#DFG: Canceling the Noise

[ZMart100]

The question I have is how did the press get this? Who are the sources here and what is their motivation?

This, if true, should not have gotten out. But I can't figure out why either side would benefit.

I'm having the same problem. I can't believe Brady or Pats would go to Mort. I can't believe NFLPA or their lawyers would risk pissing off Berman. The NFL and their lawyers would be better off without this report. That leaves someone in the NFL office who wants to feel important (11 of 12 guy?) or someone from the court (seems unlikely).

I'm going to avoid getting excited by this until there is reporting I can trust confirming the report.

 

[Harry Hooper]

Glad I wasn't the only one who picked up on that. Is the league office already pressuring him to change his story? His published piece on ESPN-dot-com doesn't mention this "courtesy" nonsense anywhere, in fact he makes it fairly clear that Mara cited the conflict of interest and refused the request himself.

This new report sounds far more troubling for the NFL than Mara politely refusing the judge's request personally, no?

 
I agree. This is all weird. Maybe they think this shields Mara somehow, but then who is "they" who really calls the shots?

 

[PedroKsBambino]

I'm having the same problem. I can't believe Brady or Pats would go to Mort. I can't believe NFLPA or their lawyers would risk pissing off Berman. The NFL and their lawyers would be better off without this report. That leaves someone in the NFL office who wants to feel important (11 of 12 guy?) or someone from the court (seems unlikely).

I'm going to avoid getting excited by this until there is reporting I can trust confirming the report.

 
I bet if you had Ted Wells and Gregg Levy over a beer in the cone of silence they'd both tell you that their most fervant wish was that this would go away as soon as possible.  So I wouldn't say it is true that everyone on the NFL side is likely to be united around the company line in private.  Both those guys don't need instructions to find a reporter if they want to leak something (which is not to say either did, obviously)
 
I also imagine, just because it is like many organizations, that there's a bunch of NFL staffers who either hate RG or think this thing is crooked.  Agendas within an organization often vary, and most anyone in the NFL offices can find their way to a reporter if they really care to do so.

 

[DavidTai]

 The NFL and their lawyers would be better off without this report. That leaves someone in the NFL office who wants to feel important (11 of 12 guy?) or someone from the court (seems unlikely).

I'm going to avoid getting excited by this until there is reporting I can trust confirming the report.

 
I was thinking someone who has the long knives out for Goodell, to be honest -and- is in a position to know these details.  Can't picture Brady or the Patriots being in a position to know this sort of detail, either.

 

[Leather]

There has to be a tipping point where the story of Goodell and his administration's endless quest for a buck and for strong-armed pursuit of the "no fun league" and dodgy response to violence and concussions becomes too much, and outweighs the incremental benefit his continued presence brings.

At some point, the PR value of "Hey, new commissioner! New day in the NFL! We CARE about people, and this guy will show you how!" Must be appealing.

 

[Harry Hooper]

There has to be a tipping point where the story of Goodell and his administration's endless quest for a buck and for strong-armed pursuit of the "no fun league" and dodgy response to violence and concussions becomes too much, and outweighs the incremental benefit his continued presence brings.

At some point, the PR value of "Hey, new commissioner! New day in the NFL! We CARE about people, and this guy will show you how!" Must be appealing.

 
 
Surely there can be no one with more integrity and a greater commitment to dominating the "care about people" space than Roger Goodell.

 

[J.McG]

Every NFL leak has seemingly been made to preemptively shape public opinion or get their side of the story out before a major bomb drops - are we expecting any further late-Friday briefs or other court filings tomorrow? IANAL, so would there be any public record made of Berman's request to involve Mara and the NFL's refusal?

 

[DJnVa]

I'm with (dr)leather in thinking that Berman

 
I see what you did there and wanted to make sure you got some kudos.

 

[DennyDoyle'sBoil]

I understood those involved in the mediation have a gag oreder. I don't know that to be true, but it was reported at some point. Berman would be apoplectic if he thought it was violated. Mara's camp releasing the story is the only thing that makes sense to me. He probably is far enough removed.

 

[JayMags71]

There has to be a tipping point where the story of Goodell and his administration's endless quest for a buck and for strong-armed pursuit of the "no fun league" and dodgy response to violence and concussions becomes too much, and outweighs the incremental benefit his continued presence brings.

You think that agenda is his brainchild? I think this whole saga has proven he gets his marching orders from the owners. He's a sock puppet and a stooge.

I think this whole story has been managed, at least in part, to distract the fandom and the general public from the very real issues of the NFL. Namely 1.)CTE, 2.) Players chronic violent criminal behavior, and 3.) constant extortion from the owners for bigger and better stadia.

The manner in which the court case has been managed has budged me from my position. But, not much.

 

[dcmissle]

Unless Judge Berman wants it out there because it will bring home to the 31 Barzinis the gravity of the situation as he sees it. And he has ways of getting this out there indirectly.

 

[pappymojo]

I dont think Goodell operates under direct orders from ownership. A good portion of this is Goodell being arrogant and clumsy. He fucked up Bountygate fairly significantly and how could that have been something that the ownership wanted? He is completely capable of being this stupid and vile.

 

[pappymojo]

I dont think Goodell operates under direct orders from ownership. A good portion of this is Goodell being arrogant and clumsy. He fucked up Bountygate fairly significantly and how could that have been something that the ownership wanted? He is completely capable of being this stupid and vile.

Im high. That first sentence doesnt say what I want it say. It should say that I don't think Goodells actions and responses are being done under direct orders from the owners. He's just a fuck up.

Edit: christ. I'm turning off the phone.

 

[JBill]

For those involved in settlements and mediations, if a judge wants to speak to someone, don't you make that person available? I know it's framed as a "request," but if Berman wants to talk to Mara, then don't you produce Mara? I don't understand what the NFL is doing.

 

[dcmissle]

Yes, you meet with the judge if that is what he wants -- especially if your claims of conflicting interests are belied by your past participation In matters of this sort.

The owners want no part of this process in person. They'd rather lose in the district court and then have the matter either go away or get sucked into a very long Second Circuit pipeline.

 

[Van Everyman]

if push comes to shove the law requires him to rule for the NFL.

DCM, you have said or alluded to this numerous times. Why? Is it simply that the law requires such extreme deference to the CBA that the bar to reach it must be exponentially (pardon the pun) high? Or is there something Berman is doing specificity that suggests to you he is trying to find some way of avoiding having to rule in favor of the NFL?

 

[lambeau]

For whatever reason, technically the plaintiff in the case before Berman is the NFL Management Council, of which Mara is the head--so as plaintiff he's playing recusal games here, no?

 

[TomTerrific]

I understood those involved in the mediation have a gag oreder. I don't know that to be true, but it was reported at some point. Berman would be apoplectic if he thought it was violated. Mara's camp releasing the story is the only thing that makes sense to me. He probably is far enough removed.

 
At the same time, Mort's "correction" to his report only makes sense if it came from the NFL front office, i.e., Goodell's shop. In which case, Berman may still be apoplectic.
 
Let it be so.

 

[Stitch01]

Man, Berman isnt missing a trick in trying to force a settlement.

Would love for him to just whisper the words antitrust, that would finally get some owner attention on rog.

 

[canvass ali]

I wonder what this portends for Goodell.  If he's the wall between the owners and the rest of the world and the wall is breached, what does it mean for his usefulness going forward?  This feels like one of those little signs that you look back on later as the beginning of the end.  

 

[J.McG]

Gary Myers confirming the second version of Mort's report:

@garymyersNYDN: Court's request to have John Mara involved in Brady settlement talks rejected by NFL attorneys before it even reached Mara. (11:37 PM - 20 Aug 2015)
@garymyersNYDN: Mara agreed with decision that he should not be involved. Judge Berman pushing hard for settlement. (11:38 PM - 20 Aug 2015)

EDIT: Mort finally updated his original story.

League lawyers rejected the suggestion by the court that Mara might be able to help facilitate a resolution, citing factors that include the NFL's stance that the entire matter falls under the domain of commissioner Roger Goodell, as dictated by the collective bargaining agreement. Also, the NFL told presiding U.S. District Court Judge Richard Berman and magistrate Judge James Francis that it would be inappropriate for an owner to be involved in a decision that would competitively affect another team.

Mara was informed by the league of the development and agreed with its position, sources said, noting that in Week 4, Brady's New England Patriots play the Dallas Cowboys, one of the Giants' NFC East rivals.

http://espn.go.com/espn/print?id=13477723

 

[edmunddantes]

Every time you think this case can't get more surprising. It just goes and ups the ante.

If I was neutral observer, I would be enjoying the hell out of this.

Unfortunately, I still have that nagging feeling it's all going to go sideways.

 

[Hendu for Kutch]

@garymyersNYDN: Court's request to have John Mara involved in Brady settlement talks rejected by NFL attorneys before it even reached Mara. (11:37 PM - 20 Aug 2015)
 

 
I'm not a lawyer, but isn't that 4 games for obstruction?

 

[PBDWake]

I would almost take the Brady suspension being upheld on a technicality for Berman to publicly issue a scathing rebuke to Daniel Nash along the lines of "By not granting access to John Mara, the NFL as an organization has demonstrated a disturbing level of non-cooperation. Using the same standard the league applies, I can only conclude this as proof that Commissioner Goodell is and has been biased in this case, and has been chasing a particular outcome, as we cannot determine what he is hiding. Why else he would have allowed access to this independent party?"

 

[tedseye]

For whatever reason, technically the plaintiff in the case before Berman is the NFL Management Council, of which Mara is the head--so as plaintiff he's playing recusal games here, no?

Yes. In any mediation, a judge wants the actual decision-makers present to deal. The hearing before Goodell pitted the Management Council as the party adversary to the NFLPA. Mara is the Council's chair. Berman seems to have smoked out (by RG's or NFL counsel'admission, or by his own conclusion) that Goodell cannot wear both hats -- simultaneously arbitrator and adversary to the PA.

So this may be a finding that both drives settlement and would underpin a basis for his ultimate ruling on the merits of the "evident partiality" issue.

This truly might be the tipping point -- the "NFL" insisting to the Court that Goodell wears both hats could be deemed as something lawyers may recognize as a "judicial admission," one the NFL is now stuck with, and one Berman can use against them when he rules on the case.

Edit: fix one word misspelled.

 

[LogansDad]

 
I'm not a lawyer, but isn't that 4 games for obstruction?

Don't need to be a lawyer to judge on that, just a commissioner.

 

[djbayko]

Unless Judge Berman wants it out there because it will bring home to the 31 Barzinis the gravity of the situation as he sees it. And he has ways of getting this out there indirectly.

That's what I was going to suggest - the leak was Berman himself, or a close confidant of Berman's. That's why the initial report was a bit off. There was a slight game of telephone between Berman and Mort, and the detail of exactly when Mara found out wasn't of high significance...or perhaps it was even a misunderstanding of the sequence of events on Berman's part because the NFL wasn't fully forthcoming in its response.

That detail was important to RG, however, because he cannot afford to have people think he is not in control of the situation. So the NFL league office picked up the red phone direct line to ESPN and quickly corrected the story.

More evidence that Goodell is available to the media every day.

 

[KenTremendous]

I don't actually think this is what's happening, but it seems like all of these little leaks and questions are stress tests designed to expose exactly how utterly facacta the NFL internal system of justice is. In my dream (we all have a version of a dream, at this point, I think) the result is:
 
"So...the Commissioner orders an investigation, oversees the investigation, hires the lawyers for the investigation, then takes one step back and lets his lieutenant issue a punishment for which there is absolutely no precedent, then takes one step forward and agrees with it, then the case is appealed and he nominates and confirms himself as the person to overhear the appeal, then he rules to uphold the original punishment despite a tremendous number of issues with the science and methodology used in his investigation, while making arguments he hopes will remain sealed but which are embarrassing lies when exposed, then he comes in here and his argument is that he can do whatever he wants because fuck all y'all, and while he is making those arguments his office is still leaking things to an entire network under his sway that essentially serves as an agitprop wing of his league, and when it is suggested that a reasonable and well-respected person within the league might be able to help, his lawyers shoot it down because...there might be conflicts of interest?"
 
"That's correct, your honor."
 
"Cool. Well. Good luck with the appeal."

 

[Eddie Jurak]

I would almost take the Brady suspension being upheld on a technicality for Berman to publicly issue a scathing rebuke to Daniel Nash along the lines of "By not granting access to John Mara, the NFL as an organization has demonstrated a disturbing level of non-cooperation. Using the same standard the league applies, I can only conclude this as proof that Commissioner Goodell is and has been biased in this case, and has been chasing a particular outcome, as we cannot determine what he is hiding. Why else he would have allowed access to this independent party?"

He should find a way to say that the decision to withhold Mara was one of the worst he's seen by any litigant before him in his x years on the bench.

 

[simplyeric]

#DFG: Angels dancing on the head of an inflation needle

Thread title?

(I'm just getting bored of the grandma one)

 

[Kenny F'ing Powers]

Gary Myers confirming the second version of Mort's report:


EDIT: Mort finally updated his original story.

http://espn.go.com/espn/print?id=13477723

So, the initial leak was from Brady's camp. We have a long enough history between the NFL & media mouthpieces to know that the media will repeat verbatim exactly what the NFL wants.

This feels more like the, "Brady only gets 4 hours to make his case" leak, which the NFL was quick to rectify (lie).

 

[Van Everyman]

IANAL, but is there any precedence for federal judges leaking to the media to force one party into taking one position or another? I ask because Berman does appear to be putting the screws to the NFL – and seems to be doing everything he can to smoke the NFL out. Or is that a total and complete no-no?

Edit: Edited for clarity.

 

[jacklamabe65]

Glad to see that D&C are calling ESPN "The Network of Moral Cowards" today. They have been relentless on this for more than fifteen minutes, calling out everyone from Mortensen to Merrill Hodge.

 

[BigJimEd]

Did Mara's public comments have anything to do this request?

More importantly, is this good, bad or indifferent for Brady? On the surface seems like another attempt by Berman to push a settlement. I'm not sure what it means for a potential ruling.
Hopefully this is, as others have said, Berman thinking evident partiality.

 

[AB in DC]

That's what I was going to suggest - the leak was Berman himself, or a close confidant of Berman's. That's why the initial report was a bit off. There was a slight game of telephone between Berman and Mort, and the detail of exactly when Mara found out wasn't of high significance...or perhaps it was even a misunderstanding of the sequence of events on Berman's part because the NFL wasn't fully forthcoming in its response.
 

 
Or perhaps the NFL lied to Berman in saying that Mara's refusal was due to conflict of interest, and then Mara's folks told ESPN no, the NFL decided this on their own.  
 
Really hoping that Berman caught the NFL in a lie here.

 

[Shelterdog]

So what's the over/under on the number of times the NFL's lawyers have said "pigs get fat and hogs get slaughtered--settle this case Roger."?
 
I'm going with 12.5.

 

[JayMags71]

Bert Breer on Toucher & Rich was asked by a caller "What do other players think?" Says he's been to 12 different camps, and "100% of the players" he's spoken to on background are behind TB12. Specifically mentioned the Dolphins players and coaches, who told him Wells & NFL did the same thing in Incognito investigation "kept asking same question until they got the answer they wanted."

 

[Otis Foster]

IANAL, but is there any precedence for federal judges leaking to the media to force one party into taking one position or another? I ask because Berman does appear to be putting the screws to the NFL – and seems to be doing everything he can to smoke the NFL out. Or is that a total and complete no-no?

Edit: Edited for clarity.

NoNyetNay. Inconceivable that Berman is leaking anything (except perhaps an overfilled bladder).

 

[dcmissle]

DCM, you have said or alluded to this numerous times. Why? Is it simply that the law requires such extreme deference to the CBA that the bar to reach it must be exponentially (pardon the pun) high? Or is there something Berman is doing specificity that suggests to you he is trying to find some way of avoiding having to rule in favor of the NFL?

The former. I continue to think TB and Union will win.

Just trying to temper expectations by noting that Berman's conduct is quite consistent with one scenario in which we lose.

 

[Red Averages]

The best part of the recent updates from Berman is realizing that the NFL tried really hard to ensure this went to a NY court. 

 

[txexile]

Edit: trying again for sourcing clarity

 

[txexile]

So, the initial leak was from Brady's camp. We have a long enough history between the NFL & media mouthpieces to know that the media will repeat verbatim exactly what the NFL wants.

This feels more like the, "Brady only gets 4 hours to make his case" leak, which the NFL was quick to rectify (lie).

 
I may be missing some deeper level of sarcasm here, but there is nothing in that Mortensen link on ESPN that suggests that "the initial leak (about Mara) was from Brady's camp." http://espn.go.com/e...int?id=13477723

 

[joe dokes]

A key principle of mediation is that you get people with authority to settle in the room. If Goodell is hiding behind the owners, Berman wouldn't like that, and this rings of bluff calling to me. Now, Berman can have another run at Goodell. "So who is in charge here? Is it you?" And Rog is trapped. "Ok, then don't worry about the owners. You agreed my proposal was reasonable before we went down this road."
 

 
The very first settlement talks might have left Berman (or Francis) with the idea that the "people with the checkbook" weren't in the room.  That really pisses off judges who invest time in settlement efforts. Clients often tie their lawyers' hands. Nash's inability to answer questions directly  may have been a product of his marching orders. He's not going to lie to the court, but he's also not going to concede that today is Friday. An experienced Judge can see that right away.  Similarly, when Nash says something to the effect of "Unless you're ordering him to appear, Mr. Mara declines the invite," he won't hold it against Nash.   But sham-ish settlement talks (people with authority not present) in a case where the charge is sham-ish process doesn't make the NFL look very good.  Hard to say, though, how much it can or will impact an ultimate ruling.

 

[J.McG]

Seems some owners are coming to their senses on this, according to Mike Freeman's piece this morning:

The second point the owner made was even more important.

"I agree with Roger being the voice of discipline," the owner said, "but it can't be denied that the process needs major tweaking. This process has hurt Tom, it's hurt Roger and it's hurt the NFL. This entire episode is embarrassing our sport. It makes us look horrible. Think about how long this has gone on. This shouldn't happen."

What should be done?

"I don't know," the owner said. "But I think there needs to be a discussion." The other owner backed this idea, too. Again, the owner might speak for many. The owner pointed to how Deflategate started in January and is still going. It was seven months to the day on Tuesday. It's been 215 days as of Friday. It took three days to go to the moon. "Nothing like this happens in other leagues," the owner said. "Why our league?"

Again, these owners back Goodell, but this is the harshest I've heard any owner speak about the process. The same types of concerns about the case were expressed to me by several front-office sources.

Lots more at the link --> http://bleacherreport.com/articles/2551267-nfl-owner-on-deflategate-this-entire-episode-is-embarrassing-our-sport

I was certain that Goodell & co. would appeal should Berman vacate Brady's suspension, but now I'm not so sure assuming this growing discontent among the owners is for real...

 

[amarshal2]

Seems some owners are coming to their senses on this, according to Mike Freeman's piece this morning:

Lots more at the link --> http://bleacherreport.com/articles/2551267-nfl-owner-on-deflategate-this-entire-episode-is-embarrassing-our-sport

I was certain that Goodell & co. would appeal should Berman vacate Brady's suspension, but now I'm not so sure assuming this growing discontent among the owners is for real...

This reads to me as pressure to settle. That's the only way to make this go away.

 

[DJnVa]

This reads to me as pressure to settle. That's the only way to make this go away.

 
Maybe, but I'm still not sure why Brady or the NFLPA would accept even one game as the new standard for failure to cooperate. So, I wonder if that pressure is to not just settle, but settle at a fine.
 

 

[dcmissle]

At most these reads to me as cover fire if the NFL decides to beat a retreat. All 32 of them are incorrigible.

The NFL would respond to an adverse ruling based on what, precisely, it orders and an estimation of probable outcomes on appeal

As a practical matter, there are two third rails that would shut this down pretty quickly. Shelter described one of them yesterday -- the court reverses, remands and opens up the Paul Weiss/Pash/bias can of worms, requiring discovery.

Even worse, if Judge Berman held an evidentiary hearing on this sort of thing before ruling, which conceivably could encompass the owners. That is the nuclear option, a ruling which would be very difficult if not impossible to even appeal from -- unless these owners want to put themselves in contempt of court. To steal from Trump, this case would then settle so fast, our heads would spin.

 

[Hoya81]

Seems some owners are coming to their senses on this, according to Mike Freeman's piece this morning:

Lots more at the link --> http://bleacherreport.com/articles/2551267-nfl-owner-on-deflategate-this-entire-episode-is-embarrassing-our-sport

I was certain that Goodell & co. would appeal should Berman vacate Brady's suspension, but now I'm not so sure assuming this growing discontent among the owners is for real...

 
Money quote:

 
 
Before you think the owners are Patriots haters, they are far from it. Said the same owner quoted above: "Robert is the smartest man I've ever known. His anger over the Brady suspension made me think hard about Brady's guilt or innocence when originally I thought Brady was guilty. I totally trust and admire him.

 
Amazing that even owners who started out thinking TB was guilty have real doubts now. 

 

[BlackJack]

 
I may be missing some deeper level of sarcasm here, but there is nothing in that Mortensen link on ESPN that suggests that "the initial leak (about Mara) was from Brady's camp." http://espn.go.com/e...int?id=13477723

From that story:

You simply can't vote to give Roger the power he has, then get upset when he uses it.

RG abusing his powers is absolutely a valid reason to be upset. This statement reads like victim blaming. 'You got into his car of your own free will, you can't get upset that he drove off a cliff'

Edit: can't not can

 

[PedroKsBambino]

 
Money quote:
 
Amazing that even owners who started out thinking TB was guilty have real doubts now. 

 
I have a set of friends who are avowed Pats haters and over the last two weeks they have all admitted that this thing is completely bogus. "The Public" might generally be lazy about challenging what they see in the media, unaware of their own filters, and lots of other things.  But at core, most people are reasonable and there simply is not a reasonable assessment of this situation based on the current evidence that leads to a conclusion other than that Brady is getting hosed here.