PedroKsBambino said:
BTW, it was interesting to hear Matt Chatham on some national radio show this weekend specifically mention the Missouri Supreme Court decision that Goodell lost.
Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only
- Thread starter WayBackVazquez
- Start date
BTW, it was interesting to hear Matt Chatham on some national radio show this weekend specifically mention the Missouri Supreme Court decision that Goodell lost.
Was (Not Wasdin) said:
You're never going to have a trial in the sense that they will be asking Brady and witnesses about the game day ball pressure and procedures, etc. The current litigation is more about the powers of Goodell and the procedure that led to his decision.
We have the current case in federal court, with no injunction requested. They will have the hearing on that (if no settlement) and a decision by the beginning of the season. If Brady/NFLPA loses that, they can appeal in federal court and ask that court for an injunction so he can play while the appeal is heard. Doubtful that it gets to that point.
But dont Brady/NFLPA need a REASON to appeal to a higher court (at least, if they want the appeal to be taken seriously, and not just be a rallying point for Pats-nation), other than they dont agree with the outcome of the current go-round? Like, Berman has to make some sort of definable error?PaulinMyrBch said:
It's not like they can just appeal as a matter of course and expect to just traipse up the judicial ladder (or so I was led to believe from the nine learneds on SOSH)......?
Ben Volin keeps going to this professor from Suffolk Law, Marc Greenbaum, who seems to think that the case doesn't look good from the NFLPA perspective. Toucher and Rich apparently had him on today, but I missed it. Anyone know of this professor and his credentials on labor law?
https://www.bostonglobe.com/sports/2015/08/01/tom-brady-deflategate-challenge-won-easy-win-legal-specialists-say/FWP7jcjRFYqphTTky2oTKN/story.html
https://www.bostonglobe.com/sports/2015/08/01/tom-brady-deflategate-challenge-won-easy-win-legal-specialists-say/FWP7jcjRFYqphTTky2oTKN/story.html
tedseye said:
From the NFL's 2012 response to a motion to remove Taglibue:
"This case is therefore exactly like NHLPA v. Bettman, 1994 WL 73883514 (S.D.N.Y. Nov. 9, 1994), in which the NHL CBA required the NHL Commissioner to preside over a particular dispute. When the NHLPA objected on the ground that the Commissioner would be predisposed to the owners’ position by virtue of his relationship with the League, the Court rejected that attack, holding: “The initial, and short, answer to this argument is that the [NHLPA] agreed in the [CBA] to a provision … that assigned such disputes solely to the League President for resolution. Since any inherent ten-dency by the President … was fully known or knowable to the Association at the time that it signed the Agreement, it cannot now be heard to complain about this asserted bias.” (emphasis added).
There are many cases in accord, including, ironically, cases involving arbitrators appointed by this Union to hear appeals of discipline imposed by the NFLPA on player contract advisors. See, e.g., Black v. NFLPA, 87 F. Supp. 2d 1, 6 (D.D.C. 2000) (“An NFL[PA]-selected arbitrator may have an incentive to appease his or her employer, but the parties to an arbitration choose their method of dispute resolution, and can ask no more impartiality than inheres in the method they have chosen.”); Poston v. NFLPA, 2002 WL 31190142, at *3 (E.D. Va. Aug. 26, 2002) (same); see also Williams v. NFL, 582 F.3d 863, 886 (8th Cir. 2009) (rejecting bias challenge to decision of NFL General Counsel serving as hearing officer in a steroid suspension case); Williams v. NFL, 2012 WL 2366636, at *7–8 (D. Colo. June 21, 2012) (rejecting bias challenge to NFL executive hearing appeal of steroid suspension), aff’d, 2012 WL 3642839 (10th Cir. Aug. 27, 2012); Mandich v. N. Star P’ship, 450 N.W.2d 173 (Minn. Ct. App. 1990) (rejecting alleged arbitrator bias when NHL President’s role as arbitrator in disputes between players and the club was explicitly provided in the CBA); Rosenbloom v. Mecom, 478 So. 2d 1375, 1376–78 (La. App. 4 Cir. 1985) (refusing to vacate decision by NFL Commissioner on bias grounds when NFL Constitution called for the Commissioner to arbitrate the dispute); Alexander v. Minnesota Vikings Football Club LLC, 649 N.W.2d 464, 467 (Minn. Ct. App. 2002) (rejecting challenge to NFL Commissioner arbitrating dispute between coaches and Club, noting that the coaches “concede that, when they entered into their employment contracts, they knew [the Commissioner] was the designated arbitrator of any disputes under the contracts and that they knew about [the Commissioner’s] relationship to the Vikings”)."
More of the arugment can be found here: https://whodatwarriors.com/2012/10/26/oct-26-nfl-response-to-motion-to-recuse-tagliabue/
Omar's Wacky Neighbor said:
Yes, please read Stephanie Stradley's blog, it's pretty comprehensive stuff and she writes better than I do.
Rusty13 said:
He went to BC and hasn't published anywhere major, so I'm guessing just run-of-the-mill professor type.
Kessler argues Goodell is tainted by both evident partiality and bias due to 1) delegating to Vincent and dismissing the appeal of his own action and 2) praising Wells' report and then judging it.
He does not protest the structural issue that the Commissioner of the NFL is designated the hearing officer of disputes to which the NFL is a party--only disputing Goodell judging his own behavior.
He does not protest the structural issue that the Commissioner of the NFL is designated the hearing officer of disputes to which the NFL is a party--only disputing Goodell judging his own behavior.
lambeau said:
Answered above by WBCD. No per se disqualification. That's the deal you agreed to, for better or for worse.
As far as I could see, those cases didn't turn on allegation of demonstrated as opposed to presumed bias. Kessler would have to point to the totality of facts as leading to a conclusion of actual bias and hence a lesser presumption of finality.
If those cases supported the notion that the award is final despite actual evidence of bias or over-reach, I don't think Berman would have structured his order the way he did. He obviously wants the NFL to feel some apprehension over the final outcome and the best way to do it is to send a message that there will be further consideration of some NFLPA allegations. (My guess, anyway.).
Can someone explain the issue with Goodell delegating the punishment to Vincent? I assume that Goodell is trying to have it both ways.
By delegating to Vincent, was Goodell trying to protect himself from a lawsuit?
http://ftw.usatoday.com/2015/05/bountygate-linebacker-jonathan-vilma-wants-tom-brady-to-take-the-nfl-to-court
By delegating to Vincent, was Goodell trying to protect himself from a lawsuit?
http://ftw.usatoday.com/2015/05/bountygate-linebacker-jonathan-vilma-wants-tom-brady-to-take-the-nfl-to-court
Marciano490 said:
He and I were associates at the same firm many years ago. His specialty is labor law. While he's not at Harvard, he's a bright guy who has spend a career in the labor arena, so his opinions are more informed than, say, mine.
Only the Commissioner can discipline--Vincent sent the discipline letter; Goodell says Vincent was only acting as a scribe and that Roger was the decider.
Maybe he had Vincent write the letter so Goodell hearing the appeal would look more independent than hearing the appeal of his own discipline. Too cute? Forgot that would invalidate it?
Maybe he had Vincent write the letter so Goodell hearing the appeal would look more independent than hearing the appeal of his own discipline. Too cute? Forgot that would invalidate it?
lambeau said:
Florio mucked up the cell phone thing, though. He mentioned that non-union NFL staffers turned over phones in the Mueller Investigation, but did not mention they were employer-supplied phones, not personal cellphones.
You'd think that NFLPA, Kessler, and the Pats would tell him that he has to appear in person. I don't even think leaking that you might want to appear by phone and then showing up in person is helpful---just show up in person and be clear about planning to do so.
Yee...not sure he's helpful on this one (or most others)>
Yee...not sure he's helpful on this one (or most others)>
Given he went to BC, lives in Boston, is a lawyer, and cares about football, there is something like a 40% chance he reads this thread/SOSH.Koufax said:
I hadn't seen this mentioned yet: http://profootballtalk.nbcsports.com/2015/08/03/nfl-nflpa-quickly-accept-invitation-to-use-of-magistrate-judge-for-settlement-talks/
I wonder how far it will go but it's interesting that neither side is resisting. Is this a sign that we may actually see a settlement?
I wonder how far it will go but it's interesting that neither side is resisting. Is this a sign that we may actually see a settlement?
lithos2003 said:
You don't want to give the impression of "resisting" even if you have zero intention of settling.
Even if (big if) it can be shown that the NFL deliberately and knowingly released false information with the intent to harm Brady's public reputation in a way that could factually cost him money (endorsements, theoretical future contracts, coaching jobs, etc.)? Does it change the calculus at all of the defamer is ostensibly your boss?TheoShmeo said:
Sorry for the questions when the lawyers here have pretty clearly said it wouldn't work, but it's an interesting issue for me because if someone famous whose boss does this deliberately can't sue then defamation truly doesn't cover the famous at all and that's interesting to me.
High mountain. He would have to prove the publication of a false statement of fact -- rather than opinion -- that is injurious to his reputation. And because he is a public figure, he would have to prove actual malice -- essentially, that the NFL knew what it published was false when it published it.
NFL would attempt to characterize as many of the statements it could as opinion. It also would argue that its statements were reasonable and that it is not sufficient to prove that they were simply incorrect.
Tom would have to be totally squared away on not having done anything wrong. He would have to be willing to have his life probed via intrusive discovery -- document demands and testimony under oath.
It would be a very expensive undertaking, and because Tom has likely suffered little if any economic harm stemming from this, it is quite likely that the suit would represent a net economic loss. Even if he has not lost a penny, Tom could ask for nominal damages and punitive damages, but you can't count on winning, much less any punitive damages making you whole.
And note this is not a Richard Jewell situation. The day is never coming when somebody says, it was not done or someone else did it. That is never going to be the outcome of the current proceeding before Judge Berman.
Because of the over the top mendacity of the NFL in this case -- even by its own standards -- I will no longer scoff at defamation or libel discussions here. But it is very unlikely that Tom will go down this road. It would cost him millions, be time consuming and extend the life of this thing for years.
NFL would attempt to characterize as many of the statements it could as opinion. It also would argue that its statements were reasonable and that it is not sufficient to prove that they were simply incorrect.
Tom would have to be totally squared away on not having done anything wrong. He would have to be willing to have his life probed via intrusive discovery -- document demands and testimony under oath.
It would be a very expensive undertaking, and because Tom has likely suffered little if any economic harm stemming from this, it is quite likely that the suit would represent a net economic loss. Even if he has not lost a penny, Tom could ask for nominal damages and punitive damages, but you can't count on winning, much less any punitive damages making you whole.
And note this is not a Richard Jewell situation. The day is never coming when somebody says, it was not done or someone else did it. That is never going to be the outcome of the current proceeding before Judge Berman.
Because of the over the top mendacity of the NFL in this case -- even by its own standards -- I will no longer scoff at defamation or libel discussions here. But it is very unlikely that Tom will go down this road. It would cost him millions, be time consuming and extend the life of this thing for years.
The Mort tweets, combined with the NFL never fixing the info, absolutely constitute actual malice. No opinion argument is going to win when we're talking actual PSI numbers, and the NFL "published" the information via Mort. Moreover, the NFL failed to correct the objectively false information for four months, despite having the correct information available. The problems would be connecting Brady to them and getting Mort's sources on record. The Patriots probably have a stronger case, but we know that would never happen, and the issue with Mort's sources getting on record would still exist.TheoShmeo said:
But, fuck, if I was Brady and thought this trial could get through to discovery, I would seriously consider taking a net economic loss here. He'd destroy the entire league office.
TheoShmeo said:
The only caveat would be that knowledge of falsity opens the NFL up; however, who has that 'knowledge' and what constitutes 'falsity' is going to be construed in a narrow way. So, even if Mort were to say "Kensil told me 11 of 12 balls were 2 lbs underinflated" you'd need testimony that Kensil knew, at the time he said that to Mort, that this was untrue. And of course you'd need it to be about Brady too.
The purpose of filing such a claim would be to seek discovery as much as because there was a real chance of winning it; it would also open up Brady to another layer of questions about phone destruction and spoliation of evidence.
Note: knowledge of falsity is one of the definitions of actual malice, I believe...so if you can prove that (a very high bar) you've satisfied the actual malice standard.
Joe D Reid said:
I think a big part of the other half is how Judge Berman looks at Goodell's attempt to differentiate Brady's offense from any priors dealt with in the league. It seems to me that, in an attempt to get away from the existing law of the shop with respect to notification, Goodell's tack is to claim that nothing like this has happened before, while at the same time presenting Brady's crimes as singularly egregious:
I find it to be a bit weak, though, because to do so, he's actually just muddling two different offenses: 1) knowledge of / directing of equipment tampering; and 2) non-cooperation with the investigation. Now, granted, this sorta muddling charges into undifferentiated is standard in public opinion, but justices processes and, in particular, legal proceedings are about isolating and identifying distinct offenses and assessing them. If you do that, you get two minor offenses that are not particularly noteworthy, not unprecedented, and carry minor penalties under the law of the shop.
So can the NFL convince Berman that Brady's offenses were not these minor offenses but rather some kind of combined super-huge amalgamated offense, like some kind of Voltron offense where the sum offense is a much bigger deal than the individual constituent offenses? I'd like to say I think it's a weak argument, but the league has already managed to convince most of the country, so who knows?
Granted, the country isn't made up of senior federal judges, but still.
I'm guessing the odds of Brady being prosecuted for perjury is equally small. Two sides of the same coin, no?
I could be wrong, but I do believe "knowledge of falsity" at the time of the statement becomes irrelevant if you later become aware of the falsity of the information and still never make the effort to correct it.PedroKsBambino said:
ProFootballTalk @ProFootballTalk 19m19 minutes ago
Per source, Judge has directed NFL-NFLPA to submit paperwork not under seal. It means Brady transcript eventually will be public.
Per source, Judge has directed NFL-NFLPA to submit paperwork not under seal. It means Brady transcript eventually will be public.
Judge wants a settlement. Not sure which side he think he is pressuring, however. Brady maintains innocence and went under oath. And, up to this point, the NFL has been controlling the flow of information with select pieces of evidence. Brady may well want the entire shown. The NFL has already revealed its best.
Ed Hillel said:
I was thinking the same thing. Earlier in this thread, (and in a Florio article) there was a quote that the NFLPA only agreed to have the appeal sealed under the NFL's insistence. Conceivably the judge also knows this, so could this be our first glimpse into which way he's leaning?
Has anyone seen any speculation at what the NFL wants kept confidential?
I can imagine some things Brady might (stuff relating to his personal life, potentially) but it's not all that clear to me what might be part of this and that NFL might not want to come out.
Steroid chatter? Stuff about the interaction with Wells? Questions asked of Brady that look embarrassing to the league for some reason (or to the Pats, which the league decided it would prefer not to have come out?)
I can imagine some things Brady might (stuff relating to his personal life, potentially) but it's not all that clear to me what might be part of this and that NFL might not want to come out.
Steroid chatter? Stuff about the interaction with Wells? Questions asked of Brady that look embarrassing to the league for some reason (or to the Pats, which the league decided it would prefer not to have come out?)
How long before we can get a link to teh transcript?
I'll be interested to see some of the Q&A... of course it'll be stripped of verbal and body language clues, but should be fascinating.
We should thank Judge Jones for ripping the NFL a new one for not having transcript of the Rice hearing. Now we get to see a full one and not just one of the lawyer's notes.
I'll be interested to see some of the Q&A... of course it'll be stripped of verbal and body language clues, but should be fascinating.
We should thank Judge Jones for ripping the NFL a new one for not having transcript of the Rice hearing. Now we get to see a full one and not just one of the lawyer's notes.
NFL wanted them sealed. NFLPA had originally said "we have no problem with it".RedOctober3829 said:
Judge said "give me a good reason for it to be sealed since I believe in transparency"
Apparently no one gave him a good reason.
It's going to be interesting to see why NFL wanted it sealed.
https://twitter.com/WALLACHLEGAL/status/628674627477188608
236 exhibits were filed.
Going to be fun going through all of that. Wow.
Lots to dig through.
236 exhibits were filed.
Going to be fun going through all of that. Wow.
Lots to dig through.
edmunddantes said:
Prediction: they want it sealed because it's going to look like the independent investigators were out to get Brady and vigorously cross examined him. This will be a PR hit because the Wells report will look like even less independent than the NFL suggested it was going to be.
Saw this not 5 minutes after hearing Felger and Mazz discussing how there was NO WAY that the PA wanted this transcript out there, and Brady would definitely settle before the transcript went public because there must be embarrassing info in there because the league has held something back on him and the PA has unloaded both barrels already and derrrrrrrrrrrp...
Agree.Shelterdog said:
A general lesson to non-lawyers: parties, and particularly parties to arbitrations, try this veil of secrecy crap all the time. It often is provided for in agreements to arbitrate. Some times both sides go along because there are institutional reasons to go along.
Good for J Berman for not going along with it. There is public interest in this, courts are public fora, and these are not state secrets.
One point though: we take the good with the bad. I expect most of this stuff will reflect poorly on the League. There may be nuggets that reflect poorly on TB, and people shouldn't act like pussies when they are disclosed. This is not about laundry. It's about legal principle.
I'm being cheap and not paying the 10 cents a page, so waiting for someone else to put it on RECAP.
http://www.scribd.com/doc/273546052/Tom-Brady-Deflategate-appeal-hearing-with-Roger-Goodell
Revit: Transcript in different source than Corsi's, so I'm leaving it.
Revit: Transcript in different source than Corsi's, so I'm leaving it.
