TB Suspension: Cheater free to play again

Shelterdog

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I think that's possible, and I put it down to the business with the phone. The record is replete with innocent explanations, as Ed H points out. However, when someone destroys a piece of evidence that has previously been tagged as relevant, what are you supposed to think?

I can't believe Yee counseled this. OTOH, knowing some of the lawyers I've dealt with over the years, maybe I can.
The opinion's discussion of the destroyed phone is really strongly written for an appellate decision.

Yee's more of an agent than a lawyer. The biggest mistake Brady made in all this was not hiring an elite white collar guy really early on rather than listen to some combination of his agent, his business manager, and the Patriot's reasonably good external counsel.
 

themuddychicken

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He's earned the right to say whatever the fuck he wants in the opinion. That's what judges do. And sometimes, yes, they take a moment to make a point about something they feel is not directly relevant. Maybe because it tickles their funny bone. Maybe they have a bone to pick. Who knows. Scalia used to do it all the time on much more substantive matters than this.
As an insider this is the second time that you state he's earned the right to do his job poorly and maybe this is part of the problem that us outsiders see as needing to be fixed. The fact that a Second Circuit judge seemingly putting no thought into his duties doesn't strike you as a problem (he's earned the right to do it) makes you part of the problem from my vantage point.

If you order yourself an expensive steak and it comes to you overcooked is it ok as long as the cook is renowned? I mean, the cook has ben doing this for 30 years and has built a reputation so I guess he's earned the right to half-ass his job and not be called on it.

Is a cook not prestigious enough for you? Ok, how about a renowned doctor? If he screws up, let's say to make the analogy good he costs you a month where you can't work, I guess you just happily accept it under the theory that he's earned it, right?

We outsiders recognize that we do not understand the court system and that we are at a disadvantage if we ever find ourselves caught up in it, and frankly this whole fiasco is scary for the fact that it tells us that the truth and fairness are clearly not enough to keep us safe. Being told by an insider that a Second Circuit judge doing his job terribly is ok because he's earned it doesn't help.
 

Leather

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We don't know that he relied on the bad facts to come to his decision. In theory, the facts regarding Brady's alleged deflation are irrelevant.

My point about him "earning that right" simply means that there's nobody holding his hand, or out there to reprimand him, if he screws up. It's a huge responsibility. It was in response to a general question of "How could this be allowed to happen?! In the American court system?!". As if there's some referee that will blow a whistle to say "Hey, wait, Chen, what the fuck is this all about?" or some fact-checker. There isn't. And there's isn't because a guy who's made it all the way to the Second Circuit is typically going to be a lights-out judge. Ergo: he earned the right.

It has nothing to do with my opinions on the quality of his work, or whether he maybe went to far in asserting that right.
 
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BaseballJones

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Otis, you are a thoughtful and reasonable guy, and I cannot help but get a bit bewildered when stuff like the conversations are brought up. In a vacuum, I understand how those conversations could be viewed as you see them (though I agree with others that it would make sense in either context), but the entire conversation ignores a giant elephant in the room, namely that the footballs were almost surely not deflated.

The overwhelming weight of the evidence suggests that the footballs in the AFCCG had exactly the amount of air they were supposed to. All of this peripheral evidence, regardless of how it has been woven by the NFL, almost certainly cannot mean what the NFL wants people to believe it does. Logically, it just cannot. This whole thing is like a bank robbery investigation where it turns out no money was taken from the bank. It doesn't matter how much circumstantial evidence could make it seem like someone was a potential bank robber, that individual did not rob the bank.

There are many smart people I know who cannot answer the science issue and so decide it is just one data point pointing to innocence. Their response is to list five other things that could point to guilt and say "look, it's five to one" in favor of guilt! However, that is not how this works from a logic standpoint. One data point based on scientific evidence and the absolute laws of nature all but definitively proves nothing happened. Throwing five, ten, twenty circumstantial arguments against the wall to combat it changes nothing. If no crime occurred, there are no possible circumstances in which any of these other acts could have furthered the acts of the alleged crime in question.
This is a great post, IMO. It's what I've been saying all along. It's like the prosecutor pointing at the defendant and saying, "Mr. Smith killed poor Mrs. Jones in cold blood. We have text messages he sent which indicate how much he hated Mrs. Jones. We know there's a long adversarial relationship between the two. He had the means and the motive. Obviously, the evidence points to Mr. Smith killing Mrs. Jones."

And then the defense attorney stands up and points into the audience and simply says, "Uh, there's Mrs. Jones right there, alive and well. So not only did Mr. Smith not kill Mrs. Jones.... NOBODY killed Mrs. Jones. So....why are we here?"

Once the NFL knew (and it knew this within days) the actual numbers (not the ones leaked to Mort), and once a real scientist told them that those numbers were explainable by the Ideal Gas Law, then this thing should have been OVER. At most, the NFL should have fined the Patriots for McNally going into the men's room with the footballs. That's. It.

The fact that they didn't do that is about as convincing as it gets that this was totally calculated on the NFL's part to get the Patriots somehow.
 

TheoShmeo

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It's true that we don't know exactly what Chin relied upon. And it seems like the most dominant factor was the principle of according deference to arbitration decisions in the context of an agreement that is as one sided as the one at issue here.

But Chin DID emphasize facts that are wrong early in the decision and that suggests, or arguably suggests, that they mattered to him. Judges don't often write about irrelevant facts right up front, especially ones that they have to know will catch every reader's eye.

I also think that it's a little bit naïve to think that Chin's view that there was compelling evidence against Brady was irrelevant to Chin as he approached the decision. Judges are people and even though this case did turn on the arbitration issue, the human element cannot be ignored entirely. If, for example, Goodell had suspended Brady for life, I would hope that the Second Circuit would have at least considered that Goodell had finally gone too far. My point is that none of this exists in a vacuum and Chin's view of Brady's culpability, how extreme the penalty was and other related factors all, I would think, played a role.

If I am right, that Chin so badly whiffed on the facts both looks bad and is bad.
 

Pandemonium67

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The only nefarious circumstance related to TB's phone calls with Jastremski came much later, when Goodell told the bald-faced lie that TB told him those calls were about ball preparation only, not the PSI controversy. When the transcripts of TB's testimony were released, Goodell's lie became apparent for all to see. This was another small point that showed just how deceitful and scheming the NFL has been.

The bigger deceit, of course, was allowing Mort's tweet to stand uncorrected. Both of these deceits are indisputable matters of fact that point to unmitigated scumbaggery.
 

Average Reds

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As an insider this is the second time that you state he's earned the right to do his job poorly and maybe this is part of the problem that us outsiders see as needing to be fixed. The fact that a Second Circuit judge seemingly putting no thought into his duties doesn't strike you as a problem (he's earned the right to do it) makes you part of the problem from my vantage point.

If you order yourself an expensive steak and it comes to you overcooked is it ok as long as the cook is renowned? I mean, the cook has ben doing this for 30 years and has built a reputation so I guess he's earned the right to half-ass his job and not be called on it.

Is a cook not prestigious enough for you? Ok, how about a renowned doctor? If he screws up, let's say to make the analogy good he costs you a month where you can't work, I guess you just happily accept it under the theory that he's earned it, right?

We outsiders recognize that we do not understand the court system and that we are at a disadvantage if we ever find ourselves caught up in it, and frankly this whole fiasco is scary for the fact that it tells us that the truth and fairness are clearly not enough to keep us safe. Being told by an insider that a Second Circuit judge doing his job terribly is ok because he's earned it doesn't help.
Your analogies are not on point because neither the renowned chef nor the doctor is a presidential appointee who has been approved by the Senate and enjoys lifetime tenure.

The federal judiciary is a co-equal branch of the US Government and the men and women who sit as Judges have "earned" the right to operate without the kind of oversight you are suggesting by virtue of their appointment and confirmation, a process that is explicitly outlined in the U.S. Constitution.

Your contention that he put "no thought into his duties" is both inaccurate and silly. You're just pissed because he wrote something that you don't agree with.
 

Otis Foster

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This is a great post, IMO. It's what I've been saying all along. It's like the prosecutor pointing at the defendant and saying, "Mr. Smith killed poor Mrs. Jones in cold blood. We have text messages he sent which indicate how much he hated Mrs. Jones. We know there's a long adversarial relationship between the two. He had the means and the motive. Obviously, the evidence points to Mr. Smith killing Mrs. Jones."

And then the defense attorney stands up and points into the audience and simply says, "Uh, there's Mrs. Jones right there, alive and well. So not only did Mr. Smith not kill Mrs. Jones.... NOBODY killed Mrs. Jones. So....why are we here?"

Once the NFL knew (and it knew this within days) the actual numbers (not the ones leaked to Mort), and once a real scientist told them that those numbers were explainable by the Ideal Gas Law, then this thing should have been OVER. At most, the NFL should have fined the Patriots for McNally going into the men's room with the footballs. That's. It.

The fact that they didn't do that is about as convincing as it gets that this was totally calculated on the NFL's part to get the Patriots somehow.

Two points, then I'm going back to work:

(a) It ignores the procedural issue - it takes a shitload of direct evidence of impropriety to warrant judicial intervention in a labor arbitration, and there was no direct evidence. The award, as lousy as it was, appeared to draw its essence from the CBA. If the union doesn't like it, then do a better job in the next negotiation. If you can't get beyond that, the psi the Ideal Gas Law and Mrs. Murphy's Sunday bonnet don't mean anything. Case over, even if the panel majority couldn't resist the temptation to make some (incorrect) characterizations of its own.

(b) I read your analogy as 'no crime/no cover-up'. Two separate issues. Even if I agree to the 'no crime' analysis, I'm still faced with what could be deemed a deliberate refusal to comply with reasonable investigative procedures. Again, I'm not defending RG. He's big sports personified, which I hate, but you can't just ignore Wells' request.

For better or worse, that's my take.
 

tims4wins

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Two points, then I'm going back to work:

(a) It ignores the procedural issue - it takes a shitload of direct evidence of impropriety to warrant judicial intervention in a labor arbitration, and there was no direct evidence. The award, as lousy as it was, appeared to draw its essence from the CBA. If the union doesn't like it, then do a better job in the next negotiation. If you can't get beyond that, the psi the Ideal Gas Law and Mrs. Murphy's Sunday bonnet don't mean anything. Case over, even if the panel majority couldn't resist the temptation to make some (incorrect) characterizations of its own.

(b) I read your analogy as 'no crime/no cover-up'. Two separate issues. Even if I agree to the 'no crime' analysis, I'm still faced with what could be deemed a deliberate refusal to comply with reasonable investigative procedures. Again, I'm not defending RG. He's big sports personified, which I hate, but you can't just ignore Wells' request.

For better or worse, that's my take.
What about ignoring the analogy to stickum? Stickum is a way to get a better grip on the ball, which is what the accusation of deflating was. It carries an $8k fine for first offense, $16K fine for second offense, and is, according to the official NFL rulebook, a threat to the integrity of the game. If Goodell was drawing from the essence of the CBA, he would have equated it to that.
 

Average Reds

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Otis, you are a thoughtful and reasonable guy, and I cannot help but get a bit bewildered when stuff like the conversations are brought up. In a vacuum, I understand how those conversations could be viewed as you see them (though I agree with others that it would make sense in either context), but the entire conversation ignores a giant elephant in the room, namely that the footballs were almost surely not deflated.

The overwhelming weight of the evidence suggests that the footballs in the AFCCG had exactly the amount of air they were supposed to. All of this peripheral evidence, regardless of how it has been woven by the NFL, almost certainly cannot mean what the NFL wants people to believe it does. Logically, it just cannot. This whole thing is like a bank robbery investigation where it turns out no money was taken from the bank. It doesn't matter how much circumstantial evidence could make it seem like someone was a potential bank robber, that individual did not rob the bank.

There are many smart people I know who cannot answer the science issue and so decide it is just one data point pointing to innocence. Their response is to list five other things that could point to guilt and say "look, it's five to one" in favor of guilt! However, that is not how this works from a logic standpoint. One data point based on scientific evidence and the absolute laws of nature all but definitively proves nothing happened. Throwing five, ten, twenty circumstantial arguments against the wall to combat it changes nothing. If no crime occurred, there are no possible circumstances in which any of these other acts could have furthered the acts of the alleged crime in question.
I tend to agree with you that we don't have evidence of the underlying infraction here. The complication is that this is not what the 2nd Circuit was asked to rule on. They ruled that the CBA gave Goodell the powers that he exercised and so they dispatched the case on those grounds.

Now, I think they got it wrong and I think part of what drove them to get it wrong was that they gave incredible deference to the nonsense that the NFL was selling without regard to the factual record. That's a not-insignificant mistake and does not speak well for them. Whether they backed into that conclusion because they knew how they were going to rule or they allowed a mistaken belief in Brady's guilt to color their view of the relevant question is something we can't know.

It's also (IMO) the only chance that Brady/the NFLPA has to get this decision reviewed by the entire 2nd Circuit. (Which, as others have stated, is entirely unlikely.)
 

Shelterdog

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What about ignoring the analogy to stickum? Stickum is a way to get a better grip on the ball, which is what the accusation of deflating was. It carries an $8k fine for first offense, $16K fine for second offense, and is, according to the official NFL rulebook, a threat to the integrity of the game. If Goodell was drawing from the essence of the CBA, he would have equated it to that.
I think a lot of folks (certainly Chin and Parker) scoff at that analogy because the accusation isn't just that Brady violated the equipment policy, it's that he conspired with team equipment guys to violate the equipment policy with some Keystone Kops antics by sneaking off with the balls post official inspection. That whole element of enlisting other people and screwing around in the ofificals' locker room just really amps up the seveity of the allegation.
 

RetractableRoof

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Your analogies are not on point because neither the renowned chef nor the doctor is a presidential appointee who has been approved by the Senate and enjoys lifetime tenure.

The federal judiciary is a co-equal branch of the US Government and the men and women who sit as Judges have "earned" the right to operate without the kind of oversight you are suggesting by virtue of their appointment and confirmation, a process that is explicitly outlined in the U.S. Constitution.

Your contention that he put "no thought into his duties" is both inaccurate and silly. You're just pissed because he wrote something that you don't agree with.
Or by allowing inaccurate statements in his opinion Chin is inaccurate and silly (and sloppy by my book). You're just pissed because the poster wrote something that you don't agree with.

Snark aside, whatever they may have earned, if they are going to exist without oversight, it is disheartening that a judge is writing an opinion that the average layperson can point to and say "there are mistakes in what you wrote your honor". It is like seeing behind the curtain and realizing that the sausage making is ugly. In a perfect world I want to believe in things. I want to believe in the government protecting me. I want to believe in judges getting it right. Regardless of the rightness of his decision in totality - if his explanation contains obvious inaccuracies then it leaves us questioning the whole of his work. At a simplistic level I'm left with the feeling - if you are going to take the job (with all its due deference), then you have an obligation to discharge it at a high level - or retire when you aren't willing to do so. And mistakes the average layperson can point to is not at a high level. Ergo, if his opinion isn't at a high level, then why shouldn't I question the entirety of the product/decision whether I am qualified to judge it or not?
 

vintage'67

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What about ignoring the analogy to stickum? Stickum is a way to get a better grip on the ball, which is what the accusation of deflating was. It carries an $8k fine for first offense, $16K fine for second offense, and is, according to the official NFL rulebook, a threat to the integrity of the game. If Goodell was drawing from the essence of the CBA, he would have equated it to that.
This is an example of the underlying problem that I think a lot of folks have in understanding the decision. In your opinion (and admittedly that of many others) stickum is a better analogy than steroids. Goodell thought in his opinion that steroids was a better analogy. To a Second Circuit judge, Goodell's choice of analogy would not look absurd (or more specifically, so obviously wrong as to be evidence of bias or a flaw in the arbitration process). From there, you add on the deference given to the arbitrator (it's his opinion of the best analogy that counts) and the burden of the union to negotiate a "better" arbitration process, and you end up allowing the suspension to stand.
 

Pandemonium67

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Last week I watched Mr. Robot for the first time (great show). Near the beginning, we see into Elliot's schizophrenic mind as he explains the reasons he is so upset with society. One is that our heroes are hoaxes -- and the accompanying images are Bill Cosby, Lance Armstrong, and Tom Brady. So there's our TB, in the same spotlight of shame as a serial rapist and a long-time lying cheater who destroyed several people's careers.

That's why this matters to sports fans (well, Pats fans). At its core, Deflategate is a character assassination. A man's reputation and legacy have been shat on by deceitful people out to preserve their power over a union, which ultimately will help them keep more of the obscene amounts of money the sport generates, thanks to TB and his colleagues. It truly and deeply sucks that they can get away with it.

Over time, most reasonable people will come to understand that TB was railroaded, but the stain will never completely vanish. It is an indelible part of TB's life now -- something he and his family will always have to contend with.
 

tims4wins

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This is an example of the underlying problem that I think a lot of folks have in understanding the decision. In your opinion (and admittedly that of many others) stickum is a better analogy than steroids. Goodell thought in his opinion that steroids was a better analogy. To a Second Circuit judge, Goodell's choice of analogy would not look absurd (or more specifically, so obviously wrong as to be evidence of bias or a flaw in the arbitration process). From there, you add on the deference given to the arbitrator (it's his opinion of the best analogy that counts) and the burden of the union to negotiate a "better" arbitration process, and you end up allowing the suspension to stand.
This is very helpful.

I think what drives us crazy is that it wasn't his "opinion" so much as his way to validate the entire witch hunt.
 

Average Reds

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Or by allowing inaccurate statements in his opinion Chin is inaccurate and silly (and sloppy by my book). You're just pissed because the poster wrote something that you don't agree with.
I know you're just trying to to be "edgy" in your humor, but exactly where did I write anything to indicate that I was pissed?

Snark aside, whatever they may have earned, if they are going to exist without oversight, it is disheartening that a judge is writing an opinion that the average layperson can point to and say "there are mistakes in what you wrote your honor". It is like seeing behind the curtain and realizing that the sausage making is ugly. In a perfect world I want to believe in things. I want to believe in the government protecting me. I want to believe in judges getting it right. Regardless of the rightness of his decision in totality - if his explanation contains obvious inaccuracies then it leaves us questioning the whole of his work. At a simplistic level I'm left with the feeling - if you are going to take the job (with all its due deference), then you have an obligation to discharge it at a high level - or retire when you aren't willing to do so. And mistakes the average layperson can point to is not at a high level. Ergo, if his opinion isn't at a high level, then why shouldn't I question the entirety of the product/decision whether I am qualified to judge it or not?
As I indicated in a subsequent post, I agree that the mistake(s) made in the opinion are disheartening. And I have no problem with people questioning the whole of his work.

I think your response here fundamentally misunderstands what I was saying, which was explicitly in response to a suggestion that a Federal Judge was similar to a renowned chef or doctor in terms of the deference they enjoy. And that's just not correct.
 

RetractableRoof

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Two points, then I'm going back to work:

(a) It ignores the procedural issue - it takes a shitload of direct evidence of impropriety to warrant judicial intervention in a labor arbitration, and there was no direct evidence. The award, as lousy as it was, appeared to draw its essence from the CBA. If the union doesn't like it, then do a better job in the next negotiation. If you can't get beyond that, the psi the Ideal Gas Law and Mrs. Murphy's Sunday bonnet don't mean anything. Case over, even if the panel majority couldn't resist the temptation to make some (incorrect) characterizations of its own.

(b) I read your analogy as 'no crime/no cover-up'. Two separate issues. Even if I agree to the 'no crime' analysis, I'm still faced with what could be deemed a deliberate refusal to comply with reasonable investigative procedures. Again, I'm not defending RG. He's big sports personified, which I hate, but you can't just ignore Wells' request.

For better or worse, that's my take.
I can't speak to a) because I don't have the legal background to do so (though it does seem like the PA went for the PA view versus Brady view). However there is a shitload of anecdotal evidence that there was impropriety - some of which was outlined in the after the fact letter to the court calling out Clement. There was intentional mis-characterizations in the Wells report. There was a changing of the goalposts described by the dissenting opinion during the appeal. There is a bunch of things (which may be legally moot, I don't know).

b) There is nothing in any bargained agreement that requires players to turn over their personal property during an investigation. Nothing. Organization property is bound differently. He could not be compelled to turn over his phone. Favre didn't turn over his and was merely fined. Even that was beyond the bounds of the scope of the bargained agreement. Brady should have set his cell phone on the table in front of Wells and said "you mean this phone? um, no you can't have it because there is no bargained requirement to give it to you - you have all the relevant data on organization devices". (Yee screwed his client there.) No bargained requirement means his refusal can't be construed as failure to comply - Wells himself admitted he never told Brady he would face consequences - because there wasn't a legal basis to compel him to provide the cell phone.
 

Shelterdog

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This is very helpful.

I think what drives us crazy is that it wasn't his "opinion" so much as his way to validate the entire witch hunt.
Brady's legal team decided not to really attack this as a witch hunt--probably because it's an incredible hard argument to win legally-and rather struck with the less factually compelling but better grounded legally theory that Brady didn't have notice that he could be punished the way he was for his conduct.
 

vintage'67

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This is very helpful.

I think what drives us crazy is that it wasn't his "opinion" so much as his way to validate the entire witch hunt.
You may be right that he was validating a witch hunt (I actually agree with you, but we don't really know.) The problem then is with the arbitration process. For example, not having an independent arbitrator for this type of discipline.

Someone upthread mentioned that in the days of Rozelle and Tagliabue this arbitration process may have been acceptable to the union because of how they handled things. I think the union may have had a false sense of security (to be concise) with the arbitration process because of those commissioners. However, when the last CBA was signed, I was surprised there was seemingly no effort to curb the emerging Sheriff Roger. That's when this thing was lost, IMHO.
 

tims4wins

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You may be right that he was validating a witch hunt (I actually agree with you, but we don't really know.) The problem then is with the arbitration process. For example, not having an independent arbitrator for this type of discipline.

Someone upthread mentioned that in the days of Rozelle and Tagliabue this arbitration process may have been acceptable to the union because of how they handled things. I think the union may have had a false sense of security (to be concise) with the arbitration process because of those commissioners. However, when the last CBA was signed, I was surprised there was seemingly no effort to curb the emerging Sheriff Roger. That's when this thing was lost, IMHO.
But prior to the last negotiation, did the union have significant reason to fear Goodell? All of the BS has happened post-negotiation IIRC: Saints, Miami, Dallas/Washington cap, Brady, Rice, AP, etc.
 

Otis Foster

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.....

b) There is nothing in any bargained agreement that requires players to turn over their personal property during an investigation. Nothing. Organization property is bound differently. He could not be compelled to turn over his phone. Favre didn't turn over his and was merely fined. Even that was beyond the bounds of the scope of the bargained agreement. Brady should have set his cell phone on the table in front of Wells and said "you mean this phone? um, no you can't have it because there is no bargained requirement to give it to you - you have all the relevant data on organization devices". (Yee screwed his client there.) No bargained requirement means his refusal can't be construed as failure to comply - Wells himself admitted he never told Brady he would face consequences - because there wasn't a legal basis to compel him to provide the cell phone.
I agree, but you didn't go far enough. I'm on board with saying no way. I'm not on board with destroying it - two very different hypotheticals. You can't justifiably claim that your position is correct if you eliminate any possibility of looking at the phone should you be wrong. Crap like that gets you sanctioned in civil court, and reported to the PCC.

(Not billable time.)
 

RetractableRoof

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I know you're just trying to to be "edgy" in your humor, but exactly where did I write anything to indicate that I was pissed?



As I indicated in a subsequent post, I agree that the mistake(s) made in the opinion are disheartening. And I have no problem with people questioning the whole of his work.

I think your response here fundamentally misunderstands what I was saying, which was explicitly in response to a suggestion that a Federal Judge was similar to a renowned chef or doctor in terms of the deference they enjoy. And that's just not correct.
Yes, it was humor, I parroted your statement back at you. Meh, I missed. But calling someone else's post silly and inaccurate because you disagree with it kind of invites parody.

While details of how/when/why they are renowned is different (as is the absence of oversight for a judge) I find the analogy appropriate. The average layperson holds a judge and a renowned surgeon in the same level of high esteem. Years of diligent work, often times countless amounts of detail oriented effort. Incredible responsibility and extraordinary consequences for mistakes are the hall marks of both professions. I for one respect the hell out of the journey to the top of either profession and afford a member of either profession their due respect and deference. Yeah there are details about each profession that differ, but to me that is more the detail. Others may differ, but I agree with the analogy of the person you chose to mock with your "inaccurate and silly" statement.
 

RetractableRoof

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I agree, but you didn't go far enough. I'm on board with saying no way. I'm not on board with destroying it - two very different hypotheticals. You can't justifiably claim that your position is correct if you eliminate any possibility of looking at the phone should you be wrong. Crap like that gets you sanctioned in civil court, and reported to the PCC.

(Not billable time.)
Agreed - as I stated Yee screwed Brady by allowing/advising the destruction.

Edit: I have no idea of the impact, but wasn't the destruction mitigated by production of data for the appeal? The data was not destroyed per se, just one of it's original containers. Perception matters I guess, but then one would be back to: how can one assign negative value to an act that wasn't prohibited? It starts to feel very circular. [Not a disagreement to your statement, just a stream of consciousness musing about the situation.]
 
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vintage'67

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But prior to the last negotiation, did the union have significant reason to fear Goodell? All of the BS has happened post-negotiation IIRC: Saints, Miami, Dallas/Washington cap, Brady, Rice, AP, etc.
My recollection was that Goodell was starting to crack down on the off-the-field stuff to clean up the image of the NFL players as thugs. (I think for PR, not altruistic reasons.) So, it is a different basket of conduct, but it seems to me it was the start of this trend called "Sheriff Roger."
 

tims4wins

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My recollection was that Goodell was starting to crack down on the off-the-field stuff to clean up the image of the NFL players as thugs. (I think for PR, not altruistic reasons.) So, it is a different basket of conduct, but it seems to me it was the start of this trend called "Sheriff Roger."
Plus some on field stuff like James Harrison getting suspended for illegal hits IIRC. But still, I don't think anyone saw this coming.
 

DennyDoyle'sBoil

Found no thrill on Blueberry Hill
SoSH Member
Sep 9, 2008
42,271
AZ
It's so easy to view everyone's conduct in hindsight. Could people have made better judgments? Sure. Could the case have been argued in a different way? Maybe.

Win some, you lose some. You had a league that acted in bad faith, had an agenda, and then used the phone thing as a gotcha. They took advantage of a CBA that essentially gave them unfettered power to be assholes, and then hid behind standards that are very difficult to penetrate. Those standards are high for good reasons in general, but the law unfortunately didn't have enough flexibility to adapt to a case where those reasons are strained.

Judges don't act on perfect information. Justice can often be about process and not result. It's the way it is. Innocent people go to jail. Good people get fucked. Bad people get away with shit. And in every case, you can use a fine toothed comb and play the blame game in hindsight. Kessler got 2 of 4 judges despite the deck being heavily stacked against him. I posted it before -- in litigation it's nice to win first, but what really matters is winning last. I wish it had been three, but that's still pretty good, and nobody seems to have come up with a judicial system that's much better.

Tom Brady didn't deflate footballs. It seems very unlikely that anyone on the Patriots staff did either. That's good enough for me. It's going to have to be good enough for everyone else too, because this is almost certainly the end of the road. If it makes anyone feel better to play the blame game, I'm not going to talk you out of it. Nobody likes to get punched in the gut and then just take it, but there's really no other choice here. Let's hope Jimmy does ok, and then let this team stick it to the league in the only way they can and which they've shown they are capable of doing time after time after time.
 

Peak Oil Can Boyd

New Member
Sep 28, 2011
127
Brady’s long conversation with the Deflater also concerns me. I haven’t seen any explanation that tells me why he would spend that amount of time with him immediately after the story broke, when there is no history of phone calls between them. Again, the 2d Circuit doesn’t want to get into the weeds, given its ultimate deference to the arbitration award, but it certainly becomes a consideration when you’re being asked to sustain an extraordinary degree of judicial of Intervention into a labor-management arbitration.
This sentiment still blows my mind (aside from the error of identifying the Jastremski as the "Deflater"). They were the two of the principal actors in what was literally the biggest story in the entire United States at the time. This doesn't warrant a couple of out-of-the-ordinary conversations, even if they're innocent? It's so logical that RG had to lie about it in the arbitration decision to actually make it look "bad". Ugh, DFG really is the worst.
 

yep

Member
SoSH Member
Feb 3, 2006
2,465
Red Sox Natin
Because, for a 10-year old, the question involves whether lawyers actively participate in a rigged system. "Justice" clearly is not the goal, at least for the two appeals court justices...
It is possible for justice to be the goal, without being the outcome. Just as it is possible for Tom Brady to have the goal of completing every pass for a first down, even if he sometimes comes up short.

You could maybe help your 10-year-old to research concepts such as formalism vs empiricism, and discuss with him whether a proceduralist "rule of law" is better or worse than an absolute "rule of men", in terms of the potential for unfairness and abuse. You could talk to him about how sometimes even experts and smart people make mistakes and bad decisions, and you could work that into the discussion of why a formalist approach might sometimes be more fair than empiricism, even if it occasionally leads to wrong outcomes.
 

Bongorific

Thinks he’s clever
SoSH Member
Jul 16, 2005
8,433
Balboa Towers
You may be right that he was validating a witch hunt (I actually agree with you, but we don't really know.) The problem then is with the arbitration process. For example, not having an independent arbitrator for this type of discipline.

Someone upthread mentioned that in the days of Rozelle and Tagliabue this arbitration process may have been acceptable to the union because of how they handled things. I think the union may have had a false sense of security (to be concise) with the arbitration process because of those commissioners. However, when the last CBA was signed, I was surprised there was seemingly no effort to curb the emerging Sheriff Roger. That's when this thing was lost, IMHO.
Jay Feely was on the radio earlier this week. He said at the start of negotiations, the league said stripping Roger of discipline authority was a non-starter. The players said an 18 game schedule was a non-starter. He also said they naively assumed Roger wouldn't be this brazen with his power
 

DennyDoyle'sBoil

Found no thrill on Blueberry Hill
SoSH Member
Sep 9, 2008
42,271
AZ
You may not know this, but it doesn't take a lawyer to recognize injustice.
The simple answer here may be just that it wasn't the job of the district court or the second circuit to do justice here. That may be their role in some cases, but it wasn't their job here.

There is a court system. And, generally speaking, its job is to do justice.

But people have decided that there are some disputes they are comfortable doing without subjecting them to the court system. Sometimes people want a system that gives fast, seat-of-the-pants answers, to add commercial certainty to transactions, and they are willing to give up some of the hallmarks of the U.S. legal system that is designed to ensure the most just result. Sometimes, people decide that disputes that humans have with one another should be decided in a way that take into account things other than the ultimate truth or falsity of a factual allegation. For example, parties might decide it's more in line with their economic interests to give a commissioner the right to make decisions about discipline that can take into account whatever he wants to take into account, and even perhaps to punish based on bullshit about "integrity" or on less than 50/50 evidence.
So, humans have invented a parallel system of "alternative dispute resolution." It recognizes justice as perhaps something to aspire to, but it's not the be all and end all of the process.

So, the law asks, what do we do about this? And your elected representatives passed laws that said, well, we like freedom of contract and so we're going to allow it. And someone said, well, do we want any judicial review at all? And the answer was, well, ok, maybe in the event of really egregious errors, but in the end, we can't have too much judicial review, because then what's the use? We might as well just have judicial review from the beginning. And so the guy who sells widgets and wants some certainty about legal expenses and so agrees to arbitration provisions say, yes, I agree to that, because I can't have every dispute going to court even if that means I have to give up something and might get a much rougher and less robust form of "justice." And the legislatures say, ok, if that's what you want, we'll support that, but don't come crying to the courts when the arbitration doesn't work out the way you thought. And then courts say, ok, so our role is pretty limited here -- let's make sure that the process used was what the parties really agreed to and then let's make sure one of the egregious errors that the legislature has told us we can look at is there. But other than that, we're not going to undermine the law.

And that's your answer. It wasn't the Second Circuit's job to come to a just ruling based on whether or not Brady deflated footballs. In fact, it's ruling was exactly that -- that it was not its job to do justice on the facts. That was Goodell's job. And the players gave him that job.

Condemning the entire justice system because you don't perceive that a court reviewing an arbitration award did "justice" misses the point. You would never use arbitration in a capital case.
 

AB in DC

OG Football Writing
SoSH Member
Jul 10, 2002
13,616
Springfield, VA
Start with the cell phone. Wells put Yee in a corner. He deferred to the privacy issue and simply asked Yee to redact and/or withhold personal emails, and provide the relevant emails with an undertaking that Brady/Yee had screened them. Brady refused; OK, I understand that there’s a significant employee concern when the NFL exercises unlimited oversight over personal communication devices,
What I find absolutely mindboggling is that Kessler (as best as I can tell) never made the argument that the NFL has no right to Brady's cell phone. That was the first reaction most of us had on this board, and it's the only (IMHO) counterargument that had a prayer of neutralizing this issue. The NFLPA implicitly conceded that there was nothing untoward about Wells's request.

In some ways, that's the only issue that keeps me from feeling any closure here. I can see plausible explanations for basically everything else that has gone on in the past 11 1/2 months, but not this one. What am I missing?
 

phenweigh

Member
SoSH Member
Aug 8, 2005
1,379
Brewster, MA
The simple answer here may be just that it wasn't the job of the district court or the second circuit to do justice here. That may be their role in some cases, but it wasn't their job here.

There is a court system. And, generally speaking, its job is to do justice.

But people have decided that there are some disputes they are comfortable doing without subjecting them to the court system. Sometimes people want a system that gives fast, seat-of-the-pants answers, to add commercial certainty to transactions, and they are willing to give up some of the hallmarks of the U.S. legal system that is designed to ensure the most just result. Sometimes, people decide that disputes that humans have with one another should be decided in a way that take into account things other than the ultimate truth or falsity of a factual allegation. For example, parties might decide it's more in line with their economic interests to give a commissioner the right to make decisions about discipline that can take into account whatever he wants to take into account, and even perhaps to punish based on bullshit about "integrity" or on less than 50/50 evidence.
So, humans have invented a parallel system of "alternative dispute resolution." It recognizes justice as perhaps something to aspire to, but it's not the be all and end all of the process.

So, the law asks, what do we do about this? And your elected representatives passed laws that said, well, we like freedom of contract and so we're going to allow it. And someone said, well, do we want any judicial review at all? And the answer was, well, ok, maybe in the event of really egregious errors, but in the end, we can't have too much judicial review, because then what's the use? We might as well just have judicial review from the beginning. And so the guy who sells widgets and wants some certainty about legal expenses and so agrees to arbitration provisions say, yes, I agree to that, because I can't have every dispute going to court even if that means I have to give up something and might get a much rougher and less robust form of "justice." And the legislatures say, ok, if that's what you want, we'll support that, but don't come crying to the courts when the arbitration doesn't work out the way you thought. And then courts say, ok, so our role is pretty limited here -- let's make sure that the process used was what the parties really agreed to and then let's make sure one of the egregious errors that the legislature has told us we can look at is there. But other than that, we're not going to undermine the law.

And that's your answer. It wasn't the Second Circuit's job to come to a just ruling based on whether or not Brady deflated footballs. In fact, it's ruling was exactly that -- that it was not its job to do justice on the facts. That was Goodell's job. And the players gave him that job.

Condemning the entire justice system because you don't perceive that a court reviewing an arbitration award did "justice" misses the point. You would never use arbitration in a capital case.
I can accept the parallel system of "alternative dispute resolution." What I can't accept is that the wording of the CBA allows "railroading". A district court judge and a circuit court judge agree with me. The best explanation I've heard of why two circuit court judges didn't agree is that they didn't want a ruling that could lead to clogging their dockets. I find that very unsatisfying.
 

Otis Foster

rex ryan's podiatrist
SoSH Member
Jul 18, 2005
1,707
And that's your answer. It wasn't the Second Circuit's job to come to a just ruling based on whether or not Brady deflated footballs. In fact, it's ruling was exactly that -- that it was not its job to do justice on the facts. That was Goodell's job. And the players gave him that job.
Case submitted.

Since I didn't get my sandwich, I'm going for a run.
 

pappymojo

Member
SoSH Member
Jul 28, 2010
6,667
Leading up to the draft I was already resentful and angry over the lost draft pick, but I had recently started to come around to feeling excited again. This was mostly because I think Belichick knows what he is doing, and with two second round picks and two third round picks the Patriots still have a good opportunity to improve their team. My excitement for the draft was starting to overtake my anger at the lost picks.

But now every god-damned site that I could possibly go to for information on the draft is again infested with mind-achingly stupid opinions and articles about deflategate.

Fuck the NFL. Fuck the owners. Fuck the media. Fuck the Colts. Fuck the Jets. Fuck Troy Vincent. Fuck Roger Goodell. Fuck Ted Wells. Fuck Chris Mortenson. Fuck ESPN. Fuck all the fans of other teams. Fuck every person ever.
 

nighthob

Member
SoSH Member
Jul 15, 2005
12,678
Two points, then I'm going back to work:

(a) It ignores the procedural issue - it takes a shitload of direct evidence of impropriety to warrant judicial intervention in a labor arbitration, and there was no direct evidence. The award, as lousy as it was, appeared to draw its essence from the CBA. If the union doesn't like it, then do a better job in the next negotiation. If you can't get beyond that, the psi the Ideal Gas Law and Mrs. Murphy's Sunday bonnet don't mean anything. Case over, even if the panel majority couldn't resist the temptation to make some (incorrect) characterizations of its own.
As two judges pointed out it didn't draw its essence from the CBA because his suspension was for something he had never been charged with. The CBA required notice. His arbitration hearing was actually a disciplinary one and he wasn't given the opportunity to answer the charges brought against him. He wasn't even told them until he got the second suspension notice. That two judges essentially said "Shit happens, fuck it, we don't care" says a lot more about America's out of control right wing politics than anything else.
 

RedOctober3829

Member
SoSH Member
Jul 19, 2005
55,298
deep inside Guido territory
NFL does not see any need to reopen any settlement talks with Tom Brady and the NFLPA, per league source. NFL believes neither NFLPA nor anyone from Brady's camp has provided any rationale for settlement discussions. The league believes the time for those talks has come and gone, after the two sides had discussed a settlement last summer.
 

vintage'67

Member
SoSH Member
Jul 15, 2005
327
I can accept the parallel system of "alternative dispute resolution." What I can't accept is that the wording of the CBA allows "railroading". A district court judge and a circuit court judge agree with me. The best explanation I've heard of why two circuit court judges didn't agree is that they didn't want a ruling that could lead to clogging their dockets. I find that very unsatisfying.
Phenweigh, "railroading" is your opinion. Two Second Circuit judgers said it wasn't. As DDB explained, the system has pluses and minuses, but you feeling satisfied in this particular instance is not one of the goals.

As two judges pointed out it didn't draw its essence from the CBA because his suspension was for something he had never been charged with. The CBA required notice. His arbitration hearing was actually a disciplinary one and he wasn't given the opportunity to answer the charges brought against him. He wasn't even told them until he got the second suspension notice. That two judges essentially said "Shit happens, fuck it, we don't care" says a lot more about America's out of control right wing politics than anything else.
Nighthob, The two judges you agree with don't get the final say. The two that did count didn't say "we don't care". They said "these are big boys playing big boy games, who set up their own rules of the big boy game. We don't see anything way outside those rules in the result, so we're not going to get in the middle of it." Read DDB's post again--it's excellent.
 

ifmanis5

Member
SoSH Member
Sep 29, 2007
63,740
Rotten Apple
I agree with Sally Jenkins' take on the appeal. Kessler went for the jugular on Goodell overreach when he should have stuck with the facts of the case. Of course it could be that the new panel wasn't going to care either way but it feels like they abandoned the best parts of their case for a Ginger Scalp and got burned. Also I feel the same as pappymojo, back to seeing all the idiots be happy again. Terrible medicine.
 

phenweigh

Member
SoSH Member
Aug 8, 2005
1,379
Brewster, MA
Phenweigh, "railroading" is your opinion. Two Second Circuit judgers said it wasn't. As DDB explained, the system has pluses and minuses, but you feeling satisfied in this particular instance is not one of the goals.



Nighthob, The two judges you agree with don't get the final say. The two that did count didn't say "we don't care". They said "these are big boys playing big boy games, who set up their own rules of the big boy game. We don't see anything way outside those rules in the result, so we're not going to get in the middle of it." Read DDB's post again--it's excellent.
I agree with you that "railroading" is my opinion and my feelings are outside the goals. However, my read is that "railroading" is also the consensus opinion of people who have taken the time to look into the facts of the case.

Chin said more than "... we're not going to get in the middle of it." He decided to opine on the facts of the case and got it wrong.
 

gammoseditor

also had a stroke
SoSH Member
Jul 17, 2005
4,219
Somerville, MA
I agree with you that "railroading" is my opinion and my feelings are outside the goals. However, my read is that "railroading" is also the consensus opinion of people who have taken the time to look into the facts of the case.

Chin said more than "... we're not going to get in the middle of it." He decided to opine on the facts of the case and got it wrong.
Doesn't the fact that he got it wrong indicate that he didn't really get in the middle of it? It takes a lot of time to dissect the "incident" as well as the NFL investigation. It's clear Judge Berman did that which probably helped Brady at first. It really seemed like these judges spent far less time looking into the facts of the investigation because they didn't care. Which is their right unfortunately.
 

PaulinMyrBch

Don't touch his dog food
Lifetime Member
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Dec 10, 2003
8,316
MYRTLE BEACH!!!!
Doesn't the fact that he got it wrong indicate that he didn't really get in the middle of it? It takes a lot of time to dissect the "incident" as well as the NFL investigation. It's clear Judge Berman did that which probably helped Brady at first. It really seemed like these judges spent far less time looking into the facts of the investigation because they didn't care. Which is their right unfortunately.
Yea, unfortunately the role of the court in this case (as others have mentioned) was to not care about the facts. They review the process. The best hope for the NFLPA and Brady are the specific issues Katzmann's adresses in the dissent. That's the only favorable portion of this case at this time for Brady. I can't imagine screaming Ideal Gas Law any louder is going to sway a full court if we can get there.
 

PaulinMyrBch

Don't touch his dog food
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8,316
MYRTLE BEACH!!!!
The thing that still pisses me off is how long it took the sports reporting world to embrace the Ideal Gas Law. I didn't grow up as far north as most of you, but in the fall, when I left a basketball outside in the yard overnight by accident, it didn't bounce as high the next day. I wasn't, nor have I ever been a science genius, but that is the first thing I thought of the week this all went down.

Who has the pump? Who has the needle? Couldn't play ball until you found it.
 

tims4wins

PN23's replacement
SoSH Member
Jul 15, 2005
37,054
Hingham, MA
Just wanted to say thank you, once again, to both the lawyers and non-lawyers alike for some great discussion on the topic. I consistently learn more about the world every day through SoSH than any other source.
 

Myt1

educated, civility-loving ass
Lifetime Member
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Mar 13, 2006
41,573
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A question for the lawyers -
A 10-year old Pats fan has done an experiment with a football in cold weather, read Berman's decision, now sees it 2-1 the other way, 2-2 in total from judges, and this kid KNOWS the football was supposed to have lower PSI.
He asks you: how can this be okay in America? Brady didn't do anything wrong, and two of four judges agree with him. Assuming the kids knows you are a lawyer, what do you say?
It's obvious that every lawyer responding to you in this thread is a bleeding heart liberal, because no one gave you the real answer :) :

There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “That is not my job. It is my job to apply the law.”
Generally speaking, the questions of whether there is a greater societal benefit in the availability of arbitration procedures with a substantial amount of finality rather than complete judicial review, and whether unions are better off being able to negotiate away the fundamental rights of their membership in exchange for things deemed to be more important have been answered in the affirmative by courts and Congress. That's the whole ball of wax. That there are instances in the micro perspective in which this does not hold to be true is of little moment.

You can agree or disagree with this all you want, of course. But, basically, your 10 year old kid could be asking why it's OK for guilty people to go free due to a search that violated the 4th Amendment.
 

Shelterdog

Well-Known Member
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Feb 19, 2002
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I agree with Sally Jenkins' take on the appeal. Kessler went for the jugular on Goodell overreach when he should have stuck with the facts of the case. Of course it could be that the new panel wasn't going to care either way but it feels like they abandoned the best parts of their case for a Ginger Scalp and got burned. Also I feel the same as pappymojo, back to seeing all the idiots be happy again. Terrible medicine.
You're not seeing a lot of lawyers saying Kessler blew it by focussing on notice rather than "Goodell fucked up the facts" or "Goodell is a corrupt dude who was absurdly biased and was out to get Brady." Under second circuit case law you can't vacate an arbitration because of manifest disregard of the evidence by an arbitrator, so you basically can't win by saying the evidence (scientificor otherwise) supports Brady. The standard for vacating based on arbitrator bias is also very high (you're usually looking at an undisclosed financial relationship between one side and the arbitrator or something like that)--and here the NFLPA consented to the arbitrator in the CBA.

I pesonally would have gone in full-bore on arbitrator partiality--it's the actual dominant issue in the case so why dance around it, and when last I looked there was actually a significant circuit split on the standard to be applied so it even gives you an ultra-long shot at going to the supreme court--but that's a minority opinion and I can easily understand why Kessler went with notice.
 

RedOctober3829

Member
SoSH Member
Jul 19, 2005
55,298
deep inside Guido territory
Of course the facts of the case make it out that RG is railroading Brady and the Patriots. What the judges have decided upon is the fact that RG can in fact railroad a team or a player and get away with it due to Article 46.