Eddie Jurak said:
Thanks, DDB. What about the issue of remand back to Berman for the issues he did not rule on. Should Brady's appeal make the case against this?
Clement was clever here. He basically has put Kessler to a choice. Clement argued those issues and also argued that the Second Circuit should not only reach them but reject them, and he made an argument why it's appropriate for the Second Circuit to consider them without remanding them.
So, if you're Kessler you kind of have to do one of two things. You can say, no that's not right, these are matters that should be considered first by the trial court and so if the court disagrees on the other grounds, it should remand back to Berman. Or you can argue the points and say they are affirmative bases for the court to affirm. The problem with the first approach is that it sort of suggests that you believe you have an advocate in Berman, and you're kind of implying that you don't think the Second Circuit is up to the task. And Clement is kind of right -- it's hard to make an argument that Berman would be in a better position than the Second Circuit is to decide these matters. There's no witness credibility here. There is no hearing to be held. It's all a paper record. At the same time, the idea that there is an orderly way to decide appeals -- first the trial court decides and then the appeals court reviews -- is deeply ingrained and I think it's possible that the Court will decide it shouldn't go out of its way to address issues that should be before the district court.
Clement took a risk here, but I think it's a wise one. The risk he took is that he raised these alternative bases for affirmance that Kessler might not have raised, and so he put on the table more grounds on which his client can lose. But by doing so, he's all but forced Kessler's hand. If you're Kessler now, you can't
not respond to these arguments. Well, I mean you could, but that would take brass balls. You'd essentially be saying, "this Court shouldn't address these, and so I'm not going to talk about them." One problem with this approach is that it adds on 18 months in a case where the parties have asked for expedition. I think he'll probably take a middle in-the-alternative approach -- he'll argue that they should be remanded and considered by Berman in the first instance, but in the event the Court wishes to reach them, here's why the union should win.
In the end, I think Clement played this correctly. If the Court buys what the NFL is selling -- that is if it agrees that Berman committed errors and didn't apply the correct legal standars -- then I think the Court probably will not go on to say, "but we find that the union nevertheless wins on evident partiality." It's possible, but very unlikely. I think if the union loses here, because the Court has reservations about Berman's approach, it probably will reach these additional issues and take them away from Berman and resolve the case in full. If the NFL's brief had not argued them, I would think differently, but at this point the NFL has gone all in, and it's hoping for a spectacular win at the risk of going down completely in flames. I think they have forced the Court's and Kessler's hand on this, but he's getting paid the big bucks so let's see how he handles it.