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

[tims4wins]

 
But the proper inflation rule was never geared toward fair play.  Like the George Brett pine tar rule, it was a relic from decades ago that has no direct tie to competition.

Exactly. Why doesn't the NFL also measure the length and circumference of the balls before the game as part of the pre game measurements? After all, that is also in the rulebook.

 

[AB in DC]

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.
 

 
Here's what's sticking in my head.  How is "arbtration" even defined in the first place"? Are there no standards for what an official arbitration is supposed to encompass?
 
I mean, we know that Goodell:
- Allowed brand new evidence to be submitted
- Justified his decision at least in part on a brand new accusation of wrongdoing not at issue in the original case
- Disregarded contrary evidence simply because folks he's paying disagree with it (e.g. the footnote dismissing the AEI report because Exponent said otherwise)
 
IANAL of course, but that doesn't sound like an arbitration to me.  Doesn't a real arbitrator have to explain why he's choosing one position over another, based on something other than whim?

 

[tims4wins]

Good point AB. We have heard all along from the lawyers that federal court is going to assess the process, not the actual case. But if Goodell did not provide reasoning for his decisions - aside from "I did not find this to be credible" (with no further explanation) - could that be considered a breach of process in his role as arbitrator?

 

[natpastime162]

I posted in one of the other threads about the remedial measures prohibition. The more I consider it from both a formalistic and policy perspective, I just don't think its implicated.

The NFL isn't being sued for negligence or for failing to have a proper system in place. The issue goes to the weight of the evidence relies upon by the Wells report and the NFL. The league's action indicates that they know full well that they relied on a GIGO process and junk science, but that they did it anyway. It's relevant to the question of bias and partiality, IMHO.

And what possible public policy is served by applying the prohibition here? We don't have to worry about a ref slipping and falling on an uncertified gauge.

 
 
I wanted to ask you earlier, but I think you answered my question re: gauge certification.  Forgetting poor internal controls, flawed oversight, etc. Gauge certification would appear to be about validating the accuracy of measurements across the league, indicating the potential for flawed measurements with current protocol.  The NFL may not have been able to do anything about the inconsistent measurements found during the AFCCG, but they also didn't need consider it irrefutable evidence for justifying punishment.

 

[bowiac]

IANAL of course, but that doesn't sound like an arbitration to me.  Doesn't a real arbitrator have to explain why he's choosing one position over another, based on something other than whim?

Bizarrely, no. Arbitration panels (or arbiters) are not required to give "reasoned awards" unless the parties require them to. I've seen many arbitration awards that don't have them.

 

[bowiac]

Good point AB. We have heard all along from the lawyers that federal court is going to assess the process, not the actual case. But if Goodell did not provide reasoning for his decisions - aside from "I did not find this to be credible" (with no further explanation) - could that be considered a breach of process in his role as arbitrator?

The answer to this depends on the CBA really. There's nothing in the FAA requiring a reasoned award.

 

[tims4wins]

Thanks. Crazy.

 

[BroodsSexton]

Good point AB. We have heard all along from the lawyers that federal court is going to assess the process, not the actual case. But if Goodell did not provide reasoning for his decisions - aside from "I did not find this to be credible" (with no further explanation) - could that be considered a breach of process in his role as arbitrator?

 
Arbitration is a creature of contract.  The CBA defines what is required for arbitration, and the parties agree to it.  The whole premise is that in the interest of efficiency and professionalism, the parties are opting-out of the courts to conduct fact-finding and make decisions, and they carve their own procedures accordingly. Sometimes the arbitrator has to have certain qualifications (e.g., years of experience in the industry). Sometimes a reasoned award is required.  Sometimes the arbitrator has to choose from the parties' offers (baseball arb.) Articles and books have been written about whether arbitration in fact serves its purpose. My own experience is mixed. The large commercial arbitration bar, at least, can be just as time consuming and expensive as courthouse litigation, and the results aren't always any better.
 
Here's a question for the lawyers following along:  Which case would you rather take, the PA's case, or the NFL's case?  I think I'd take the PA's case.  This is unlike a typical arbitration confirmation, and I think the PA is going to have the opportunity to make quite a showing. It sure as hell will be more fun to try.

 

[Joe D Reid]

Arbitration is a creature of contract.  The CBA defines what is required for arbitration, and the parties agree to it accordingly.  
 
Here's a question for the lawyers following along:  Which case would you rather take, the PA's case, or the NFL's case?  I think I'd take the PA's case.  This is unlike a typical arbitration confirmation, and I think the PA is going to have the opportunity to make quite a showing.

Always favor the side which has a lesser burden of proof/more favorable review standard. That's the NFL here.

Of course, the NFLPAs side is more fun, and their money is just as green.

 

[BroodsSexton]

Always favor the side which has a lesser burden of proof/more favorable review standard. That's the NFL here.

Of course, the NFLPAs side is more fun, and their money is just as green.

 
Alright, then, here's the question that never gets answered professionally.  What odds would you give?
 
Also, are you saying you'd never take the plaintiff's case??

 

[Lupe Whalewatch]

I assume you read this folks, right? Sally Jenkins calls it the best overview of Deflatgate out there - and it's shattering to the NFL. http://www.stradleylaw.com/deflategate-legal-questions/

The quote from Drew Brees is fucking perfect...

 

[Myt1]

I agree. My first thought was that even if they can't win with it, it wouldn't have been crazy to lead with it as a framing device. Given the profile of this case, I'm not especially worried that the court is going to give short shrift to another argument on the substance because they were only skimming the briefs or something.

With the obvious caveat that it's not my case, I'd have been tempted.

 

[Myt1]

 
Arbitration is a creature of contract.  The CBA defines what is required for arbitration, and the parties agree to it.  The whole premise is that in the interest of efficiency and professionalism, the parties are opting-out of the courts to conduct fact-finding and make decisions, and they carve their own procedures accordingly. Sometimes the arbitrator has to have certain qualifications (e.g., years of experience in the industry). Sometimes a reasoned award is required.  Sometimes the arbitrator has to choose from the parties' offers (baseball arb.) Articles and books have been written about whether arbitration in fact serves its purpose. My own experience is mixed. The large commercial arbitration bar, at least, can be just as time consuming and expensive as courthouse litigation, and the results aren't always any better.
 
Here's a question for the lawyers following along:  Which case would you rather take, the PA's case, or the NFL's case?  I think I'd take the PA's case.  This is unlike a typical arbitration confirmation, and I think the PA is going to have the opportunity to make quite a showing. It sure as hell will be more fun to try.

PA every day and twice on Sunday. More upside and fun and sweet baby Jesus, the chance to possibly depose Goodell, however unlikely . . .

I'm less established than Reid IIRC though.

 

[LuckyBen]

The quote from Drew Brees is fucking perfect...

The most disturbing thing is the process, the process by which this whole thing was unveiled. The intentions were never made clear from the very beginning. I think coaches and players alike were kind of brought in to talk to the Commissioner and the league under false pretenses, and all of a sudden its just like a media firestorm and evidence and things are getting leaked to the media, things are being reported that are proven to be untrue in a lot of cases. And yet its out there. The perception has been created nationally for fans and all those that love our game that there was something illegal going on here. And thats everything against what we stand for. And thats why we fought so vehemently to prove thats not the case.

From the article and I guess the bias isn't solely towards the Pats. The office of the NFL is just petty and childlike.

Edit: I would love Brady to use these exact words when he is exonerated.

 

[Harry Hooper]

From Stradley:
 

As far as bright shiny object topics go, it is worth noting that Roger Goodell did not provide his private phone in the Mueller investigation. [pg 7, pg 47]
 

 
Wow, I want her to be right, but I don't see it in the Mueller Report. 

 

[ivanvamp]

Maybe this?  Pg. 43-44:
 
"[SIZE=12pt]On September 10, the [/SIZE][SIZE=12pt]Associated Press [/SIZE][SIZE=12pt]released an additional story, also authored by [/SIZE][SIZE=12pt]Maaddi, reporting that the League had received the in-elevator video by April 9, 2014. The article reported an unidentified law-enforcement official saying that months earlier he had sent a [/SIZE][SIZE=12pt]video of Rice “punching” Palmer to “an NFL executive.” The story did not identify the NFL executive. The report stated that the [/SIZE][SIZE=12pt]AP [/SIZE][SIZE=12pt]source “sent a DVD copy of the security camera video to an NFL office and included his contact information. He asked the AP not to release the name of the NFL executive for fear that the information would identify the law enforcement official as the source.” The report also explained that the [/SIZE][SIZE=12pt]AP [/SIZE][SIZE=12pt]source had “played the Associated Press a 12- second voicemail from an NFL office number on April 9 confirming the video arrived. A female voice expresses thanks and says: ‘You’re right. It’s terrible.’” The article added that the [/SIZE][SIZE=12pt]AP [/SIZE][SIZE=12pt]source was “unauthorized” to release the video, but shared it “because he wanted the NFL to have it before deciding on Rice’s punishment.”[/SIZE]



 
 
[SIZE=12pt]After this report, Maaddi stated in public interviews that he saw and recognized the number on the cellphone voicemail as belonging to the NFL, and that he called to confirm it. Maaddi also told a League official that he saw the League’s phone number—“212-450-2000”— on the cellphone voicemail record. By mid to late September, Maaddi suggested to the League official that the [/SIZE][SIZE=12pt]AP [/SIZE][SIZE=12pt]source may no longer have the cellphone. Maaddi then told the official in November that the source did not have the voicemail; the League official understood Maaddi was saying that the source no longer had the cellphone. "[/SIZE]



 
Not sure this is what is in question, seeing as though it doesn't mention Goodell.  Just that an NFL cellphone suddenly was not available for inspection.

 

[bowiac]

Here's a question for the lawyers following along:  Which case would you rather take, the PA's case, or the NFL's case?  I think I'd take the PA's case.  This is unlike a typical arbitration confirmation, and I think the PA is going to have the opportunity to make quite a showing. It sure as hell will be more fun to try.

We haven't really seen much of the NFL's case yet - mostly just the NFLPA's attack on it.
 
The one thing that gives me hope is how often the NFL loses these cases in spite of the lower burden. Call it one in three.

 

[Joshv02]

Isn't the nfl's case just Rogers decision?

 

[amarshal2]

From Stradley:
 
 
Wow, I want her to be right, but I don't see it in the Mueller Report. 

In fact, page 47 indicates the opposite. That he did turn over his phone.

Second, our investigation uncovered no forensic evidence that, prior to September 8, the in-elevator video was received, downloaded, inserted into, or viewed on: (i) any League computer, mobile phone, or tablet used by senior League officials or someone reporting to them; (ii) any network file share used by those League officials; or (iii) any of the other 404 devices connected to the League’s network that we searched. As explained in Appendix 1.C, the computers and mobile phones of Goodell, Pash, Miller (Security), Miller (Player Health & Safety), Birch, and Raucci were forensically imaged—that is, copies of the computers and phones were made. That enabled us to examine not only the files, videos, documents, texts, and programs active on those devices, but also to recover all or parts of the files, documents, videos, texts, and programs that had been deleted before the examination—and also to determine whether efforts had been made to delete files. We found no evidence that any file having any of the characteristics of the in-elevator video had been downloaded, inserted into, or viewed on any devices of any of those individuals.]

 

[ElcaballitoMVP]

I believe that is just referring to his league issued cell phone, not his private cell. ("any League computer, mobile phone, or tablet used by senior League officials...")

 

[Harry Hooper]

Maybe this?  Pg. 43-44:
 
"[SIZE=12pt]On September 10, the [/SIZE][SIZE=12pt]Associated Press [/SIZE][SIZE=12pt]released an additional story, also authored by [/SIZE][SIZE=12pt]Maaddi, reporting that the League had received the in-elevator video by April 9, 2014. The article reported an unidentified law-enforcement official saying that months earlier he had sent a [/SIZE][SIZE=12pt]video of Rice “punching” Palmer to “an NFL executive.” The story did not identify the NFL executive. The report stated that the [/SIZE][SIZE=12pt]AP [/SIZE][SIZE=12pt]source “sent a DVD copy of the security camera video to an NFL office and included his contact information. He asked the AP not to release the name of the NFL executive for fear that the information would identify the law enforcement official as the source.” The report also explained that the [/SIZE][SIZE=12pt]AP [/SIZE][SIZE=12pt]source had “played the Associated Press a 12- second voicemail from an NFL office number on April 9 confirming the video arrived. A female voice expresses thanks and says: ‘You’re right. It’s terrible.’” The article added that the [/SIZE][SIZE=12pt]AP [/SIZE][SIZE=12pt]source was “unauthorized” to release the video, but shared it “because he wanted the NFL to have it before deciding on Rice’s punishment.”[/SIZE]



 
 
[SIZE=12pt]After this report, Maaddi stated in public interviews that he saw and recognized the number on the cellphone voicemail as belonging to the NFL, and that he called to confirm it. Maaddi also told a League official that he saw the League’s phone number—“212-450-2000”— on the cellphone voicemail record. By mid to late September, Maaddi suggested to the League official that the [/SIZE][SIZE=12pt]AP [/SIZE][SIZE=12pt]source may no longer have the cellphone. Maaddi then told the official in November that the source did not have the voicemail; the League official understood Maaddi was saying that the source no longer had the cellphone. "[/SIZE]



 
Not sure this is what is in question, seeing as though it doesn't mention Goodell.  Just that an NFL cellphone suddenly was not available for inspection.

 
I believe that text you cited is referring to a law enforcement official's burn phone, not an NFL phone.
 
 
Edit: Thanks, amarshal. The Commish & Co. didn't turn over their private phones! So by Roger logic he''s guilty himself. This needs to be broadcast far and wide. 

 

[RedOctober3829]

Here's the irony. The Federal Arbitration Act at Title 9 of the U.S. Code sets forth the grounds by which a federal court can vacate an arbitration award. The critical one for this case is “where there was evident partiality . . .in the arbitrator.” What is absent from the applicable provision is what used to be the reason of choice: manifest disregard of the law. While under this rubric, an arbitration award cannot be reversed for an error of law or a misreading of the facts, it can be vacated if the arbitrator intentionally ignored well-settled law. For example, if the arbitrator knows the statute of limitations is two years, he or she cannot use one or three years as the time to bar an action.

The Circuits are split as to whether manifest disregard of the law is still a reason for vacating an award. The Eighth Circuit, which includes Minnesota, says it is not. The Second Circuit, on the other hand, which includes New York, says it is. Compare Crawford Grp., Inc. v. Holekamp, 543 F.3d 971 (8th Cir. 2008), with Stolt- Nielson SA v. Animal Feeds Int’l, 548 F.3d 85 (2d Cir. 2008). Thus, Brady and his team are actually better off in Giants territory than they would be in the land of the Vikings.

This would certainly be a critical play for Brady to call given that the under-inflation rule appears to apply only to teams not players and carries only a $25,000 fine.

My bet is still that Brady plays every game.

-- Alan Milstein

http://sports-law.blogspot.com/2015/07/more-of-brady-bunch.html

 

[PaulinMyrBch]

From Stradley:
 
 
Wow, I want her to be right, but I don't see it in the Mueller Report. 

 
The page 7 is the reference to page 7 of the Appendix, which makes the League Mobile phone distinction. He did not give up his personal phone.
 

 
b. We Imaged League Computers And Mobile Devices And Collected Data From 404 Additional Computers Attached To The League’s Network i. We Imaged League Computers And Mobile Devices We identified the most logical persons to have received and viewed the in-elevator video. We imaged each of their devices—their computers, as well as their League mobile phones and tablets, if they had one.

 

[Van Everyman]

Question:

Reading Stradley's piece, it's seems like the PA has no shortage of ammunition to question Goodell's process up and down.

Does the plethora of potential arguments actually make Kessler's case harder to make or easier? Because to the unsophisticated, this thing seems like Swiss cheese.

 

[ivanvamp]

The page 7 is the reference to page 7 of the Appendix, which makes the League Mobile phone distinction. He did not give up his personal phone.

But does it say that Goodell did NOT hand over his private phone, or that he was even asked to? Or are those just inferences?

 

[BroodsSexton]

We haven't really seen much of the NFL's case yet - mostly just the NFLPA's attack on it.
 
The one thing that gives me hope is how often the NFL loses these cases in spite of the lower burden. Call it one in three.

Umm, Wells Report + Phone?

Oh, you mean their reply to the procedural attack. Makes sense.

 

[PaulinMyrBch]

But does it say that Goodell did NOT hand over his private phone, or that he was even asked to? Or are those just inferences?

Mueller did not go full Ted Wells when investigating Goodell/NFL. The report doesn't say if he was asked and refused. It just lists what they searched. Which in that case was where they thought evidence would likely be.

But the fact remains, Goodell and the NFL execs did not surrender personal devices maintaining privacy they did not extend to Brady.

 

[bowiac]

Isn't the nfl's case just Rogers decision?

They are going to mount a defense of the procedure Goodell used to arrive at this decision. We haven't seen that yet. It's going to be similar no doubt, but they're going to get a chance to do a full legal briefing responding to the NFLPA's points one at a time.
 

http://sports-law.blogspot.com/2015/07/more-of-brady-bunch.html

I'm not a labor lawyer, but this looks off-base to me. Manifest disregard requires some rule that applied, that Goodell knew, that he just decided to disregard. The NFLPA is saying a rule didn't apply, but Goodell applied it anyway. And for that, you don't need manifest disregard usually.
 
And not for nothing, but I'll take Kessler's understanding of whether the Second Circuit or Eighth Circuit has more favorable vacatur standards over Milstein's. If they filed in Minnesota just purely hoping to get Doty, irrespective of these issues, then that would be a very bad sign for how strong they think their case is. 

 

[amarshal2]

I'm not a labor lawyer, but this looks off-base to me. Manifest disregard requires some rule that applied, that Goodell knew, that he just decided to disregard. The NFLPA is saying a rule didn't apply, but Goodell applied it anyway. And for that, you don't need manifest disregard usually.
 
And not for nothing, but I'll take Kessler's understanding of whether the Second Circuit or Eighth Circuit has more favorable vacatur standards over Milstein's. If they filed in Minnesota just purely hoping to get Doty, irrespective of these issues, then that would be a very bad sign for how strong they think their case is. 

 
Nope.  A rule did apply, and he ignored it.
 

106. This is because the Player Policies actually given out and made applicable to players provide only for specified, collectively bargained fines for equipment violations, including those aimed at obtaining a competitive advantage. For example, the Player Policies provide that "[a] player may not use unauthorized foreign substances (e.g., stickum or slippery compounds) on his body or uniform . . . [and that] such a violation affects the integrity of the competition and can give a team an unfair advantage . . . ." NFLPA Ex. ll4 at 15. First-time offenders of this player rule, however, are only subject to a fine of $8,268. Id. at 20. The Player Policies also contain a catchall" provision for "Other Uniform/Equipment Violations." Id. at 15  Offenders of this provision are only subject to a fine of $5,512. Id. at 20. There is no separate category of violation specified for ball deflation in these policies.

107. These Players Policies, with their collectively bargained fines, do not provide for any suspensions despite the fact that violations of these Policies can be "conduct detrimental" to the integrity of the game.

108. Vincent apparently chose not to apply the Player Policies to Brady because a fine would not have quenched other NFL owners' thirst for a more draconian penalty. But the NFL was not at liberty to disregard the specified and collectively bargained penalties in the Player Policies for which players have notice. No other penalty or policy applicable to players for equipment violations involving competitive advantage was ever provided to Brady or any other player, 
 

 

[OCST]

 
 
Here's a question for the lawyers following along:  Which case would you rather take, the PA's case, or the NFL's case?  I think I'd take the PA's case.  This is unlike a typical arbitration confirmation, and I think the PA is going to have the opportunity to make quite a showing. It sure as hell will be more fun to try.

 
I agree 100%.  
 
The League has nowhere to go but down.  They have to defend a position that is full of holes and inconsistencies, which have been pointed out here ad nauseam.  They have potential landmines everywhere- RG's multiple roles casing doubts on his impartiality, the conflicted role of Wells, et al., many others.  They "should" win, but it would be awfully easy for them to trip over their own dick.  
 
The PA can just let it rip like a bunch of face-painted warriors in Braveheart.  If they lose, fuck it, they lost already.  They can pound away at all the inconsistencies, conflicts, errors, etc. that have been pointed out here, and have a very real chance to pull off a historic victory.
 
If I'm representing the League, I'm sick to my stomach and not sleeping all night before the first hearing, knowing I have to walk a tightrope, and knowing how easy it would be to screw it up.  If I'm representing the union, I also can't sleep, but because I'm excited to get to court in the morning.
 
Edit: It's true that the presumptions/burdens favor the Shield.  Doesn't change my answer re: the fun.

 

[djbayko]

Will any of the court proceedings be televised, or are cameras not allowed, as in the Supreme Court?

What are the likely next steps in this saga, from a procedural point of view? We know that the NFLPA needs to file a response. Them what? And when will the judge decide what is allowable for discovery? I would think that needs to be fairly early on in the process, and it seems to me that it would be very telling in terms of how much leeway the judge is giving the NFLPA to make its case.

 

[Otis Foster]

 
Arbitration is a creature of contract.  The CBA defines what is required for arbitration, and the parties agree to it.  The whole premise is that in the interest of efficiency and professionalism, the parties are opting-out of the courts to conduct fact-finding and make decisions, and they carve their own procedures accordingly. Sometimes the arbitrator has to have certain qualifications (e.g., years of experience in the industry). Sometimes a reasoned award is required.  Sometimes the arbitrator has to choose from the parties' offers (baseball arb.) Articles and books have been written about whether arbitration in fact serves its purpose. My own experience is mixed. The large commercial arbitration bar, at least, can be just as time consuming and expensive as courthouse litigation, and the results aren't always any better.
 
Here's a question for the lawyers following along:  Which case would you rather take, the PA's case, or the NFL's case?  I think I'd take the PA's case.  This is unlike a typical arbitration confirmation, and I think the PA is going to have the opportunity to make quite a showing. It sure as hell will be more fun to try.

 
The right side of my foggy brain says NFLPA. The left side says 'slow down, dude, Judge Berman has an unwelcome surprise for us'.
 
Of course, the parties would be crazy to engage me anyway. I'm a corporate type who hasn't seen a courtroom (except as an expert) in 40 years.

 

[DJnVa]

I'm not a labor lawyer, but this looks off-base to me. Manifest disregard requires some rule that applied, that Goodell knew, that he just decided to disregard. The NFLPA is saying a rule didn't apply, but Goodell applied it anyway. And for that, you don't need manifest disregard usually.
 

 
Or are they saying the "equipment tampering" rule, and it's $8000, collectively bargained fine could have applied? Yet RG disregarded that?
 

 

[( . ) ( . ) and (_!_)]

From reading the responses of some of our lawyers it seems that the Brady case has some strength but its weakess argument is against Goodell as an impartial arbitrator. Now we may all disagree with that from a logical position but from the letter of the CBA he might be proven right.

Doesn't this then set up a scenario where the judge could send this back to the arbitrator with instructions to re-evaluate within the constraints of the notice and law of shop precedence, but also allowing Goodell to remain as that arbitrator?

That would be a fascinating outcome and would in some ways be a huge win for the NFL. They've already got their pound of flesh from the pats and Brady (the suspension or no suspension is really just a historical footnote now) and they would have affirmation regarding Goodells right to serve as the arbitrator on these types of disputes. I think an argument can be made here that the NFL set themselves up where even if they "lose" they still win.

 

[wade boggs chicken dinner]

Doesn't this then set up a scenario where the judge could send this back to the arbitrator with instructions to re-evaluate within the constraints of the notice and law of shop precedence, but also allowing Goodell to remain as that arbitrator?

The court could do what they did in the Petersen case - overturn the award and remand back for further proceedings but not reach the question of arbitrator bias. It would create a kind of legal quagmire with respect to Goodell, but since it's been done before, it can't be ruled out.

 

[bowiac]

Nope.  A rule did apply, and he ignored it.

I thought about this, but the Player Policies (as described in the brief) don't prohibit a player for being punished pursuant to the Competitive Integrity Policy. That's covered separately under the Notice argument. As near as I can tell, the Manifest Disregard argument could be to argue that Brady should have been punished under the Player Policies, but that doesn't rule out an additional punishment pursuant to the Competitive Integrity Policy (but Notice might). Manifest Disregard would apply if there was something in the Player Policies stating something like "no player may be punished for any violation outside of these policies."
 
Additionally, Manifest Disregard would apply to Goodell's conduct, not to Vincent's, although I'm not sure if that changes the analysis at all.

 

[splendid splinter]

I thought about this, but the Player Policies (as described in the brief) don't prohibit a player for being punished pursuant to the Competitive Integrity Policy. That's covered separately under the Notice argument. As near as I can tell, the Manifest Disregard argument could be to argue that Brady should have been punished under the Player Policies, but that doesn't rule out an additional punishment pursuant to the Competitive Integrity Policy (but Notice might). Manifest Disregard would apply if there was something in the Player Policies stating something like "no player may be punished for any violation outside of these policies."
 
Additionally, Manifest Disregard would apply to Goodell's conduct, not to Vincent's, although I'm not sure if that changes the analysis at all.

 
Well, Brady's arguing that he can't be punished under the CIP because it doesn't apply to him.  It applies to teams and team employees, and is distributed only to teams, not to players.  So he could not have been expected to know about its provisions, nor is he subject to them.  Only the PP governs equipment violations by players, and even if guilty, he would fall into the catchall section of that policy where he's fined something like $5000.
 
Goodell is trying to throw the "detriment of the game" umbrella over everything so he can make up whatever punishments he wants.  That shouldn't be permitted, and it's laughable that Brady's wiping his cell phone is seen as an act "detrimental to the game" when it was the league that leaked that information and featured it so prominently in Goodell's decision.

 

[Reverend]

Well, Brady's arguing that he can't be punished under the CIP because it doesn't apply to him.  It applies to teams and team employees, and is distributed only to teams, not to players.  So he could not have been expected to know about its provisions, nor is he subject to them.  Only the PP governs equipment violations by players, and even if guilty, he would fall into the catchall section of that policy where he's fined something like $5000.

That's what bowiac meant in reference to Notice; he's just making very precise differentiations between the claims and what can work under manifest disregard and what under notice.

 

[splendid splinter]

That's what bowiac meant in reference to Notice; he's just making very precise differentiations between the claims and what can work under manifest disregard and what under notice.

 
Ah, I see - didn't get that reference there.  My apologies.
 
Edit: Although, why wouldn't it be Manifest Disregard if he declined to punish Brady under a policy he knew applied, and attempted to punish him under one he knew did not.  This isn't some third party without an intimate understanding of the workings of the NFL.  Goodell knows, or should know, that the CIP is for clubs and not players.  He's clearly ignoring the PP in favor of a policy that in no way applies to Brady, in order to levy a much more substantial punishment.  I wouldn't think the PP should need to say "you can't punish the  player in any other way" here when the policy he attempts to use (and its dissemination) makes it clear - "not applicable to players".

 

[OCST]

I assume you read this folks, right? Sally Jenkins calls it the best overview of Deflatgate out there - and it's shattering to the NFL. http://www.stradleylaw.com/deflategate-legal-questions/

 
This is the best piece of analysis I have seen out there (other than here).  It's clear, logical, and dispassionate, and is a great example of how attorneys SHOULD approach the matter.
 
This is the thing to forward to folks who are gorging themselves on HOT TAKEZ about Brady's phone.

 

[Reverend]

I was hoping we could try to clarify for some people some of what's kicking around in the media... but I need some help.
 
Much of the reporting going on concerns the high bar Brady will have to clear to win in court, largely based on the fact of the "substantial deference" courts give to labor arbitration decisions which is obviously real. And then they trot out the relevant statute for vacation, 9 U.S. Code § 10:
 

(a) In any of the following cases the United States court in and for the district wherein the award was made may make an order vacating the award upon the application of any party to the arbitration—
(1) where the award was procured by corruption, fraud, or undue means;
(2) where there was evident partiality or corruption in the arbitrators, or either of them;
(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
 

 
 
What I'm having a bit of trouble is articulating how some of the specific four claims the NFLPA is making engage the statute. The partiality claim is obvious, but the notification and fairness claims and the associated law of the shop arguments--the stronger claims--are less clear.
 
Specifically, I'm looking at Doty's decision and the arguments about how the arbitration ruling must "draw its essence" from the CBA and how failure to comply with the law of the shop constitutes a failure to do so. Obviously, this is rooted in case law, but I'm having trouble following up, going back through the cases, how the case law ultimately engages the statute. Or is this law of the shop stuff solely a matter of common law?
 
Basically, I see a lot of people in the media consulting people with a general knowledge of labor law who explain the substantial deference and showing how hard the law makes it to vacate and leaving it that. I think many of the less legally inclined would like a more in depth explanation of how the claims might actually effect vacation of the ruling, and I was wondering if any of our litigators could help explain that connection.

 

[Joe D Reid]

That's a great question that deserves a nuanced response. Unfortunately, I only have time for the tl;dr version which is that the law of the shop binds arbitrators such that an arbitrator who clearly fails to follow that law exceeds his or her authority.

 

[BroodsSexton]

 
What I'm having a bit of trouble is articulating how some of the specific four claims the NFLPA is making engage the statute. The partiality claim is obvious, but the notification and fairness claims and the associated law of the shop arguments--the stronger claims--are less clear.
 
Specifically, I'm looking at Doty's decision and the arguments about how the arbitration ruling must "draw its essence" from the CBA and how failure to comply with the law of the shop constitutes a failure to do so. Obviously, this is rooted in case law, but I'm having trouble following up, going back through the cases, how the case law ultimately engages the statute. Or is this law of the shop stuff solely a matter of common law?
 
Basically, I see a lot of people in the media consulting people with a general knowledge of labor law who explain the substantial deference and showing how hard the law makes it to vacate and leaving it that. I think many of the less legally inclined would like a more in depth explanation of how the claims might actually effect vacation of the ruling, and I was wondering if any of our litigators could help explain that connection.

 
As a general rule, overturning an arbitration award is a very high bar, for the reasons that we've been discussing--it's largely a process-driven review, and not one in which the Court conducts a plenary review of whether the arbitrator got the law and the facts correct.  More specifically, for example, as long as an arbitrator properly considers the applicable law, the fact that he makes an error of law is not enough to overturn an award. Similarly, getting the facts wrong is not grounds for review. In your standard arbitration processes, with a truly neutral arbitrator who is following well-defined arbitration procedures, the only stake for the arbitrator in the outcome is not to have it overturned, which is death to the arbitrator's future career--the procedures are typically followed well-enough so that there's no valid grounds for vacating the award.  Notwithstanding John Grisham novels, it's rare that arbitrators take bags of cash under the table, do things that are totally beyond their power, or have undisclosed conflicts of interest.  Arbitrators are typically very careful to document the record and to give parties a full and fair hearing in accordance with the rules.
 
Now, this is a different situation, and somewhat specialized and unusual (and I'm not a labor lawyer, so take it with a grain of salt--as pointed out, there is a governing labor statute).  But the CBA, here, defines the protocol that the arbitrator has to follow, and the "law of the shop" provides a body of law for the arbitrator to take into account.  And in this case, this is not a typical arbitration where the arbitrator simply plays the role of an impartial judge, with the only interest being to make sure that the process is followed to a "t."  Goodell played multiple roles, as both a judge and prosecutor.  That appears to be allowed for in the CBA (as I understand it), but still, particularly given the unusual structure consolidating power in Goodell's hands, NFL needs to be careful not to fall afoul of the rules you cited--if it didn't give a full and fair hearing; if it went beyond its authority in penalizing Brady (e.g., without notice), or if there was partiality, you can see how the award may be challenged.
 
Is that helpful?

 

[MarcSullivaFan]

Short answer: Section 301 of the Labor Managament Relations Act and Supreme Court cases interpreting it (Google Steelworkers Trilogy) provide the analysis when the court is reviewing a labor arbitration. Lots of overlap with the FAA, but not in all respects.

Edit: Really only the cases provide the analysis, not the statute. Actually says nothing about arbitration. Enterprise Wheel is the most important case.

https://www.law.cornell.edu/supremecourt/text/363/593

 

[bowiac]

Edit: Although, why wouldn't it be Manifest Disregard if he declined to punish Brady under a policy he knew applied, and attempted to punish him under one he knew did not.  This isn't some third party without an intimate understanding of the workings of the NFL.  Goodell knows, or should know, that the CIP is for clubs and not players.  He's clearly ignoring the PP in favor of a policy that in no way applies to Brady, in order to levy a much more substantial punishment.  I wouldn't think the PP should need to say "you can't punish the  player in any other way" here when the policy he attempts to use (and its dissemination) makes it clear - "not applicable to players".

I agree this is an interesting question. The formulation of Manifest Disregard I've always worked with has been 1) know a rule applied; 2) chooses not to apply the rule. I've never seen it used to vacate an award where someone 1) knows a rule doesn't apply; 2) chooses apply it anyway. The latter is what the NFLPA says Goodell did, but they're putting that argument under the "Notice" rubric.
 
That seems like a distinction without a difference, I know, but vacatur is a weird body of law.

 

[BroodsSexton]

Short answer: Section 301 of the Labor Managament Relations Act and Supreme Court cases interpreting it (Google Steelworkers Trilogy) provide the analysis when the court is reviewing a labor arbitration. Lots of overlap with the FAA, but not in all respects.

Edit: Really only the cases provide the analysis, not the statute. Actually says nothing about arbitration. Enterprise Wheel is the most important case.

https://www.law.cornell.edu/supremecourt/text/363/593

 
The key passage is highlighted below.  My presumption (as a half-educated litigator and not a labor practitioner) is that the courts would then look to the standards applied under the FAA to see if the arbitrator in a collective bargaining situation has satisfied his duties, using the "law of the shop" as applicable law.  In this recent case, for example, from the Circuit where Berman sits, the Court stated, in the context of a CBA-governed arbitration, that "Courts in this Circuit will...vacate an arbitration award only if one of the four statutory bases enumerated in the FAA is violated." Link.
 
 

 
The refusal of courts to review the merits of an arbitration award is the proper approach to arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards. As we stated in united Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, the arbitrators under these collective agreements are indispensable agencies in a continuous collective bargaining process. They sit to settle disputes at the plant level disputes that require for their solution knowledge of the custom and practices of a particular factory or of a particular industry as reflected in particular agreements. [SIZE=10.5px]2[/SIZE]
 
When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There the need is for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet a particular contingency. Nevertheless, an arbitrator is confined to interpretation and application of the collective bargaining agreement; he does not sit to dispense his own brand of industrial justice. He may of course look for guidance from many sources, yet his award is legitimate only so long as it draws its essence from the collective bargaining agreement. When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.

 

[edmunddantes]

Not putting any words in anyone's mouth I hope, but does it pretty much amount to what lens does Berman use in reviewing the case?
 
Does he view this an actual arbitration process, and gives it deference simply because it's arbitration or does he view this as something that has the trappings of arbitration, but really isn't a normal version of it?
 
If the former, Brady has an insane uphill climb. If the latter, they have more of a shot, but still not great.
 
If latter, things in their favor: failure to consider evidence, part A. 3 would be a good avenue. Invoking of privilege to prevent examination of Wells side even though NFL got to use that knowledge in case, out of hand dismissal of any questions down the road of delegation of power, and other ones people have enumerated.
 
As noted, still a huge uphill battle even if Berman looks beyond the arbitration deference standard.

 

[Harry Hooper]

I agree this is an interesting question. The formulation of Manifest Disregard I've always worked with has been 1) know a rule applied; 2) chooses not to apply the rule. I've never seen it used to vacate an award where someone 1) knows a rule doesn't apply; 2) chooses apply it anyway. The latter is what the NFLPA says Goodell did, but they're putting that argument under the "Notice" rubric.
 
That seems like a distinction without a difference, I know, but vacatur is a weird body of law.

 
Help me out here. I suppose it's not always true, but wouldn't most instances of knowing a rule applies and not applying it would at the same time then involve applying a rule that one knows doesn't apply? I thought the NFLPA claim was that the Commish should have applied the rule/penalty in the CBA for players manipulating equipment for competitive advantage. He ignored that negotiated rule for another non-CBA rule to justify a a harsher penalty.

 

[bowiac]

Help me out here. I suppose it's not always true, but wouldn't most instances of knowing a rule applies and not applying it would at the same time then involve applying a rule that one knows doesn't apply? I thought the NFLPA claim was that the Commish should have applied the rule/penalty in the CBA for players manipulating equipment for competitive advantage. He ignored that negotiated rule for another non-CBA rule to justify a a harsher penalty.

Yeah, but that's the Notice argument that we already had in the Minnesota action. I'm drawing a narrow distinction here that Manifest Disregard shouldn't apply, since it traditionally only goes one way. In other words, we should expect to see a very similar brief filed by the NFLPA in the New York action - we shouldn't expect to see them add a Manifest Disregard ground for vacatur simply because the Second Circuit accepts the doctrine. Brady's Notice argument applies regardless however.

 

[Tim Salmon]

Not putting any words in anyone's mouth I hope, but does it pretty much amount to what lens does Berman use in reviewing the case?
 
Does he view this an actual arbitration process, and gives it deference simply because it's arbitration or does he view this as something that has the trappings of arbitration, but really isn't a normal version of it?
 
If the former, Brady has an insane uphill climb. If the latter, they have more of a shot, but still not great.
 
If latter, things in their favor: failure to consider evidence, part A. 3 would be a good avenue. Invoking of privilege to prevent examination of Wells side even though NFL got to use that knowledge in case, out of hand dismissal of any questions down the road of delegation of power, and other ones people have enumerated.
 
As noted, still a huge uphill battle even if Berman looks beyond the arbitration deference standard.

 
As others have stated, the courts have fleshed out the appropriate standard of review through case law:
 
[SIZE=13.9949998855591px]"An arbitrator's authority to settle disputes under a collective bargaining agreement is contractual in nature, and is limited to the powers that the agreement confers.  He may not shield an 'outlandish disposition of a grievance' from judicial review 'simply by making the right noises—noises of contract interpretation.'  Likewise, he may not 'dispense his own brand of industrial justice.' ... [/SIZE][SIZE=13.9949998855591px]This rule applies not only to the arbitrator's substantive findings, but also to his choice of remedies. He may not impose a remedy which directly contradicts the express language of the collective bargaining agreement."  Leed Architectural Prods. v. United Steelworkers of Am., Local 6674, 916 F.2d 63, 65 (2d Cir. 1990) (internal citations omitted).[/SIZE]

This is all just another way of saying that the award will be vacated if it doesn't "draw its essence" from the CBA, which relates directly to the fourth reason enumerated in 9 U.S.C. sec. 10 -- whether the arbitrators "exceeded their powers."