuit granted rehearing en banc shortly before the Supreme Court took the parallel case coming out of the 4th Circuit).  Assuming the original panel goes 3-0 one way and won't change their minds, you'd have to get 7 of the remaining 10 to agree that they screwed up.  Not easy at all.  
 

soxhop411

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Bob McGovern ‏@BobMcGovernJr  4m4 minutes ago
Reports indicating that a date has been set for the #Deflategate appeal are wrong. Read the order: "as early as" is not "will happen on."
 

BroodsSexton

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Re: en banc review, theoretically possible, but the Second Circuit appears to be the most restrictive of the Courts of Appeals in en banc review, based on the infrequency of its occurrence. Only .01% of its cases are heard en banc, according to this article. Yes, that's .01%, not 1%. (footnote 128). (I don't think that's the rate at which en banc review granted, but gives a sense of the likelihood of it occurring).

http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=4965&context=flr
 

DennyDoyle'sBoil

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edmunddantes said:
Not going to happen. Super Bowl week is earliest hearing can occur. Decision will be weeks to months after that. 
 
The calendar isn't out yet, but presumably they will hear oral argument on February 1-4, and possibly 5.  The timing does kind of suck if the Patriots are in the Super Bowl.
 
I agree it's very unlikely they will rule quickly, but if the argument were held on Monday, a disposition prior to the game is theoretically possible.  Once the case is submitted at the end of argument, a decision can come down pretty much any time.  I guess the good news is that a very fast decision would likely bode well for the NFLPA and not for the NFL, but predicting what courts might do is hazardous.
 
With a Feb. 7 game, I wish Kessler had agreed to a briefing schedule that called for a March oral argument at the earliest.  Even if the decision does not come out quickly, having the deflategate argument coverage in the news on the week before the Super Bowl is kind of shitty.  If you're the NFL or ESPN, presumably you absolutely love this potential timing if the Patriots indeed are playing in the game.
 

dcmissle

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It's going to be blip, nothing like we saw before Berman.

If the Pats are fortunate enough to be in the SB and the argument occurs before it, TB certainly will not be there. And it certainly will not be held against him.

Argument time unless some judge gets really intrigued and the presiding judge allows more -- no more than 20 minutes a side. And yes, that includes questions, so the judges take up some of that time, sometimes lots of it.

No cameras allowed in the courtroom. Yawn.

Now it is time for the mediots who went on and on about a later season suspension to take a bow. Go ahead, asshats
 

Joe D Reid

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dcmissle said:
It's going to be blip, nothing like we saw before Berman.

If the Pats are fortunate enough to be in the SB and the argument occurs before it, TB certainly will not be there. And it certainly will not be held against him.

Argument time unless some judge gets really intrigued and the presiding judge allows more -- no more than 20 minutes a side. And yes, that includes questions, so the judges take up some of that time, sometimes lots of it.

No cameras allowed in the courtroom. Yawn.

Now it is time for the mediots who went on and on about a later season suspension to take a bow. Go ahead, asshats
That reeked of somebody getting hold of the briefing schedule and not realizing that you have to tack an argument date and time for the court to issue its opinion on top of that. 
 

dcmissle

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Joe D Reid said:
That reeked of somebody getting hold of the briefing schedule and not realizing that you have to tack an argument date and time for the court to issue its opinion on top of that. 
That crap was going on for months, even before things got going before Berman. Bob Ryan. Jackie Mac Mullen. Clowns like Volin. Assholes like Felger. Professional worriers on SoSH.

Ordinarily nobody is more forgiving of legal predictions gone awry than I am. I know how difficult it is. But these were not lawyers, and they were peddling nonsense.

This was about the most ambitious schedule you could come up with and it's still after the season. Late season nightmare was never in the cards.

edit ... And that schedule, absolutely perfect from the Patriots standpoint, which is why counsel for Brady and the Union consented to it. If this figures big in the run up to the SB, all the evidence we have seen to date suggests they will turn it into a plus. And if the appeal goes south on us, you want to know what early in the offseason as possible.
 

jimbobim

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Assholes. They won't release the data because the data will show that the integrity of the game bs is non existent when faced with the science of the Ideal Gas Law. 
 
This is something Kraft can agitate for. League clearly wants those numbers to not be demanded or examined . 
 
Goodell was asked about the new ball-testing procedures that were implemented this year as a response to Deflategate. In randomly selected games, the NFL is testing the air pressure of the footballs at halftime, logging the data, using the backup footballs in the second half, and then testing and logging the air pressure after the game.
Will that data ever be made public?
“I don’t know,” Goodell said.
So I asked an NFL spokesman the same question. I also asked how many games have been randomly selected so far.
“No such decision has been made,” the spokesman said about releasing the data. “And we are not discussing details of the program.”
So, there you go. Many questions, few answers. We’re used to this drill by now.
http://www.bostonglobe.com/sports/2015/10/07/roger-goodell-talks-about-deflategate-appeal-but-says-little/K6o4ybc23FkTz3q1mqephI/story.html
 

Ed Hillel

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Here's another goodie:
“Our PAT rule, which we’re very excited about, it’s had a very positive impact,” Goodell said. “It’s exactly what the competition committee focused on.”
Way to go, competition committee! It cracks me how rankled these guys get over the thought of having to give BB credit for anything. It seems like 50% of all they do centers around him, in one way or the other.

http://profootballtalk.nbcsports.com/2015/10/07/goodell-very-excited-about-results-of-new-extra-point-rule/
 

glennhoffmania

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I despise this man.

 
During the owners meetings in New York on Wednesday, Goodell said that he doesn't regret suspending Brady and that the NFL's rules "apply to everybody."
 
"I have a lot of respect and admiration for Tom. I know him personally. I admire him tremendously, and he's a future Hall of Fame player," Goodell said. "But our rules apply to everybody. They apply to every single player."
 
 
"Every single player expects those rules to apply to everybody," Goodell said. "Every coach does, every fan does, every partner, every team does. So our rules and the integrity of our game aren't because somebody's popular or somebody's a Super Bowl champ or not. They're to be applied evenly. Our teams expect that, and that's our job. That's our responsibility. That's my job."
 
Although Deflategate dragged on for almost nine months and cost the NFL over $5 million to investigate, Goodell has no regrets suspending Brady.
 
"I don't regret that, and we will continue to uphold the integrity of the game, and we'll do that as vehemently as we can," Goodell said.
 
 
"This isn't about any individual player or any individual incident," Goodell said. "This is about the rights that we negotiated in 2011, the rights for us to have the authority to make sure we discipline. Protecting the integrity of the game is not something we're going to compromise."
 
 

pappymojo

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"Every single player expects those rules to apply to everybody,"
 
Unless, of course, if the rules being applied were for team employees instead of players. 
 

BusRaker

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Please tell me I'm the only Pats fan that got this email from Amazon.com this morning ...

 

glennhoffmania

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tims4wins said:
And ghoff isn't even a Pats fan, right?
 
I hate the Pats.  Like I told my Pats fan friend yesterday, Roger has managed to turn me into a Pats sympathizer. 
 

Jed Zeppelin

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When did anybody anywhere ever disagree with the basic idea that the game should be fair and the rules should apply?
 
"I know the case is shit, so enjoy this irrelevant and pointless universal declaration that can't be held against me in a court of law!"
 

tims4wins

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Jed Zeppelin said:
When did anybody anywhere ever disagree with the basic idea that the game should be fair and the rules should apply?
 
"I know the case is shit, so enjoy this irrelevant and pointless universal declaration that can't be held against me in a court of law!"
 
Right - when did anyone say "Brady shouldn't be penalized because he is a hall of famer and SB winning QB"
 
Talk about a strawman.
 

ifmanis5

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The same rule will be applied to all equally, except when it's ball inflation and the Panthers and Vikings were actually caught doing it and received a 'stop it' memo and that's all. Usually it's either stupid or liar but RG is both.
 

ElcaballitoMVP

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tims4wins said:
 
Right - when did anyone say "Brady shouldn't be penalized because he is a hall of famer and SB winning QB"
 
Talk about a strawman.
 
No one but Goodell. And it's really annoying. He keeps saying the rules apply to everyone and he's upholding the integrity of the game, but at no point did anyone on Brady's side argue that he shouldn't be penalized because of his status. I wish someone would ask him a follow-up along the lines of "When did Brady ever indicate he shouldn't be penalized because he'll be a Hall of Famer and has won Super Bowls? What does that have to do with orchestrating a scheme to deflate footballs?"
 

TheoShmeo

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There's really nothing that Goodell could say at this point -- other than that he's withdrawing the appeal (never going to happen) -- that would not be annoying.
 
What I mean is that the "rules apply to everyone" theme is, for the reasons stated, ridiculous, but then again there is really almost no theme that RG could sound at this point that would make any sense.
 
I know that he cannot be honest with the appeal still pending but his comment that he would not do anything differently was especially preposterous.  Roger, you really don't want a re-do on the multiple, low hanging fruit mistakes that Kessler and then Berman seized on?  
 

Hagios

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ifmanis5 said:
The same rule will be applied to all equally, except when it's ball inflation and the Panthers and Vikings were actually caught doing it and received a 'stop it' memo and that's all. Usually it's either stupid or liar but RG is both.
 
I think there should be SoSH Wiki documenting how inconsistently enforced the rules are. Panthers and Vikings, Jerry Rice and stickum, Denver and salary cap violations and vaseline, Ben Roethlisberger on his phone on the sidelines (where's the integrity of the game outrage?). I'm sure there are probably a million more, but those are all I can think of off the top of my head.
 

djbayko

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Hagios said:
I think there should be SoSH Wiki documenting how inconsistently enforced the rules are. Panthers and Vikings, Jerry Rice and stickum, Denver and salary cap violations and vaseline, Ben Roethlisberger on his phone on the sidelines (where's the integrity of the game outrage?). I'm sure there are probably a million more, but those are all I can think of off the top of my head.
You forgot my favorite one.

2007 Spygate I:
* Patriots film defensive signals, something many teams were doing, from wrong location of stadium.
* Many in confused public assume Patriots were also filming opponents' practices, due to erroneous Boston Herald story, even though they later issued an apology.
* 1st time offenders.
* Loss of 1st round draft pick, $750k in fines.

2010 Spygate II:
* Broncos actually did film opponents' practices.
* Repeat offenders.
* No lost draft picks, $100k in fines.

Edit: Clarified Herald bullet, since BC's post expressed confusion.
 

garzooma

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djbayko

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brandonchristensen said:
I think they were accused of taping the Rams walkthrough and that's what the apology was for, wasn't it?
Yes, that's what I was referring to in my post. Spygate II was about sidelines tapes. Herals ran separate story about taping practices, which the confused public lumped into Spygate.

I included this to point out the irony that the Broncos actually did tape practices, which people generally view as a more serious offense, yet the punishment was much less severe.

I edited the post in an effort to make it clearer.
 

kenneycb

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garzooma said:
 
Ah, I do remember seeing this.  Thanks.
 
Was there a more detailed account of what happened anywhere?  I remember wondering what "attempting" to use unapproved equipment to prep the K[icking] Balls entailed. Like, what unapproved equipment?  And what's with the "attempting"?
Basically trying to do anything to the K ball since it's supposed to be right out of the box.
 

djbayko

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kenneycb said:
Basically trying to do anything to the K ball since it's supposed to be right out of the box.
I know that has been the common understanding, but wasn't this refuted in the Wells Report? I remember there being discussion of how the teams are not given much time to break in the kicking balls before game time. Therefore, I don't think "anything" is correct here.

Edit: Yes, I found it. Some preparation of k-balls is allowed. The Jets equipment manager must have brought in the sandpaper lathe :)

"The referee or his designee brings the k-balls to the stadium in a sealed box, and each team designates one representative to prepare the k-balls once they arrive at the stadium. Both teams prepare the k-balls in the same location..., the balls may only be rubbed with a wet towel, a brush and/or a tacky sponge (a "Tac Cube") provided by Wilson, and the preparation process may take no more than fourty-five minutes."

https://www.bostonglobe.com/sports/2015/05/06/read-ted-wells-deflategate-report/KVGF6avvFSwyxUilZwz92O/story.html