Eddie Jurak said:
IANAL but what I am gathering from this thread, the NHLPA NFLPA counterclaim, and other things I have read is this:
1. Throughout this whole saga the NFL has handled the situation as a ridiculous clown show. Brady's pseudo-appeal was a kangaroo court clown show. This wiill be obvious to the judge.
2. Under the CBA, the NFL is not prohibited from running igations and player discipline proceedings as a clown show. And it can run its appeals as a kangaroo court where any crazy ass statements made by Roger Goodell are considered "facts".
I spent part of yesterday trying to understand the CBA scheme, because the words appeal sound like Brady should get more than a kangaroo appeal. But, as you note, the CBA allows this, and for the life of me I can't figure out what they intended by the "appeal."
Under Section 46(a)(1), which includes the violations alleged, THE COMMISSIONER is to issue the violation.
Section 1. League Discipline: Notwithstanding anything stated in Article 43: (a) All disputes involving a fine or suspension imposed upon a player for conduct on the playing field .... or involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football, will be processed exclusively as follows: the Commissioner will promptly send written notice of his action to the player, with a copy to the NFLPA. Within three (3) business days following such written notification, the player affected thereby, or the NFLPA with the player’s approval, may appeal in writing to the Commissioner.
Under 46(b), there is a right to an appeal by a HEARING OFFICER. However, it then says that at his discretion, THE COMMISSIONER may serve as the HEARING OFFER, and decide the appeal.
Section 2. Hearings: (a) Hearing Officers. For appeals under Section 1(a) above, the Commissioner shall, after consultation with the Executive Director of the NFLPA, appoint one or more designees to serve as hearing officers. For appeals under Section 1(b) above, the parties shall, on an annual basis, jointly select two (2) or more designees to serve as hearing officers. The salary and reasonable expenses for the designees’ services shall be 205 shared equally by the NFL and the NFLPA. Notwithstanding the foregoing, the Commissioner may serve as hearing officer in any appeal under Section 1(a) of this Article at his discretion
So, the Union seems to have agreed to the Kangaroo process where the Commissioner may hear the appeal of his own decision. This leaves Brady only a technical argument that Goodel erred in delegating to Vincent the initial decision, or that there is an exception that the Commissioner cannot be involved if conflicted because he was involved in the events (the Morris exception).
The bottom line for me is that while the conflict, bias, etc. of Goodell seems obvious, the NFLPA agreed to this in the CBA. Goodell decided facts and drew conclusions that in any other arbitration setting would not be set aside.
Even the good evidence of discovery decision, and the privilege assertion on Well's work, or Pash's involvement, does not seem to rise above the unfairness standard -- arbitrators have pretty broad discretion.
All of those process points therefore are not very strong for Brady.
The best process point seems to be the notice point, and whether it was clear that not turning over the phone could be a factor in the decision. This is where Munson is correct that the decision is written well to insulate this item, using it to support the punishment, but not resting only on this point. That way, even if the cell phone point is excluded, the remaining part of the decision -- that there was likely tampering -- would seem to stand on its own.