TB Suspension: Cheater free to play again

Omar's Wacky Neighbor

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Leaving in a bit to the studio :)
Not sure this is the relevant thread, but Brady was named by Sporting News as the #5 hated NFL player of all time. Quite incredible for a crime of general awareness, and for a guy who turned himself from 6th round pick and 4th string QB to the GOAT.

6 is Ray Lewis
4 is Greg Hardy
3 is Suh
2 is TO
1 is Vick

http://www.sportingnews.com/nfl/list/nfl-hated-players-vick-lewis-roethlisberger-tebow-owens/1imk9iv0s73i1kfv2fp7spyw9
What else can you say: the American public really hates Uggs and tartan car coats.
 

OCST

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Mike Reiss ‏@MikeReiss 6m6 minutes ago


Tom Brady attorney Ted Olson to @ABC's @GMA (re: appeal): “The facts here are so drastic and so apparent that the court should rehear it."
Good for Ted. He's as savvy an old pro as you can find. He comes across as eminently reasonable.

This kind of media advocacy is not supposed to matter re: influencing the court. I can't tell you how much it matters, but it's more than 0%.
 

PaulinMyrBch

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Lots of screenshots of the brief on twitter. I like what I see so far. But I've got a busy Monday, so I'll be unable to devote the requisite f-off time to the cause today. I'm hoping the entire brief is as good as the early blurbs.
 

Bongorific

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There's still an almost zero chance it's granted, but almost everything else in this 500 day ordeal that was "slim to none" actually happened. So why not this?
 

RedOctober3829

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Well, after this probably gets denied, we get to see Deflategate appealed to the U.S. Supreme Court. From the Bob Kravitz tweet the night of the AFC title game to possibly the Supreme Court. The NFL is truly awesome.
 

TheoShmeo

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Side point: How a draft of the brief got filed on the interweb is a bit bizarre. This cannot make Ted Olson happy.

I like the brief a lot. It's short, concise, free of hysteria, makes the points and makes the NFL look bad. Anyone with a remotely open mind reading it would have to pause.

I remain pessimistic about the motion being granted but I like Goodell being exposed for the lying scum bag that he is. And I think this does that, even while it will be ignored by those who have already determined that Brady cheated.
 
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Steve Dillard

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That's a pretty shitty thing for a lawyer on the case (or paralegal) to do. I hope they get caught and fired.


I do love how Olsen has framed issue as Goodel denying Brady an "appeal" and not "notice."
The fundamental question -- one that we grappled with from the outset -- was how weird this "appeal" is, allowing new evidence, which a traditional appeal is not. Olsen making this an "appeal" right suggests Goodel was wrong even to allow that. Take the facts as found and then be constrained to them. The only issue is that Judges are familiar with the "affirm on any basis" principle, so that Goodell could have affirmed all four games on the "awareness" facts found by Wells. Of course, a more principled thing might to be remand to Goodell to determine on the fixed record, and exclude all new evidence.

Haven't read full brief, so will be interested to see how Olsen argues remand issue.

Not sure that's the final--it's marked privileged and confidential (and has a typo at the top of page 12).
Man, I wish I had your skills at spotting typos. That's my blind spot.
 
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Bongorific

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Well, after this probably gets denied, we get to see Deflategate appealed to the U.S. Supreme Court. From the Bob Kravitz tweet the night of the AFC title game to possibly the Supreme Court. The NFL is truly awesome.
The brief is certainly lined up that way, highlighting the split this creates between the 2nd and 8th circuits
 

bernardsamuel

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1. Compliments to ShelterDog for catching the omission of the word "to" on the third text-line of Page 12. Catching an omission is harder, IMHO, than catching a misspelling, as nothing is better than the human mind in filling in blanks.
2. While IANAL (just a retired CPA), the document leakage seems to me to build upon the momentum generated by Ted Olson's appearance on network TV this morning. So I'm not all that certain that the leakage was not strategic rather than somebody behaving badly. There should be a lot of positive buzz already in the air regarding Olson's work just as the real document finds its way onto the Interweb (compliments to Theo for conjuring up his best Belichick technological impression).
3. Should the legal matters soon evolve in a particular way and should the presidential election result in Trump's election, will one of Trump's litmus tests for Supreme Court nomination be positive legal feelings towards Brady? While reasonable people can disagree on less significant topics like abortion and gun control, no presentable nominee for SCOTUS could possibly be opposed to doing the right thing for Tom (insert your own Emoticon here).
 

Omar's Wacky Neighbor

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Leaving in a bit to the studio :)
Wallach on the tie-breaker (sorry if our esteemed brethren already covered this upthread):

"14 judges would rehear the case en banc--the 13 active judges plus Senior Judge Barrington Parker, who would be added to the en banc panel.

Brady would win tiebreaker if case gets reheard by 14 judges and results in 7-7 split vote. District court decision would then be affirmed."
 

Eddie Jurak

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Will the court either dismiss (without asking for NFL response) or ask for a response from the NFL? Or can they also just order an en banc hearing without getting a response from the NFL first?
 

Marciano490

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That's a pretty shitty thing for a lawyer on the case (or paralegal) to do. I hope they get caught and fired.


I do love how Olsen has framed issue as Goodel denying Brady an "appeal" and not "notice."
The fundamental question -- one that we grappled with from the outset -- was how weird this "appeal" is, allowing new evidence, which a traditional appeal is not. Olsen making this an "appeal" right suggests Goodel was wrong even to allow that. Take the facts as found and then be constrained to them. The only issue is that Judges are familiar with the "affirm on any basis" principle, so that Goodell could have affirmed all four games on the "awareness" facts found by Wells. Of course, a more principled thing might to be remand to Goodell to determine on the fixed record, and exclude all new evidence.

Haven't read full brief, so will be interested to see how Olsen argues remand issue.



Man, I wish I had your skills at spotting typos. That's my blind spot.
Haven't read the brief and don't know a ton about appellate rules, but can Olsen raise a new issue/argument at this point?
 

dcmissle

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Well, after this probably gets denied, we get to see Deflategate appealed to the U.S. Supreme Court. From the Bob Kravitz tweet the night of the AFC title game to possibly the Supreme Court. The NFL is truly awesome.
I find two things sad:

1. Olson & Co. did not have this from the get in Second Circuit.

2. Scalia not being around to vote on a cert petition and then hear the merits of this case. He hated sloppiness, cared a lot about arbitration, and likely would have lit the NFL up in this case and immensely enjoyed himself while doing so.
 

PaulinMyrBch

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This strikes me as the money paragraph. Last part of page 10.

Affirming discipline on grounds not even mentioned in the disciplinary decision under review exceeded Goodell’s power under the CBA to decide “appeals.” There are countless collective bargaining arrangements that provide for appeal following the initial notice of discipline, and in no case before this one has a court upheld a labor arbitrator’s decision to affirm punishment on new grounds. The majority’s decision cripples the ability of employees to challenge workplace discipline. Had Brady known, for example, that his alleged role in the purported
 

Van Everyman

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This strikes me as the money paragraph. Last part of page 10.
Good find. Had to imagine that Team Brady's argument to sway the full court to bother with this would be at least somewhat predicated on the precedent this decision would set for average working stiffs (as opposed to Giselle's husband). So that makes sense.
 

Marciano490

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Good find. Had to imagine that Team Brady's argument to sway the full court to bother with this would be at least somewhat predicated on the precedent this decision would set for average working stiffs (as opposed to Giselle's husband). So that makes sense.
Man, I'd hate to be the associate tasked with that research project going up to Ted Olsen saying I'd checked every case in every jurisdiction and giving him the green light to argue "in no case before..."
 

PaulinMyrBch

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Yea I love the way the brief encompasses the issues as generically to Brady as possible and more specifically important to workers and their appellate rights under all CBA's.

We're seeing a great argument for the far reaching effects bad precedent will have on workers under existing CBA's everywhere. The cases cited seem dead on point, and do not require stretching logic at all. As most predicted the Katzman dissent was the road map. But this is a very clear picture of this case, past and present.
 

Steve Dillard

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If you go back to the roots of this thread, you will see we all struggled to determine what he hell the CBA process encompassed.

Ultimately, trying to present this as a generic arb appeal right is hard. As Clement presented it, they swore Brady in as a witness on the "appeal." Does Brady contend that only good evidence is part of the "appellate" record, but the bad stuff was outside the record.
 

RedOctober3829

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Yea I love the way the brief encompasses the issues as generically to Brady as possible and more specifically important to workers and their appellate rights under all CBA's.

We're seeing a great argument for the far reaching effects bad precedent will have on workers under existing CBA's everywhere. The cases cited seem dead on point, and do not require stretching logic at all. As most predicted the Katzman dissent was the road map. But this is a very clear picture of this case, past and present.
After reading the brief, in your opinion does Brady have a better chance to get the en banc hearing?
 

PaulinMyrBch

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After reading the brief, in your opinion does Brady have a better chance to get the en banc hearing?
I don't have the experience to make even an educated guess. From everything I've read, its a long shot.

But I do think when you can cite something this court has done that no other court has done before, then you've got the attention of the judges for them to at least consider what the far reaching effects of the existing ruling will be if left on the books. I like how that issue in no longer framed as a Brady/NFL issue, but a more importantly an issue that will have far reaching effects on all workers under existing CBA's. Olsen had to raise an issue that moved the focus from Brady/NFL to workers nationwide to have a chance. I think he's done that.

So I think you'll see some things later today from experts indicating the brief and issues framed are stronger than they anticipated, and couple that with Ted Olsen making the argument, and the odds of the en banc getting granted are higher than most anticipated. But putting a number on that at 20-30-40%??? I don't know.
 

WayBackVazquez

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Haven't read the brief and don't know a ton about appellate rules, but can Olsen raise a new issue/argument at this point?
It's not really a new argument; Kessler & Co. made it, but kind of buried it:

Further, under longstanding law that arbitrators may not “exceed[] the scope of the [parties’] submission” (Enter. Wheel, 363 U.S. at 597), Goodell lacked authority to affirm Brady’s suspension based on alleged “participat[ion]” in a “scheme” that was not the basis for Vincent’s discipline of Brady. JA345-346 § 2(a) (arbitrator conducts only an “appeal” of the discipline imposed); Peterson, 88 F. Supp. 3d at 1091-92 (NFL arbitrator exceeded his authority and violated the essence of the CBA by sustaining discipline on alternative grounds).
The NFL attempts to blur the line between the Commissioner’s roles as disciplinarian and arbitrator, but they are distinct. As arbitrator, the Commissioner was constrained by the LMRA and FAA. As arbitrator, he lacked authority to impose new discipline, or to sustain discipline on new grounds. Peterson, 88 F. Supp. 3d at 1091-92; JA1397 (Rice Tr. 396:17-25) (Birch).* Thus, Goodell could not sustain punishment for Brady “participat[ing]” in a “scheme” mentioned nowhere
in the Wells Report or the Vincent discipline.

* Enterprise Wheel forecloses the claim that “the Commissioner unquestionably had discretion to consider … new evidence.” NFL Br. 43. But in any event, neither the award nor the NFL identifies any “new evidence” that Brady “participated in” or “induce[d]” ball-tampering.
Also, as appellee, you get a lot of leeway (court may affirm on any grounds supported by the record).

That said, it's not a great look that the petition IDs as its primary basis for rehearing that the panel decision conflicts with a Supreme Court opinion that it never cited in its opposition.
 
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HowBoutDemSox

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Ultimately, trying to present this as a generic arb appeal right is hard. As Clement presented it, they swore Brady in as a witness on the "appeal." Does Brady contend that only good evidence is part of the "appellate" record, but the bad stuff was outside the record.
Looks like Olsen is trying to draw a distinction between evidence for matters already determined by the initial punishment (eg, general awareness) and evidence pertaining to new grounds brought up for the first time in the appeal hearing (eg, active participation):
"The authority to take evidence to determine whether the existing grounds for discipline are justified is not a license for the arbitrator to develop new grounds for discipline—and to affirm a penalty based on conduct that differs from the conduct that warranted the punishment in the first place. See Elkouri, supra, at 15-58 (“[A]rbitrators have drawn a distinction between additional grounds for discharge, which remain inadmissible, and evidence of pre- or post-discharge conduct relevant to the originally stated grounds.”)."
 

AB in DC

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Why Kessler never took up this argument is beyond me. I thought it was obvious to everyone that Goodell was moving the goalposts in the "appeal".
 

joe dokes

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Wallach on the tie-breaker (sorry if our esteemed brethren already covered this upthread):

"14 judges would rehear the case en banc--the 13 active judges plus Senior Judge Barrington Parker, who would be added to the en banc panel.

Brady would win tiebreaker if case gets reheard by 14 judges and results in 7-7 split vote. District court decision would then be affirmed."

FWIW--Parker doesn't get a vote on whether to convene the en banc.
 

Steve Dillard

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Affirming discipline on grounds not even mentioned in the disciplinary decision under review exceeded Goodell’s power under the CBA to decide “appeals.” There are countless collective bargaining arrangements that provide for appeal following the initial notice of discipline, and in no case before this one has a court upheld a labor arbitrator’s decision to affirm punishment on new grounds. The majority’s decision cripples the ability of employees to challenge workplace discipline. Had Brady known, for example, that his alleged role in the purported
Man, I'd hate to be the associate tasked with that research project going up to Ted Olsen saying I'd checked every case in every jurisdiction and giving him the green light to argue "in no case before..."
Taken care of in the final brief
http://static.nfl.com/static/content/public/photo/2016/05/23/0ap3000000664429.pdf

Affirming discipline on grounds not even mentioned in the disciplinary decision under review exceeded Goodell’s power under the CBA to decide “appeals.” There are countless collective bargaining agreements that provide for appeal following the initial notice of discipline, and the majority identified no case before this one in which a court upheld a labor arbitrator’s decision to affirm punishment on new grounds.
 

awallstein

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My favorite line:
"(Goodell) did not explain why the steroid provision was more relevant to determining the penalty for an equipment-related violation than the penalty schedule for equipment-related violations."
 

Eddie Jurak

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If Brady wins here, assuming he gets the rehearing, could the court simply send the award back to Goodell with instructions to redo his decision?
 

Shelterdog

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Somebody should blackline the leaked version to the final--it's probably your best chance to see how an ultra elite appellate lawyer wordsmiths in the last 24 hours short of participating in a case with a lawyer of that caliber.
 

Harry Hooper

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My favorite line:
"(Goodell) did not explain why the steroid provision was more relevant to determining the penalty for an equipment-related violation than the penalty schedule for equipment-related violations."

Any mention of the light punishments handed out for the Jets football deflation scheme?
 

joe dokes

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If Brady wins here, assuming he gets the rehearing, could the court simply send the award back to Goodell with instructions to redo his decision?
If he gets the rehearing, the panel decision is withdrawn. The en banc court has all the options available to it that the panel did.
 

Eddie Jurak

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If he gets the rehearing, the panel decision is withdrawn. The en banc court has all the options available to it that the panel did.
But one of the plausible options before - affirmation of Berman's previous ruling, which was based on an issue that could not be retroactively remedied (notice) - seems very unlikely now, given the argument Olson has put forward, which focuses on Goodell's failure to address certain provisions in the CBA (i.e., equipment tampering policies) and on Goodell's changing of the grounds for disciplinary action.

So what stops this from occurring (again, assuming for the sake of argument that Brady receives, and wins, an en banc rehearing:

1. Case is remanded back to Goodell, with instructions that he is not permitted to change the grounds from "at least generally aware" and also not permitted to ignore the equipment tampering policies.

2. Goodell redoes his decision, affirming Brady's suspension based on Brady's "at least general awareness" and concocts some bullshit reason why equipment tampering policies do not apply.

2a. Or, instead of #2, Goodell opts to have Vincent withdraw his "general awareness" grounds and suspend Brady 8 games for his active participation in a ball tampering scheme, Brady and NFLPA to receive a bullshit appeal hearing by Goodell.
 

tims4wins

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Hmmm

http://boston.cbslocal.com/2016/05/24/tom-brady-deflategate-settlement-offer/?cid=facebook_98.5_The_Sports_Hub

NFLPA executive director DeMaurice Smith told the Dan Patrick Show that Brady recently made another offer to settle the case that the league would not accept.

Based on Smith’s comments, it sounds like the NFL and Brady reached an impasse when the league tried to get Brady to foist blame for whatever happened with those footballs on the alleged “deflators,” Patriots employees John Jastremski and Jim McNally.

“Tom, I think, made a great offer to settle these cases. The league didn’t want to do it, because [Brady] refused to throw his trainers under the bus,” said Smith. “Tom’s a stand-up guy; he made a settlement offer to resolve this, the league chose not to take it, and that’s where we are.”

The more Smith spoke on the matter, the more apparent it became that the league likely told Brady that he could avoid a suspension for deflated footballs – and, more importantly, have a chance at preserving his reputation – if he blamed the whole thing on a couple of rogue equipment guys. Basically, that they wanted Brady to be a rat.

“I don’t want to go into details, but it was an incredibly generous offer [from Brady] to resolve this,” said Smith. “The league asked for something that no man should agree to do.”
 

DJnVa

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So, this horrendous cheater Tom Brady could have avoided this whole circus by throwing 2 guys under the bus and he wouldn't do it. And yet America hates Tom Brady.

Roger Goodell is the fucking worst.
 

DJnVa

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PaulinMyrBch

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But one of the plausible options before - affirmation of Berman's previous ruling, which was based on an issue that could not be retroactively remedied (notice) - seems very unlikely now, given the argument Olson has put forward, which focuses on Goodell's failure to address certain provisions in the CBA (i.e., equipment tampering policies) and on Goodell's changing of the grounds for disciplinary action.

So what stops this from occurring (again, assuming for the sake of argument that Brady receives, and wins, an en banc rehearing:

1. Case is remanded back to Goodell, with instructions that he is not permitted to change the grounds from "at least generally aware" and also not permitted to ignore the equipment tampering policies.

2. Goodell redoes his decision, affirming Brady's suspension based on Brady's "at least general awareness" and concocts some bullshit reason why equipment tampering policies do not apply.

2a. Or, instead of #2, Goodell opts to have Vincent withdraw his "general awareness" grounds and suspend Brady 8 games for his active participation in a ball tampering scheme, Brady and NFLPA to receive a bullshit appeal hearing by Goodell.
Berman vacated the award. If Brady gets an en banc hearing and wins. The Berman decision is upheld and the case is not remanded back to Goodell for a second bite of the apple. The NFL could appeal to the Supreme Court, but there wouldn't be further action at Goodell's level. It would be over barring SCOTUS getting involved.
 

OCST

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So, this horrendous cheater Tom Brady could have avoided this whole circus by throwing 2 guys under the bus and he wouldn't do it. And yet America hates Tom Brady.

Roger Goodell is the fucking worst.
I could be wearing Patriots glasses, but I think that this is the kind of thing that will slant public opinion more in Brady's favor years from now.

Good for him.