Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only

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Next person asking a question addressed in the opening post is getting a time out. Also, please don't answer anyone asking something that's been addressed several times before--it's a little like feeding trolls, only we don't have a clever term for it.
 
There are hidden posts for those of you wondering.
 

dcmissle

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dcmissle said:
Updating:

1. Week 1 went as expected. No settlement.

2. I push hard this week, focusing mainly on the party I intend to rule against. That heavy lifting is done mostly out of the view of the public.

3. Barring Haley's Comet knocking me off the horse, I am certain now how I will rule. Draft opinion continues to evolve, taking into account Friday's filings. May well be tweaked to reflect oral arguments this upcoming week, and any additional aubmissions, but barring a surprise, I'm 90% done.

4. I use oral argument as a sanity check mostly, and in that connection may push hardest against the side I intend to rule for. At the same time, if a hard message needs to be communicated to the loser's constituencies, I may do that too. So usual caveats apply -- don't read too much into my questions and comments.

5. Nonetheless, between my comments in the robing room and at oral argument, the loser will know it is in pretty bad shape. This may, or may not, produce substantial concessions in negotiations.

It also may produce something that WILL BE worthy of the attention of those watching. The parties -- and most notably the NFL and RG -- are public relations addicts. They can't help themselves. If they think they will lose, they will try to get out front of the story. You will see leaks that one side or another expects to lose. On the other hand. If Dee Smith emerges from the court house saying, again, "we had a productive day", this is likely very bad news for the NFL. Winners are very afraid of rocking the boat, and have no reason to get out in front of a win.

6. Even though I am well positioned to rule by Friday, I don't. I rule on the day by which I promised a decision. You can never rule out a last-minute cave by one of the sides
Regarding no. 5 above, listen carefully to what is reported the next 36 hours.

I have been consistent on the point that one should not be overly influenced by the day to day, hour to hour, particularly as it relates to what is said in open court. I still believe that with conviction.

But honestly, based on the reporting of the last hour of the proceedings today, if I am an NFL lawyer, I am preparing my client for a loss and perhaps an epic ass kicking on the PR front.

It will be interesting to see whether the parties read this the same way.
 

dcmissle

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On a legal point, I have been persuaded since the day the Wells Report was released that "generally aware" would never fly. It's unreasonable per se.

A lot of the spit, tape and baling wire we have seen since the release of the Report has been addressed to that huge vulnerability; the NFL lawyers are not stupid. Yet still today it sticks in Judge Berman's throat.
 

joe dokes

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dcmissle
On a legal point, I have been persuaded since the day the Wells Report was released that "generally aware" would never fly. It's unreasonable per se.
 
You and me both.  And, as you suggest, that's probably why Goodell, in his "appellate" decision, and the NFL, now, have forsaken that conclusion and are going with "Brady called the Code Red."
 
This gets into a tricky (for me) area of admin law. In Social Security, for example, cases generally go from an ALJ to the district court.  And unlike a typical civil case, where the court of appeals can affirm "on any basis apparent from the record," a district court hearing an SS appeal can only consider the rationale used by the agency (not limited to SS cases; most appeals of admin rulings work that way).. 
 
I have been assuming that Goodell's appellate ruling ("Brady did it") is the one before the court. But Berman's "then why didn't they say that" comment in resposem to Nash saying that Brady was directly involved, goes to a "generally aware" verdict.
 
Any admin brethren help shed some light here on which decision -- or maybe both, like immigration appeals can be -- is before Berman?
 

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joe dokes said:
 
You and me both.  And, as you suggest, that's probably why Goodell, in his "appellate" decision, and the NFL, now, have forsaken that conclusion and are going with "Brady called the Code Red."
 
This gets into a tricky (for me) area of admin law. In Social Security, for example, cases generally go from an ALJ to the district court.  And unlike a typical civil case, where the court of appeals can affirm "on any basis apparent from the record," a district court hearing an SS appeal can only consider the rationale used by the agency (not limited to SS cases; most appeals of admin rulings work that way).. 
 
I have been assuming that Goodell's appellate ruling ("Brady did it") is the one before the court. But Berman's "then why didn't they say that" comment in resposem to Nash saying that Brady was directly involved, goes to a "generally aware" verdict.
 
Any admin brethren help shed some light here on which decision -- or maybe both, like immigration appeals can be -- is before Berman?
 
I actually asked that--the issue of with there now being two rationales, which one would be operative or are both?--some time ago. 
 
The answer was very unclear, in large measure due to the fact that the commissioner here is not a normal arbitrator and did things that a "real" labor arbitrator wouldn't do.* As such, nobody has any real experience with such a situation. Perhaps there is some case law out there where an arbitrator rules on a difference basis, but if so, I haven't seen it.
 
 
*This is especially ironic given the NFL's arguments and cases cited that:
“A federal court may not second-guess” an arbitrator’s “conclusion that he was not bound by” a prior arbitration decision.
Are predicated on the special insight, experience, and understanding an arbitrator brings to the case--all of which appear founded on the assumption that the arbitrator is a pro.
 

Myt1

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That sort of language in judicial opinions is the height of question begging. See, e.g., Congress's fact finding prowess, Chevron deference, etc.
 

DennyDoyle'sBoil

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There is no Rev said:
 
So what the hell is the "law of the shop" if it is so weakly binding? Or, in effect, not truly binding at all so much as information that an arbitrator may do with as he or she pleases.
 
 
I'm not a labor lawyer, but I'll take a shot at something of an answer here, because it does seem to me to be a very sharp divide between the NFL and the NFLPA.
 
The Supreme Court tells us that in reviewing an arbitration award to decide whether or not the award draws its essence from the CBA, courts must look not just to the four corners of the CBA, but also to "industrial common law," which I guess also has been simplified to "law of the shop."  On their face, they are not synonyms.  If you consider what the "law of the shop" means, I think you can maybe get the gist.  Without looking at any cases, my sense just from the plain language and what I think the Supreme Court was talking about, is to imagine a case where a welder gets fired for not wearing the right mask.  But it turns out that's a very loosely enforced requirement in the actual shop.  There's language in the CBA that permits termination for "serious" safety violations.  Do you defer to the arbitrator's ruling, or do you take into account "law of the shop" to give meaning to the word "serious"?
 
Ok, so how do we get from there to arbitral precedent?  Well the words "industrial common law" are interesting.  They suggest inquiry into not only what goes on in the shop, but how what goes on in the shop is interpreted and understood through the grievance process.  
 
So, I think that sets up the tension between the NFL's position and the NFLPA's position in this case.  On the one hand, you have the premise that legal interpretations are relevant to determining the law of the shop.  On the other, you have some law that says arbitrators are not bound by what prior arbitrators have done.  (The Wackenhut case is for shit, but some of the other cases the NFL cites are more serious -- the arbitrator is generally given discretion to decide whether to follow prior precedent, so long as that authority is reasonably inferred from the CBA.)  So, which of these provisions governs?  When is prior precedent more than just precedent and when does it become "law of the shop"?  The NFL's argument seems to be "never."  That can't be right.  But does Peterson, etc., rise to the level of law of the shop?
 
Well, Doty certainly interprets law of the shop that way, and I think Kessler is right to argue collateral estoppel.  Whatever the merits of the argument precisely, it seems unseemly to say the least that the NFL has repeatedly gotten its ass kicked under law of the shop theories before another district court judge, and now they are basically saying law of the shop doesn't really exist in the manner the NFLPA claims.  What's the answer here?  Dunno.  It's gray, for sure.  There is room for Berman to accept the NFL's arguments on either of two grounds -- that this is mere arbitral precedent that does not rise to the level of law of the shop, or that under Second Circuit law, Goodell had authority to decide the weight to be given to prior cases in deciding whether to accept them as law of the shop or to distinguish them.  Or to accept Brady's argument -- that these are precedents that comprise the law of the shop to which the NFL is bound.
 
Now, of course, even if Brady gets by that hurdle, he has a remaining hurdle.  He has to show that Peterson, etc., is on point here -- that Goodell's enhancement of the basis for punishment above "generally aware" can be equated to punishing under a rule that didn't exist at the time of original punishment.  I think the NFL is on much more solid ground here.  I could easily see Berman saying, "the whole dispute about what is arbitral precedent and what is law of the shop is really fascinating, but I don't need to reach it, because Peterson doesn't apply here."  What Kessler has done pretty well, though, is change the battle ground so that at least as presently positioned, battle appears to be joined on the first issue (where he is stronger) than on the second issue (where he is not).
 

WayBackVazquez

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There is no Rev said:
 
OK, but then the thing is that Goodell said he did consider the law of the shop and the NFL brief points to where he addresses it in his ruling (Award). Of course, Goodell's finding was that it didn't apply because this offense was something totally original and not like anything that discipline had been issued for before.
 
It seems, then, that the issue would become how the judge goes about considering if the arbitrator really did consider the law of the shop or is just giving lip service to having done so. That seems legally difficult to do, though I suppose not impossible--like (in an extreme example) perhaps a finding that no reasonable person considering the law of the shop could come up with what such and such arbitrator did.
 
I think it has been mostly covered, but yes, that's just about it. It's really what level of deference the district court judge should give the arbitrator's claimed interpretation of the common law of the shop. It seems from the NFL's cases cited above that the standard of review is not de novo. The NFLPA would seemingly argue that Goodell's attempts to distinguish the law of the shop were actually "manifest disregard," or at least "clear error," which should have the same result as failure to consider.
 
So my summary would be:
  1. Per the Supreme Court in the Steelworkers Trilogy, the "common law of the shop" essentially becomes part of the CBA.
  2. If it is completely ignored by the arbitrator, the award thus "fails to draw its essence" from the CBA, and must be vacated. See Trailways Lines v. Trailways, (8th Cir.).
  3. NFL argues that it did consider law of the shop, but distinguishes the cases cited by Brady, and in its discretion and sound judgment, determined other cases (eg steroids) are more on point.
  4. NFL says, like Goodell's interpretation or not, he considered the law of the shop, and he was collectively bargained for as an arbitrator presumably based on his specialized knowledge of this industry. So you can't second guess him, Mr. Federal Judge.
  5. NFLPA says Goodell is only claiming to have considered the law of the shop to cover his tracks. His claimed application is so far off as to have no connection to reality and is thus equivalent to not having considered it at all. (Manifest disregard, or clear error.) (The real question here is whether there is any Second Circuit case law to this effect. This may where be where Berman would have to fly blind, which could explain some of his fervor to settle.)
 
Based on reports of Judge Berman's questioning about the steroid policy, it seems he is at least giving the NFLPA's argument some thought.
 

wutang112878

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Considering this exchange (via Stephen Brown) :
 

Berman's next point was heavy on legalese, but seemed very important.
 
He grilled Nash on why the Brady team wasn't able to call Jeff Pash (need to doublecheck that name) wasn't allowed to be called as witness.
 
Berman: "I don't understand the thinking to not allow Mr. Pash as a witness. Who else but Pash had the opportunity to edit the Wells Report?
 
Berman: The NFL "cannot just conclude they cannot have a witness bc testimony would be cumulative."
 
Berman: "I believe some arbitration awards have been vacated" because a witness was not allowed to be called without explanation.
 
Berman: "There are some basic procedures of fairness that have to be followed.... You got to let someone make their case."
 
 

 
Brown's take was: 

My impression: Berman tipped his hand a bit to NFL in an effort to make the sides settle.
 
After the first hearing, my take was that Berman was primarily pushing the NFL because they were the least willing to negotiate in settlement talks.  But in this exchange, while he was pushing the NFL, it seemed he was really providing insight as to the legal reasons why he could rule against them.  Which makes me believe this is a little different than the rhetoric of the first hearing.  
 
Does anyone with actual experience with these things actually feel the same way??
 

WayBackVazquez

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WayBackVazquez said:
 
I think it has been mostly covered, but yes, that's just about it. It's really what level of deference the district court judge should give the arbitrator's claimed interpretation of the common law of the shop. It seems from the NFL's cases cited above that the standard of review is not de novo. The NFLPA would seemingly argue that Goodell's attempts to distinguish the law of the shop were actually "manifest disregard," or at least "clear error," which should have the same result as failure to consider.
 
***
 
NFLPA says Goodell is only claiming to have considered the law of the shop to cover his tracks. His claimed application is so far off as to have no connection to reality and is thus equivalent to not having considered it at all. (Manifest disregard, or clear error.) (The real question here is whether there is any Second Circuit case law to this effect. This may where be where Berman would have to fly blind, which could explain some of his fervor to settle.)
 
***
 
Based on reports of Judge Berman's questioning about the steroid policy, it seems he is at least giving the NFLPA's argument some thought.
 
I just looked at the Second Circuit case the NFL cites on Page 7 of its brief:
 

Under the governing standard of review, the Commissioner’s interpretation of Bounty cannot be a basis for vacatur. See Connecticut Light & Power Co. v. Local 420, Int’l Bhd. of Elec. Workers, 718 F.2d 14, 20 (2d Cir. 1983) (alleged “inconsistency” between awards is no ground for vacatur).
 
 

I don't think this case is that helpful for the league, and seems to me to suggest that Judge Berman has a good deal of leeway here even if he decides Goodell's decision was otherwise valid under the CBA:

 
Where inconsistent awards have been made, and a need for resolving the conflict is evident, the court must, as the first step, determine whether each award, viewed separately, draws its essence from the contract. See United Steelworkers v. Enterprise Wheel & Car Corp., supra, 363 U.S. at 597, 80 S.Ct. at 1361 (arbitration award legitimate only so long as it draws its essence from the collective bargaining agreement). If one does and the other does not, an appropriate order following the interpretation of the former should be entered. However, if each award, when viewed separately, has a sufficient basis in the contract to survive the Enterprise Wheel test, the reviewing court must move to the second step and select that interpretation which most nearly conforms to the intent of the parties.
 
 
 

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Great summary, WBV.
 
I'd just add that I suspect the possible lack of 2d Circuit precedent on "clear error" reversal might be why Berman pressed the NFL on why Pash was not made available for questioning at the hearing. My bet (without looking, admittedly) is that there is 2d Cir. precedent that not allowing an arbitral party to fully present its case is a valid ground for vacatur. He's trying to signal that there might be a backdoor way for him to rule against the NFL without reaching the deference question, probably in an attempt to spur the NFL on settlement.
 

edmunddantes

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WayBackVazquez said:
 
I think it has been mostly covered, but yes, that's just about it. It's really what level of deference the district court judge should give the arbitrator's claimed interpretation of the common law of the shop. It seems from the NFL's cases cited above that the standard of review is not de novo. The NFLPA would seemingly argue that Goodell's attempts to distinguish the law of the shop were actually "manifest disregard," or at least "clear error," which should have the same result as failure to consider.
 
So my summary would be:
  1. Per the Supreme Court in the Steelworkers Trilogy, the "common law of the shop" essentially becomes part of the CBA.
  2. If it is completely ignored by the arbitrator, the award thus "fails to draw its essence" from the CBA, and must be vacated. See Trailways Lines v. Trailways, (8th Cir.).
  3. NFL argues that it did consider law of the shop, but distinguishes the cases cited by Brady, and in its discretion and sound judgment, determined other cases (eg steroids) are more on point.
  4. NFL says, like Goodell's interpretation or not, he considered the law of the shop, and he was collectively bargained for as an arbitrator presumably based on his specialized knowledge of this industry. So you can't second guess him, Mr. Federal Judge.
  5. NFLPA says Goodell is only claiming to have considered the law of the shop to cover his tracks. His claimed application is so far off as to have no connection to reality and is thus equivalent to not having considered it at all. (Manifest disregard, or clear error.) (The real question here is whether there is any Second Circuit case law to this effect. This may where be where Berman would have to fly blind, which could explain some of his fervor to settle.)
 
Based on reports of Judge Berman's questioning about the steroid policy, it seems he is at least giving the NFLPA's argument some thought.
And that Manifest disregard part is kind of funny.
 
NFL forum shopped their way out of a circuit that doesn't allow for the manifest disregard point into a circuit that does still allow it. 
 

joe dokes

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The answer was very unclear, in large measure due to the fact that the commissioner here is not a normal arbitrator and did things that a "real" labor arbitrator wouldn't do.* As such, nobody has any real experience with such a situation. Perhaps there is some case law out there where an arbitrator rules on a difference basis, but if so, I haven't seen it.
 
 
One analog that comes to mind is the immigration context, where the Board of Immigration Appeals gets the first crack at an ALJ's ruling.  If the BIA adopts the ALJs rationale but adds its own, the Court of Appeals (which has direct review) review both the ALJ and the BIA. I'm not satisfied that the analogy holds under these circumstances, but its the best I can come up with.
 
 
After the first hearing, my take was that Berman was primarily pushing the NFL because they were the least willing to negotiate in settlement talks.  But in this exchange, while he was pushing the NFL, it seemed he was really providing insight as to the legal reasons why he could rule against them.  Which makes me believe this is a little different than the rhetoric of the first hearing.  
 
Does anyone with actual experience with these things actually feel the same way??
 
 
I still think settlement is Berman's goal. And while the rhetoric was a little stronger, it seems he was exploring the same general areas of weakness in both public hearings. When I take a step back, the weaknesses Berman identifies are the same ones we've identified, the same ones the NFLPA has gone after and the ones the NFL knows about. So not trying to parse too  much, but I agree that those areas are the legal areas that he would rely on to vacate; but I don't see it as much new insight into those reasons.  I don't see the heightened rhetoric is being indicative of much other than this is his last shot to jump start settlement, and that this was the actual hearing on the motion," rather than last week's "thing that happened in open court after settlement talks,"  so questioning is naturally a bit more aggressive.
 

yeahlunchbox

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In the event that the NFLPA wins this round and the NFL appeals, who has the advantage on the appeal? Right now the NFL has the advantage due to deference to the arbitrator. On appeal would they still have that advantage, or would the NFLPA have the advantage due to deference to Judge Berman's ruling?
 

Myt1

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Absent a weird wrinkle, Berman's finding of fact would be granted deference (not overturned unless "clearly erroneous", IIRC) by the 2d Circuit, but his legal conclusions would be reviewed de novo: that is, they wouldn't get any deference and the 2d Circuit would do its own legal analysis.
 

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Is Berman authorized to engage in fact finding?  Doesn't he have to accept the record below and interpret it?  If so, isn't the appeal entirely de novo?
 

DennyDoyle'sBoil

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Koufax said:
Is Berman authorized to engage in fact finding?  Doesn't he have to accept the record below and interpret it?  If so, isn't the appeal entirely de novo?
He hasn't taken any evidence to date so it's hard to see how he could decide anything at this point in a way that would be reviewed for clear error on appeal.

He could theoretically do something that would be reviewed for abuse of discretion in appeal -- like decide a party has not complied with an order and sanction them or draw an inference. But that seems unlikely at least so far.

I suppose the loser could contest his pressure to settle and say it infected the proceeding somehow. Depending on how that argument is pitched it could be considered different ways on appeal, but all would likely be under an abuse of discretion standard of review.
 

Myt1

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TheoShmeo said:
Clearly erroneous/de novo is correct.  What kind of weird wrinkle are you referring to?
Stuff like the question that came right after: arbitration-review specific wrinkles on the standard of review that may exist that I'm not aware of off the top of my head. Habeas review has some similar tweaks with deference still being owed to the state court's decision, even after the district court rules, so I didn't want to completely foreclose that possibility in my ignorance.
 

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Shifting gears again, briefly, to a point made Sunday, which I reiterated Wednesday:

Is it curious to anybody else that ESPN had to be bludgeoned by the Pats before it pulled the false report that Pats taped Rams' SB walk through and that this came up yesterday? And how bizarre is it that we see today comments from Peyton Manning that he operated on the presumption that the Pats bug vistor's locker room?

People who think they are going to win do not behave like this, if they behave like this ever.

It is all quite amazing. And in my estimation, the court, if it is paying attention, clearly sees the purpose in this.
 

DennyDoyle'sBoil

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For the non-lawyers, standard of review on appeal will depend on what the judge does not necessarily on the type of proceeding. One appeal can have multiple standards of review. A different standard of review is applied to each thing the judge did that is challenged by the appellant.

If he makes a ruling of law or applies the law to a set of facts that neither party contested, the sor is de novo (no deference).

If he makes a factual finding based on disputed evidence, his ruling stands unless he makes a clear (reasonably obvious) error. Unless the judge takes evidence, even if it sounds like he is deciding a fact, he's probably not and in any event the court of appeals is in just as good a position to review the record as he is, so no deference is required.

For discretionary acts the judge chooses to take -- to hold a hearing, refuse to admit evidence, refuse to allow supplemental briefing, -- he is reviewed for abuse of discretion.

It can get complicated though. If a judge refuses to allow a hearing because he thinks the law prohibits it, that would really be a legal ruling reviewed de novo.
 

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I'm on record as saying that I don't think that Berman is inclined to order any discovery. But if he does, especially on matters that the NFL claims are privileged, I wonder if the NFL would seek to stay the matter for an interlocutory appeal to the 2d Circuit.

Wheee!
 

DennyDoyle'sBoil

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Myt1 said:
I'm on record as saying that I don't think that Berman is inclined to order any discovery. But if he does, especially on matters that the NFL claims are privileged, I wonder if the NFL would seek to stay the matter for an interlocutory appeal to the 2d Circuit.

Wheee!
 
For what it's worth, I don't think in federal court you can seek interlocutory review of an order to produce documents you think are privileged if you're a litigant to the proceeding.  (The rule is different if you're a third party ordered to produce privileged documents under a 1918 case.) In most circuits, including the Second, an order to produce documents you believe are privileged does not meet the collateral order doctrine -- an exception from the rule that only final judgments can be appealed.  That leaves only Mandamus, and finding cases taking Mandamus jurisdiction in order to review a discovery order on privilege grounds is rare as a black swan.
 
So, in this case, the NFL's only option would be to comply or to refuse to comply and go into contempt.  An order of contempt can be appealed, so that would be their only avenue into the Second Circuit.  But they wouldn't get a stay in that case.  If you get a stay, you're not in contempt any more, and so the court of appeals' jurisdiction arguably disappears.  And if you're in contempt, there's nothing to stay since you're deliberately not complying.  (Though, effectively, the NFLPA might decide not to proceed without the docs, so it's the same as a stay.)  The problem with getting to the court of appeals this way is that if you lose, you've been in contempt -- maybe at that point you immediately comply and fall on your sword so the court doesn't impose any contempt sanctions against you. But, especially if the court holds your lawyers in contempt, it's not a position that anyone really wants to be in.  
 

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DennyDoyle said:
 
For what it's worth, I don't think in federal court you can seek interlocutory review of an order to produce documents you think are privileged if you're a litigant to the proceeding.  (The rule is different if you're a third party ordered to produce privileged documents under a 1918 case.) In most circuits, including the Second, an order to produce documents you believe are privileged does not meet the collateral order doctrine -- an exception from the rule that only final judgments can be appealed.  That leaves only Mandamus, and finding cases taking Mandamus jurisdiction in order to review a discovery order on privilege grounds is rare as a black swan.
You should see my aviary. :)

I actually represent a third-party in the case (and don't care about the appeal of this issue), so I don't know if it's up at the First Circuit on mandamus or not. 
 

dcmissle

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So there is a report in the other thread that our judge asked Mara to negotiate with Brady. Mara declined, citing the Dallas game.

So if this is true, Berman has figured out who is really calling the shots. He may have identified Barzini.

Very bad news for the NFL imo
 

AB in DC

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Someone in the main thread likened this to a Judge asking the Board of Diretors to broker a settlement that the CEO isn't willing to undertake.  That seems like an apt comparison to me.  But has anyone seen a request like this before?
 
This leak doesn't really make sense to me.
 

dcmissle

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Yes. I have seen it.

You don't see it a lot because most people have more sense than to waste the time of judges, as 31 owners have done contemptuously in this instance.

My guess is Goodell has not budged an inch: I will consider cutting the suspension only after Brady cops to the Wells report -- (which, as I noted, would represent a victory that would be beyond the NFL's grasp if it WINS this case.)

So the judge has concluded, quite reasonably, that RG is history's most highly compensated puppet.
 

Rheal With Cheese

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One thing that came up yesterday that I can't figure out w my lawyer brain - did the NFL attorney yesterday step in it by responding to the "how did you get to 4 games" line of inquiry from Berman with a comment that some owners wanted 8?

I know the CBA is slanted in favor of the league but can the selected arbitrator really admit to "consulting" with principals of one side of the bargaining unit (here management) about what penalty should be selected for someone (player) on the other side of the CBA during the pendency of the grievance/appeal? Is this more ammo, but not enough to win, for the union's "fairness" attack on this sham due process.

Can someone explain to me how the NFL side would spin the "consulting with owners is permissible"?

The fact that the Mara report came out one day later and the rumor from the guy on penalty announcement day by Vincen-- I mean the agent for Goodell who was too busy to sign his own decision - about some powers that be presumably tight w others in corporate New York wanting 8 games....it just bothers me. I know today's rumor is about Mara as possible mediator but something about it just seems relatively more off, even considering the imbecilic history and twists of this GATE controversy.
 

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Rheal With Cheese said:
The fact that the Mara report came out one day later and the rumor from the guy on penalty announcement day by Vincen-- I mean the agent for Goodell who was too busy to sign his own decision - about some powers that be presumably tight w others in corporate New York wanting 8 games....it just bothers me. I know today's rumor is about Mara as possible mediator but something about it just seems relatively more off, even considering the imbecilic history and twists of this GATE controversy.
I think "Mara as possible mediator" is a garbled version of what likely has happened: see certain posts in the main thread today. Mara was wanted as the unconflicted, true decision maker as chair of the NFL Management Council, the party adversary to the NFLPA at Goodell's appellate hearing. Goodell has been smoked out, perhaps by a "judicial admission" by NFL counsel, as trying to be both the true adversary of the PA in this matter and the arbitrator whose impartiality is at issue. Might Judge Berman be warming up to use the "fact" of this judicial admission in ruling on the merits?
 

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Thinking aloud, and feel free to whack the post if it is beyond stupid (legally speaking):
 
Florio indicated the suit is really titled "National Football League Management Council v. National Football League Players Association".  Roger is their figurative head, but clearly Berman (in the absence of settlement movement) wants to talk with the man/men behind the curtain.  Is he within his judicial rights to order the entire Management Council into court?  If so, can he further order production of documentation of communications between the Council members and Roger/Pash?  I understand attorney client privilege, but is there something there that Berman could go after if he were so inclined to scare the bejeesus out of the Management Council?  Perhaps an argument could be made that if the Management Council has been driving the train from the caboose the whole time it demonstrates the commissioner isn't acting as an arbitrator rather as a puppet.
 
I don't care if it happens, just wondering if legally it's possible or plausible.  And if he did do something in this vein, does it open a whole can of reversal on appeal worms after the fact.  I'll hang up and listen.
 

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Rheal With Cheese said:
One thing that came up yesterday that I can't figure out w my lawyer brain - did the NFL attorney yesterday step in it by responding to the "how did you get to 4 games" line of inquiry from Berman with a comment that some owners wanted 8?

I know the CBA is slanted in favor of the league but can the selected arbitrator really admit to "consulting" with principals of one side of the bargaining unit (here management) about what penalty should be selected for someone (player) on the other side of the CBA during the pendency of the grievance/appeal? Is this more ammo, but not enough to win, for the union's "fairness" attack on this sham due process.

Can someone explain to me how the NFL side would spin the "consulting with owners is permissible"?

The fact that the Mara report came out one day later and the rumor from the guy on penalty announcement day by Vincen-- I mean the agent for Goodell who was too busy to sign his own decision - about some powers that be presumably tight w others in corporate New York wanting 8 games....it just bothers me. I know today's rumor is about Mara as possible mediator but something about it just seems relatively more off, even considering the imbecilic history and twists of this GATE controversy.
My take is that Goodell is allowed to take calls from owners and listen to them.  Telling us that some owners wanted 8 games could mean that Joe Blow Owner called Goodell and said that.  We don't exactly know that Goodell convened the star chamber to solicit views and hash it out.
 
I will leave to others whether doing that would be problematic.  My inclination is that it would not be be that big of a deal because Roger clearly works for the owners (and indeed that's why Berman wants to involve them in negotiations, or one reason why), but my main point is that I don't think he is required to not listen to their views on this subject or any other matter while the matter is going on.
 

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TheoShmeo said:
My take is that Goodell is allowed to take calls from owners and listen to them.  Telling us that some owners wanted 8 games could mean that Joe Blow Owner called Goodell and said that.  We don't exactly know that Goodell convened the star chamber to solicit views and hash it out.
 
I will leave to others whether doing that would be problematic.  My inclination is that it would not be be that big of a deal because Roger clearly works for the owners (and indeed that's why Berman wants to involve them in negotiations, or one reason why), but my main point is that I don't think he is required to not listen to their views on this subject or any other matter while the matter is going on.
I understand that answer and I'm willing to accept it, but if RG fielded calls from owners about their opinion as to why Brady should be suspended for 0, 4, 8 16 games, and those conversations somehow informed his decision (not 100%, but by some measurable amount), does the fact that Brady was not given access to those communications present a problem for the NFL?  i.e.  defendant not being able to confront his accusers (understanding this was an administrative process, not a civil/criminal one).
 

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You raise a good point, Bleedred.  This looks more and more like a Star Chamber proceeding.
 

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I agree that it would go to the issue of evident partiality.

What I'm stumbling over a bit (having done no research into the issue) is what happens when parties to a CBA agree to grant arbitral power to someone who probably is, per se, evidentially partial.

That is, partiality is usually something that's hidden, like an arbitrator having a financial interest in a case or something. But when the partiality should have been obvious at the time of bargaining, I could understand the notion that the side giving up the right to an impartial arbitrator must have been compensated for that exchange somehow within the larger CBA. And it's tough to unravel the exchange to only give one party the benefit of it.
 

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Myt1...Rather than bias or partiality, would Bleedreds point go more toward Goodell, regardless of how his power is defined, deciding the matter based on (sort of) evidence not in the record?  
 
So while the PA knew that Goodell is partial in the sense that he works for the owners, and they nevertheless gave him the powers they gave him, I don't think any arbitrator or admin hearing officer (or whatever RG is here), no matter how powerful, can rely on ex-parte stuff like that. 
 

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Myt1 said:
What I'm stumbling over a bit (having done no research into the issue) is what happens when parties to a CBA agree to grant arbitral power to someone who probably is, per se, evidentially partial.
 
 
I don't think it happens that often.  I posted at one point in this thread that I would have thought there must be cases in which parties to an arbitration agreement give one of the parties the right to arbitrate a dispute, but if there was such a case, I suspect Kessler or the NFL would have found it.  My expectation would be that in such a case, I would expect there to be some law relaxing the arbitration standards, or at least suggesting that you're already a bit of the way down the road toward overcoming presumptions.  There is a body of law about compelling arbitration for non-mutual arbitration clauses (where one party can invoke arbitration but the other cannot).  Usually there are very strong presumptions in favor of interpreting arbitration agreements to cover disputes, but in the case of non-mutual arbitration those standards are relaxed.  I could see a similar principle for arbitration agreements where one party is assigned as the arbitrator.
 
But, without law, if I were a judge writing on a clean slate and trying to answer the question you pose, here would be my big picture thoughts.  First, the agreement does not compel Roger to sit.  It only gives him the option, in lieu of a neutral arbitrator.  I think a potential reasonable interpretation of the CBA in such a case is that he can only elect to sit where he can do so without partiality.  Nothing in the CBA purports to waive protections under federal arbitration law or the NLMRA.  That may mean the only types of cases in which he can sit is a small subset, but that's certainly not inconsistent with the CBA.  If he guesses wrong, that's on him -- he had the opportunity to use a neutral so he cannot be heard to say that in all cases the CBA compels the danger of partiality.
 
Second, even if we grant that the CBA authorizes (encourages?) some level of partiality, that doesn't mean everything is fair game.  There may be a certain level of structural partiality inherent in the situation, but that doesn't mean that the league must simply dispense with any pretense of partiality.  Again, the FAA says what it says, and the agreement nowhere purports to dispense with it.  If anything, when the Commissioner elects to sit, he must turn even more square corners to ensure that the structural partiality elements do not become actual bias.  That might include, for example, setting up screens, or hiring independent legal counsel.  Moreover, it requires a recognition of a true and demonstrated separation between the two roles -- that is, when he's wearing his hat as commissioner deciding punishment, he may have to place limits on himself to avoid improper considerations leaking into his arbitration role.
 
The tl;dr version of this.  I probably would hold that the commissioner's authority to wear both hats should be, for the most part, limited to cases in which there is no underlying fact dispute and his role or primary role is to assign punishment.  Where he must sit as a judge in order to impose discipline by deciding between two disputed versions of events, the difference in role between commissioner and neutral arbitrator is hopelessly intertwined and he must appoint a neutral. 
 

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A narrow legal question: Would vacatur simply on the exclusion of Pash as a witness (=unfair process} stand up to 2nd Circuit review? Would that be pretty solid ground?
The NFL would argue he was not important; and Kessler (and Berman) would say his communications with Wells could be a thumb on the scale of justice--we need to know.
 

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Bleedred said:
I understand that answer and I'm willing to accept it, but if RG fielded calls from owners about their opinion as to why Brady should be suspended for 0, 4, 8 16 games, and those conversations somehow informed his decision (not 100%, but by some measurable amount), does the fact that Brady was not given access to those communications present a problem for the NFL?  i.e.  defendant not being able to confront his accusers (understanding this was an administrative process, not a civil/criminal one).
 
 
On a related note, might it be of some interest/significance if the Commish never hears from owners on most disciplinary decisions yet was lobbied hard on the Brady one?
 

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Myt1 said:
I agree that it would go to the issue of evident partiality.

What I'm stumbling over a bit (having done no research into the issue) is what happens when parties to a CBA agree to grant arbitral power to someone who probably is, per se, evidentially partial.

That is, partiality is usually something that's hidden, like an arbitrator having a financial interest in a case or something. But when the partiality should have been obvious at the time of bargaining, I could understand the notion that the side giving up the right to an impartial arbitrator must have been compensated for that exchange somehow within the larger CBA. And it's tough to unravel the exchange to only give one party the benefit of it.
 
IANAL, but this has been bugging me too all along from a layman's perspective.  I understand that evident partiality is a legal standard and there are certain ways in which it must be proven or disproved.  But from a common-sense perspective of an outsider, that Goodell is partial to one side in the dispute seems clear as day.  Indeed, that's arguably the entire point of the way the system was set up by the league. 
 
So the real question to me seems to be less whether or not the "arbitration" system is farcical and slanted immensely against the players (obviously) and more about whether or not that's just tough luck if the players agreed to it.
 

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Bleedred said:
I understand that answer and I'm willing to accept it, but if RG fielded calls from owners about their opinion as to why Brady should be suspended for 0, 4, 8 16 games, and those conversations somehow informed his decision (not 100%, but by some measurable amount), does the fact that Brady was not given access to those communications present a problem for the NFL?  i.e.  defendant not being able to confront his accusers (understanding this was an administrative process, not a civil/criminal one).
Good question. 
 
The reason why I don't think Brady/NFLPA would get much mileage from that avenue is that those communications did not constitute facts in the record but rather opinions.
 
That is not a complete answer but I think that Berman or an appellate judge (or judges) would appreciate that RG is given the power to judge these sorts of matters under the CBA and at the same time he is the Commish.  If the players wanted a neutral party, and wanted someone whose role did not involve conversations with his bosses, they should have negotiated something different in the CBA.  In short, I think courts would view this as part of the strange reality of the situation, and would therefore not make it a big part of any ruling.  Again, that Berman raised involving Mara demonstrates that he knows that RG's views are informed by, and maybe totally informed by, the views of the owners.
 
 
 

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lambeau said:
A narrow legal question: Would vacatur simply on the exclusion of Pash as a witness (=unfair process} stand up to 2nd Circuit review? Would that be pretty solid ground?
The NFL would argue he was not important; and Kessler (and Berman) would say his communications with Wells could be a thumb on the scale of justice--we need to know.
 
I think there's a missing ingredient here about a possible appeal to the Second Circuit that has gone unsaid so far in this thread.  Both sides can appeal.  If Berman grants on one ground, but denies on the others, the NFL could appeal on the ground on which relief was granted, but the NFLPA also might (depending on how the opinion is written) be able to appeal the grounds on which relief was denied.  In short, in a case of a partial win, there may be an avenue to get the Second Circuit to go further than Berman does (for either side). The law about when the "successful" party can cross appeal is complicated, and it depends very much on the way the lower court decision is written, so it's far too abstract to say much about, other than that.
 
To answer your question directly, if that were the basis for a decision by Berman, I would think whether or not it would stand up to Second Circuit review depends on how well Berman (and in his briefs, Kessler) could articulate the relevance of the testimony to one of the bases for challenging an arbitration award.  Gut tells me that vacating solely on that ground would be a tough one to get affirmed, but not impossible.  I think it's likely not going to happen.  Even if it stands on appeal, the likely result would be a new hearing before Goodell at which Pash would be compelled to testify.  Berman is probably smart enough to know that's a waste of time.
 

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Without wearing rose-colored glasses, is it the opinion of the lawyers who have practices most similar to the practices of the attorneys in this case, that Kessler is a master at what he does, and is the superior lawyer here?  Not by leaps and bounds necessarily, but reading his questions in the transcripts, his memoranda of law; his formulation of the legal arguments, his limited doses of humor and quickness on his feet, I can't help but think that TB and the NFLPA has the best lawyer money can buy and often the best lawyer in the room.  I've been really impressed.
 
Edit:  part of my motivation for asking is that DDB, Myt1, dcmissile, WBV, etc. originally were pretty pessimistic about the chance of a TB victory; and now it seems like most think that there's at least a 50/50 chance he prevails.   That's all on Kessler IMO
 

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Bleedred said:
Without wearing rose-colored glasses, is it the opinion of the lawyers who have practices most similar to the practices of the attorneys in this case, that Kessler is a master at what he does, and is the superior lawyer here?  Not by leaps and bounds necessarily, but reading his questions in the transcripts, his memoranda of law; his formulation of the legal arguments, his limited doses of humor and quickness on his feet, I can't help but think that TB and the NFLPA has the best lawyer money can buy and often the best lawyer in the room.  I've been really impressed.
 
Edit:  part of my motivation for asking is that DDB, Myt1, dcmissile, WBV, etc. originally were pretty pessimistic about the chance of a TB victory; and now it seems like most think that there's at least a 50/50 chance he prevails.   That's all on Kessler IMO
My practice is similar to Kessler's only inasmuch as I appear in federal courts and go up against incredibly talented lawyers.  And incredibly mediocre lawyers.  And incredibly bad ones.
 
With the caveat that I am only going by what I've read from online accounts, I think Kessler is terrific and Nash has seemed rather flat footed.  I think that the NFLPA/Brady's papers have been better too. 
 
It's true that Kessler and his Gibson Dunn "co-counsel" have the more compelling side.  It's easier to argue for the aggrieved party and even Kessler would have some trouble defending Goodell's shoddy conduct here.
 
But yeah, I agree that we should all feel pretty good about having Kessler on our side.  His demeanor from the podium is something to learn from.
 

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Bleedred said:
Without wearing rose-colored glasses, is it the opinion of the lawyers who have practices most similar to the practices of the attorneys in this case, that Kessler is a master at what he does, and is the superior lawyer here?  Not by leaps and bounds necessarily, but reading his questions in the transcripts, his memoranda of law; his formulation of the legal arguments, his limited doses of humor and quickness on his feet, I can't help but think that TB and the NFLPA has the best lawyer money can buy and often the best lawyer in the room.  I've been really impressed.
 
Edit:  part of my motivation for asking is that DDB, Myt1, dcmissile, WBV, etc. originally were pretty pessimistic about the chance of a TB victory; and now it seems like most think that there's at least a 50/50 chance he prevails.   That's all on Kessler IMO
It took a while for me to venture a guess (and believe me, it's no more than that) about where this would come out, and my views are based mainly on reading the judge in light of the filings. I have not done a deep dive into the applicable cases.

In a case of this magnitude, before a smart and experienced judge who appears to have time and undoubtedly has the assistance of able law clerks, resist the tendency to get caught up in the lawyering. It's not about that, at least not now, and it definitely isn't about performance art or style. it is safe to assume that this judge, having the benefit of the lawyers' work, is further along than anyone at this point. If you are a lawyer, you do the best you can and try to avoid shooting yourself in the head. The cake is pretty much baked.

In some cases, litigants get hosed by lousy lawyering. This is not one of those.
 

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joe dokes said:
Myt1...Rather than bias or partiality, would Bleedreds point go more toward Goodell, regardless of how his power is defined, deciding the matter based on (sort of) evidence not in the record?  
 
So while the PA knew that Goodell is partial in the sense that he works for the owners, and they nevertheless gave him the powers they gave him, I don't think any arbitrator or admin hearing officer (or whatever RG is here), no matter how powerful, can rely on ex-parte stuff like that. 
I see what you mean. I'm more taking the strange factual circumstances and trying to find out how the needle could ever be threaded.

Basically, here are my premises, of varying degrees of likelihood:

1. Parties to CBA approve of Goodell as arbitrator generally.
2. Goodell must have communications with management to do his job, even while disputes are being investigated, pending, or anticipated.
3. NFLPA knows and understands this.
4. Pending discipline is one of the issues that could be anticipated being discussed.
5. Goodell never likely to write or acknowledge that conversations with management impacted actual player punishment.
6. In that absence, is the mere fact that such an ex parte communication took place enough to show that he relied on evidence not in record?
7. If so we basically de facto created a rule of procedure.
8. I don't know if we should do that, given that most of this stuff was reasonably foreseeable at the time of bargaining.

MSF can comment more intelligently on this than I, but it's important to remember that CBAs aren't governed by normal contract law. They're basically "super contracts" and even the rules of interpretation are tweaked a bit.
 

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Kessler is obviously a brilliant lawyer. But Daniel Nash is probably among the ten best L&E attorneys in the country. Good facts or law and a seemingly sympathetic judge can make even mediocre lawyers look like geniuses.
 

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DennyDoyle'sBoil said:
 
Only on page 15 so far.
 
One very interesting observation by Kessler:  Gostkowski also refused to give over his phone and was not punished.
 
 
There's also the Jets equipment guy getting suspended for tampering with the K balls. No penalty to any player or even investigation on that one.
 

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Maybe your experience of representation are different from mine but find it hard to believe that good, experienced counsel could sit across from their client and counsel them on this course of action.  Sure, there is the possibility that that they said "Well Rodger, we understand your position and we think its flat out stupid" and he insisted they go along with it it, but I have to believe there was a general consensus that this would work.  I truly believe his counsel misread the landscape and made some critical errors.  
 
Say what you will about what goes on behind closed doors, but they were intimately involved in the writing/drafting of the Wells Report and initial discipline decision, as well the commissioners final judgment.  I firmly believe they needed to anticipate the legal issues raised by the NFLPA and countered them preemptively from the beginning, which they completely failed to do.  
 
I really don't think you can dispute that their legal team handled this poorly - which includes the involved of Pash in the editing of the report, and to questioning at the hearing.