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

[lambeau]

Manifest Disregard would encompass the points in NFLPA filing paragraphs 106-109 where they discuss fines being specifically collectively bargained for equipment violations in Player Policies in the CBA and suspension
for conduct detrimental  invoked inappropriately only to achieve a more severe penalty; and to avoid the equipment violation section they went outside the CBA to the Competitive Integrity part of Game Operations policies
which apply only to teams and are not provided to players (hence no notice).

 

[DennyDoyle'sBoil]

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:
 
 
 
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.

 
It's a good question, Rev.  The statute is really only the starting point in determining the standards for arbitration appeals -- it's really all set out in case law.  Just by way of example, if you took the following language seriously -- "refusing to hear evidence pertinent and material to the controversy" -- you could basically make every arbitration award reviewable for evidentiary error.  You add the overlay here of the NLMRA, which creates an gloss on the FAA provisions in arbitration cases, and it gets messy.
 
When you have a general statute like this and the law develops by case law, you sort of end up with the mish-mash that occurs in a civil law system.  You have a bunch of cases where courts use tests and standards and apply them to a precise set of facts, and both sides to try to use those cases to argue "this case is more like that one than the one my opponent cites."  It's hard to really describe how the various standards and tests are applied in every case -- there's good discussion about the "manifest disregard of the law" test, which is not even in the statute and depends on which circuit you're in.  That's kind of how it goes.  
 
It's going to take long briefs for the lawyers to lay out their positions on how the various cases apply to these standards.  But in general, most of the cases are rooted in a fundamental principle, which I think is what the media is generally referring to when they talk about the high hurdle for overturning an arbitration award.  It's this -- we want to encourage private agreement to resolve disputes by arbitration and so we give them wide berth and we don't want to turn them all into full-blown litigation in court.  So, when it's a close call, whatever the particular issue, let that be your guiding start and presume in favor not against the arbitration award.

 

[jsinger121]

 

Daniel Wallach‏@WALLACHLEGAL

BREAKING: NFLPA asks Judge Berman for premotion conference & expedited briefing schedule in lieu of filing motion for preliminary injunction
 

 

[Otis Foster]

BREAKING: NFLPA asks Judge Berman for premotion conference & expedited briefing schedule in lieu of filing motion for preliminary injunction

Hmmmmm...


(Inserted content)

 

[PseuFighter]

seems like there's a lot happening right this minute (twitter feed referenced above) -- https://twitter.com/WALLACHLEGAL

 

[Corsi]

Raffi Melkonian ‏@RMFifthCircuit  7m7 minutes ago
Again: current news. No preliminary injunction motion. NFLPA and NFL have agreed to seek "final resolution" by start of season.

 

[PaulinMyrBch]

NM, they are agreeing to an expedited schedule and hoping the court agrees. 
 
Want the matter heard and resolved prior to the season. No need for an injuntion.

 

[Corsi]

https://twitter.com/BenVolin/status/627170529804484608

 

[DJnVa]

Okay, lawyers, get in here and flesh this out.

 

[DJnVa]

Daniel Wallach ‏@WALLACHLEGAL 7m7 minutes ago
NFLPA and NFL ask Judge Berman for following briefing schedule: August 7 -- intial motions by NFL & NFLPA August 14 -- opposition papers

 

[Valek123]

For other's like me this seemed to be a good explanation of this process that is apparently quote common in NY courts.  http://www.legalnews.com/washtenaw/609791

 

[PseuFighter]

I don't understand (lawyers, chime in?). Seems like both parties want to fast track this, but don't the judges have plenty of (arguably) more important cases to attend to, that probably came long before this one? That's how it reads to me anyway.

 

[DJnVa]

I don't understand (lawyers, chime in?). Seems like both parties want to fast track this, but don't the judges have plenty of (arguably) more important cases to attend to, that probably came long before this one? That's how it reads to me anyway.

 
This judge was asking for papers by August 13th first, so it appears he has some openings in August.
 

 

[Bongorific]

I don't understand (lawyers, chime in?). Seems like both parties want to fast track this, but don't the judges have plenty of (arguably) more important cases to attend to, that probably came long before this one? That's how it reads to me anyway.

Depends on judge's calendar and what else he has pending. Some motions are decided right from the bench when heard while others can take more than a year to decide after the submissions. I would have expected this to take at least a few months, but it's certainly possible for everything to be submitted and decided much sooner, particular in an action like this that has a limited scope/review.

 

[PaulinMyrBch]

I don't understand (lawyers, chime in?). Seems like both parties want to fast track this, but don't the judges have plenty of (arguably) more important cases to attend to, that probably came long before this one? That's how it reads to me anyway.

Unless the judge has something taking 3-4 weeks from his schedule, they'll find time to hear this matter on the schedule. A full docket and every minute of the day being accounted for when you're a judge are two totally different things. 

 

[PseuFighter]

Where they're going to push to have a resolution by 9/4, is that for the entire case, or just on the question as to whether or not Brady can play as this works its way through? (Thanks again).

 

[Bongorific]

Where they're going to push to have a resolution by 9/4, is that for the entire case, or just on the question as to whether or not Brady can play as this works its way through? (Thanks again).

The union is asking for a final disposition of the case prior to the start of the season. If the court says they can't accommodate that schedule, then the union will file an injunction. Basically they may be able to avoid going through separate motion practice to ask for an injunction if the court says its will rule on the whole action prior to when the injunction is needed (week 1).

 

[nattysez]

Unless the judge has something taking 3-4 weeks from his schedule, they'll find time to hear this matter on the schedule. A full docket and every minute of the day being accounted for when you're a judge are two totally different things. 

 
That said, asking a judge to rule by a date certain -- and likely less than a month after the initial motion papers are filed -- takes some balls, IMO.  However, if it saves him having to deal with injunction motion practice, maybe the Court will go along with it.

 

[Bleedred]

The union is asking for a final disposition of the case prior to the start of the season. If the court says they can't accommodate that schedule, then the union will file an injunction. Basically they may be able to avoid going through separate motion practice to ask for an injunction if the court says its will rule on the whole action prior to when the injunction is needed (week 1).

Is there an avenue of appeal for the NFLPA if the judge rules against them prior to September 4?   

 

[RedOctober3829]

Is this a win for the NFLPA?  No discovery and only based on the arbitration.  For a lay person, does this mean they are only going to rule on whether the NFL had the legal right to suspend him the length that they did?
 
The NFL also doesn't oppose the motion that the NFLPA wanted to seal portions of the hearing.  Good or bad?

 

[ivanvamp]

Is there an avenue of appeal for the NFLPA if the judge rules against them prior to September 4?   

 
I was rightly mocked for suggesting that this could get to the Supreme Court, but really what I was getting at was this.  If Brady and the NFLPA lose, can they appeal?  If they can appeal, how long can this thing realistically drag out and how far up the court system could this go?

 

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

If the two parties that are at each other's throats agreed to this together then I assume it's nether an advantage or disadvantage to either. They seem to hate each other. Why would one suddenly yield a win to the other?

 

[Bongorific]

Is there an avenue of appeal for the NFLPA if the judge rules against them prior to September 4?   

They can appeal to the U.S. Court of Appeals for the 2nd Circuit which is the appellate court that oversees all the NY districts, CT, and VT. However, I'm not sure if the union intends on going that route if they are foregoing an injunction in favor of an expedited schedule.

 

[Marciano490]

 
I was rightly mocked for suggesting that this could get to the Supreme Court, but really what I was getting at was this.  If Brady and the NFLPA lose, can they appeal?  If they can appeal, how long can this thing realistically drag out and how far up the court system could this go?

 
The Supreme Court isn't going to hear a case just because someone doesn't like the 2nd Circuit's ruling.  There generally needs to be a  circuit split or some point of law that needs clarification.  Supreme Court precedent on the issues involved is pretty clear.

 

[Stitch01]

Could this be as simple as Brady placing a very high priority on getting this settled before the season and the NFL having no beef with this being off the radar when games start? Brady has openly said he wanted to settle this so its out of the way before the season starts.

 

[BroodsSexton]

Looks to me like both sides are agreeing to submit based on the paper record, in other words, the facts are set based on the record, and the issues presented are purely legal issues for the Judge to decide.  The dream of expedited discovery in advance of a hearing (with documents exchanged and depositions) is not going to happen.
 
What this means, to me, is that the PA feels it has a strong argument based on the record as it stands, and the NFL doesn't want to open up any further discovery into the process.  Both parties have (different) incentives to seek an expedited resolution, based purely on briefing and argument.

 

[ivanvamp]

If the two parties that are at each other's throats agreed to this together then I assume it's nether an advantage or disadvantage to either. They seem to hate each other. Why would one suddenly yield a win to the other?

 
Dickerson on WEEI just suggested (and he's not a lawyer either) that this means the two parties are going to come to a deal, that Brady wants a settlement rather than pursue a lawsuit.  I assume he's wrong.

 

[Marciano490]

Looks to me like both sides are agreeing to submit based on the paper record, in other words, the facts are set based on the record, and the issues presented are purely legal issues for the Judge to decide.  The dream of expedited discovery in advance of a hearing (with documents exchanged and depositions) is not going to happen.
 
What this means, to me, is that the PA feels it has a strong argument based on the record as it stands, and the NFL doesn't want to open up any further discovery into the process.  Both parties have (different) incentives to seek an expedited resolution, based purely on briefing and argument.

 
I really, really wanted discovery here.  Oh well.  I suppose a win is better.

 

[DavidTai]

What puzzles me here is, if they rule in favor of Brady, and vacate the punishment, doesn't this just throw it back into the NFL's court, or is the judge going to rule specifically for -how- the punishment is to be handled?
 
I'd really have preferred the discovery option, because it just strikes me that the NFL'll be doing this all over again the first chance they get.

 

[Corsi]

Daniel Wallach ‏@WALLACHLEGAL  25m25 minutes ago
Briefing schedule in NFL v Brady: 8/7 -- NFL & NFLPA to file cross-motions on arbitration award 8/14 -- NFL & NFLPA to file their responses
 
Daniel Wallach ‏@WALLACHLEGAL  13m13 minutes ago
With today's proposed briefing schedule (done by 8/14), Judge Berman should be in position to rule by 9/4 (20 days is plenty). No PI needed.

 

[loshjott]

Given the judge's admonition that the sides keep pursuing a deal, both sides could see this agreement as beneficial, seeing that they agreed to *something.*

 

[jsinger121]

 

Bob McGovern ‏@BobMcGovernJr  4m4 minutes ago
To answer a question I've been getting: This does not mean they are settling. It means they have agreed to litigate - quickly. #DeflateGate
 

 

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

What puzzles me here is, if they rule in favor of Brady, and vacate the punishment, doesn't this just throw it back into the NFL's court, or is the judge going to rule specifically for -how- the punishment is to be handled?
 
I'd really have preferred the discovery option, because it just strikes me that the NFL'll be doing this all over again the first chance they get.

 
The cynic in me thinks that this has been the NFL's plan all along.  They have won the PR battle.  They have a good chance of Goodell not being declared as impartial, which means he retains all of his "power" in the next incident with a player.  If they win against Brady great for them, if they lose against Brady then they don't care.  They've got their pound of flesh and they've retained their power.  

 

[Reverend]

What puzzles me here is, if they rule in favor of Brady, and vacate the punishment, doesn't this just throw it back into the NFL's court, or is the judge going to rule specifically for -how- the punishment is to be handled?

 
It's not so puzzling. Short answer is: Probably, yeah--it's called "remanding" and it goes back to the NFL, but they have to rule in a way conistent with whatever the judge says was wrong with the previous ruling. That could range from effectively not being able to punish, to only being able to give a lighter punish, to having someone besides Goodell be the arbitrator. Or, unlikely, there could be a direct modification.
 
Check out what WBV wrote in the opening post to this thread.
 
The real interesting action is in how fast the league moves if this is vacated and remanded before the start of the season.
 
 

I'd really have preferred the discovery option, because it just strikes me that the NFL'll be doing this all over again the first chance they get.

 
I think most of us wanted discovery into NFL comms--discipline for the league. Tant pis.

 

[Harry Hooper]

 
It's not so puzzling. Short answer is: Probably, yeah--it's called "remanding" and it goes back to the NFL, but they have to rule in a way conistent with whatever the judge says was wrong with the previous ruling. That could range from effectively not being able to punish, to only being able to give a lighter punish, to having someone besides Goodell be the arbitrator. Or, unlikely, there could be a direct modification.
 
Check out what WBV wrote in the opening post to this thread.
 
The real interesting action is in how fast the league moves if this is vacated and remanded before the start of the season.
 
 
 
 
I think most of us wanted discovery into NFL comms--discipline for the league. Tant pis.

 
The sense I am getting is "winning" for Brady at this point is limited to the punishment being kicked back to the Commish to then apply the CBA rule about fines for tampered equipment. There will be no exoneration.
 
Addendum: The fast timeline that Berman is on gives me the vibe that he's going to rubber-stamp the existing ruling.

 

[epraz]

Daniel Wallach ‏@WALLACHLEGAL  13m13 minutes ago
With today's proposed briefing schedule (done by 8/14), Judge Berman should be in position to rule by 9/4 (20 days is plenty). No PI needed.
 

 
No PI needed if the judge upholds the punishment, but it seems unlikely that he would fashion a revised punishment, rather than "remanding" to the arbitrator (ya) for a new consideration based on the judge's finding.  That leaves us in an interesting position if the judge issues a ruling on 9/4 remanding.  Goodell (or another appointed arbitrator, if Berman finds that Goodell can't serve as arbitrator)could issue his new ruling whenever he wants.

 

[ivanvamp]

Legal types, how might Judge Berman view the Patriots releasing the email exchange between the Patriots and Pash, which make it pretty clear that the NFL was perfectly content to allow ESPN to report false information that was damaging to the Patriots (and Brady)?

 

[zenter]

The sense I am getting is "winning" for Brady at this point is limited to the punishment being kicked back to the Commish to then apply the CBA rule about fines for tampered equipment. There will be no exoneration.

 
Was exoneration in the offing? I mean, NFL has a lot of power to punish regardless of evidence. Not unlimited, but we're not talking about legal rules of evidence.
 
From WBV's initial post and followups, it seemed likely that 1) courts are wary of invalidating CBAs, and 2) "NFL violated CBA" would be the closest thing to a win for NFLPA/Brady.

 

[Joshv02]

Legal types, how might Judge Berman view the Patriots releasing the email exchange between the Patriots and Pash, which make it pretty clear that the NFL was perfectly content to allow ESPN to report false information that was damaging to the Patriots (and Brady)?

Lots of things that are background flavor (framing) and don't really affect the legal analysis in a formal way, yet influence judges.
This isn't one of them. 

 

[snowmanny]

Legal types, how might Judge Berman view the Patriots releasing the email exchange between the Patriots and Pash, which make it pretty clear that the NFL was perfectly content to allow ESPN to report false information that was damaging to the Patriots (and Brady)?

The Patriots aren't a party in this litigation so I imagine he wouldn't have much to say.  Well, I guess they are part of the NFL so he could tell the NFL to stop having it's member team release information that disparages their own counsel, but that would be weird, right?

 

[BroodsSexton]

Lots of things that are background flavor (framing) and don't really affect the legal analysis in a formal way, yet influence judges.
This isn't one of them. 

 
I'll take a contrarian view.  I think a judge (or his clerks) is going to be very interested in digging into all of the peripherals on a case like this.  It may not make an appearance in the decision, but I could see it affecting the Judge's willingness to rule against the NFL.  So many cases could go either way by application of legal doctrine--how a judge sees the entire geschtalt can affect how he crafts his ruling.  So I think that the Patriots' release could have a subtle impact on the Judge.
 
Formally, it will have no impact at all because it's not part of the record, and the Patriots are not the PA.

 

[Shelterdog]

 
I'll take a contrarian view.  I think a judge (or his clerks) is going to be very interested in digging into all of the peripherals on a case like this.  It may not make an appearance in the decision, but I could see it affecting the Judge's willingness to rule against the NFL.  So many cases could go either way by application of legal doctrine--how a judge sees the entire geschtalt can affect how he crafts his ruling.  So I think that the Patriots' release could have a subtle impact on the Judge.
 
Formally, it will have no impact at all because it's not part of the record, and the Patriots are not the PA.

I'll go even further.  The references in the initial order to scorched earth show that the Judge has already been looking into (and considering) the context of this case as a whole.

 

[lambeau]

So Kraft is submitting a series of amicus curiae briefs .

 

[dcmissle]

Big picture:

Team Brady could have moved for PI and sought discovery, the discovery here celebrated.

Or it could have given up on the discovery and moved for a quick final determination on the merits.

It chose the latter. It is a bold and confident path.

BTW - Florio should be admitted to the writer'so wing in Canton after this is done.

 

[AB in DC]

 
That said, asking a judge to rule by a date certain -- and likely less than a month after the initial motion papers are filed -- takes some balls, IMO.  However, if it saves him having to deal with injunction motion practice, maybe the Court will go along with it.

Really?  It can't hurt to ask.  And even if the judge says no -- since both parties agreed to this request, how could the request hurt the NFLPA's case more than the NFLs?

 

[Otis Foster]

Big picture:
Team Brady could have moved for PI and sought discovery, the discovery here celebrated.
Or it could have given up on the discovery and moved for a quick final determination on the merits.
It chose the latter. It is a bold and confident path.
BTW - Florio should be admitted to the writer'so wing in Canton after this is done.

Or maybe Berman made it clear that the peripherals were not to be introduced into the case, thereby forcing this into a streamlined process: Did Goodell act within the scope of the CBA.

Edit: spelling

 

[PaulinMyrBch]

OK, judge just issued an scheduling order. Brady and Goodell required to appear at status/settlement conferences on 8/12 and 8/19. He's not playing. I'll be surprised if this isn't settled. 
 
https://twitter.com/BenVolin/status/627223628338364416

 

[Marciano490]

Really?  It can't hurt to ask.  And even if the judge says no -- since both parties agreed to this request, how could the request hurt the NFLPA's case more than the NFLs?

 
It's inside baseball, but this just is not done.  You really don't try to nudge a judge, ever, especially on timing.

 

[PaulinMyrBch]

I'm thinking the judge is driving all of this at this point. The NFLPA had choices on response time. It's not a coincidence they are filing the response today, asking for an expedited schedule, and the judge is full blown dead set to fast track it with them. I'm guessing he had a conference call, set some "not so uncertain" terms for scheduling, settlement, etc., and the parties are now walking in step. 

 

[CaptainLaddie]

Forgive me here: when you guys say "settlement", we're not talking about Brady taking a deal for 2 games or some tripe like that, right?  We're talking settling this whole thing.