Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only
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I'd assume the GPS sensors are for all those new graphics they are overlaying now that show player speed, path taken, etc.
One thing that struck me as I read the transcript was that Kessler possibly should have considered going a little deeper into what Wells did to prepare for his testimony. Did he talk to Reisner? Did he talk to Pash? Did he talk to Goodell? Any yes answer would have been good, and a privilege objection is almost as good. Getting Reisner to object to the question, "have you ever communicated with Mr. Reisner about giving testimony in this proceeding" would have been good.
My read of the transcript is that it is very likely they knew they were going to go with the destroyed phone angle before it even began. I'd very much like to know whether anyone on the NFL advocacy side (I get this is a silly distinction, but I think it captures what I'm trying to say) spoke with Wells before his witness role.
My read of the transcript is that it is very likely they knew they were going to go with the destroyed phone angle before it even began. I'd very much like to know whether anyone on the NFL advocacy side (I get this is a silly distinction, but I think it captures what I'm trying to say) spoke with Wells before his witness role.
I didn't see this article posted anywhere. I did hear the tail-end of an interview with McCann this morning on WEEI where he said: "I thought Brady might settle at 2 games, but now that I've read the transcript, I would suggest he push for 1 game, or no games and a fine for non-cooperation." He felt strongly that the transcript hurt the NFL more than the NFLPA, but I didn't hear the substance of why.
There is no rule in the collective bargaining agreement that required Brady to turn over his personal phone, texts and emails. Moreover, Brady, like any person, may have had privacy concerns about sharing electronic records. Still, the NFL appears to believe Brady was obliged to share records under general expectations of cooperativeness. Yet Ted Wells declined to endorse a punishment for Brady in regards to his cooperativeness. Although Wells sharply criticized Brady’s unwillingness to share electronic materials, calling it “one of the most ill-advised decisions I have ever seen,” Wells also testified, “I did not tell Mr. Brady at any time that he would be subject to punishment for not giving—not turning over the documents. I did not say anything like that.” If Brady is being honest, it is difficult to understand why the NFL would suspend him, let alone suspend him for four games. He categorically denied the allegations and the NFL lacks evidence that refutes Brady’s denial. The suspension would instead be based on Brady refusing to turn over electronic records, even though no collectively bargained rule required that he do so
Bold my emphasis.
http://www.si.com/nfl/2015/08/04/tom-brady-appeal-roger-goodell-ted-wells-transcript
There is no rule in the collective bargaining agreement that required Brady to turn over his personal phone, texts and emails. Moreover, Brady, like any person, may have had privacy concerns about sharing electronic records. Still, the NFL appears to believe Brady was obliged to share records under general expectations of cooperativeness. Yet Ted Wells declined to endorse a punishment for Brady in regards to his cooperativeness. Although Wells sharply criticized Brady’s unwillingness to share electronic materials, calling it “one of the most ill-advised decisions I have ever seen,” Wells also testified, “I did not tell Mr. Brady at any time that he would be subject to punishment for not giving—not turning over the documents. I did not say anything like that.” If Brady is being honest, it is difficult to understand why the NFL would suspend him, let alone suspend him for four games. He categorically denied the allegations and the NFL lacks evidence that refutes Brady’s denial. The suspension would instead be based on Brady refusing to turn over electronic records, even though no collectively bargained rule required that he do so
Bold my emphasis.
http://www.si.com/nfl/2015/08/04/tom-brady-appeal-roger-goodell-ted-wells-transcript
Question for the labor/civ pro lawyers here about Notice.
I thought Kessler's most powerful moments were his cross examination about the lack of any notice to Brady that he could be suspended for violating some "integrity of the game" policy (a/k/a the Conduct Detrimental Policy), which is the only policy that talks about footballs. According to Kessler, only clubs, owners, head coaches and general managers can be penalized for this, because they receive the Conduct Detrimental Policy, but the players do not. And there is no history in the NFL that any player has ever been suspended for anything having to do with equipment. He goes on to note that players only receive (and it goes unchallenged by any NFL testimony) the Personal Conduct Policy ("PCP"), and no where in that policy is there league authority that a player can be penalized for violating the "integrity of the game."
The NFL countered that just because "there is not a specific rule or document that would tell a player that if you are involved in an effort to cause footballs to be deflated below the rules that somehow you are not subject to discipline." (page 35, lines 17-22). Leaving aside the false suggestion that Kessler said a player isn't subject to discipline (he clearly said a fine is proper in accordance with the PCP), the NFL's lawyer (Nash) goes on to state that "Brady was fully on notice of your [commissioner's] authority to address conduct detrimental and the integrity of the game. It's in his CBA. He knows very well. It's in paragraph 15 of his player contract that he is subject to suspension for conduct detrimental." The link to the player contract seems to support Nash at paragraph 15. (which you can read here: http://ipmall.info/hosted_resources/SportsEntLaw_Institute/Agent%20Contracts%20Between%20Players%20&%20Their%20Agents/APPENDIX_A__player_contract_.pdf )
So who has the better argument?
I thought Kessler's most powerful moments were his cross examination about the lack of any notice to Brady that he could be suspended for violating some "integrity of the game" policy (a/k/a the Conduct Detrimental Policy), which is the only policy that talks about footballs. According to Kessler, only clubs, owners, head coaches and general managers can be penalized for this, because they receive the Conduct Detrimental Policy, but the players do not. And there is no history in the NFL that any player has ever been suspended for anything having to do with equipment. He goes on to note that players only receive (and it goes unchallenged by any NFL testimony) the Personal Conduct Policy ("PCP"), and no where in that policy is there league authority that a player can be penalized for violating the "integrity of the game."
The NFL countered that just because "there is not a specific rule or document that would tell a player that if you are involved in an effort to cause footballs to be deflated below the rules that somehow you are not subject to discipline." (page 35, lines 17-22). Leaving aside the false suggestion that Kessler said a player isn't subject to discipline (he clearly said a fine is proper in accordance with the PCP), the NFL's lawyer (Nash) goes on to state that "Brady was fully on notice of your [commissioner's] authority to address conduct detrimental and the integrity of the game. It's in his CBA. He knows very well. It's in paragraph 15 of his player contract that he is subject to suspension for conduct detrimental." The link to the player contract seems to support Nash at paragraph 15. (which you can read here: http://ipmall.info/hosted_resources/SportsEntLaw_Institute/Agent%20Contracts%20Between%20Players%20&%20Their%20Agents/APPENDIX_A__player_contract_.pdf )
So who has the better argument?
I think it feels off because acting normally (doing a rigorous traditional cross of an expert) the attorney is falsely creating the impression that the hearing is some way fair.Joe D Reid said:
Not a labor lawyer, but my read is that there's two different issues here. The NFLPA isn't saying the Conduct Detrimental policy doesn't apply to players, but rather that that wasn't the basis of the suspension.Bleedred said:
There are three policies at issue. 1) The Conduct Detrimental policy, which may or may not allow a free-for-all, and is in paragraph 15 of the player contract; 2) the Player Policies, which applies to player and provide for a fine; 3) the Competitive Integrity Policy, which applies to teams.
The NFLPA says Vincent punished Brady under the Competitive Integrity Policy (#3), which Brady didn't have notice of, and doesn't apply to players. Goodell responded by saying Brady was punished under the Conduct Detrimental policy (#1), which Brady did have notice of, and that this policy does not require an itemization of banned conduct (i.e., a free-for-all). From page 16-17 of Goodell's Award:
The NFLPA's response to this is what I think is going to determine the case. From paragraph 118 of the Answer & Counterclaim:
So they're saying 1) Vincent's decision was clearly based on the Competitive Integrity Policy; 2) this "Conduct Detrimental" argument wasn't advanced at the arbitration hearing (I'm not sure about that); 3) The Conduct Determinantal policy is a catchall for stuff that isn't covered by other rules, and does not apply to this conduct, because the Player Policies already apply. In other words, the Conduct Determinantal policy, is not the "free-for-all" that Goodell says it is.
EDIT - accidentally had "Competitive Integrity Policy", not "Conduct Determinantal policy" in parts 2 & 3 of the last paragraph.
The Wells Report specifically mentions investigating based on the Competitive Integrity Policy (Policy on Integrity), which is why the NFLPA is claiming that.
The Wells Report says: "The investigation was conducted pursuant to the Policy on Integrity of the Game & Enforcement of Competitive Rules."
Here is the policy in question. Read it and tell me if that applies to players: https://secure.ethicspoint.com/domain/media/en/gui/19375/NFLCompliancePlan.pdf
Quotes:
It's clear to me that "employees" doesn't mean players. In fact, the word "player/players" appears 5 times in the entire document. They are governed by the CBA. It goes on to give an example of the issues this document is meant to govern:
The Wells Report says: "The investigation was conducted pursuant to the Policy on Integrity of the Game & Enforcement of Competitive Rules."
Here is the policy in question. Read it and tell me if that applies to players: https://secure.ethicspoint.com/domain/media/en/gui/19375/NFLCompliancePlan.pdf
Quotes:
It's clear to me that "employees" doesn't mean players. In fact, the word "player/players" appears 5 times in the entire document. They are governed by the CBA. It goes on to give an example of the issues this document is meant to govern:
This is what the NFLPA is getting at by citing to Peterson by the way. From pg 2:
I'm biased, but as near as I can tell, Goodell's response to this "c'mon man" (pg 17-18 of Goodell's Award). He mostly says it should be obvious to "a player of Mr. Brady's tenure in the league and sophistication" that obstructing an investigation and tampering with footballs could be disciplined under the conduct detrimental policy. He does not cite to, or explain how this squares with Peterson.
I'm biased, but as near as I can tell, Goodell's response to this "c'mon man" (pg 17-18 of Goodell's Award). He mostly says it should be obvious to "a player of Mr. Brady's tenure in the league and sophistication" that obstructing an investigation and tampering with footballs could be disciplined under the conduct detrimental policy. He does not cite to, or explain how this squares with Peterson.
What's the point of the rest of the CBA if Goodell can just say "even though there are fines and other thing laid out elsewhere, I have this get out of jail free card. It lets me do anything I want simply by saying 'conduct detrimental'."
If you buy Goodell's argument, a lot of the CBA might as well just be shredded. It would be much easier to read since it would basically take up one page at that point at least where it comes to player discipline.
If you buy Goodell's argument, a lot of the CBA might as well just be shredded. It would be much easier to read since it would basically take up one page at that point at least where it comes to player discipline.
Funny that you use "C'mon, man"bowiac said:
I was thinking today that at it's core, the leagues argument is just that.
"Your honor, there is no conclusive evidence that balls were tampered with and there is no direct or even circumstantial evidence that Brady had any involvement whatsoever but C'mon man, he knew what was going on."
This is where I'm at. With Peterson, they made up a new policy after the incident, and tried to apply it retroactively. Once the courts said that was no good, Goodell shifted to a broader, "you are always on notice that all bad actions can be punished at my discretion" defense. Concluding that the limited power-grab from Peterson is not okay, while this broader action is would be an interesting outcome...edmunddantes said:
Yeah - Goodell's argument seems strained here. He's in a tough spot, since under Peterson, he can't affirm Vincent's discipline on grounds other than what Vincent himself used. In order to reach his decision, he needs to treat Vincent's discipline as being based, at least in part, on the Conduct Detrimental policy.DrewDawg said:
It's like Roger is some demented version of Ricky Bobby and "but I said 'with all due respect'," argument.bowiac said:
Roger: But I said "conduct detrimental". It means anything I say after that is okay.
What we are seeing now was fairly inferred from the time RG issued his ruling -- but really from when Vincent issued the initial ruling many weeks earlier, as many of us believed RG had only a rubber stamp --Bleedred said:
Almost all the downside belongs to RG, the upside to TB. Eventually -- when you get to someone genuinely neutral -- the hot streaks and cold streaks end.
dcmissle said:
You mean "look him in the eye" and "I truly believe in my heart" will no longer be used as legal standards?
bowiac said:
Peterson is distinguishable because the old policy in question (I forget which one it was) clearly applied and the updated policy clearly should not have been applied retroactively.
I think it's pretty clear that the Player Policy (i.e., uniform/equipment) policy does not apply.
The NFL argument basically is - assuming some player tampered with the football or the timers or the yard markers or the goal posts, and the player policy doesn't apply, then the NFL still has to have an avenue to punish the player - whether it be through the conduct detrimental policy or the competitive integrity as applied to players.
wade boggs chicken dinner said:
But the heart of the NFLPA's case is that the underlying rationale of the Peterson ruling is notice--by applying the new policy. From Doty's ruling:
The notice issue is underscored in footnote 4.
So the League wants to distinguish Peterson from this case through the idea that a new policy was in place where there was no such change in policy here. But the essence of the Peterson ruling is that the reason the League can't impose a new policy retroactively is because then the player could not have had proper notice.
If the notice issue is considered dispositive, then it seems that Peterson does apply to Brady's case.
As for the notice issue involving Wells that some are bringing up--i.e. that Wells didn't explain to Brady what the ramifications of not handing over his phone would be--I'm not sure I'm seeing it.
The key for me is that Wells didn't issue the punishment. Notice is required in advance of discipline, so a player has to be able to know what his punishment for an offense is. But his offense was not "not handing over the phone" but some mishmash of tampering with equipment (or generally knowing about it or some shit) and then not cooperating with the investigation.
Not handing over the phone is being used as evidence as to the charges involving the actual offenses. So while players require notification as to punishments for offenses, it is not at all clear to me that they require notification as to how an investigator will construe evidence.
Certainly in plain English, it appears that the statement, "According to Goodell's ruling, Brady got tagged because he didn't hand over his phone," (Even if that's bs and, as per the other thread, other reasons would have been found.) But for legal purposes, just because Wells was working for the League doesn't make them all an undifferentiated whole legally speaking (again, this may be more bs) and insofar as he was formally functioning as a fact finder and not the one issuing discipline, I'm not seeing a strong case that he would have giving Brady any notice as to how he would interpret not receiving the phone.
I mean, it would be nice if he had searched for that last remaining part of his soul that might lurk beneath his lawyer suit and be a proper human being about it, but I don't see it as being legally required.
The key for me is that Wells didn't issue the punishment. Notice is required in advance of discipline, so a player has to be able to know what his punishment for an offense is. But his offense was not "not handing over the phone" but some mishmash of tampering with equipment (or generally knowing about it or some shit) and then not cooperating with the investigation.
Not handing over the phone is being used as evidence as to the charges involving the actual offenses. So while players require notification as to punishments for offenses, it is not at all clear to me that they require notification as to how an investigator will construe evidence.
Certainly in plain English, it appears that the statement, "According to Goodell's ruling, Brady got tagged because he didn't hand over his phone," (Even if that's bs and, as per the other thread, other reasons would have been found.) But for legal purposes, just because Wells was working for the League doesn't make them all an undifferentiated whole legally speaking (again, this may be more bs) and insofar as he was formally functioning as a fact finder and not the one issuing discipline, I'm not seeing a strong case that he would have giving Brady any notice as to how he would interpret not receiving the phone.
I mean, it would be nice if he had searched for that last remaining part of his soul that might lurk beneath his lawyer suit and be a proper human being about it, but I don't see it as being legally required.
That's right, and the NFL has a point there. It is unrealistic to require an employer (even a unionized one) to write down in advance a policy expressly banning each and every possible stupid thing an employee could do.wade boggs chicken dinner said:
But one of the NFLPA's points is that there is a second level of lack of notice here based on the findings in the Wells Report. With respect to Brady specifically, the Report finds that he was "generally aware" of misconduct. That's it. It doesn't say he participated in or organized any misconduct. (Or, in the language I'm sure Reisner had in his head while he was drafting, that Brady was a co-conspirator.)
The NFLPA's second-level point is that no matter what policy you're looking at, nobody had notice that you could be punished for being aware of somebody else's misconduct. To me, that's the NFLPA's best point--despite the NFL's clear desire to treat every player like a Citadel knob, the NFL can't unilaterally start ringing players up for failing to report misconduct.
There is no Rev said:
I don't think it's quite the same as the Peterson notice issue. As I understand his argument, it's basically a fundamental fairness, procedural process issue. His argument is basically this:
We said we weren't turning over the phone. My counsel told me not to. Wells never told me this could be the basis for imposing discipline on me. Accordingly, I destroyed the phone. If I knew it could be a basis for discipline, I would have preserved the phone. I still wouldn't have given it to you, or to anyone else. I would have put it in a lockbox, so I could have taken away from the Commissioner this silly argument that I destroyed my phone. In short, I was misled by the NFL's investigator, and as a result, punishment was imposed on me for doing something that a reasonable person in his position should have told me was a possibility.
The bolded for me is key: Was the phone a basis for discipline, or was it evidence making a legitimate basis for discipline more or bless likely?DennyDoyle'sBoil said:
I think sometimes it feels like the former, but it may actually just be the latter. But I'm curious as to others' thoughts.
There is no Rev said:
I believe the notice issue is about a written league policy supporting the claimed violations (not just the phone, but also whatever the theory is on deflation knowledge). Absent a written policy and notice to the player, there (it is argued) can be no penalty.
Based on Wells' testimony as well as Goodell's letter to uphold the suspension it feels more like the latter to meThere is no Rev said:
Yeah, I totally get that notice issue and think it could well have merit. I'm only specifically referring to some of the arguments people are making subsequent to the release of the transcript and if the process can be indighted based on Brady not knowing he could be punished for not handing over his phone (which would be a notification issue, just a different one).PedroKsBambino said:
I'm saying that Wells not telling Brady how he would take his failure to hand over the phone and hownitbwould play out in his report may be douchey, but not the basis for overturning the ruling.
What about the fact that Brady testified under oath? (This would only be concerning the appeal and upholding of the suspension). Brady offered evidence - his sworn testimony - which Goodell discounted on the basis of the phone.There is no Rev said:
If there were to be an argument based on that, I believe it would be a fairness/impartiality claim. I was only speaking to the notice aspect.Eddie Jurak said:
From my understanding, though, I believe Goodell has wide latitude to be an asshole even, and just decide Brady is lying, and that factual finding is not appealable in court. To vacate on that issue, you'd have to show his process was biased in some intentional or structural way. Absent that, Goodell is given wide latitude in the reasons he might discount Brady's testimony.
It is both. See the last paragraph before the stars on page 18, and the carry over sentence from pages 19-20.There is no Rev said:
The nfl purposefully did not separate the penalties between involvement/knowledge of a scheme to deflate and failure to cooperate/destroy evidence.
Incidentally I had a French lawyer spend thirty minutes explaining to me that in the French system you are expected to lie(in either criminal our civil cases) and that French lawyers routinely hide bad evidence hoping that the other side doesn't find it.
Perhaps. But it has been my experience over three decades that judges, particularly smart judges, and especially smart judges with life tenure, do the right thing.
We are not that yet fucked -- as a civilization and a profession -- that I can reasonably presume that Judge Berman will do the wrong thing.
And so I sleep soundly at night come what may, and confident in the knowledge that BB and TB will somehow compensate, if necessary, for the frailty in human nature.
We are not that yet fucked -- as a civilization and a profession -- that I can reasonably presume that Judge Berman will do the wrong thing.
And so I sleep soundly at night come what may, and confident in the knowledge that BB and TB will somehow compensate, if necessary, for the frailty in human nature.
John Dowd is emphatic he had to warn Pete Rose that failure to produce his bank records would lead to an adverse inference and that to discipline Brady without such notice constituThere is no Rev said:
"a gross violation of fundamental fairness and due process".
http://www.foxbusiness.com/industries/2015/07/29/pete-roses-investigator-says-tom-brady-was-ambushed-by-goodell/
Stephanie Stradley is going on D and C tomorrow at 9:30. Her commentary has been very good throughout.
There is no Rev said:
Well, just my view -- I think it's in between but closer to the former. But that doesn't mean I think it can't be a basis for overturning the arbitration award. I do think the way it played out it is still a rather significant deprivation of fundamental due process and fairness.
Imagine Wells said to Brady, "did you deflate footballs," and Brady said, "I'm not going to answer that question." Should Wells then say, "I'm going to use your refusal to answer my question against you"? Absolutely he should as a matter of best practices. Would it be a deprivation of fundamental fairness if he didn't say that and then used Brady's refusal against him? I would say no, that's an unreasonable argument. A reasonable person should anticipate that.
But imagine instead Brady's blood type were relevant. Wells said, "what's your blood type"? and Brady said "o negative." And Wells said, "are you willing to say that under oath"? And Brady said, "sure" and then did. And then Wells happened to have a bunch of Brady's medical records, which he got not from Brady but from third parties, and he poured through them and in the end could find nothing to contradict that Brady was O negative. And then Wells said, "ok, I want you to give me a blood test." And Brady said, whoa, wait a minute, and then talked to his agent, who said, "you know Tom, once someone has your blood, there's a lot they can do with it -- they can test for blood type, but they can also do paternity tests, find out private genetic information, determine if your sister is really your sister, find out if you've ever had an STD, I don't want you to do it." And Tom, having this information, says to Wells, "you know, I respectfully decline."
What is Wells obligation now to say, "if you don't, I'm going to use it against you, and your refusal could be the most important thing I rely in, in deciding you're not really O negative"? I think if he's going to rely heavily -- nearly exclusively -- on the refusal, fundamental fairness dictates he say so.
The analogy is not even perfect, but imagine there's a drug you can take legally that gives you longevity, but unfortunately makes it so that your blood type can never be tested. Everyone is taking it. Professional athletes are taking it. After you think your interactions with Wells are over, you take it. You don't really consider the effect on masking your blood type, because your agent convinced you that a medical test is just too invasive, so who cares at this point. When asked under oath the following question, you answer "of course not": If Mr. Wells had told you that if you took the drug, so that we couldn't get you to reconsider your decision to not take a blood test, we would find that fact alone means you are lying about your blood type? And we would affirm your original punishment for having a different blood type, even though we now are not even scientifically certain that your blood type even matters for our underlying dispute and in fact aren't going to consider that question really, because your taking the drug makes it irrelevant?
Edit: sorry the first sentence should say I think it is closer to the latter. That is I think the refusal is closer to evidence but not a basis for punishment, but it's a spectrum and I still think the way it played out was fundamentally unfair.
There is no Rev said:
On the failure to produce the phone, Goodel was specific in his opinion that he was taking it both as a separate offense, but also as an adverse inference about the facts that would have been shown.
As to the result, I agree that CBA really gives Goodell wide latitute, and that his findings are just barely with a basis. I have read a lot of arbitration appeals where the conclusions of the arbitrators was based on what one would consider huge leaps, clear animosity toward a party, unfair hearings, etc. (I had one in which an employee requested throughout the proceeding that he be provided with company shares of stock, and only in the last closing did he ask for money damages. We had never addressed the way to value the shares which were worth a lot less than at the time he was to have received them, yet the arbitrator awarded damages. Upheld.) Those are upheld.
Where I think Berman comes out in this is at the conference, he gets Goodell in the room, and says "I have read enough of this to believe that your award was flimsy, counterfactual, with animosity, and that there is virtually no evidence to conclude that there was any violation, let alone that Brady was involved. That may, however, just barely be enough to sustain an award. While I may ultimately conclude that I am constrained to uphold the award, I will write a scathing decision about the NFL's process, and your bias or at least head-scratching reasoning. So, you have to decide is it worth it to you to have me uphold the award, even if a decision paints you and the NFL in the most negative light, and comes close to vindicating Brady. Is that precedent worth what it will cost the NFL and you? Perhaps you should work it out with Brady."
My experience is a little different. Mine is that they WANT to do the right thing. They BELIEVE they are doing the right thing.dcmissle said:
But sometimes they do the absolute wrong thing and make very wrong decisions in the name of doing the right thing. Maybe you are not really differing with that refinement.
I worry that Berman will deeply consider this and end up being persuaded that doing the right thing is giving the arbitrator great deference in light of the the CBA and labor law in general.
On that score, while it may be buried in this thread (or maybe just a page up and I missed it), does anyone know the precise legal standard Berman has to apply here?
Of what legal consequence, if any, is the fact that Goodell misrepresented (if not flat-out lied) about Brady's testimony regarding his discussions with Jastremski after the AFCCG, and used this misrepresentation as one of the bases to conclude that Brady was not credible? I presume none, but I'm curious
Bleedred said:
Yeah, I asked that yesterday or the day before, but haven't seen a good response. I realize that Goodell has leeway to interpret evidence how he sees fit, but is he allowed to take testimony and say that it didn't happen? Seems like this could be a "violation of process" but IANAL.
tims4wins said:
And could that rise to the level of a defamation suit? Seems provable that Goodell knew it was false when he said it. Same issues with Brady wanting to avoid discovery exist, I suppose.
It could have consequences. It moves the needle on bias and undermines other aspects of the decision because it illustrates either sloppy reasoning or a lack of credibility. Credibility was a big issue for Goodell in Peterson.
So, it's something. How much basically depends on the judge.
For all of the standards that we cite on the near inviolability of arbitration awards (and there is really difficult language to overcome in much of the case law), This stuff can come down to, "Come the fuck on," if the judge really wants to do something.
So, it's something. How much basically depends on the judge.
For all of the standards that we cite on the near inviolability of arbitration awards (and there is really difficult language to overcome in much of the case law), This stuff can come down to, "Come the fuck on," if the judge really wants to do something.
Myt1 said:
How hopeful are you that it moves the needle enough to make a difference? I get that the law allows this process wide latitude, per a negotiated CBA, but does it really allow the commissioner to literally MAKE STUFF UP and penalize players for that made up stuff?
If you take arbitration standards seriously, arbitrators being wrong isn't a basis to reverse them. In fact, the law is quite the contrary. The question is whether the judge will view it as relevant to something he can consider, like evident partiality.tims4wins said:
Ivanvamp, no. But even then the issue becomes whether there is other sufficient evidence to support the decision, all viewed with the deference granted to arbitrators, especially labor arbitrators.
I don't think we can do a whole heck of a lot better for you guys. This is basically the opposite of a scientific equation and much depends on how the judge views the parties and their behavior generally. There's enough here that Berman can overturn with a scathing, near bulletproof opinion. And there's probably enough for him to give a vanilla affirmation.
I don't think we can do a whole heck of a lot better for you guys. This is basically the opposite of a scientific equation and much depends on how the judge views the parties and their behavior generally. There's enough here that Berman can overturn with a scathing, near bulletproof opinion. And there's probably enough for him to give a vanilla affirmation.