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

[djbayko]

Absolutely, I agree with everything you say. However, the truth of the matter is that Brady was not handing over his phone to Wells, and he didn't have to, so what he did with his phone after that is irrelevant. If Brady hadn't "destroyed" his phone, Wells would have still had the exact same evidence to work with.

It may be irrelevant from a logical standpoint, but the world isn't full of unemotional logicians. We have pages and pages of people talking about how it doesn't look good in the court of public opinion, and how it just *might* be something that sticks in the craw of a judge and helps shape the ultimate decision (unofficially of course). So it's not completely irrelevant. Yee and company are being a little cute with their public statements, and it's obviously working to a degree since we have well informed SoSH posters repeating their message. That's all I'm saying.

 

[Van Everyman]

Despite the compelling arguments made by Brady’s camp, ESPN legal analyst Lester Munson believes Brady has a very slim chance to succeed in his lawsuit.

“His effort to stop the suspension is doomed,” Munson wrote. “Goodell produced a decision on Brady that is brilliantly reasoned, meticulously detailed, and well-written. Goodell’s recitation of the evidence of the tampering with game balls is powerful, and his description of Brady’s attempt at a cover-up is persuasive.”

http://www.bostonglobe.com/sports/2015/08/01/tom-brady-deflategate-challenge-won-easy-win-legal-specialists-say/FWP7jcjRFYqphTTky2oTKN/story.html

I'm asking this honestly: does even a single lawyer on SoSH agree w Munson's assessment? I get that courts are loathe to overturn arbitrations. And I know Munson and ESPN haven't exactly covered themselves in glory here.

But I'm trying to take off my Pats-colored glasses here. Is there a contingent out there I'm not aware of that thinks the NFL has hit this out of the park from a legal perspective?

 

[Eddie Jurak]

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 its investigations 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".  
 
3. Despite #2, there is some limit to how much of a clown show the NFL can run before it runs afoul of the CBA.  There is an ill-defined line that they cannot allow their blatant asshattery to cross.
 
4. Reasonable arguments could be made that their conduct in this case falls on either side of that line.  It would not be a shock if Brady's suspension was upheld in full. Nor would it be a shock if Brady's suspension were vacated in full, complete with instructions to Goodell that he must pull his head fully out of his rectum before he begings contemplating whether or not to issue a $50K fine to Brady. 
 
5. Judge is going to push both parties hard to find a settlement.  This may or may not lead to a settlement.
 
Is that about right?

 

[AB in DC]

I'm asking this honestly: does even a single lawyer on SoSH agree w Munson's assessment? 

 
Better question is whether there are any non-SOSH lawyers that think Brady is "doomed".  I mean, most of the mainstream reports on this say that Brady has a tough battle given the standard deference to CBA-authorized arbitration, but I haven't seen a single comment from a real lawyer (i.e. not an ESPN shill) who thinks it's a slam-dunk for the NFL.

 

[lambeau]

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 its investigations 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".  
 
3. Despite #2, there is some limit to how much of a clown show the NFL can run before it runs afoul of the CBA.  There is an ill-defined line that they cannot allow their blatant asshattery to cross.
 
4. Reasonable arguments could be made that their conduct in this case falls on either side of that line.  It would not be a shock if Brady's suspension was upheld in full. Nor would it be a shock if Brady's suspension were vacated in full, complete with instructions to Goodell that he must pull his head fully out of his rectum before he begings contemplating whether or not to issue a $50K fine to Brady. 
 
5. Judge is going to push both parties hard to find a settlement.  This may or may not lead to a settlement.
 
Is that about right?

 
I think this sums it up beautifully.

 

[OCST]

 
This thing was never about Goodell trying to expand his powers over the dead body of the CBA. In my mind, this starts with the Rice fiasco when Goodell found himself on the wrong side of public opinion. I think that for an NFL commissioner, it's not as important to mete justice as it is to give the appearance of meting justice in accordance with public opinion. For Goodell in particular, it was vitally important to be on the right side of public opinion and mete a punishment that was going to satisfy public sentiment. So I don't think that &he minds losing in court as much. He did what he had to do to sore up his public standing as far as he is concerned, the rest is not as important.

SoSH has had many beautiful typos lately; this is easily the best of them.

 

[DennyDoyle'sBoil]

http://www.bostonglobe.com/sports/2015/08/01/tom-brady-deflategate-challenge-won-easy-win-legal-specialists-say/FWP7jcjRFYqphTTky2oTKN/story.html
I'm asking this honestly: does even a single lawyer on SoSH agree w Munson's assessment? I get that courts are loathe to overturn arbitrations. And I know Munson and ESPN haven't exactly covered themselves in glory here.
But I'm trying to take off my Pats-colored glasses here. Is there a contingent out there I'm not aware of that thinks the NFL has hit this out of the park from a legal perspective?

Betting for arbitration awards to be overtuned is not the smart play. You'd go broke pretty fast. Munson is betting on the side that usually pevails. The NFL heavily lawyered this thing, made some good tactical moves, and most of the time you really only need to show a point is fairly debatable to win. So Munson is an idiot, but he's backing the favorite.

To me, there is a core question that will likely dictate the outcome. Does the judge treat this as a standard arbitration challenge? Or does he get troubled enough by the NFL acting as judge in its own cause that he's skeptical and willing to look beyond the ordinary pro-award affirmance benefits of the doubt. To me, that's where the decision point is.

 

[dcmissle]

http://www.bostonglobe.com/sports/2015/08/01/tom-brady-deflategate-challenge-won-easy-win-legal-specialists-say/FWP7jcjRFYqphTTky2oTKN/story.html

I'm asking this honestly: does even a single lawyer on SoSH agree w Munson's assessment? I get that courts are loathe to overturn arbitrations. And I know Munson and ESPN haven't exactly covered themselves in glory here.

But I'm trying to take off my Pats-colored glasses here. Is there a contingent out there I'm not aware of that thinks the NFL has hit this out of the park from a legal perspective?

If he were any good, Munson would not be selling his wares to ESPN. He's be posting here for free.

Seriously, his knowledge is inch deep. He is a generalist. I heard him offer the same characterization of the district court opinion in the last legal wrangling over the CBA -- and that was overturned by the Eighth Circuit

As this proceeds, watch the parties and their counsel -- and watch what they do rather than what they say. RG can comfortably offer now to cut this penalty in half. His decision would then be the last authoritative word on the subject, and he could point to judicial pressure and the need to put this behind us as reasons for settling at all. And he has already won big against the team.

If the Union were to accept 2 games, that's essentially a concession that it has no shot. It would be avoiding adverse precedent: Brady would be picking up 2 games otherwise lost. And both would have the dig leaf of accommodating a forceful judge.

If there is a settlement on these terms, Munson is right. If there is no settlement, or settlement on vastly better terms, he is wrong.

Watch what the Union does. I trust Kessler's read over Munson's in something like this 100 times out of 100.

 

[Steve Dillard]

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. 

 

[amarshal2]

What is the point of having a CBA if one side is allowed to completely trample on all the rules it outlines?

 

[Valek123]

What is the point of having a CBA if one side is allowed to completely trample on all the rules it outlines?

This is why we will not see football in 2021, that will be a prolonged strike unless the owners dump Goodell in the next few years and replace him with someone more competent.

 

[Eddie Jurak]

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. 

 
My best (and entirely baseless and speculative) guess on the phone issue is that at the time Wells conceded that he didn't need to have Brady's phone, he believed that he was conducting an "independent" investigation.  He would have issued a warning except that in his judgment at the time, a warning wasn't necessary because the phone itself wasn't necessary.
 
It became an issue when the NFL started reviewing drafts of the Wells report and it was made clear to Wells that on this matter he was Roger Goodell's dog and nothing more.  So the Wells report added some text on Brady's failure to hand over his phone or his texts and Wells brought this up at his infamous press conference.
 
Question: Will Wells run another investigation for the NFL, or will Goodell need to find a new dog for next time?

 

[dcmissle]

The next time the NFLPA successfully sustains a work stoppage will be the first time. They lack solidarity; careers are too short, money too good.

The reason he Union has not been able to move the needle on this discipline stuff in negotiations is because it has not been a priority. The owners would demand something else in return. Money and other terms -- trimming offseason training obligations -- affect every player significantly. This discipline stuff impacts very few.

Edit -- I think wells' days are done, at least on investigations that involve the Pats, but who knows? A victory here will only embolden RG.

 

[wade boggs chicken dinner]

Kessler is really focused on and honed in much more on structural bias issues and notice. He is agruing that prior cases -- especially Peterson -- are controlling and dispositive, and that the NFL is bound by them.

On this last point, he's arguing a doctrine called "collateral estoppel," which says that when you lose on an issue in one forum, you can't relitigate it another forum. He's saying the NFL lost on the notice issue in Peterson -- you can't impose discipline on non-noticed conduct -- and that's dispositive here. My initial reaction was that he was putting a lot of eggs in that basket. The NFL will try to distinguish Peterson legally and factually to get out from under colatteral estoppel.

I don't think Petersen is dispositive (I posted the ruling many pages back) as it primarily turned on the issue of whether the new player policy could be applied retroactively to prior player conduct, to which the answer for a variety of reasons was a resounding "no". As I understand it (haven't had time to read everything but am pretty sure about this), Goodell was applying a different criteria/policy to Brady.

That's not to say that Goodell was correct in his punishment of Brady - onlly that this is a much different question than the one in the Peterson case.

 

[lambeau]

I don't think Petersen is dispositive (I posted the ruling many pages back) as it primarily turned on the issue of whether the new player policy could be applied retroactively to prior player conduct, to which the answer for a variety of reasons was a resounding "no". As I understand it (haven't had time to read everything but am pretty sure about this), Goodell was applying a different criteria/policy to Brady.

That's not to say that Goodell was correct in his punishment of Brady - onlly that this is a much different question than the one in the Peterson case.

The question seems to be how inapproprite was it for Roger to ignore the Player Policy on equipment tampering and lack of cooperation calling for fines and capriciously go elsewhere as he freely went elsewhere in Peterson.

 

[Joe D Reid]

Right, the rule set out in Peterson (notice is required) only gets you halfway there. You still have to look at whether the rule was followed, and the facts in Peterson arguably don't help much here when you make that call.

 

[AB in DC]

So what should the NFLPA do with the 15 pages that Judge Berman is allowing them for one last submission?  Presumably they've already laid out the entire case in their initial claim/counterclaim.  What else is left to say that they would not have said the first time?

 

[Otis Foster]

Betting for arbitration awards to be overtuned is not the smart play. You'd go broke pretty fast. Munson is betting on the side that usually pevails. The NFL heavily lawyered this thing, made some good tactical moves, and most of the time you really only need to show a point is fairly debatable to win. So Munson is an idiot, but he's backing the favorite.

To me, there is a core question that will likely dictate the outcome. Does the judge treat this as a standard arbitration challenge? Or does he get troubled enough by the NFL acting as judge in its own cause that he's skeptical and willing to look beyond the ordinary pro-award affirmance benefits of the doubt. To me, that's where the decision point is.

That to me is the central point. In a conventional arbitration, the odds are almost insurmountable, absent fraud or overwhelming bias. The burden of proof on the latter would be extremely heavy.
 
This is an unusual kind of arbitration because it allows the prosecutor  to hear the so-called appeal, when they could have reached for an independent arbitrator but for entirely understandable reasons tried to keep it in house. That creates incestuous dynamics.
 
Berman can treat this as sui generis. He can rule that the arbitrator in this unusual species of cases has a heavy duty of fairness, and that is in issue here. That ruling will open the door to inquiry about Wells and Goodell's behavior and put the NFL at risk without throwing its processes out entirely.
 
Do I think that will happen? I wouldn't bet my IRA on it, but unless there's an available path to overcome the presumption of finality, Brady and the NFLPA lose.

 

[amarshal2]

Here's my best lay-person's summary of each sides case and odds during the appeal based on what you all are saying. Please let me know where I'm off.

NFLPA:
-Goddell was biased and not fit to sit as arbitrator
-public praise of wells report prior to arbitration
-NFL counsel Pash edited report
-NFL claimed privilege on report
-Wells team served as NFL attorney during appeal

-NFL broke CBA in a number of places
-notice
-fairness
-consistency
-Vincent not authorized to issue punishment and if Goddell issued it then it's bias during arbitration because he issued punishment and reviewed his own punishment

NFL:
- CBA gave Goddell right to be arbitrator
-point by point defense of their actions as within the grounds of the CBA.

There is strong disagreement about the merits of the case eg., science and Brady's actions making him look guilty/phone stuff - but none of that is really relevant.

Overall, Brady's case is very strong. If a judge is willing to review Goddell's arguments for notice and punishment during arbitration, at least some of the NFLPA's arguments will stick.

The crux of the issue is that judges are extremely reluctant to to weigh in on collectively bargained arbitrated outcomes and so the bar for a judge to interfere is exceptionally high. As such, nobody knows if Brady has a great case where the judge will consider the merits and award it to the NFLPA or a great case where the judge will just defer because Goddell was allowed to sit as arbitrator.

-----
Do I basically have that right? Any nit picks? Am I way off?

 

[lambeau]

I guess on the side of this case being unusual is the strange fact that the NFL keeps being overturned--does that make a judge say this is not business as usual?
 
Not only Tagliabue (his longtime boss and predecessor) but two federal judges have found Goodell guilty of egregious error; does that subtly or subconsciously help overcome the presumption of finality?

 

[MarcSullivaFan]

Even though the parties both refer to the appeal to Goodell as an arbitration, the judge could rule that Goodell is not an arbitrator, and, while the parties are bound by the CBA process, Goodell's decision is not subject to the high level of deference accorded under Section 301 case law. I would argue that the policy justifications set forth in Enterprise Wheel supporting deferral do not apply here--In particular, the special expertise of labor arbitrators, and promoting industrial peace by balancing the no-strike clause with resort to a neutral arbitrator.

 

[TheoShmeo]

Even though the parties both refer to the appeal to Goodell as an arbitration, the judge could rule that Goodell is not an arbitrator, and, while the parties are bound by the CBA process, Goodell's decision is not subject to the high level of deference accorded under Section 301 case law. I would argue that the policy justifications set forth in Enterprise Wheel supporting deferral do not apply here--In particular, the special expertise of labor arbitrators, and promoting industrial peace by balancing the no-strike clause with resort to a neutral arbitrator.

MSF, would you expect that to be an argument that is raised orally or in post trial briefs?  Does the fact that it was not raised in the opening motion (at least the one filed in Minnesota) suggest to you that the NFLPA and Brady will not make it?  Or that they were holding it back?  I doubt that it had not occurred to them so I am left wondering what their plan is.
 
Would love to get your thoughts on that.

 

[DennyDoyle'sBoil]

I would think this isn't the first case in which parties have agreed to arbitration, but essentially let one of the sides be the arbitrator.  I would think somewhere there is law on this.  Maybe not in the Second Circuit.  Maybe not under the NLMRA.  But somewhere there must be some cases.  I could see them going two ways.  A court might say, "that's what you agreed to, you have to live with it, leave me alone."  Or a court could say, "you can do that, but the standards are different."
 
If there were a dispositve case one way or the other, I'd like to think we would have heard about it at this point.  But with idiots like Lester Munson on the case, maybe not.  We may need to wait for the parties' 15-page briefs.
 
There is a related body of law that I am aware of.  A "non-mutual" arbitration clause -- that is, a clause that gives one side the right to invoke arbitration but not the other side -- is viewed very skeptically by courts.  But this usually is in the consumer context, where it's a contract of adhesion -- like your home warranty company jams a 25-page single-spaced policy down your throat and buried in there is a non-mutual arbitration provision.  Obviously, these cases aren't directly applicable, but my thought is this can't possibly be the first time this sort of issue has come up.

 

[MarcSullivaFan]

MSF, would you expect that to be an argument that is raised orally or in post trial briefs?  Does the fact that it was not raised in the opening motion (at least the one filed in Minnesota) suggest to you that the NFLPA and Brady will not make it?  Or that they were holding it back?  I doubt that it had not occurred to them so I am left wondering what their plan is.
 
Would love to get your thoughts on that.

It seems to me that the NFLPA is not making that argument. I was just raising the possibility of the court going in that direction--admittedly unlikely.

DDB I'm not talking about the court refusing to hold the parties to the CBA proccess--I'm talking about the judge saying: " Okay you agreed to this proccess. But it's not a legit arbutriation for LMRA/Section 301 purposes, so I don't have to accord a high level of deference to Goodell's ruling, and I'll decide whether it violated the CBA."

 

[DennyDoyle'sBoil]

It seems to me that the NFLPA is not making that argument. I was just raising the possibility of the court going in that direction--admittedly unlikely.
DDB I'm not talking about the court refusing to hold the parties to the CBA proccess--I'm talking about the judge saying: " Okay you agreed to this proccess. But it's not a legit arbutriation for LMRA/Section 301 purposes, so I don't have to accord a high level of deference to Goodell's ruling, and I'll decide whether it violated the CBA."

Ahh. I see. I'm not sure NFLPA has actually made that argument in its answer.. Maybe they will later. If anything, footnote 1 seems to suggest that they accept that the standards for review under the FAA govern.

 

[DJnVa]

I thought the NFLPA wasn't saying Goodell couldn't serve in that role in general. But in this specific case he shouldn't because one of the issues is his delegation to Vincent. His actions are one of their issues so clearly he should recuse himself. At least, per the NFLPA.

 

[Steve Dillard]

Learning labor law on the fly, LMRA 301 provides for a grievance process.  By the US Supreme Court, 

The typical grievance procedure includes four or five steps. It begins when the employee or her union representative brings the grievance to the foreman's attention, usually just by telling of the problem. Id. If the dispute continues, the grievance is filed, in writing, with the division superintendent. It will then be considered in a meeting between union and management committees with each side setting forth its position in writing. Id. A grievance not settled by progressive negotiations between the management and union hierarchies will be taken before a neutral arbitrator, whose decision is final and binding. If either party's wrongful refusal to go to arbitration defeats this process, the individual employee may seek redress in the federal courts pursuant to § 301 of the Labor Management Relations Act. Vaca v. Sipes, 386 U.S. 171, 185 (1967). See supra note 1 and accompanying text.
 

 
I suppose the parties can vary that requirement by CBA, which they did here by not requiring a neutral arbitrator, and allowing the Commissioner to serve that function, even though he is the one initiating the punishment.   This truly seems to be a f up by the union, which i'm guessing agreed to this thinking the process would apply for actions like drug violations and crimes, where the violation is not identified by the commissioner.  But this is unique in that the Commissioner is not just codifying an independent violation, but is the initiating and investigative force.  

 

[lambeau]

Another way this is not your standard case, and it must be obvious to the judge, is that-- as in Bountygate, Rice, and Peterson-- Goodell did not care about fairness, but PR.
The usual labor case is not a huge PR nightmare leading the evening news and driving decisions which derive from many considerations other than the law or the contract.
 
Since the judge wants to settle, I think Kessler may keep pushing the angle of notice-- the only notice TB got was for an offense bringing a possible fine--and we're happy to discuss a fine.

 

[edmunddantes]

People forget this power has been there for a long time going back to Rozelle. It's only recently that Roger took the the power and started exploiting it.

Edit - autocorrect

 

[simplyeric]

NM

Reread your post and I just reiterated what you said.

 

[tedseye]

Even though the parties both refer to the appeal to Goodell as an arbitration, the judge could rule that Goodell is not an arbitrator, and, while the parties are bound by the CBA process, Goodell's decision is not subject to the high level of deference accorded under Section 301 case law. I would argue that the policy justifications set forth in Enterprise Wheel supporting deferral do not apply here--In particular, the special expertise of labor arbitrators, and promoting industrial peace by balancing the no-strike clause with resort to a neutral arbitrator.

Spoken like a labor lawyer.

 

[garzooma]

So I was just listening to What's Right with Nick Wright on CBS radio.  He made what I thought was an interesting point: the NFL is basically accusing Brady of being a felon -- of committing perjury, since his testimony was under oath.
 
I saw this blog entry on the legal implications.  On the one hand "the state’s [NY's] perjury law is broadly written to suggest that a person can perjure himself outside the context of an official proceeding, even when the statement is made to a private body." But later, the author quotes a law professor saying"he’s doubtful that perjury law is applicable to the NFL appeal hearing unless it’s somehow construed as part of an National Labor Relations Board proceeding."

 

[tedseye]

I would think this isn't the first case in which parties have agreed to arbitration, but essentially let one of the sides be the arbitrator.  I would think somewhere there is law on this.  Maybe not in the Second Circuit.  Maybe not under the NLMRA.  But somewhere there must be some cases.  I could see them going two ways.  A court might say, "that's what you agreed to, you have to live with it, leave me alone."  Or a court could say, "you can do that, but the standards are different."
 
If there were a dispositve case one way or the other, I'd like to think we would have heard about it at this point.  But with idiots like Lester Munson on the case, maybe not.  We may need to wait for the parties' 15-page briefs.
 
There is a related body of law that I am aware of.  A "non-mutual" arbitration clause -- that is, a clause that gives one side the right to invoke arbitration but not the other side -- is viewed very skeptically by courts.  But this usually is in the consumer context, where it's a contract of adhesion -- like your home warranty company jams a 25-page single-spaced policy down your throat and buried in there is a non-mutual arbitration provision.  Obviously, these cases aren't directly applicable, but my thought is this can't possibly be the first time this sort of issue has come up.

I have not researched this precise point, but in general would suggest that both parties to a CBA agreeing to a biased arbitrator raises Duty of Fair Representation (DFR) issues. NFLPA did not agree to a biased arbitrator in this "arbitration" case, as it objected before the hearing to Goodell hearing it; but at the earlier stage of accepting this provision in the CBA, it could be said it did.

If Judge Berman were to rule for the NFL on the ground that the CBA permits a biased arbitrator, it might be open to Brady as an individual to bring what is called a "hybrid" DFR case against both the NFL and PA as defendants, alleging that they both together deprived him of his rights as an employee to labor due process. All the PA's efforts to defend Brady now would of course be offered by the PA to defend itself against the claim that it failed in its duties under the DFR.

 

[lambeau]

Florio really was superb on EEI at 7:45. My takeaway was he thinks Berman may well lean on Roger to settle for an equipment violation. Dennis: "But what if they don't want to budge?"
Florio: "It's amazing the effect it can have if a federal judge in a black robe looks down and tells you how he's going to rule if you don't take what he's suggesting."
Clearly Florio thinks a fine is all that's warranted. He also said the NFL should investigate the Mortenson leak by collecting cellphones. He also doesn't think ESPN can keep stonewalling.
The audio will be on the EEI website--worth a listen for all truthers.

 

[PedroKsBambino]

Florio really was superb on EEI at 7:45. My takeaway was he thinks Berman may well lean on Roger to settle for an equipment violation. Dennis: "But what if they don't want to budge?"
Florio: "It's amazing the effect it can have if a federal judge in a black robe looks down and tells you how he's going to rule if you don't take what he's suggesting."
Clearly Florio thinks a fine is all that's warranted. He also said the NFL should investigate the Mortenson leak by collecting cellphones. He also doesn't think ESPN can keep stonewalling.
The audio will be on the EEI website--worth a listen for all truthers.

 
I'd be surprised if a single member of the firm Sons, Sam & Horn doubted Berman's ability to get the NFL to back down on a settlement if he truly is committed to that outcome.  
 
Just to illustrate (without digging deeply into the mechanisms or probabilities for each of these things) he can say in a closed hearing "I will rule against you.  I will find that the Commissioner violated the CBA.  I will determine as a matter of law that the Commissioner cannot ever be involved in an appeal.  I will issue a ruling that lays out, in detail, every violation of due process which occurred in this matter and find them all as facts.  I will enjoin the NFL from imposing any discipline on any player until they propose a scheme that satisfies the relevant law.  I will order discovery of all communications between the NFL and Paul Weiss and enter them in the public record" and so forth.     Those are plenty of points of leverage...

 

[PaulinMyrBch]

I'm going to put this in both threads because there are some common questions, Stephanie Stradley has updated her blog to include a new section dealing with settlement issues only. It is a separate header from her original deflategate blog post. 
 
http://www.stradleylaw.com/deflategate-legal-faqs-settlement/

 

[Joshv02]

I've never practiced before Berman.  I find his order from Friday to be bizarre.  I don't think I've ever seen an "order" start with "Thank you."  Nor with a series of "suggestions," which of course will be followed because it is within an "order" and from a judge.  I've also rarely seen a judge write in contractions and half sentences.  It is a complete rarity to have a federal judge say "please" tell me if you are available by such and such a date.
 
Perhaps this is a Berman thing?  Has the SDNY just because really more polite in cases I have nothing to do with?

 

[ehaz]

Re: Lester Munson - he has a history of coming off like a total dunce. Here is Above The Law ripping his 2011 Barry Bonds analysis to shreds (perhaps hyperbolically titled "ESPN legal analyst does disservice to all mankind").
 
Here are the fun parts:
 

Did Lester Munson get his law degree by staying at a Holiday Inn Express? 

Even 1Ls won’t believe the kind of tripe Muson has been spewing on ESPN…

WHAT THE F*** IS THIS MAN TALKING ABOUT? HOW ARE WE LIVING IN A WORLD WHERE THAT’S THE MAN TELLING LAYPEOPLE HOW TO FEEL ABOUT THIS TRIAL?

 

[Harry Hooper]

In the comment section below the most recent Forbes piece linked in the other thread, someone suggested the Mass. AG go after the NFL. Could the AG cook up something (however unlikely) that would just add to the NFL's burden and boost momentum towards the league settling?

 

[Section15Box113]

 
I'd be surprised if a single member of the firm Sons, Sam & Horn...

I hereby move to amend the title of this thread to the following:

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

 

[Bongorific]

Florio really was superb on EEI at 7:45. My takeaway was he thinks Berman may well lean on Roger to settle for an equipment violation. Dennis: "But what if they don't want to budge?"
Florio: "It's amazing the effect it can have if a federal judge in a black robe looks down and tells you how he's going to rule if you don't take what he's suggesting."
Clearly Florio thinks a fine is all that's warranted. He also said the NFL should investigate the Mortenson leak by collecting cellphones. He also doesn't think ESPN can keep stonewalling.
The audio will be on the EEI website--worth a listen for all truthers.

It's too bad the last few weeks of Florio articles are coming in the offseason. It would be great if we had SNF games on right now

Dan Patrick: Let's turn to Mike Florio for a look at the top stories he'll be following this week. What are you working on Mike?

Florio: Dan, we'll continue to follow the deflategate saga as new e-mail leaks demonstrate the league deliberately leaked false PSI numbers to drive the main stream media headlines. Plus, new information that the commissioner hates puppies. All that tomorrow on PFT. Back to you, Dan.

 

[Was (Not Wasdin)]

What happens next if Judge Berman denies the NFLPA request for an injunction?  Does it then proceed to a trial on the merits, or is the request to overturn or stay the arbitration award limited simply to the initial motion, and either side can appeal that decision to a higher court vs. taking it to a trial? 
 
From what I can read of the scheduling order:
 
Motions by August 7
Replies by August 14 
Oral arguments and decision prior to September 4
 
Court renders its decision on September 3, and says simply "Arbitration Decision Stands".  What happens next, appeal to higher court or scheduling for a trial?
 
Kessler's letter to the judge includes the phrase "no discovery is needed to adjudicate the parties' motions, which will be based on the arbitration record." I understand the plain meaning with respect to the initial motions, but what does it mean long term?  Is there a chance that either Walt Anderson or the Exponent folks will ever end up on the witness stand in federal court?

 

[nighthob]

The motion before the judge is an NFL request that Judge Berman rubber stamp their disciplinary decision... errr... "arbitration award".

 

[PaulinMyrBch]

What happens next if Judge Berman denies the NFLPA request for an injunction?  

 
There is no request for an injunction. The current request is to hear the case in its entirety by the start of the season. Once they all agreed to fast track it, the anticipated request for an injunction was not needed. 

 

[DJnVa]

What happens next if Judge Berman denies the NFLPA request for an injunction?  

 

I'm pretty sure that with the expedited ruling, the NFLPA did not ask for an injunction. That's the whole point of getting the ruling by September 4th.
 
If Brady wins, then we see what the NFL does. If he loses, then he appeals and asks for an injunction.

 

[TheoShmeo]

Was, I have not read all the papers and others may have a better take than me, but it sure looks like Kessler is not intending to supplement the record with additional evidence or testimony and is content instead to rely on argument and what was in the record of the arbitration hearing.  The tenor of the motion to vacate filed in Minnesota was consistent with that as he made arguments about notice and Goodell's douchebaggery and partiality, all of which were based on the record of the arbitration hearing and Goodell's public statements and past conduct.

 

[PedroKsBambino]

In the comment section below the most recent Forbes piece linked in the other thread, someone suggested the Mass. AG go after the NFL. Could the AG cook up something (however unlikely) that would just add to the NFL's burden and boost momentum towards the league settling?

 
The only thing that comes to mind is violation of some state employment law issue---perhaps, around requesting the cell phone.  I think the problem is working through how federal law that enables collective bargaining would potentially have supremacy there.   We likely have an employment lawyer or two hanging around here to give a more educated view on that than I would have.

 

[Myt1]

The MA AG is more concerned with things like opiate addiction and the like. I think you can all safely put it out of your minds.

 

[PedroKsBambino]

The MA AG is more concerned with things like opiate addiction and the like. I think you can all safely put it out of your minds.

 
You are on 'would the Mass AG do it' which I think most would agree they would not.  The question was about 'could they if they chose to' and that's different, and interesting as a sidelight even if most of us likely agree it won't happen, imo.

 

[Was (Not Wasdin)]

 
I'm pretty sure that with the expedited ruling, the NFLPA did not ask for an injunction. That's the whole point of getting the ruling by September 4th.
 
If Brady wins, then we see what the NFL does. If he loses, then he appeals and asks for an injunction.

 
But the appeal goes up to the higher court, correct?  Do they have the power to "stay" the impact of the trial court's ruling?  And it would be just motions there as well, correct?  Unless the appeals court orders it back down for "findings of fact" or something like that?
 
What I'm really trying to get at is would we ever see a trial in the federal court, and if so, how would it get there?