Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only
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Depending on what's in there, this could get interesting and even a bit wild based on what little I've already seen. Please have mercy on the mods and try to post in the appropriate thread.
As stated, this Legal Issues thread will be defended with extreme prejudice.
Posts that don't belong but should be in other threads. will ultimately become wasted key strokes. So do us all a favor and post non-legal stuff in the other thread.
Thanks in advance.
As stated, this Legal Issues thread will be defended with extreme prejudice.
Posts that don't belong but should be in other threads. will ultimately become wasted key strokes. So do us all a favor and post non-legal stuff in the other thread.
Thanks in advance.
PhilPlantier said:
Please do not post like this in this thread--you have something potentially interesting to say, so say it.
A quote would help, for example. And who the hell is Nash?
Seriously, people--I want to be able to watch Owens tonight without losing control of this place.
020:
Given the volume of the filings, should there be a separate "Filings and Exhibits ONLY" thread where folks can post just links to various documents?
Interesting exploration of exactly what 'independent' means in the context of Wells being paid by the NFL to prepare the report on pages 263 - 272. https://nbcprofootballtalk.files.wordpress.com/2015/08/ex-204-appeal-hearing-transcript-t-brady.pdf
Kessler makes a few points:
- The initial NFL press release said it was joint investigation (Pash/Wells). Wells says that was a mistake and he called Pash and clarified. Kessler then
- NFL invoked privilege on communications between Wells and Pash. That must mean that Wells was retained by the NFL, and thus has a duty to zealously defend the NFL. This is not 'independent'
- Pash reviewed drafts of the report and Wells believes he gave comments (though not to Wells himself, interestingly). Wells then said:
- Noted that Reisner was both the primary drafter of the report and conducting the Brady examination on behalf of the NFL in the depo
One does not come away from this section feeling like the NFL actually believes it can convince a judge that Wells was independent....
Kessler makes a few points:
- The initial NFL press release said it was joint investigation (Pash/Wells). Wells says that was a mistake and he called Pash and clarified. Kessler then
- NFL invoked privilege on communications between Wells and Pash. That must mean that Wells was retained by the NFL, and thus has a duty to zealously defend the NFL. This is not 'independent'
- Pash reviewed drafts of the report and Wells believes he gave comments (though not to Wells himself, interestingly). Wells then said:
- Noted that Reisner was both the primary drafter of the report and conducting the Brady examination on behalf of the NFL in the depo
One does not come away from this section feeling like the NFL actually believes it can convince a judge that Wells was independent....
Was (Not Wasdin) said:
Possibly, though in the short term that would be more difficult. Please read this and, anyone interested, please behave accordingly.
Florio's first take is up - http://profootballtalk.nbcsports.com/2015/08/04/at-hearing-brady-tiptoes-around-preference-for-12-5-psi/
As an attorney, two things got my Spidey senses tingling right from the beginning (sorry I'm having trouble grabbing quotes on phone):Corsi said:
1) In his opening, Kessler's 2nd paragraph is about how he had asked Goodell to recuse himself, and was reserving that objection.
2) In his opening, Nash says twice in the first paragraph that this is a matter under the Collective Bargaining Agreement for the Commissioner to decide.
To me, both strongly indicate that everyone was anticipating going to trial, and wanted to get their arguments on the record early.
Whatever. It's irrelevant. The legal limit is 12.5 so that's what he's learned to love.lithos2003 said:
Ask any NFL QB off the record what they prefer and a majority of answers likely aren't within 12.5-13.5. Most people prefer not paying taxes. So what?
If he conceded this point in testimony, in addition to the cell phone destruction, Stephen A. Smith also would have said "I also heard that Brady admitted he WANTS his footballs below the legal limit!"
Edit: Mods, sorry, I was merely replying to another comment and just realized I was in the legal thread. Feel free to move or do whatever you have to.
Hey, lawyer types:
How do we expect Berman to look at this transcript? Obviously, many fans are going to be very excited about parts that speak to substantive determinations, but it's also clear that not all of those are things that Berman is technically supposed to consider.
As dcmissle has indicated in the past, there is the matter of a judge wanting to understand a case and feel that justice is being done. But at the same time, we know that Berman is supposed to be focused on the appropriateness of process vis-a-vis the CBA and existing labor law.
Is this a bold move by the NFLPA? An expected move? A standard move? None of the above?
And what sort of limits are there on how much this can influence Berman's thinking?
How do we expect Berman to look at this transcript? Obviously, many fans are going to be very excited about parts that speak to substantive determinations, but it's also clear that not all of those are things that Berman is technically supposed to consider.
As dcmissle has indicated in the past, there is the matter of a judge wanting to understand a case and feel that justice is being done. But at the same time, we know that Berman is supposed to be focused on the appropriateness of process vis-a-vis the CBA and existing labor law.
Is this a bold move by the NFLPA? An expected move? A standard move? None of the above?
And what sort of limits are there on how much this can influence Berman's thinking?
Lawyers: What information out of this release is info that is considered new? What information is relative to what Berman will rule to? Does this help the NFLPA's case any more than if they didn't release it? Does it help the NFL at all?
Ed Hillel said:
These two things don't really cohere for me - and that's without getting into the fact that you're squarely in the realm of defamation per quod, meaning you've got a super steep damages mountain to climb. The "problem" of connecting the false information to Brady is actually a problem with proving the statements' defamatory character in the first place, and further, every step you have to spell out to connect the dots likely erodes the "knowing" falsity for the one making the statement.
Even if you compel Mort to reveal the source (which, most likely, is never happening), something as simple as misreading the document or getting the numbers wrong through the office 'grapevine' gives a nearly-irrebuttable escape hatch for the (unknown, unnamed) defendant.
What am I missing that makes this "absolutely" legal malice?
Doesn't matter, really. If Brady said 'I like them at 10psi, and submit them at that level, and could also demonstrate that there was zero post-inspection manipulation, then it's all good.lithos2003 said:
If Brady said 'the refs sometimes let them by outside of the allowed range, so I asked my guys to adjust them back to an exact allowed PSI' that's a violation.
The psi is irrelevant. It's about tampering after inspection.
And cooperation.
And, yknow, the integrity of the game, or somethjng.
One of the NFL's big cross examination points is the one that Florio is jumping on - that after the Jets game, Brady picked 12.5, when he could have picked any number between 12.5 and 13.5, and so that must mean he likes less inflated balls, so naturally that means he must like them even lower than 12.5
It's so fucking ridiculous when you read the entire transcript. He doesn't even really know what 12.5 is. He doesn't have any idea. He knew 16 was too much. He didn't like that. He picked the lowest number that was still legal, because he didn't like 16. If the balls had been at 2 after the Jets game, and he didn't like that, he probably would have said "13.5".
Florio thinks he's defensive, but the transcript just reads as a guy who is confused and doesn't even understand the point being made.
I think he'll read it.
Judges are human. If the question is whether judges keep pristine rules in their head about what they are supposed to be considering and what they are not supposed to be considering, the answer is probably that some do better than others, but by and large, most of the time they figure out what they believe is just, and then they use what they need to in order to justify their decision to hold up on appeal. Just like everyone else.
Put it this way -- let's say he reads the transcript and believes Brady, or reads the way the hearing went and gets the vibe that the thing was wired against him from the beginning, is that going to affect how he views the case? Almost certainly. Conversely, if he reads it and decides Brady is lying, he's probably not going to bend over backwards to find a technical notice violation that he otherwise would have found.
It's so fucking ridiculous when you read the entire transcript. He doesn't even really know what 12.5 is. He doesn't have any idea. He knew 16 was too much. He didn't like that. He picked the lowest number that was still legal, because he didn't like 16. If the balls had been at 2 after the Jets game, and he didn't like that, he probably would have said "13.5".
Florio thinks he's defensive, but the transcript just reads as a guy who is confused and doesn't even understand the point being made.
There is no Rev said:
I think he'll read it.
Judges are human. If the question is whether judges keep pristine rules in their head about what they are supposed to be considering and what they are not supposed to be considering, the answer is probably that some do better than others, but by and large, most of the time they figure out what they believe is just, and then they use what they need to in order to justify their decision to hold up on appeal. Just like everyone else.
Put it this way -- let's say he reads the transcript and believes Brady, or reads the way the hearing went and gets the vibe that the thing was wired against him from the beginning, is that going to affect how he views the case? Almost certainly. Conversely, if he reads it and decides Brady is lying, he's probably not going to bend over backwards to find a technical notice violation that he otherwise would have found.
DennyDoyle'sBoil said:
I agree with your analysis. Judges are just litigators with authority and discretion. Go to a really good lawyer and he can find a way to argue either side of a case under the law or related policy. When that really good lawyer becomes a judge, sure he'll feel more beholden to uphold the law, but at the end of the day, he's going to go with what he thinks is "right" and marshal facts and law to support that outcome. Without passing judgment on any of these cases, look at Brown or Roe or any of the recent marriage or ACA cases.
I'll concur win DDB and Marciano. Some judges are better stay focused strictly at the laws and issues at hand. They're all human, though, and their own personal politics, opinion of the parties, and vision of fairness invariably come into play. In my field of work, I have a pretty good sense of which judges are going to be favorable to a motion based on their historical tendencies.
I am sorry, it beggars belief that after 6 months of a national scandal about air pressure, he is confused. I think Florio was spot on. Brady was unnecessarily defensive in that exchange.
BroodsSexton said:
Here's another question for you legalists (once you've had a chance to look through the materials): based on what you've seen, has your opinion changed? Directed both at the folks who answered (Broods, Joe D Reid, Myt1, OilCan, etc.) and those who didn't weigh in originally...
For reasons that I am having a hard time articulating, Reisner's cross of the NFLPA's statistics expert (starting page 194) is leaving a bad taste in my mouth.
Reisner essentially does a (slightly confrontational) deposition cross of an adverse expert. The questioning is not designed to help the nonlawyer, nonengineer decision-maker understand why the expert is wrong and Exponent is right; it is designed to tear down someone who is questioning the data underlying Reisner's report.
I am not sure why that approach puts me off. This was an adversarial proceeding where both sides were lawyered up to the gills, and it's not like you can intimidate a Dean from the Yale School of Management.
Maybe it's that it just highlights the weirdness of having Goodell sit there presiding over a complex hearing where he is going to have to make legal and factual findings way outside of his wheelhouse. I mean, how the shit could anybody expect the commissioner of a sports league to be able to process this stuff? It's exactly why, leaving aside the requirements of the CBA, there should have been a professional in there as the hearing officer. I can't believe Goodell thought it was a good idea to try to ride this particular avalanche.
EDIT: I also agree that Brady was overprepped on the 12.5 PSI issue and fought on ground he didn't have to fight. But I don't think it's a real issue in the litigation, because Brady's credibility isn't really one of the issues in the case.
Reisner essentially does a (slightly confrontational) deposition cross of an adverse expert. The questioning is not designed to help the nonlawyer, nonengineer decision-maker understand why the expert is wrong and Exponent is right; it is designed to tear down someone who is questioning the data underlying Reisner's report.
I am not sure why that approach puts me off. This was an adversarial proceeding where both sides were lawyered up to the gills, and it's not like you can intimidate a Dean from the Yale School of Management.
Maybe it's that it just highlights the weirdness of having Goodell sit there presiding over a complex hearing where he is going to have to make legal and factual findings way outside of his wheelhouse. I mean, how the shit could anybody expect the commissioner of a sports league to be able to process this stuff? It's exactly why, leaving aside the requirements of the CBA, there should have been a professional in there as the hearing officer. I can't believe Goodell thought it was a good idea to try to ride this particular avalanche.
EDIT: I also agree that Brady was overprepped on the 12.5 PSI issue and fought on ground he didn't have to fight. But I don't think it's a real issue in the litigation, because Brady's credibility isn't really one of the issues in the case.
It's not only that he's defensive, he's incoherent and acting as if he set the ball to 12.5 arbitrarily. Which reminds me of his early 2011 interview that surfaced early in the scandal:DrewDawg said:
So, again. In 2011, Brady says, he likes the ball deflated and in his testimony he tries to come off as bedazzled ignoramus who never thought of ball inflation levels.
Just admit that you like them on the low end. Florio is right. Admit the obvious, don't maintain a position that's hardly plausible.
Nick Kaufman said:
I used the present tense, but I was less than clear. Obviously, he knows the difference between 12.5 and 13.5 now, and the significance. The questions were asking about what he intended and what he wanted back after the Jets game, and it's clear for all he knew at the time "16" could have been 16 kelvin or widgets or finger sandwiches.
They big smoking gun was that he knew what 12.5 meant back then and so he obviously wanted it under 12.5.
Witters said:
And there's a difference between saying in 2011 that he likes his balls deflated and saying in his deposition that:
Ok, I am sorry, Tom is full of shit there and that obviously makes him look as if he's hiding something.
Joe D Reid said:
Reisner has primarily been a prosecutor during his career; that probably significantly influences his style, and also may speak to how many experts of this type he's really engaged with. Certainly, his cross is consistent with a prosecutor and a focus on factual development seems to me.
In terms of recent commissioners, Stern and Tagliabue were top-tier lawyers coming into the job so they could reasonably have taken this on. RG doing so does reinforce the notion that he's so far over his head he doesn't even recognize it.
Couldn't you just interpret him as saying he doesn't think about PSI levels? Again, there's a difference between the feel of a football and the precise measurement. I think a charitable interpretation of that exchange would indicate he was saying he doesn't ever think about the latter (something Belichick also said in his famous Deflategate press conference), while leaving the former unmentioned. Plus, as DrewDawg said, his defensiveness is to some extent warranted.Nick Kaufman said:
From what I have read, this transcript helps prove "evident partiality" in the arbitrator. You have two NFL lawyers heavily involved in writing (including the original draft) and editing the report, and one of them is cross-examining Brady. (Page 71-72) Meanwhile, Wells is claiming attorney client privledges ( on specifics after ceding that NFL lawyers helped to craft/edit the report. This report has the NFL handprints all over it, and Goodell -- the allegedly neutral arbitrator -- has a job that is to do what is in the best interest of the NFL.
Kessler: Mr. Wells, I assume that you are not the first drafter of this report, correct? ...
Wells: I think that's privileged but I will answer as long as its not a waiver, yes.
Kessler: Would your principal colleague on this case be Mr. Lorin Resiner who is seated over there?
Kessler notes that Resiner is involved in cross-examinations a few questions down -- Wells claims privilege
Kessler: Mr. Wells, I assume that you are not the first drafter of this report, correct? ...
Wells: I think that's privileged but I will answer as long as its not a waiver, yes.
Kessler: Would your principal colleague on this case be Mr. Lorin Resiner who is seated over there?
Kessler notes that Resiner is involved in cross-examinations a few questions down -- Wells claims privilege
"Prosecutorial" is a good word for how Reisner approached the cross. He even wondered aloud a few times whether he was permitted to move to strike the expert's answers as non-responsive. Nobody in the room seemed to have any idea what rules to apply to the proceeding.PedroKsBambino said:
Joe D Reid said:
An apt summary of this entire circus from halftime of the AFC title game until today, really.
I thought Brady came across as poorly prepped and that Kessler's direct examination of him wasn't as effective as it might have been. I'm still in disbelief that no one told Brady to keep his phone and, for god's sake, come up with a better verb than "to destroy." How about he "replaced" the phone and provided the old one to his assistant to ensure that personal, private information didn't become public? That sounds a lot more palatable.
Also would love to know why Kessler would stress that this is Tom's practice for the last 15 years without cleaning up why the phone used through November 2014 was still around.
None of this changes my sense that Brady is living through an incredible surreal experience or my belief that he is innocent, but it all could have been presented better.
Also would love to know why Kessler would stress that this is Tom's practice for the last 15 years without cleaning up why the phone used through November 2014 was still around.
None of this changes my sense that Brady is living through an incredible surreal experience or my belief that he is innocent, but it all could have been presented better.
I thought this was rather interesting from the Florio snippet:
Of course if the opposite holds true and the vast majority agree that they don't grip the ball firmly that should further help his cause.
I'm sure we will hear very quickly from plenty of ex and current QB's if they grip the football firm or loose. I would expect a mixed response but if Brady is the only QB to grip it "like a golf club" that will look quite bad.
Of course if the opposite holds true and the vast majority agree that they don't grip the ball firmly that should further help his cause.
Help his cause in what sense? They aren't bringing other QBs in to testify about how they grip the ball, which is irrelevant anyway.j44thor said:
Unless you mean pr-wise, which we already know is a lost cause as far as the gen pop is concerned.
So in Goodell's decision letter, one of the reasons he gives for upholding the suspension was that TB was not credible with regard to his calls to JJ in the days after the AFCCG. Basically Goodell says that TB said that the calls were related to ball prep for the SB and that he (Rog) didn't buy it.
However, it is clear from the transcript that TB said he and JJ were also discussing Deflategate and how the balls might have registered such a low psi.
Could this be an example of Goodell not following the process correctly? This is not a misinterpretation of analysis or evidence, it is flat out lying about the evidence. If Goodell is allowed to lie about what happened at the appeal as basis for his decision, how can that hold up?
Lawyers please tell me how I am wrong.
However, it is clear from the transcript that TB said he and JJ were also discussing Deflategate and how the balls might have registered such a low psi.
Could this be an example of Goodell not following the process correctly? This is not a misinterpretation of analysis or evidence, it is flat out lying about the evidence. If Goodell is allowed to lie about what happened at the appeal as basis for his decision, how can that hold up?
Lawyers please tell me how I am wrong.
As a normal course of arbitration proceedings, is the arbitrator allowed to cross-examine a witness? I read up to the cross-examination of the Yale dean, and Gooddell actually interrupted him to challenge him with a snarky comment. Is that common, because as a layman it seemed awfully suspect. The tone was not at all one of looking for more understanding or clarification.
Found it. Page 170 - "That's important, wouldn't you say?"
He did it often enough with Brady, but the tone wasn't quite as...dismissive or antagonistic as this particular example. His questions to the Yale dean seemed to be clearly more directed at why he was wrong vs understanding what he was saying.
Found it. Page 170 - "That's important, wouldn't you say?"
He did it often enough with Brady, but the tone wasn't quite as...dismissive or antagonistic as this particular example. His questions to the Yale dean seemed to be clearly more directed at why he was wrong vs understanding what he was saying.
Arbitrators do frequently question witnesses. It's not usually in the mode of cross examination. It usually happens when they want to cut through the obfuscation of lawyers [or other advocates--often the Union does not have a lawyer] on both sides.Hendu for Kutch said:
Hendu for Kutch said:
Yes, it's very common. It happens in court too, although usually when there is no jury -- judges have to be really careful in asking questions to a witness in front of a jury, especially a party.
A good arbitrator will wait until the examination is complete before asking questions to a witness. There are a couple of reasons for this. First, it's up the lawyers to try their case, and so it's respectful to see whether your question is asked before you but in and interrupt an examination. (Usually, depending on the question, the arbitrator will then let the lawyers ask follow up questions so long as they are within the scope of the questions asked by the arbitrator.) The second reason is that an arbitrator generally should not be asking questions that possibly end up eliciting testimony that helps the party with the burden of proof (either on a claim or a defense) establish their case. For example, in a malpractice case, it is the plaintiff's burden to show the standard of care fell below the standard of a reasonable professional in the community. If, for whatever reason, the plaintiff has failed to elicit testimony about the standard in the community, then the plaintiff should lose for failure to have any evidence the record that goes to a crucial aspect of his claim. So, if a judge or arbitrator were to butt in and say, "did this meet the standard of care in the community," and the witness says, "no," the arbitrator may very well have put evidence in the case where otherwise there would not have been any. So, a good arbitrator will wait for the examination to be over to make a judgment whether it is prudent to ask questions. And, a really good arbitrator will write down questions on a legal pad, wait until the lawyers are done, and then take a few minutes to re-read them, cross off the ones that are unnecessary, and then ask only those that are truly needed to clarify a point that otherwise might have been ambiguous.
Given this isn't Goodell's area of expertise, I actually thought he did a decent job of listening to what he was surely told beforehand -- to avoid sounding like his questions had an agenda. He wasn't always successful. I mean, knowing what we know now, which is that the thing was wired from the outset, it's pretty obvious what was going on in that room. It was not a truth finding exercise, and in hindsight that comes across pretty clearly in the transcript to me, although I'm so far down the road past neutrality, that I have no idea whether I'm just seeing what I want to see.
To me, Goodell's questioning is not close to the most absurd part of the proceeding. The most absurd part is one lawyer who is being paid by the NFL (Levy) ruling on attorney-client privilege objections made by another lawyer paid by the NFL (Nash or Reisner), while yet another lawyer being paid by the NFL (Wells) was on the stand. So, you've got three guys in the room, each being paid by the NFL (probably close to $4,000 an hour for that silly proceeding) making their own objections and ruling on them, when the very subject of the ruling is the nature of their attorney-client relationship with one of the parties to the arbitration, which is also the arbitrator. This goes in the silly inside baseball file, but if Berman (or a lawyer journalist like Florio) were actually to think about it for a moment, I'd like to think the absurdity of it all would go off like a light bulb over their heads. Is it material to the issues in arbitration reviews? Whatever. For me, it's the tipping point in this entire thing. I quit. I can't keep being pissed about the injustice of it all, because you can't fight city hall. If nobody is going to call bullshit at such a ridiculous circus, what are you gonna do? Two games, four games, whatever happens happens. I just hope that Tom and Bill find a way to take out their anger on the rest of the league in the only way that matters to these fuckers.
Seems like the judge agreed to an expedited schedule that will help Brady seek resolution by a week before opening day. Good news.
@WALLACHLEGAL: Judge Berman actions so far: will rule on case by 9/4 (helps Brady), orders Goodell to appear in court 2X, and refuses to seal any records
https://twitter.com/wallachlegal/status/628774643873263617
https://twitter.com/wallachlegal/status/628774643873263617
link to tweet
@WALLACHLEGAL: Judge Berman actions so far: will rule on case by 9/4 (helps Brady), orders Goodell to appear in court 2X, and refuses to seal any records
https://twitter.com/wallachlegal/status/628774643873263617
https://twitter.com/wallachlegal/status/628774643873263617
link to tweet
DennyDoyle'sBoil said:
Absolutely. As I said upthread--if Berman issues a decision, wouldn't it be interesting if Paul Weiss--and not Goodell--was the key to an "evident partiality" ruling? Wells has to see it coming. I wonder if Berman makes it clear during settlement discussions that if he issues a decision, it's not going to look good for the lawyers in the room. Conflicts of interest work both ways! (i.e., the private settlement conversations between Paul Weiss and the NFL would be fraught with Paul Weiss trying to save its hide.)
Stephanie Stradley @StephStradley 1h1 hour ago
p248 again shows why ALL fans should be concerned by random & arbitrary process & suspensions. Troy Vincent answer.
Stephanie Stradley @StephStradley 29m29 minutes ago
For lawyers: Wells' use of words "direct evidence" throughout this thing is JUST WRONG. More: http://abovethelaw.com/2015/05/should-tom-brady-sue-the-nfl-and-roger-goodell-a-deflategate-email-exchange/ … pic.twitter.com/qMur320fAZ
Stephanie Stradley @StephStradley 19m19 minutes ago
Stephanie Stradley retweeted GCinDC
Nope. Same reasons given in my Q&A. Really, this should settle. The NFL's stance on this is frankly, embarrassing.
Stephanie Stradley @StephStradley 1h1 hour ago
p254 Re: Aaron Rodgers. Technically, there is/was no "actual tampering" info about #Patriots either. Just a complaint
Stephanie Stradley @StephStradley 3h3 hours ago
Stephanie Stradley retweeted Andrew Bogusch
My 1st Q&A talks on this. AT TIME, Wells didn't act like cell was big deal. Why I'd like to see discovery exhibit.
p248 again shows why ALL fans should be concerned by random & arbitrary process & suspensions. Troy Vincent answer.
Stephanie Stradley @StephStradley 29m29 minutes ago
For lawyers: Wells' use of words "direct evidence" throughout this thing is JUST WRONG. More: http://abovethelaw.com/2015/05/should-tom-brady-sue-the-nfl-and-roger-goodell-a-deflategate-email-exchange/ … pic.twitter.com/qMur320fAZ
Stephanie Stradley @StephStradley 19m19 minutes ago
Stephanie Stradley retweeted GCinDC
Nope. Same reasons given in my Q&A. Really, this should settle. The NFL's stance on this is frankly, embarrassing.
Stephanie Stradley @StephStradley 1h1 hour ago
p254 Re: Aaron Rodgers. Technically, there is/was no "actual tampering" info about #Patriots either. Just a complaint
Stephanie Stradley @StephStradley 3h3 hours ago
Stephanie Stradley retweeted Andrew Bogusch
My 1st Q&A talks on this. AT TIME, Wells didn't act like cell was big deal. Why I'd like to see discovery exhibit.
BroodsSexton said:
I wonder whether this is the avenue for settlement Berman could use. Not overturn the award, but declare that the refusal to allow inquiry into attorney-client communications was a violation. Remand back for further arbitration proceedings, and possibly declare that those too are not subject to a gag order. Then go into chambers with Goodell and tell him that this could be embarassing on remand. I haven't overturned the award, but if you don't settle it will look bad.
I put a version of this in the other thread. Lawyers and judges regularly get into cases involving science that's generally beyond their ken. But through training or experience or whatever, the good ones have the skills to educate themselves sufficiently, to allow the experts do the explaining and to make sure questions get asked and answered. (for judges that would come in the pretrial Daubert (expert qualification) hearing). By his background and all his words and deeds as Commissioner, I picture Goodell hearing the science testimony as either Charlie Brown's teacher ("wa wa wa, wawawawa), or a New York City subway PA announcement ("Attention please, the N train will stop at ksjfdhiudh. passengers will be bused to sldkjhdfjk, except that ldkfja;sdfas;kj.")
The players policy that the NFLPA says applies (for those with PACER access, it is ex 114 (attachment 132):
They were GPS sensors?
Further on in the equipment policy, its pretty clear that equipment isn't a football (but rather what adorns a player's body), but nonetheless, these were interesting collieries:
I suppose a single preseason game suspension may be warranted if you assume the underlying violation, if the uniform/equipment rules apply to Brady.
They were GPS sensors?
Further on in the equipment policy, its pretty clear that equipment isn't a football (but rather what adorns a player's body), but nonetheless, these were interesting collieries:
I suppose a single preseason game suspension may be warranted if you assume the underlying violation, if the uniform/equipment rules apply to Brady.
I'm thinking the odds of this are very long, but what are the chances that Berman looks at this, the Peterson & Rice cases and decides that the allegedly fair NFL appeal process is flawed and decides he is going to fix it so cases like this dont find their way to court again?
