Putting Your Law Chops to a Good Cause - Last Call

[Otis Foster]

OK, here's the deal.

We've had innumerable pages describing what Berman should do, and why. In fact, portions of this discussion have been as probing and thoughtful as anything you'd find in many law reviews. Contributions from non-lawyers have raised questions experienced lawyers struggle to answer definitively. As of the moment, we still don't know what Berman will do in this classic standoff between law and equity.

I'd like to run a modest contest for the next week or ten days. Tell us what you think Berman will do, and why. Keep the answers concise, say less than 200 words and post the responses in this thread. Be clear in your response; keep the waffles in the kitchen. Explain the rationale. Contest open to all, lawyers and civilians alike.

(Well maybe except for the firm of Nash and Pash.)

Once Berman rules, the membership will determine by vote (one per member) who came closest to the thrust and the analysis of the actual order. Their decision is final, binding and non appealable.

The winner can determine which charity s/he'd like to benefit and I'll make a $300 contribution in the winner's honor. If for some reason the parties settle, I'll make the contribution to the Jimmy Fund, in the
honor of SOSH's membership as a whole.

If anyone else wants to jump in the pool, the more the better. We've got to find some way to kill time till the next hearing.
 
Edit: Voting above. I'll add names as you post your answer here.

 

[ipol]

I am the exact wrong person to be answering this so early. But, with an eight pack behind me, here it is.
 
Judge Berman will vacate the award. In doing so, he will bemoan not only the hubris of the NFL but also the money spent by the taxpayers of this fair country for having the federal court system used to dig the NFL out of this mess. The term, "fast and loose" will be used. The vacatur and remand will include orders for an actually independent arbiter. He will stop short of gently patting Tom Brady on the back of the head but his desire to do so will be revealed thirty years from now by a current clerk writing the definitive expose.
 
To prove how strongly I feel about this I offer up a really, really good pizza and a case of pretty good beer. Or fifty bucks.

 

[Ed Hillel]

Vacated/Remanded, with the following orders:

1. At re-hearing, NFL must give Kessler ample time to present case. All relevant NFL FO must be made available, and Wells cannot claim privilege;

2. Goodell will not be hearing the appeal;

3. Any punishment for deflation must be in line with specifically-bargained for equipment violation/in the range of 25 k; and,

4. Punishment for lack of cooperation can be tacked on, but must be reasonable and in line with prior punishments. Berman strongly hints (ie, "you will get reversed) at no suspension.

 

[AB in DC]

(IANAL)
 
 
Judge will vacate and remand for further proceedings.  Judge will tell Goodell that if he wants to serve as arbiter, he must bend over backward to avoid even "the appearance of partiality".
 
To that end, Goodell must grant NFLPA all of their requests for documents (e.g. between NFL and Wells, between Wells and Exponent), allow Pash to testify, and allow NFLPA to challenge whether Vincent was improperly delegated responsibility.  He may not set an artificial time limit on the proceedings.
 
If the NFL refuses any of the NFLPA's requests, then Goodell must recuse himself due to conflict of interest.
 
Judge will probably comment that Wells's representation of himself as "independent" means that he implicitly waives attorney-client privilege.
 
Otherwise, the Judge will remain silent on allowable penalties for either infraction.  He may hint, though, that it would be in the NFL's interest to make a transcript of the new appeal proceedings available to the public, rather than be seen as continuing a scorched-earth PR strategy
 
 
Neither side will be particularly happy with this decision.  Don Yee will complain that it gives Goodell a "do-over".

 

[WayBackVazquez]

Vacated and remanded for further proceedings consistent with the following:
 
1. The initial discipline imposed included for Brady being "generally aware." The arbitrator is not permitted to exceed those findings, and Brady was given no notice that being "generally aware" of a rules violation (which itself was not previously applied to players) would subject him to discipline. Upon rehearing, any award shall not relate to Brady's purported knowledge of, or involvement in, alleged deflation of balls.
 
2. Although it is unclear from the record how much of the award relates to Mr. Brady's failure to cooperate, it is clear to this Court that a penalty of a four-game suspension for such a finding ignores the law of the shop, and thus fails to draw its essence from the CBA. Upon remand, the arbitrator is instructed that if any penalty is imposed for Mr. Brady's failure to cooperate, it shall comply in all respects with the CBA, including the law of the shop.
 
3. The record is incomplete with respect to the NFLPA's claims of evident partiality as to the final award, and thus the Court makes no finding on that issue. However, the Court finds that the NFLPA has made a colorable claim that a threshold issue exists as to whether the initial discipline imposed by Mr. Vincent was permissible under the CBA. Fundamental fairness requires that the NFLPA is entitled to reasonable discovery on this issue, which may include eliciting testimony from Mr. Goodell.
 
Note: I previously voted for affrimance. I've either come around, or am hedging my bets. Also, these predictions are pretty specific, and I don't expect to "win." As to Pash testimony and investigative notes, since I am predicting the only charge will be non-cooperation, I do not think the Court will find them necessary to comport with a fundamentally fair procedure. Finally, you'll note that #3 does not specifically preclude Goodell from acting as arbitrator. If this came to play, I would not expect him to do so, even though he could.

 

[Joe D Reid]

I am basing this off (1) a single comparable prior experience I had as a lawyer and (2) my opinion that Berman has felt free to get creative with procedure in this particular matter. Both are the sort of small sample sizes I would tell a client to ignore in the same situation. But, hey, this is for giggles.
 
The litigators here will note that my proposal lacks a basis in the FRCP; I think that Berman is not going to care because he thinks it will cause the parties to settle before anyone goes up the chain on him.
 
Berman finds that because the NFL's cited basis for discipline varied during the stages of the CBA-mandated process, he is unable to determine from the record before him whether the final penalty drew its essence from the terms of the CBA. Accordingly, he does not vacate the arbitrator's decision, but does stay enforcement of the penalty pending further process.
 
I'm not sure exactly what additional process he'd require. One option would  be discovery from each of Vincent and Goodell regarding their understandings of what rules were broken. The other would be or an order that the NFL must provide Brady with a revised finding setting forth (a) the specific rules or policies allegedly broken by Brady, (b) the facts in the arbitral record supporting the NFL's finding that those rules or policies were broken, and (c) the penalty for the violation of each rule. If, following receipt of the revised finding, Brady continued to believe that the CBA was not followed, he could return to court to seek an injunction and renew his cross-petition for vacatur. Either way, Berman closes by encouraging the parties to continue exploring settlement as an alternative.
 
This would allow Berman to sidestep the deference issue, avoid any precedential holding, and deny either side a clean win. It would also signal to the parties that they will be on this hamster wheel forever without a settlement. 

 

[Shelterdog]

I think he vacates on partiality.
 
I think the NFL not permitting Kessler to examine Pash gets Berman's spider sense tingling.  It may not be particularly pertinent to the case before Berman but it stinks to high heaven--if I'm Berman I know there's no fucking way Paul Weiss publishes a report saying one of the NFL's biggest stars is a cheater without getting buy-in from Goodell, and I bet that communication took place through Pash. So you find partiality on some narrow grounds (perhaps on RG's  public statements praising the report pre-hearing) and then make clear that there needs to be broad discovery on bias in the next hearing.  The thing will settle in a day.

 

[Otis Foster]

We should put a cutoff on comments, not that they're coming in droves. Let's say next Sunday at 6, Eastern Time. Anything after that won't qualify.
 
If another time/date is preferable, suggest it.
 
Are any SOSHers planning on being in Berman's court on Monday?

 

[glennhoffmania]

He upholds the suspension on the basis that, while the NFL's actions were very questionable at best, they didn't meet the standard necessary to vacate an arbitration award under the CBA.

 

[bernardsamuel]

I chose the Joe D Reid option based upon my criterion that I'd vote for the option which is most emphatic (in my non-lawyer opinion) in regard to Judge Berman's continuing to press for a negotiated settlement between the  parties.  Accordingly, the following phrasing from J.D.R. sealed my vote: "Either way, Berman closes by encouraging the parties to continue exploring settlement as an alternative."

 

[Reverend]

I'm with Vazquez--eerily close in fact. Like, basically congruent, really, though I imagine I wouldn't have included number three, but I'm not accustomed to creating a document for the record on appeal.
 
As to the specificity, I had figured this was point of the game, and I applaud the spirit even if it weakens the chance on "winning."

 

[BroodsSexton]

I'm going to go with vacating the award on notice, or in the alternative on partiality, with a shot across the bow at Paul Weiss for its role,
in the form of an order that requires discovery of NFL/PW communications (and additional witness testimony including Nash) as a prerequisite of further proceedings. Also, there will be language to the effect that Brady was foolish in his handling of the phone issue, but it is not a basis for disciplinary action. And while we're at it, why not say that the opinion will build squarely on the previous D.Minn authority to provide a basis for finding NFL management to be rogue actors.

Edit: not so dissimilar from WBV, but a shift in tone. I'm forecasting a less restrained opinion than him.

 

[GeorgeCostanza]

Voted for WBV best guess. I'm not nearly smart enough to even hazard one of my own, and I've been dead wrong at every turn in this saga, but I would bet anything that Brady's handling of his phone will not be specifically called out in Berman's ruling. General cooperation yes, but not the phone.

 

[Otis Foster]

Don't forget to vote using the radio buttons. That makes it a little easier to follow the tally, but I'll try to count the comments as well.

 

[BroodsSexton]

I don't understand the poll. How can you vote before the decision is issued?

 

[crystalline]

Broods. If Berman is incensed, he might wish to slightly discourage Goodell from doing the same thing to a different player next year, hence building on the D.Minn. rationale.

I'll press his button once it appears.

 

[MuppetAsteriskTalk]

I don't understand the poll. How can you vote before the decision is issued?

 
I think people are voting based on who they think will get closest to the actual ruling. But I agree with you that it seems the intent of OP was to vote after the ruling comes out.

 

[BroodsSexton]

Broods. If Berman is incensed, he might wish to slightly discourage Goodell from doing the same thing to a different player next year, hence building on the D.Minn. rationale.

I'll press his button once it appears.

 
You don't have to wait, baby.  PM me and I'll give you the address.

 

[dcmissle]

I think this will be a victory for TB and the NFLPA stunning in scope, on both substantive and procedural grounds. The hero (other than Judge Berman) will be Paul Tagliabue. Roger Goodell and Troy Vincent will get honorable mention for helping to weave the hangman's noose.

1. The suspension will be vacated for lack of notice. "General awareness" will be eviscerated. The effort to rehabilitate it in RG's opinion will be rejected with a tone approaching ridicule; as Troy Vincent testified, the penalty was based on the Wells Report, and you can't gussy that up on appeal, at least on the facts of this case.

Roger Goodell's testimony in Ray Rice that notice is required will be underscored. The Bountygate ruling will be mined for all it is worth, a great deal, including Tagliabue's vacating penalties for lack of notice and the fact than many players there were not penalized despite their undisputed general awareness of systemic wrongdoing.

Tagliabue is recognized both as philosopher king and the the author of the law of this particular shop. Goodell can change it to be sure (though the NFLPA may file a grievance to litigate general awareness penalties ) but he may not so so without notice. It's easy really -- be reasonably clear about what you intend to punish, and how.

Non-cooperation falls for lack of notice too, at least insofar as any suspension is concerned. Ted Wells is exposed for being too clever by half.

2. If the NFL is interested, it may pursue a fine, but the fine may not stand because of procedural unfairness below. Pash and Paul Weiss, Paul Weiss and Pash. These things at least merit some discovery.

3. Dessert will be an exposition of so much of what's bothered us all. What plainly was a witch hunt will be described neutrally, which means with devastating effect. Judge Berman will have particular fun deconstructing a penalty that is ostensibly imposed for trying to rig an AFC Championship game, but based on inferences that lead nowhere near the intended target.

If I'm right, this should be fun.

 

[Steve Dillard]

Vacate on the limited ground that the failure to allow discovery into Pash's role might have disclosed a conflict of interest by the arbitrator.  Remand back to allow Brady to develop that line to the extent that it might show Goodell has a disqualifiable role in facts, per the Morris decision.

 

[DennyDoyle'sBoil]

Now that it looks like there won't be a settlement, I guess I'll play along.
 
Award confirmed, in an opinion that is critical of both the science and the procedure, and also rejects the NFL's argument about "law of the shop" being outside the court's perview, but finding Peterson etc. distinguishable.
 
(For the record, I view it as close to 60/40, with the 40 being to vacate on evident partiality and remand for another appeal hearing before one of the other Article 46 hearing officers.)

 

[wade boggs chicken dinner]

Said this in the other thread, but I think Berman vacates on lack of notice and remands; NFL lets case drop.  I.e., what happened in the AP case.

 

[WayBackVazquez]

Said this in the other thread, but I think Berman vacates on lack of notice and remands; NFL lets case drop.  I.e., what happened in the AP case.

 
The NFL did not let the AP case drop. It's pending in the Eighth Circuit.

 

[MillarTime]

I think this will be a victory for TB and the NFLPA stunning in scope, on both substantive and procedural grounds. The hero (other than Judge Berman) will be Paul Tagliabue. Roger Goodell and Troy Vincent will get honorable mention for helping to weave the hangman's noose.

1. The suspension will be vacated for lack of notice. "General awareness" will be eviscerated. The effort to rehabilitate it in RG's opinion will be rejected with a tone approaching ridicule; as Troy Vincent testified, the penalty was based on the Wells Report, and you can't gussy that up on appeal, at least on the facts of this case.

Roger Goodell's testimony in Ray Rice that notice is required will be underscored. The Bountygate ruling will be mined for all it is worth, a great deal, including Tagliabue's vacating penalties for lack of notice and the fact than many players there were not penalized despite their undisputed general awareness of systemic wrongdoing.

Tagliabue is recognized both as philosopher king and the the author of the law of this particular shop. Goodell can change it to be sure (though the NFLPA may file a grievance to litigate general awareness penalties ) but he may not so so without notice. It's easy really -- be reasonably clear about what you intend to punish, and how.

Non-cooperation falls for lack of notice too, at least insofar as any suspension is concerned. Ted Wells is exposed for being too clever by half.

2. If the NFL is interested, it may pursue a fine, but the fine may not stand because of procedural unfairness below. Pash and Paul Weiss, Paul Weiss and Pash. These things at least merit some discovery.

3. Dessert will be an exposition of so much of what's bothered us all. What plainly was a witch hunt will be described neutrally, which means with devastating effect. Judge Berman will have particular fun deconstructing a penalty that is ostensibly imposed for trying to rig an AFC Championship game, but based on inferences that lead nowhere near the intended target.

If I'm right, this should be fun.

 
I just came.

 

[wade boggs chicken dinner]

 
The NFL did not let the AP case drop. It's pending in the Eighth Circuit.

 
Thanks, I left out a clause.  Meant to say that NFL appeals court decision but does not pursue further action against Brady, which as far as I can tell from stuff on the internet, they have done with AP.

 

[loshjott]

He upholds the suspension on the basis that, while the NFL's actions were very questionable at best, they didn't meet the standard necessary to vacate an arbitration award under the CBA.

 
Unfortunately, I'm voting this way. Every decision point has been worse than I imagined so I'm going to go with the worst and hope for a different result. 
 
EDIT: I see this isn't an option. There is no option for upholding the suspension?

 

[Otis Foster]

 
I don't understand the poll. How can you vote before the decision is issued?

 
You're right. The way this is to work is for a prediction now, and a vote after the actual ruling comes down. As each person predicts, I add their name to the voting machine. Some people may have voted in advance, perhaps because I was vague on the process, so if you haven't voted on the predictions, you can/should wait till we see what Berman J has to say.
 
If you've already voted, I guess I could delete out the radio buttons and reinstall them for a revote. Let me know on this also unless you want your predictive vote to count
 
I've added more names to the poll. Let me know pronto if I missed anyone. That $300 is burning a hole in my pocket.

 

[mwonow]

Voted for DCM with my heart not my gut, which is kind of churning right now

 

[Otis Foster]

Voted for DCM with my heart not my gut, which is kind of churning right now

 
You're counted. Anyone else?

 

[MarcSullivaFan]

I'm 100% on board with WBV.

 

[Otis Foster]

I'm 100% on board with WBV.

 
Idem

 

[Rovin Romine]

I like WBV's analysis, so I voted for it.  
 
However, Berman has been beating the settlement drum rather loudly.  That might be because he genuinely wants one, in which case he'll be issuing an opinion that allows for both sides to come to their senses; vacated and remanded with much more discovery in play.  However, it might be because he's got a clear bead on something precedental or definitive, and I can't imagine he's been happy with the notice/discovery/process issues thusfar.   Arb can be much more slack than full dress process, but there has to be a floor.   Either way, I think the decision's going to be somewhat to strongly pro-Brady.      

 

[glennhoffmania]

 
Unfortunately, I'm voting this way. Every decision point has been worse than I imagined so I'm going to go with the worst and hope for a different result. 
 
EDIT: I see this isn't an option. There is no option for upholding the suspension?

 
Yeah mine hasn't been added to the poll yet.  Otis, can you add it please?

 

[Myt1]

Notice is the giant killer here, because it can't be remedied. If Berman is entitled to rule for Brady, it's because of an amalgamation of utter ridiculousness on the part of the NFL (legal term).

To avoid even more ridiculousness that would follow an order vacating the discipline on other grounds just as surely as day follows night, I'll guess that Berman vacates on, inter alia, the issue of notice regarding the "generally aware" standard, the obstruction/phone issue, and the punishment level in light of the $25,000 penalty in the CBA (I know that penalty isn't exclusive) and the law of the shop for other obstructions.

There may be other stuff there, but notice is too fundamental a hook for him not to hang his hat on, IMHO. It's the easiest way to put this to bed for good, potential appeal by the NFL notwithstanding.

 

[dcmissle]

Related to the last point above --

I love Shelter's prediction for its elegance and simplicity.

But if he were wrong in his estimation that this would settle in a day, and if this were not steered an indepedent arbitrator on remand, what a clusterfuck that would be for the NEP.

Now that's not why I came to a different solution, and I think he is right that it would settle in a day or be steered to someone other than RG on remand. But if not, we'd be looking at the season from hell.

Which is why I am posting this here and not one of the more populated threads.

 

[Rovin Romine]

 
[SIZE=11pt]The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady [/SIZE][SIZE=12pt]of [/SIZE][SIZE=11pt]both his potential discipline (four- game suspension) and his alleged misconduct; (B) denial [/SIZE][SIZE=12pt]of [/SIZE][SIZE=11pt]the opportunity for Brady to [/SIZE][SIZE=11pt]examine one [/SIZE][SIZE=12pt]of [/SIZE][SIZE=11pt]two lead investigators, namely NFL Executive Vice President and General Counsel[/SIZE][SIZE=11pt] Jeff Pash; and (C) denial [/SIZE][SIZE=12pt]of [/SIZE][SIZE=11pt]equal access to investigative files, including witness interview notes.[/SIZE]






[SIZE=11pt] [/SIZE]

 
The Court basically "stopped there" and did not reach the other claims: partiality on Goodell's part, the arbitrator upholding discipline on an independent basis, Goodell being "locked in" to supporting the Wells report. 
 
There is NO remand - the proceedings are closed.  A successful appeal is unlikely based on the notice issue alone.  
 
Copy of the order: http://www.nysd.uscourts.gov/cases/show.php?db=special&id=484
 
***
 
While no one was completely correct, IMO, it's dcmissle by a nose over Myt1, Ipol, and BroodsSexton.  I say this largely due to dcmissles' daring particulars, although Myt1, while terse, is clearest on vacate due to notice, no remand.   
 
I had thought WBV had the best prediction, in part because the court kept the pressure on the parties to settle.  Hence, I thought there was a good chance for the court would drag out the issue if possible.  In retrospect the court was giving the Commissioner's office enough rope to hang itself.  

 

[Myt1]

I'd like to be paid in small bills tucked into my G-String.

Edit: DC couldn't have been more right on this one. That order was dripping with disdain.

 

[AB in DC]

As much as I love dcmissile's prediction, I think Myt1 hit the nail on the head.  It was a very matter-of-fact decision, no "dessert" laying it on the NFL thick

 

[DennyDoyle'sBoil]

It's very close, but I have missle at the wire in a photo finish.

 

[AB in DC]

Though Myt1 isn't even an option in the poll..

 

[Myt1]

I mean, the guy posted about a month before I did, too. And I wasn't a vote option anyway.

 

[WayBackVazquez]

I think I give it to dcm, too. Why wasn't there an option to vote for legal guru Lester Munson, whose record remains perfect?

 

[DennyDoyle'sBoil]

I think I give it to dcm, too. Why wasn't there an option to vote for legal guru Lester Munson, whose record remains perfect?

 
I kind of took the Lester Munson view.  I see I got one vote.  Maybe Lester's a member?

 

[Rovin Romine]

As much as I love dcmissile's prediction, I think Myt1 hit the nail on the head.  It was a very matter-of-fact decision, no "dessert" laying it on the NFL thick

 
Sometimes the facts are just plain bad.  I don't think they needed any more emphasis.  Just skim the decision and look for the bolded text and the footnoted quotes.  They're awful and make Goodell's team look like idiots.  

 

[Myt1]

That's as rough a decision as you're going to see. Sarcastic quotation marks abound. Calling it the "Pash/Wells Investigation." Using Wells's language about Pash being "Harvard-trained." Referencing the cost of the investigation right off the bat. String cite of Rice and Peterson.

"Did you fucking assholes really expect me to go for this?" is the subtext. It just doesn't translate perfectly to normal people.

 

[AB in DC]

Fair enough.  I'm used to reading decisions from the Supreme Court, which don't usually have the same level of subtlety.  (If one of the Justices really wanted to rip someone, you'd be seeing a lot more than just sarcastic quotes and footnotes and such.)

 

[Reverend]

Fair enough.  I'm used to reading decisions from the Supreme Court, which don't usually have the same level of subtlety.  (If one of the Justices really wanted to rip someone, you'd be seeing a lot more than just sarcastic quotes and footnotes and such.)

The Supreme Court only takes serious cases.

Myt1 is pointing out that Berman didn't find the NFL's legal arguments to be serious ones.

 

[Myt1]

You start with the Scalia dissents, too, huh?

Edit: In the 1st Circuit, we recently had a dissent invoke Plessy and Korematsu. The judges and justices are generally more likely to leave the out and out disdain for each other.

 

[Rovin Romine]

Fair enough.  I'm used to reading decisions from the Supreme Court, which don't usually have the same level of subtlety.  (If one of the Justices really wanted to rip someone, you'd be seeing a lot more than just sarcastic quotes and footnotes and such.)

 
Well, as Myt1 said, this isn't exactly subtle.  The question really is "was there an absolute need for the Court to include X in it's opinion?"
 
Here, there's a lot it didn't need to put in; it could have just made sort of standard findings of fact.   Instead, everything it chose to put in and/or quote is extremely critical of Goodell, et. al.   
 
PW in particular was spanked.  They may not care all that much from an ethical perspective, except that the court used their testimony to destroy many of their own arguments.   That makes them look incompetent, and that has to hurt. 

 

[Otis Foster]

 
PW in particular was spanked.  They may not care all that much from an ethical perspective, except that the court used their testimony to destroy many of their own arguments.   That makes them look incompetent, and that has to hurt. 
 

 
Absolutely.
 
It was sheer insanity/incompetence to let Gooddell call PW 'independent' and that obviously stuck in Berman's craw. They had Akin Gump on  standby for the litigation; drop them in as counsel at the appeal.
 
It is possible that Roger the Dodger ignored their advice, and there's a strong letter of advice in the file.  
 
 
Perhaps they were trying to keep the Pash/Wells communications privileged, because it contained damaging evidence on partiality/neutrality. We may never know.
 
The appeal is nuts in one sense, but not in another. This is a message to the union from a bunch of fat cats that one way or the other, we're fighting till all appeals are decided. 
 
That said, let's get all Jimmy Fund votes in by Friday at 5 PM. If you've cast your vote in narrative form, take a minute and click the corresponding button.
 
This is one check I'm happy to write.