Sons, Sam, and Horn, L.L.P.: Brady Case LEGAL ISSUES Only
- Thread starter WayBackVazquez
- Start date
Otis Foster said:
Although I don't know the caselaw in this area, your first point makes intuitive sense to me. The league has inadvertently underscored the lack of daylight between the arbitrator and the party seeking to confirm the arbitration result.
I disagree with the second point. The tenor would concern me IF the PA were staying in front of that judge. Since they're not, it doesn't matter. As a senior-status SDNY judge, Berman gives less than zero fucks about messages, coded or otherwise, from a district court judge from Minnesota, as far as his own decision on the merits goes.
So I just finished reading Kessler's motion, which is a pretty impressive document. I presume it gets revised and submitted to NY, and then the NFL replies. How long before we expect to see the NFL response?
There is no Rev said:
And I am not lawyer handed.
EDIT: I'm way behind. Wesley apparently will not be coming.
I haven't heard of that 2009 Jets incident before today. That's some big precedent there. Canning two ball boys but failing to cite the kicker (or even investigate him) really takes a bite of out of the NFLs case. The kicker would have the most benefit from a modified K ball, and they are involved in a good portion of the leagues scoring plays (field goals, but less so on PATs). Screams of integrity of the game is going to fall on deal ears.
Not for nothing but can we have 2 seperate threads? One that's strictly news and lawyer talk and the other game thread where we make jokes and mention stuff we didn't know?
There's a lot of good stuff in this thread that's being lost
There's a lot of good stuff in this thread that's being lost
RedOctober3829 said:
I find this order somewhat extraordinary. I don't practice in SDNY, maybe it's par for the course. But judges are rarely this explicit and when a judge uses bold, you have to assume he means what he's saying.
I would think the NFL would not like this sentence. This is essentially an appeal. The side that won and is defending a decision never wants to hear the judge suggesting settlement. It means the judge is prepare to suggest that the other side has merit. You don't want to hear that when you're trying to get an affirmance.
Think of this way. Suppose an arbitrator had lifted Brady's suspension entirely, and Brady moved to confirm the arbitration award. And imagine in the same week of filing, the judge issued an order actively encouraging Brady to settle. Would you regard that as a good thing? Nope.
I think this also matters with respect to a potential injunction. As others have mentioned, the two critical issues for whether the suspension will be enjoined are irreparable harm and likelihood of success on the merits. And it's a sliding scale. Any reasonable chance of winning will support an injunction if irreparable harm is obvious -- if you can't put the toothpaste back in the tube. Irreparable harm is manifest here. Any reasonable debate as to the merits will support an injunction. A judge taking the unusual step of issuing an order directing the parties to try to settle suggests either the judge has already determined there are two sides to the story or that the judge has gone off half-cocked.
Now, the judge may later change his mind. Or he may indeed have gone off half-cocked. But I think the Occam's Razor implication here is that the judge already believes he has at least a rudimentary sense that both sides potentially have something to lose here, making it appropriate to float settlement in a written order (with bold type). I would not regard that as welcome news were I one of the lawyers for the NFL.
DennyDoyle'sBoil said:
Agreed.
If it was clear to him that the NFL would prevail, he could simply order an expedited hearing to get this off his docket and let the 2d Circuit deal with it. The message seems clear: Both sides are at risk if this goes to a full hearing.
Bearing in mind that I'm not a litigator, would the NFLPA be able to get extensive discovery on the internal workings of the NFL process, e.g., did Goodell deliberately withhold the final award until the pleadings were finalized or would that be protected by work-product privilege?
That's good analysis, DDB--in fact, many judges will never say anything about settlement, because it creates a potential conflict of interest in the case. So when a judge comes out with a written order directing settlement efforts, it can take on a lot of weight. On the other hand, other judges are known as "settling judges," who insert themselves to try and find a resolution. I think Berman is more a settling judge than the kind of judge who stays above the fray, but I agree with you that the NFL should not be comfortable with that order. Of course, if they were acting rationally, they would know that this one has some elements of a toss-up to it, anyways, and look for settlement. But that doesn't seem to be a the front of leadership's mind.
There has been a lot of focus on the PA's incentive to settle (or Brady, to get a reduction to a fine with no suspension). If I'm the PA, I think I'm waiting for the NFL to come to me and talk settlement. This is now on a big stage in the S.D.N.Y. A favorable, impartial ruling is going to strengthen their hand. And they've got to believe they have the upper hand, with Kessel's submission, past precedent, and with Berman and his order.
Can the PA settle this without Brady's consent?
There has been a lot of focus on the PA's incentive to settle (or Brady, to get a reduction to a fine with no suspension). If I'm the PA, I think I'm waiting for the NFL to come to me and talk settlement. This is now on a big stage in the S.D.N.Y. A favorable, impartial ruling is going to strengthen their hand. And they've got to believe they have the upper hand, with Kessel's submission, past precedent, and with Berman and his order.
Can the PA settle this without Brady's consent?
What happens if the NFL offers to settle at 2-3 games? If the NFLPA / Brady's team says, "we won't take any games," is the judge going to view that as being uncooperative and that Brady's team is disregarding his order / direction? If Brady isn't willing to take any suspension, it seems like the NFL can position themselves as the adults in the room by offering a reduction. Or am I mis-reading this?DennyDoyle'sBoil said:
Interesting. The last pleading I looked at listed the NFLPA as a party. I didn't dig deeper to see if TB is also a party, but assume he is.
However, I have to believe it would be the other way around - TB wanting a settlement and the NFLPA wanting a brawl in the alley.
I don't see either happening.
Super Nomario said:
Not prejudicial. Berman's been around for a long time (senior judge) and knows that sometimes problems can't be reconciled. He just wants them to try again, knowing there's downside for each of them. And as noted, he wouldn't be privy to the settlement discussions. He's not a mediator.
Super Nomario said:
Settlement discussions are typically confidential, and take place without the judge's participation--the judge is telling the parties to engage, away from the courtroom, and try to resolve the dispute. But he doesn't have any power to require it. Settlement offers are not admissible for purposes of establishing a party's liability, though the fact of settlement discussions can find its way in (I think it's hard to see how that happens here, though, unless the parties each consent to discussing settlement efforts with the judge). I don't think it is likely to affect his views on the merits.
No. Judges will separate their rulings from your settlement position. They may think you are being foolish, but they are professional about it and will not punish you for insisting on a court resolutionSuper Nomario said:
This case is a bitch to settle. RG cannot walk back his decision or its rhetoric. TB is fighting for his reputation. Berman may not be able to give it back, but he is the only person on this planet right now who has any chance to do so.
Otis Foster said:
One ground to vacate an arbitration award is "evident partiality". This is pretty hard to show. Different circuits have different standards, but the Second Circuit standard as I understand it pretty demanding -- you need to show pretty strong indicators of bias. I think what likely will have to happen here is that the NFLPA will need to make a decent prima facie (initial) showing that on the facts a reasonable person could conclude there is the potential of arbitrator bias here. They have some good ammunition. If the judge accepts that, he probably will allow some discovery into bias -- though he has very broad discretion in what he allows and likely will not allow fishing expeditions. I should say that this is my general understanding of how it works under the federal arbtration act and the NLMRA might be different. Also, I don't actually know the standards for discovery into evident partiality in the Second Circuit so am giving my guess about what the law probably is, which should be taken with a bit of skepticism and not understood as my saying what the law actually is.
BroodsSexton said:
Good question. Was Brady actually a named plaintiff in the Minn action? I think technically if he never becomes a party in NY, he won't be needed to settle, but as a practical matter I doubt the union would do that.
Super Nomario said:
Judges usually stay out of knowing the details about what exactly is being offered, although this judge seems willing to try to act as a settlement judge if the parties want that help. There's always a danger that if a judge knows what each side is offering, he can hold that against them -- either because he thinks they are being unreasonable or because he views one side's offer as an admission of guilt or a confession of error. At this point, reading the few tea leaves we have, this discussion seems premature to me. I don't think we can make an informed judgment on anything like that at this point. My reaction was solely to the order itself and its suggestion that the judge at least sees the potential that there are two sides to this story -- as an appellate guy (and this is essentially an appeal) I don't like that if I'm on the winning side. And I especially don't like it if my opponent has a very high standard of review to overcome to win -- which Brady does here since arbitration awards are given deference.
dcmissle said:
Adding to the complexity in settling the case are the macro-level issues between the PA and the NFL. It's not just about Brady any longer, and if the PA genuinely believes that they have the NFL where they want it (i.e., in front of a neutral), they may well say "Thank you very much, Judge, but we would like a decision."
There is no Rev said:
If inclined or in his interest to do so, there should be procedural mechanisms by which Brady can join the case, or at least try.
IMO, the only thing that will save a shred of his reputation amongst rational observers is a determination that the so-called arbitration was fundamentally unfair and that the NFL is not entitled to make up rules as it goes along. Somehow, TB must establish that in essence, this was no arbitration, it was a kangaroo court that violated fundamental elements of even-handedness.
John and Jane Q. Public can understand that. I don't know quite how you get there, given the heavy presumption of finality given to arbitration awards.
John and Jane Q. Public can understand that. I don't know quite how you get there, given the heavy presumption of finality given to arbitration awards.
DennyDoyle'sBoil said:
I was assuming it might be a term of contract between the PA and its members, e.g., that if the union brings suit on behalf of a player, they must consult with the player on any settlement. I could imagine that there's a "subject to consent of the player, which will not unreasonably be withheld" type provision, or something like that.
dcmissle said:
Why would a settlement here need court approval? If the parties here reach a settlement tomorrow and agree to voluntary dismissal of the case, I don't think the judge has much to say.
No, that's not a reason why it was filed in NY. But he's not an appropriately named party; that's pretty clear under the law. The arbitration was taken on his behalf by the union, and they are the only party with standing to seek vacatur here.There is no Rev said:
And as such, I believe procedurally the union could settle without his consent. Whether they would do so, or whether doing so may open them up to some sort of breach of duty action later, is another story altogether.
Does the combination of the judge presiding over this case, some of the case precedents they have used, and the settlement order have you feeling better about Brady's chances than you did when the "destroyed" phone came out?dcmissle said:
WayBackVazquez said:
I think there likely would be a mechanism for him to try to intervene if he believed that the Union were not representing his interest. I'm not a labor lawyer, so there may be a labor law overview here that you're more familiar with, but for example, I think this sometimes happens in case brought by the EEOC where the discrimination victim attempts to intervene.
RedOctober3829 said:
Marginally.
One of the dangers for a lawyer is falling in love with your theory of the case. You need critical distance.
The PA still has a long road to travel. All I can say (guess) right now is that one of the obstacles has been nudged aside slightly.
Others?
I have to dial down on some Berman opinions, and have yet to review beyond the headlines what the union has filed. I would like to think about it more.RedOctober3829 said:
I do think they dodged a fatal bullet with Kyle. He is pro-business, old, pretty conservative and strikes me as exactly the kind of guy who could never get past the cellphone business. Union came damn close to filing a case DOA if that filing had stuck.
When I said yesterday -- I wonder if the NFL would voluntarily dismiss its SDNY complaint I was serious. I understand why they did not do it, but they must be ambivalent.
DennyDoyle'sBoil said:
How about using the first approximately 48 hours of this thing: Kensil's "fucking trouble" halftime comment and the behavior of NFL minions at the AFCCG, the leak to Kravitz (prescient on the eventual imposed penalties), the succeeding leaks (e.g., Mort's report) as showing that the NFL HQ had essentially come to a decision very quickly and then spent months and million of $ to buttress that decision (ignoring or not even looking into any conflicting evidence)?
Edit: Add in the so-called independent investigator actually serving as counsel for the NFL in hearings.
Addendum: How about the Commish seriously citing Brady's jocular exchange on WEEI with D&C at 7 AM about liking a deflated ball with Gronk scoring TDs Talk about working hard to get to a pre-ordained decision.
On my iPad on a plane, but you can read over the cases cited in the following, and those cited therein.DennyDoyle'sBoil said:
An individual employee represented by a union . . . generally does not have standing to challenge, modify, or confirm an arbitration award because he was not a party to the arbitration." Bryant v. Bell Atl. Maryland, Inc., 288 F.3d 124, 131 (4th Cir. 2002) (emphasis added).4 The one exception is when the union has breached its duty of fair representation. Id.; see also Florence v. Potter, 2003 WL 23892686, at *4 (M.D.N.C. 2003) (holding that a postal worker could not challenge an arbitration award where he had not alleged his union breached its duty of fair representation).5 Such a breach occurs where the union acts in a "discriminatory, dishonest, arbitrary, or perfunctory" manner. Bryant, 288 F.3d at 131 n.3 (quoting DelCostello v. Teamsters, 462 U.S. 151, 164 (1983)).
Basic case law on evident partiality, from Scandinavian Reinsurance Co. v. Saint Paul Fire and Marine Ins. Co., 668 F. 3d 60 - Court of Appeals, 2nd Circuit 2012 (and taken from google scholar)
The FAA provides that district courts may vacate an arbitral award "where there was evident partiality or corruption in the arbitrators, or either of them." 9 U.S.C. § 10(a)(2). In this Circuit, "evident partiality within the meaning of 9 U.S.C. § 10 will be found where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration." Morelite, 748 F.2d at 84 (internal quotation marks omitted). "Unlike a judge, who can be disqualified in any proceeding in which his impartiality might reasonably be questioned," Applied Industrial, 492 F.3d at 137 (emphasis and internal quotation marks omitted), "an arbitrator is disqualified only when a reasonable person, considering all the circumstances, would have to conclude that an arbitrator was partial to one side," id. (emphasis in original; internal quotation marks omitted). Proof of actual bias is not required, however. See United States v. Int'l Bhd. of Teamsters, 170 F.3d 136, 147 (2d Cir.1999). A conclusion of partiality can be inferred "from objective facts inconsistent with impartiality." Pitta v. Hotel Ass'n of N.Y.C., Inc., 806 F.2d 419, 423 n. 2 (2d Cir.1986). Of course, a showing of evident partiality "may not be based simply on speculation." Int'l Bhd. of Teamsters, 170 F.3d at 147; see also Three S Del., Inc. v. DataQuick Info. Sys., Inc., 492 F.3d 520, 530 (4th Cir.2007) (noting that the "asserted bias" may not be "remote, uncertain or speculative" (internal quotation marks omitted)).
The burden of proving evident partiality "rests upon the party asserting bias." Andros Compania Maritima, S.A. v. Marc Rich & Co., A.G., 579 F.2d 691, 700 (2d Cir.1978) (internal quotation mark omitted). In inquiring whether that burden has been satisfied, the court "`employ a case-by-case approach in preference to dogmatic rigidity.'" Lucent Techs. Inc. v. Tatung Co., 379 F.3d 24, 28 (2d Cir.2004) (quoting Andros Compania Maritima, 579 F.2d at 700); accord Applied Industrial, 492 F.3d at 137 (analysis takes into account "consider[ation of] all the circumstances").
The burden of proving evident partiality "rests upon the party asserting bias." Andros Compania Maritima, S.A. v. Marc Rich & Co., A.G., 579 F.2d 691, 700 (2d Cir.1978) (internal quotation mark omitted). In inquiring whether that burden has been satisfied, the court "`employ
I was never terribly concerned about the phone, because this case is now about the NFL's procedure, not about Bradys guilt or innocence. (though it was dumb to do and the optics are bad.) Stated another way, the PAs ability to show that the process was flawed doesn't depend upon Brady being innocent. Given the way the PA frames the issues in its brief, I am still bullish on the PAs chances here.Otis Foster said:
The NFL has some real risk in relying too heavily on the phone issue as well. The PA will be arguing to Berman that the NFL is essentially a rogue entity and repeat offender when it comes to arbitration practices and discipline, and to the extent it comes up, they will use the phone episode as an example of the kind of finger on the scale justice that the players are forced to endure. It's a double-edged sword for the NFL.
From the Kessler Motion as to the phone destruction:
90. "At the hearing, Brady explained that it was impossible to produce his past text messages because of his regular and long-standing practice of recycling his phones in order to protect his family's and friends' privacy. This is what Goodell cynically refers to in the Award as Brady "destroying" his phones (an accusation that was not a basis for the discipline imposed by Vincent). In any event, the hearing established -- through Brady's phone records, testimony, and the absence of any NFL evidence to the contrary -- that virtually all of the communications between Brady and Jastremski are discussed in the Wells Report, confirming that Paul, Weiss already had those text messages from other sources. For the few communications with Jastremski reflected on Brady's phone records but not referenced in the Wells Report, that is presumably because those communications are irrelevant, and Brady testified that such communications had nothing to do with the alleged ball tampering, and no incriminating documents were withheld. Indeed, the Wells report confirms that the NFL had full access to the phones from Jamstremski and Schoenfeld so that any text messages from Brady would have been available to the NFL from those sources. As for McNally, Brady's phone records confirm they had no text or email or other phone communications. The shrill emphasis placed by Goodell on Brady discarding an old phone is an attempt to obfuscate and divert attention from the glaring flaws in the Award and arbitration process. It is much ado about a red herring and had no adverse impact on the Wells-Pash Investigation whatsoever."
90. "At the hearing, Brady explained that it was impossible to produce his past text messages because of his regular and long-standing practice of recycling his phones in order to protect his family's and friends' privacy. This is what Goodell cynically refers to in the Award as Brady "destroying" his phones (an accusation that was not a basis for the discipline imposed by Vincent). In any event, the hearing established -- through Brady's phone records, testimony, and the absence of any NFL evidence to the contrary -- that virtually all of the communications between Brady and Jastremski are discussed in the Wells Report, confirming that Paul, Weiss already had those text messages from other sources. For the few communications with Jastremski reflected on Brady's phone records but not referenced in the Wells Report, that is presumably because those communications are irrelevant, and Brady testified that such communications had nothing to do with the alleged ball tampering, and no incriminating documents were withheld. Indeed, the Wells report confirms that the NFL had full access to the phones from Jamstremski and Schoenfeld so that any text messages from Brady would have been available to the NFL from those sources. As for McNally, Brady's phone records confirm they had no text or email or other phone communications. The shrill emphasis placed by Goodell on Brady discarding an old phone is an attempt to obfuscate and divert attention from the glaring flaws in the Award and arbitration process. It is much ado about a red herring and had no adverse impact on the Wells-Pash Investigation whatsoever."
It really has to come down to the process, doesn't it?
The CBA and the idiotic arbitration process is entitled to some prima facie assumption of validity. The PA signed the thing. I don't think they can avoid that, and probably shouldn't spend too much time arguing that it is invalid on its face.
But if you're given that power, you must exercise it in a prudent and even-handed fashion. The law does not support the imposition of penalties or the exercise of purportedly total discretion in a fashion that is basically unfair.
I keep coming back to the ex post facto nature of the ruling, the unfairness that surrounded the leaks, and the patchwork nature of the report, cobbling some thoughts from the league-club documents and attempting to apply them to the NFLPA and TB, who aren't even parties to that compact.
They won't have forever to get their theory of the case before him. It will test Kessler's focus and skill.
The CBA and the idiotic arbitration process is entitled to some prima facie assumption of validity. The PA signed the thing. I don't think they can avoid that, and probably shouldn't spend too much time arguing that it is invalid on its face.
But if you're given that power, you must exercise it in a prudent and even-handed fashion. The law does not support the imposition of penalties or the exercise of purportedly total discretion in a fashion that is basically unfair.
I keep coming back to the ex post facto nature of the ruling, the unfairness that surrounded the leaks, and the patchwork nature of the report, cobbling some thoughts from the league-club documents and attempting to apply them to the NFLPA and TB, who aren't even parties to that compact.
They won't have forever to get their theory of the case before him. It will test Kessler's focus and skill.
Brady is not a party. The court would not need to approve this type of settlement, although I suppose it could refuse to accept the joint stipulation of dismissal. Never heard of that happening except in collective/class actions where court approval is mandatory.
As a more practical matter the Union will not settle without Brady's buy-in.
As a more practical matter the Union will not settle without Brady's buy-in.
BroodsSexton said:
I'm beginning to see the phone issue cutting the other way. It's obviously bad that Brady got rid of the phone, but then again it's ridiculous for the NFL to treat Brady like the subject of a criminal investigation. If the NFL wants to pretend to be the SDNY USAO's Criminal Division and hire a big Paul, Weiss team and get a hired gun expert then bring what's essentially an obstruction of justice charge and then just trash a guy's reputation in public then maybe procedurally they should be held to a pretty high standard.
Just want to say that this thread has HUGE Value Over Replacement Media - awesomely educational and clarifying. I appreciate everyone's contributions!
Yes it is a process case ... We liberals can be hung up on process, take it very seriously ... That's good.
The standard Shelter spoiled above is one I am happy to live with.
There are two sides to the phone coin ---
Happily almost all of the misbehavior on the NFL directly relates to process
The standard Shelter spoiled above is one I am happy to live with.
There are two sides to the phone coin ---
Happily almost all of the misbehavior on the NFL directly relates to process
Shelterdog said:
Am I too optimistic to think this adds to the argument that Wells was hired to bring an indictment and not conduct an impartial investigation?
I'm not nearly as convinced as you guys that the phone thing will be a big deal in front of any judge. It might be, but seems pretty speculative before any hearing takes place.
I'm also skeptical that we know what a good or bad judge is. Ted Wells was viewed reasonably favorably before the report came out.
I'm also skeptical that we know what a good or bad judge is. Ted Wells was viewed reasonably favorably before the report came out.
So the Judge doesn't want this tried in the media--wonder how he'd feel finding out the arbitrator himself is called a 'good friend' by Stephen A (per BannedbyNYYF) and is likely the leak.
DennyDoyle'sBoil said:
BroodsSexton said:
So, given that the NFL is as airtight as a sieve and it's employees have routinely divulged information to the media, does anything change with the judge's directive today? Does Berman drop the hammer if settlement details are leaked at this stage?