He means standards of review. That is, the level of review the District Court will apply. Not whether the process was up to some standard.
Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only
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But it is just balls and strikes, right?Myt1 said:
I wonder if he'll threaten the NFL with the scathing report AND Brady with the vanilla affirmation and see what shakes out.
That was well done, EJ. 
Arbitration review has almost nothing to do with balls and strikes and everything to do with the likely misguided notion that taking Justice out of the hands of the legal system saves money, and, hey, no one's a saint and it's all horse trading anyway.
It probably makes sense in complicated business relationships between sophisticated parties. It probably even makes sense in connection with real labor unions and management. But it's basically like every other sea change to the system: it almost invariably tilts the playing field in favor of the party with more resources and ability to game the system, and it does so in the shadows.
Arbitration review has almost nothing to do with balls and strikes and everything to do with the likely misguided notion that taking Justice out of the hands of the legal system saves money, and, hey, no one's a saint and it's all horse trading anyway.
It probably makes sense in complicated business relationships between sophisticated parties. It probably even makes sense in connection with real labor unions and management. But it's basically like every other sea change to the system: it almost invariably tilts the playing field in favor of the party with more resources and ability to game the system, and it does so in the shadows.
which is why every big business and it's grandmother has been slapping those mandatory binding arbitration into every user agreement, warranty, etc.Myt1 said:That was well done, EJ.
Arbitration review has almost nothing to do with balls and strikes and everything to do with the likely misguided notion that taking Justice out of the hands of the legal system saves money, and, hey, no one's a saint and it's all horse trading anyway.
It probably makes sense in complicated business relationships between sophisticated parties. It probably even makes sense in connection with real labor unions and management. But it's basically like every other sea change to the system: it almost invariably tilts the playing field in favor of the party with more resources and ability to game the system, and it does so in the shadows.
They aren't doing it out of the kindness of their hearts and wanting to save you from going through litigation with them. They know the deck is stacked against you, and the arbitration groups that get contracts know where their bread is buttered, and they know that it's almost impossible for them to lose on appeal.
Yep. They are doing it for your own good. To save you the hassle of going to court. Really. Truly. lol
I don't have much experience here. I've been involved in many arbitrations, but only a handful go to court after, and of those an even smaller subset are actually contested. (Sometimes, if there is a money award, they go to court just so the winner can get a court judgment and expand types of available collections.). My primary gig is appeals. I've had a hanful of appeals from trial court rulings on motions to compel or vacate arb awards. None has involved circumstances like this. In fact, I have never even heard of an arbitration clause (or proceeding) in which one of the parties has the right to arbitrate its own dispute. I presume it happens, but to give a straght answer, I have zero experience in this kind of "arbitration," and other than my biased (because I love the Pats and Tom Brady) feeling this was a kangaroo court, I have no prediction whether this judge will be bothered by or find relevant that the NFL sat as judge in its own cause.DrewDawg said:
I have a hope, but no expectation.
I've read both threads and Stradley's blog, but don't think I've seen these questions covered (so thanks to any attorney who responds):Myt1 said:
Does the judge have sufficient authority to go a step further and rule that even if the arbitration process was followed, the process itself is so structurally flawed that its outcomes can't be considered legitimate or fair, regardless of the CBA terms? Or is that a pipe dream?
In a more likely outcome, suppose he rules in the NFL's favor but unloads on Goodell and co. for the whole sham in his opinion - would such an opinion have any real legal impact? I mean instead of just egg on Goodell's face, could the NFLPA or Brady apply it in an appeal, or could it be used by the PA in future arbitration disputes? This seems like the most probable outcome from everything I've read to this point, so I'd like to think at least some silver lining can be found.
Does this, from Goodell's ruling, matter at all:
“I do not accept the argument, advanced by NFLPA counsel on Mr. Brady’s behalf, that in failing to provide information from his phones to the investigators, Mr. Brady was acting on the advice of counsel. Even if I were inclined to accept that argument, there is no evidence that Mr. Brady’s counsel advised him to destroy his phone and thereby preclude recovery of potentially relevant electronic information exchanged during the key time period.”
Isn't Brady's communication with his counsel privileged?
“I do not accept the argument, advanced by NFLPA counsel on Mr. Brady’s behalf, that in failing to provide information from his phones to the investigators, Mr. Brady was acting on the advice of counsel. Even if I were inclined to accept that argument, there is no evidence that Mr. Brady’s counsel advised him to destroy his phone and thereby preclude recovery of potentially relevant electronic information exchanged during the key time period.”
Isn't Brady's communication with his counsel privileged?
Generally, if your defense to something is that you were relying on the advice of counsel, you waive the privilege as to that advice and subject matter.
Basically, you can't use privileged communications as both a sword--by basing your legal argument on their existence--and a shield--by asserting your privilege right not to disclose the substance of the communication.
As to the other question, I doubt that it really matters in the grand scheme of things.
Basically, you can't use privileged communications as both a sword--by basing your legal argument on their existence--and a shield--by asserting your privilege right not to disclose the substance of the communication.
As to the other question, I doubt that it really matters in the grand scheme of things.
Eddie Jurak said:
Brady testified unequivocally that Yee advised him not to turn over his phone, and that if he understood that decision would have been used against him, he would have turned it over. As far as I can tell, this is not contested.
What Goodell is doing here is say, "aha, but you never said Yee told you that you could wipe the phone that he advised you never to turn over." It's the worst kind of fucking judging by "gotcha." It's such utter and complete horseshit that it makes my blood boil.
But Myt1 is right that there's no privilege problem with what Goodell did here.
Maybe I missed it in the transcripts, but did Brady say that he destroyed the broken phone on the advice of counsel? I was under the impression that he said that it's his custom, when getting rid of a phone, to destroy the SIM card and recycle the phone?
DennyDoyle'sBoil said:
This was a little casual, wasn't it? Apparently Yee never told Brady to get a new phone and took custody of the old phone. Serious mistake IMO. Had he done that, think how different Rog's award would be.
Otis Foster said:
Not sure if serious...
Roger's decision would have been exactly the same.
EDIT: but, as I said before, Yee should have known that this would end up being a big PR battle, and should have advised Brady to play defense against possibly outlandish interpretations of his actions. "Killing your phone would look bad; don't do that" should have been in there from the get go. Yee also should have had a short rationale prepared for the record on why Brady wasn't handing over his phone beyond "Because fuck you, that's why."
That makes perfect sense - but what about what the NFL did with the Wells report. Didn't they sort of use privileged communications as a sword and a shield? Or does that not apply because it's a different kind of situation.Myt1 said:
Otis Foster said:
I think there's no reason to think Rog's award would have changed at all; I see this as a purely results-oriented exercise.
I agree it's a mistake; Yee clearly was in over his head in this thing.
drleather2001 said:
It was serious. Read it again.
Without the distraction of the destroyed gun, his order would have been the same (likely) but a without a significant distraction. Destroying key evidence is as you know spoliation. In court, it would have been dealt with very seriously.
If it was court, there would be a clear requirement to produce.Otis Foster said:
No - if he produce the phone after-the-fact, he would have gotten 4 games for failure to cooperate, and they would have just not made the adverse inference from destruction - but he would have not been believed, etc etc. Its the same result, just a different script. Without a requirement to cooperate, the difference in the script doesn't really matter (except for the theater).
Otis Foster said:
This is not court, and that was not evidence.
His decision to destroy the phone was bad PR, that's all. Goodell et. al. want people to think like "Law and Order" fans regarding this point ("OMG, destroyed evidence!"), but it's a total red herring.
EDIT: And besides: if I'm sued regarding issue X, and I offer all documents and things related to issue X, and the opposing party takes it all and says "We're done, thanks for cooperating." and I delete some unrelated emails a day later, they don't get to come back and say "Hey, even though we didn't ask for those, and we have no reason to believe there's anything relevant in those emails, we are going to assume that because you destroyed them, there must have been something relevant, so the judge should think you lack credibility."
Otis Foster said:
Yee's an agent, and the most likely story is that Brady never even asked Yee before he replaced his phone. To a non-lawyer layperson like Brady, this would have been pretty straightforward -- Don said we're not turning over the phone, I need a new phone, I'm getting rid of the old one. If Yee were a litigator accustomed to litigation holds, would he have thought to say, "Tom keep that phone." Yeah. As an agent who probably doesn't litigate much is that asking too much of him? I dunno. Make your own decision. Probably not, but it's certainly not egregious. It would be like having your trusts and estates lawyer look at your trademark application or having your dermatologist look at your broken finger. It only looks egregious because Goodell is a mendacious prick who never had any interest in finding the truth but instead is interested in gotchas and case-building.
DennyDoyle'sBoil said:
DDB - do you agree with Myt1 that Goodell's misrepresentation of Brady's testimony regarding his discussions with Jastremski after the AFCCG and use of them as one of the bases to conclude that Brady was not credible could have legal consequences? This isn't a matter of Goodell being wrong about the underlying facts, this is Goodell explicitly misrepresenting the sworn testimony of one of the litigants, which is not open to equivocation (i.e. the misrepresentation).
Bleedred said:
Yeah, these are all really excellent questions and show how deeply people are thinking about what are important issues. I think the same question is sort of coming up in many different ways, and so I go back to the same general answer. Arbitrators get to fuck up cases six ways from Sunday. The general response of courts is that if you wanted judicial factfinding and appeals and procedural protections under the rules of civil procedure and evidence, you should not have agreed to arbitration. It's supposed to be streamlined non-judicial decisionmaking.
Does there come a point at which judges have a tipping point where they suspect foul play? Sure. Different tipping points for different judges. You use the term "explicitly misrepresenting." Is the judge going to find that's what Goodell is doing, instead of just being incompetent or not careful or making a credibility finding without stating exactly all bases? Is the judge going to be bothered enough by the fact that the NFL was the judge in its own case that he will be more skeptical? Will it cause him to reverse? If I could answer these questions, I'd be at the track and wouldn't be grinding away selling my time by the hour.
To my read, this is unlikely to have consequences. It doesn't go towards the accusation of evident partiality made against Goodell by the NFLPA - namely that he was partial in favor of vindicating the Wells report. The NFLPA stopped short of saying Goodell was out to get Brady on personal level or something. It adds to the flavor of this being a farce, but it's not really directly on point.Bleedred said:
It's a tad bit different factually, but enormously different for the purposes of the "sword and shield" analysis. The NFL isn't, so far as I can tell, using its communications with Wells as the basis for a claim or defense (e.g. "Wells gave us advice that this was the procedure we had to follow, so we're not biased even if we were wrong, we were acting on the advice of counsel.")Eddie Jurak said:
That's not to say that the assertion of privilege is correct in the first instance or that some other behavior by the NFL and/or Wells hasn't waived some aspect of it, but that's where this particular hair is split.
slowstrung said:
Not my field, but I think that the answer to your first question is no. Ruling that the process is fundamentally flawed would be eliminating an entire contractual provision, so that is going to happen based on the current set of facts that I know about. Note that the other cases that involved appeals from arbitration didn't even try to go there.
A ruling from a US DC would be precedent but wouldn't be binding. It could be used - all of the other arbitration appeals decisions are cited in the briefs by the NFL/NFLPA - but it wouldn't be binding.
I am looking forward to tomorrow's briefs. In some sense, the form is easier for Kessler to tell the whole story -- because he's put in the formal pleading, Berman has said he is familiar with the story, and the national narrative is somewhat rallying behind Brady. With that, I think Kessler has a choice whether to stick to narrow technical points, or to play to Berman's social worker background and focus and be more indignant at the witch hunt. Plus, with the unsealing, he can weave the facts into the brief, so this should be a pretty compelling story.
I think Wells comments regarding cell phone disclosure in the Martin/Incognito investigation is misplaced. There, the very nature of the alleged wrongdoing was the speech between the players. It was critical to know what comments were made, why they were made, and how they were received. Here, however, the allegation centers around whether footballs were tampered which should start with a physical evidence investigation with potentially supporting circumstantial evidence.
Further, the investigators had the phones and relevant texts from the alleged actors. If the investigators were looking for a directive from Brady to the actors regarding football tampering, it would have been in the disclosed texts and phones. Asking Brady for his phone/texts is far different from Martin/Incognito. Instead, they were really just looking to see if Brady made adverse admissions or comments to unrelated parties. That is so far removed from the bounds of discovery, if this were actual litigation, it's funny.
Further, the investigators had the phones and relevant texts from the alleged actors. If the investigators were looking for a directive from Brady to the actors regarding football tampering, it would have been in the disclosed texts and phones. Asking Brady for his phone/texts is far different from Martin/Incognito. Instead, they were really just looking to see if Brady made adverse admissions or comments to unrelated parties. That is so far removed from the bounds of discovery, if this were actual litigation, it's funny.
Question for the lawyers, DeMaurice Smith has filed to be co-counsel. Is this just a message to show how serious the NFLPA takes this case, or this a strategem to extend something like privilege claims in some way?
Agreed, it could be a lot of things. My take is that the biggest driver is both messaging the seriousness and the actual gravity of the case. I hate to say it but Antonio Cromartie nailed it. This is about abuse of power. The Union Head better damn well be involved when Goodell issues penalties to players when the only penalty here under the rules is a team penalty, when Goodell is mischaracterizing the testimony and when Goodell is making up penalties without regard to precedent or fairness.
Smith almost has to participate in this one.
Smith almost has to participate in this one.
Steve Dillard said:
I've never attended a settlement conference presided over by the judge hearing my case, but I'd assume that when you have that kind of set-up, the settlement conference is where you do your social engineering. I'd leave the witch hunt, the press turning on the NFL, etc., out of the brief for the most part, particularly given Berman's request to avoid scorched-earth tactics.
That said, I'd definitely include a sentence or two in the brief emphasizing the dire precedent this case would set. "If the NFL is allowed to do this to Tom Brady, what hope do players with more serious and complicated issues that go before the Commissioner have?" It's a bit risky -- Berman's reaction may be "do a better job during collective bargaining next time if you don't want the Commissioner to hear these cases" -- but I think I'd try it.
Harry Hooper said:
Nothing. He was on the answer, with pro hac vice pending next to his appearance, meaning he is not admitted in SDNY. This is simply the application that was already in the works when they filed.
I have participated in one settlement conference for a matter pending in a federal district court. In that case, a magistrate presided over three days of settlement conferences over a two week period that led to a negotiated settlement and the parties never came before the District Court judge who would have heard the case. My sense was that the only way the case would get before the judge is if the settlement conference failed to produce a resolution and the magistrate recognized that further settlement negotiations would not be fruitful. That case obviously had a much less compressed timetable than this one will but I wonder if most of the settlement talks will be before the magistrate and that Berman will only step in once it is clear that the parties are too far apart to settle.nattysez said:
Interestingly, the magistrate required the attorneys and all the litigants to attend the settlement conferences and frequently asked the principals to answer questions about the dispute and explain their point of view. That could have been unique to the magistrate in my case but if not, maybe Goodell was forced to answer questions at Monday's conference. That is total speculation on my part.
I do mostly real estate transactional work and my litigation experience is basically nil compared to the main contributors to this thread so I cannot say whether this process was typical.
If I were in Kessler's shoes, I would not hold back that much in light of Berman's "scorched earth" comments with one very important exception. I would lay off the adjectives. I would let the story speak for itself. But Kessler cannot omit parts of the story out of concern for riling the Judge. It is too powerful and there is too much to lose in soft selling the egregiousness of the NFL's conduct. I would just be a little less shrill about it and let Goodell's treacherousness spring forth from the page rather than be accompanied by invective.
+1.
The most effective advocacy values nouns, verbs and short sentences. Not adjectives, adverbs and flowery prose. Berman is the audience. Period. And if we can persuade him, he will craft an opinion in just the same fashion, and the Second Circuit will be his audience. This is not about headline grabbing -- or making people here or anyplace else feel good.
The most effective advocacy values nouns, verbs and short sentences. Not adjectives, adverbs and flowery prose. Berman is the audience. Period. And if we can persuade him, he will craft an opinion in just the same fashion, and the Second Circuit will be his audience. This is not about headline grabbing -- or making people here or anyplace else feel good.
TheoShmeo said:
A reasonable reading of the transcript inspires confidence that Kessler is highly capable of hitting the salient points without doing anything to provoke the ire of a neutral party. Even in the face of uniform opposition at the appeal he seemed to keep it pretty cool, only getting snippy a couple times with reason (as during the NFL's weasel move of bringing up the three "missing" texts without asking the content).
After Wells fell far short of his reputation, it's good to know that so far the guy in Brady's corner has lived up to his.
Right. If you've got the story, let the story do the talking on paper. If it gets time for an oral argument later, you can take the judge's temperature and explore righteous indignation if the situation calls for it. You can always crank it up. But if you start off going postal and turn off the judge, that bell cant be unrung.
Judges do not like if written work implicitly assumes the judge is an idiot who needs inflammatory adjectives to make a point that is obvious from a clear and concise narrative.
The number of people who don't understand that if you start the rhetoric at 11 you have nowhere to go but down never fails to surprise me. Glad we're all on the same page with this.
http://pro32.ap.org/article/judge-overseeing-brady-case-no-stranger-big-personalities
--Berman's rep as "famous settlement judge."
--Berman's rep as "famous settlement judge."
lambeau said:
From that article, "He also told the newspaper that he's "somewhat of a news/TV junkie" I said it before, given the mainstream media handling of this, that is not good news.
Ed Hillel said:
No, but operating in the NYC bubblesphere and essentially saying he already knew the relevant facts of the case don't bode well.
I want to be wrong.
If anything, I'd think being familiar with the headlines and how it was being framed by the NFL, and then reading all the details of how it actually went down should reinforce what a sham this has been on the NFL's part.
Yeah, I give a judge enough benefit of the doubt that he has gone further than the #hottakessportz reporting on this. Unless he rips his robe open to reveal a Jets jersey as he condemns Brady I'm confident thinking he will rule on the merits, whichever way that ends up going.
The only caveat to that is that it's not a one size fits all approach. Meaning that some judges are either so over worked or so disinterested that spicing up the papers early actually helps get their attention and make them understand your outrage when they otherwise might miss it or the magnitude of the other side's douche baggery.Myt1 said:
That is definitely the exception and not the rule, and Berman's comments indicate that he is NOT the kind of judge you do that with.
And yes, even with dim witted judges, you can always dial it up as needed.
DrewDawg said:
The Judge is clearly watching this case like a hawk, and has warned the parties to pipe down. Only a complete idiot would disseminate info like that at this stage of the case.
So yes, we're getting the leak.
I would think that the Judge following the news is a good thing if he's comparing what actually happened to what the NFL has been spinning. If he's really weighing the evidence carefully and he's presumably someone trained in seeing through bullshit, wouldn't that just make the NFL look bad?