Judge nullifies Brady's 4-game suspension
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Stranger
How big is infinity?
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I haven't read thru the entire opinion, but you need to see pages 20 onward, where the judge finds the following faults with the way the case was executed...
http://www.scribd.com/doc/278103094/Tom-Brady-Deflategate-Decision
"The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, and (C) denial of equal access to investigative files, including witness interview notes."
Doesn't look to me like anyone found Brady innocent of what he's being accused of. From what i've read so far, seems much more like there were problems with the process.
http://www.scribd.com/doc/278103094/Tom-Brady-Deflategate-Decision
"The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, and (C) denial of equal access to investigative files, including witness interview notes."
Doesn't look to me like anyone found Brady innocent of what he's being accused of. From what i've read so far, seems much more like there were problems with the process.
Rynie
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I'm sure Dallas is going to!
Why not? It's not like we'll get in trouble for it. It's open game now!
brokeu91
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This is what I learned from the whole mess:
It's OK to cheat as long as you destroy the evidence and fire the low level guys you ordered to do that actual cheating act for you.
I also learned that the Rams are losing because they are not cheating nearly enough. Who cares about the integrity of the game when no else does. So I say Fisher needs to teach the team how to cheat. Cheat, cheat, cheat away. There's nothing that the NFL can do about it anyway, as long as you destroy evidence and fire anyone who you hired to cheat along with you
It's OK to cheat as long as you destroy the evidence and fire the low level guys you ordered to do that actual cheating act for you.
I also learned that the Rams are losing because they are not cheating nearly enough. Who cares about the integrity of the game when no else does. So I say Fisher needs to teach the team how to cheat. Cheat, cheat, cheat away. There's nothing that the NFL can do about it anyway, as long as you destroy evidence and fire anyone who you hired to cheat along with you
LACHAMP46
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LACHAMP46
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yes
Alan
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http://www.huffingtonpost.com/kevin...ory-_b_8085134.html?ncid=txtlnkusaolp00000592
Tom Brady's Legal Victory May Be Short-Lived
Posted: 09/04/2015 11:07 am EDT Updated: 4 hours ago
A federal judge in New York has vacated Tom Brady's four-game suspension. Brady is understandably pleased, but it may be a good idea to keep the champagne bottles corked for now -- there's a good chance that ruling will be reversed on appeal.
I have no idea what role Brady had in deflating footballs, or whether he did anything improper in connection with the investigation. Let's assume, for the moment, that as a factual matter he's entirely innocent. Let's assume, further, that the NFL's hearing and appeal processes were riddled with errors and that commissioner Roger Goodell incorrectly interpreted the collective bargaining agreement and made multiple other legal mistakes.
Under the law, even if that's all true, it still may be insufficient to justify vacating the suspension. The reason relates to the way the law treats arbitration agreements such as the NFL's CBA.
Any legal framework includes rules about what you can and can't do, and what the consequences can be if you do something wrong -- these are often called the "substantive" rules. There are also "procedural" provisions setting forth how to decide whether the substantive rules have been broken and, if so, what the results should be.
A key part of the procedural framework involves who makes what decisions throughout the process. A court system, for example, can include jurors, trial judges and appellate judges. In many cases, jurors decide factual questions -- for example, in a criminal case, whether the defendant hit the victim and whether he had the intent to cause injury. Trial judges decide legal questions, such as what types of evidence the jurors can hear in making those factual determinations. Appellate judges then decide whether the trial judges answered those legal questions correctly.
There are important boundaries between those roles. A trial judge generally can't override a jury's factual determination (as long as there was some plausible evidence supporting that determination). An appellate court, in turn, is supposed to limit its review to legal questions and not concern itself with whether the trial jury came to the right result. Lawyers know that these lines aren't always scrupulously honored -- an appellate court, for example, might be more inclined to overrule a trial judge's legal decisions if there's a sense that the jury reached an unjust result -- but they're still there.
Arbitration agreements represent a special type of procedural framework. Some groups of people decide ahead of time that if disputes arise between them they'd rather have them decided by one or more private "arbitrators" instead of through the court system. There are various reasons to go this route -- the people involved may want to avoid the immense expense and delays associated with the court system, or may want decisions made by someone with specialized knowledge or experience. (They may just want to avoid the risk of a highly unflattering courtroom sketch.)
In any event, when people make these agreements it's generally understood that the arbitrator's decision will be final. If it were otherwise -- if judges regularly reviewed arbitrators' rulings and vacated the ones they disagreed with -- that would largely defeat the purpose of arbitration. Among other things, if the dispute is going to end up going through the normal court process anyway, having an additional arbitration step at the outset actually makes the process more costly and burdensome. It's true that in certain limited cases a judge can step in and overrule an arbitrator, but those cases have to be truly extreme -- the supposed error usually has to be more egregious, for example, than the type that would be sufficient for an appellate court to reverse a trial judge's decision. Again, that's because any other framework would eliminate many of the benefits of arbitration.
That's why there's a strong possibility that the order vacating Brady's suspension will itself be reversed on appeal. The federal judge hearing the case obviously thought that there were serious problems with the NFL's decisions, both substantively and procedurally. He concluded, for example, that Brady was improperly denied access to certain evidence, and should have been allowed to examine a key witness under oath. He also concluded that Brady didn't have sufficient advance notice of what the penalties could be for the particular violations at issue.
But even assuming the judge was right on all of those points, that still may be insufficient to justify vacating the suspension. In a normal court case, every one of those issues -- what evidence Brady should get, who he should be able to examine, what if anything he did wrong, and what consequences would be fair and appropriate -- would be decided by a judge or jury. The whole point of the arbitration agreement was to transfer that decision making power to certain designated NFL officials, including Goodell. So it really doesn't matter that the judge disagrees with how those decisions were made unless the NFL went far enough outside of the boundaries to satisfy the extreme standard necessary to override an arbitrator's decision, and from what I've seen I don't think it did.
One could legitimately question whether it was a good idea to give such broad powers to a set of decision makers with dubious claims to impartiality. But that's the agreement that Brady and the other players signed onto, as part of an overall deal that they obviously thought was beneficial in light of what they were getting in return. When they did that, they accepted the risk that those decision makers could rule against them, and that even if those rulings were questionable they'd have limited ability to get them reversed.
Rightly or wrongly, the law in this country gives broad deference to arbitrators' decisions and requires extraordinary showings in order to overturn them. There's a strong likelihood that the appellate court will decide that the trial judge gave the arbitration process too little deference in Brady's case, and that the suspension will be reinstated.
Tom Brady's Legal Victory May Be Short-Lived
Posted: 09/04/2015 11:07 am EDT Updated: 4 hours ago
A federal judge in New York has vacated Tom Brady's four-game suspension. Brady is understandably pleased, but it may be a good idea to keep the champagne bottles corked for now -- there's a good chance that ruling will be reversed on appeal.
I have no idea what role Brady had in deflating footballs, or whether he did anything improper in connection with the investigation. Let's assume, for the moment, that as a factual matter he's entirely innocent. Let's assume, further, that the NFL's hearing and appeal processes were riddled with errors and that commissioner Roger Goodell incorrectly interpreted the collective bargaining agreement and made multiple other legal mistakes.
Under the law, even if that's all true, it still may be insufficient to justify vacating the suspension. The reason relates to the way the law treats arbitration agreements such as the NFL's CBA.
Any legal framework includes rules about what you can and can't do, and what the consequences can be if you do something wrong -- these are often called the "substantive" rules. There are also "procedural" provisions setting forth how to decide whether the substantive rules have been broken and, if so, what the results should be.
A key part of the procedural framework involves who makes what decisions throughout the process. A court system, for example, can include jurors, trial judges and appellate judges. In many cases, jurors decide factual questions -- for example, in a criminal case, whether the defendant hit the victim and whether he had the intent to cause injury. Trial judges decide legal questions, such as what types of evidence the jurors can hear in making those factual determinations. Appellate judges then decide whether the trial judges answered those legal questions correctly.
There are important boundaries between those roles. A trial judge generally can't override a jury's factual determination (as long as there was some plausible evidence supporting that determination). An appellate court, in turn, is supposed to limit its review to legal questions and not concern itself with whether the trial jury came to the right result. Lawyers know that these lines aren't always scrupulously honored -- an appellate court, for example, might be more inclined to overrule a trial judge's legal decisions if there's a sense that the jury reached an unjust result -- but they're still there.
Arbitration agreements represent a special type of procedural framework. Some groups of people decide ahead of time that if disputes arise between them they'd rather have them decided by one or more private "arbitrators" instead of through the court system. There are various reasons to go this route -- the people involved may want to avoid the immense expense and delays associated with the court system, or may want decisions made by someone with specialized knowledge or experience. (They may just want to avoid the risk of a highly unflattering courtroom sketch.)
In any event, when people make these agreements it's generally understood that the arbitrator's decision will be final. If it were otherwise -- if judges regularly reviewed arbitrators' rulings and vacated the ones they disagreed with -- that would largely defeat the purpose of arbitration. Among other things, if the dispute is going to end up going through the normal court process anyway, having an additional arbitration step at the outset actually makes the process more costly and burdensome. It's true that in certain limited cases a judge can step in and overrule an arbitrator, but those cases have to be truly extreme -- the supposed error usually has to be more egregious, for example, than the type that would be sufficient for an appellate court to reverse a trial judge's decision. Again, that's because any other framework would eliminate many of the benefits of arbitration.
That's why there's a strong possibility that the order vacating Brady's suspension will itself be reversed on appeal. The federal judge hearing the case obviously thought that there were serious problems with the NFL's decisions, both substantively and procedurally. He concluded, for example, that Brady was improperly denied access to certain evidence, and should have been allowed to examine a key witness under oath. He also concluded that Brady didn't have sufficient advance notice of what the penalties could be for the particular violations at issue.
But even assuming the judge was right on all of those points, that still may be insufficient to justify vacating the suspension. In a normal court case, every one of those issues -- what evidence Brady should get, who he should be able to examine, what if anything he did wrong, and what consequences would be fair and appropriate -- would be decided by a judge or jury. The whole point of the arbitration agreement was to transfer that decision making power to certain designated NFL officials, including Goodell. So it really doesn't matter that the judge disagrees with how those decisions were made unless the NFL went far enough outside of the boundaries to satisfy the extreme standard necessary to override an arbitrator's decision, and from what I've seen I don't think it did.
One could legitimately question whether it was a good idea to give such broad powers to a set of decision makers with dubious claims to impartiality. But that's the agreement that Brady and the other players signed onto, as part of an overall deal that they obviously thought was beneficial in light of what they were getting in return. When they did that, they accepted the risk that those decision makers could rule against them, and that even if those rulings were questionable they'd have limited ability to get them reversed.
Rightly or wrongly, the law in this country gives broad deference to arbitrators' decisions and requires extraordinary showings in order to overturn them. There's a strong likelihood that the appellate court will decide that the trial judge gave the arbitration process too little deference in Brady's case, and that the suspension will be reinstated.
Stranger
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yup, the judge essentially vacated the arbitrators ruling based on procedural misteps by the NFL. I don't like the agreement the players signed with the NFL, but then again, they agreed to give the NFL broad powers. Can't have it both ways.
rams2050
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http://www.nfl.com/news/story/0ap3000000520654/article/goodell-nfl-will-appeal-tom-brady-ruling
http://www.si.com/nfl/2015/09/03/deflategate-tom-brady-suspension-overturned-roger-goodell-nfl-nflpa
NFL officially appeals Tom Brady decision
999+
U.S. District Judge Richard Berman's ruling nullifying Tom Brady's four-game suspension.
Commissioner Roger Goodell, in a statement released Thursday prior to the league's court filing, cited competitive fairness as a key component in the decision to appeal.
"We are grateful to Judge Berman for hearing this matter, but respectfully disagree with today's decision," Goodell said. "We will appeal today's ruling in order to uphold the collectively bargained responsibility to protect the integrity of the game. The commissioner's responsibility to secure the competitive fairness of our game is a paramount principle, and the league and our 32 clubs will continue to pursue a path to that end. While the legal phase of this process continues, we look forward to focusing on football and the opening of the regular season."
NFL Media Insider Ian Rapoport reported the NFL will not seek a stay to keep Brady from playing during the appeal process.
In Berman's 40-page decision negating Brady's suspension, the judge cited three main points: 1) No notice of discipline; 2) No testimony from NFL general council Jeff Pash; and 3) No access to the files from the Ted Wells Report.
While Brady will be on the field in Foxborough for Thursday's opener against the Steelers, Goodell won't be in attendance as is customary. Rapoport reported, per the NFL, that Goodell will watch the game on TV because he wants the focus to be on the field and the festivities celebrating the Patriots'Super Bowl win.
This legal quagmire, however, is far from over.
http://www.si.com/nfl/2015/09/03/deflategate-tom-brady-suspension-overturned-roger-goodell-nfl-nflpa
Why Tom Brady, NFLPA beat Roger Goodell in their Deflategate appeal
The Pittsburgh Steelers will need to adjust their game plan for their season opener against the New England Patriots on Thursday, Sept. 10. Thanks to a decision by a federal judge on Thursday, Sept. 3, they’re going to face one of the NFL’s elite quarterbacks.
In one of the most significant legal defeats for the NFL in its 95-year history, U.S. District Judge Richard Berman vacated Roger Goodell’s decision to uphold Tom Brady’s four-game suspension (view the entire decision here). By vacating Goodell’s decision, Judge Berman causes Brady’s suspension to be lifted before it was scheduled to take effect on Saturday, Sept. 5. Consequently, Brady will be able to practice with his teammates on Saturday and play against the Steelers in Week 1 and in subsequent games.
The NFL will likely file a notice of appeal with the U.S. Court of Appeals for the Second Circuit and seek an expedited review. As explained below, even if the Second Circuit grants the NFL an expedited review, it would take several months before a decision is made. The NFL might also seek a stay of Judge Berman’s order that would allow the league to suspend Brady during its appeal, but it is unlikely a stay would be granted. Media reports also indicate that the NFL does not intend to seek a stay.
Why Judge Berman ruled for the NFLPA
The simplest explanation for Judge Berman’s decision is that the NFL failed to show that it applied Article 46 of the collective bargaining agreement in a fair and consistent way. Remember, this was a case about process and specifically how the NFL investigated and punished Brady. The NFL had a relatively low bar to meet. Federal judges rarely vacate arbitration awards and only in extraordinary circumstances. Yet Judge Berman identified so many problems in the NFL’s application of Article 46 that he felt compelled to vacate Brady’s suspension.
NFL
Among the problems identified by Judge Berman are those that relate to Brady’s arbitration hearing with Goodell on June 23. Goodell denied a request by NFLPA attorneys to question NFL general counsel Jeffrey Pash, who edited the Wells Report before its release, and to access the league’s investigative notes. Judge Berman regarded Goodell’s decisions on these issues as preventing Brady from enjoying a credible opportunity to make his case. Look at it this way: if Brady can’t confront an accuser and study the evidence used to punish him, how can he effectively defend against the accuser’s accusations and the implicating evidence? Judge Berman stressed that denial of access to key witnesses can be grounds to vacate an arbitration award.
Judge Berman also criticized the NFL for how it indistinctly notified Brady of accusations and confusingly explained under which set of rules he was being punished. Take the Wells Report, which used the league’s Integrity of the Game and Enforcement of Competitive Rules policy—a document not collectively bargained with the NFLPA—to find that it was “more probable than not” that Brady had “general awareness” of a football scheme supposedly hatched by two equipment assistants. Later, in his testimony during Brady’s appeal, NFL executive vice president Troy Vincent referenced the Game-Day Operations Manual—also not collectively bargained with the NFLPA—as a crucial document in finding Brady at fault. While the league has also cited Article 46 as grounds to punish Brady, Judge Berman seemed perplexed as to what degree non-collectively bargained documents should be considered sources of authority to punish Brady.
Likewise, Judge Berman criticized Goodell for asserting that Brady received adequate notice of discipline because the four-game suspension matches up the penalty scheme outlined in the collectively bargained steroid policy. The steroid policy, wrote Judge Berman, “cannot reasonably be used as a comparator for Brady’s four-game suspension for alleged ball deflation by others . . . [the steroid policy sets forth procedures] none of which has anything to do with Brady’s conduct and/or his discipline.”
Judge Berman also seemed influenced by the lack of consistency in NFL discipline. In prior instances of players being implicated by equipment tampering, those players were fined, warned or not punished in any way. It was never made clear why Brady was treated differently and significantly worse. Similarly vexing for Judge Berman was how the league’s characterization of Brady’s alleged wrongdoing became harsher without explanation. What began as general awareness of others misconduct has morphed into active involvement in a scheme.
Lastly, Judge Berman raised distinctions between favorable court decisions cited by the NFL and the Brady arbitration. The most crucial distinction is that those decisions involved a neutral arbitrator whereas Goodell was clearly not neutral. While Article 46 permits Goodell to serve as the arbitrator for player appeals, Judge Berman noted that the “law of the shop”—which compels consistency and fairness in arbitration awards—bars Goodell from rendering a decision that may have been compromised by bias. Also, Brady, unlike participants in normal arbitrations, lacked the ability to change the arbitrator even if he could show Goodell was biased.
The NFL can still punish Brady, but only in accordance with Judge Berman’s order
While Judge Berman’s order means that Brady’s suspension is lifted, the NFL can seek to punish Brady again. The judge’s order only pertains to the decision of Goodell to uphold Brady’s suspension—it does not automatically prohibit the NFL from re-punishing Brady.
While it would be unusual, if not unprecedented, for the NFL to punish a player for the same alleged misconduct that was both the subject of a prior suspension and later vacated by a federal judge, that sequence of events would likely not violate the CBA. The most relevant language from the CBA appears in Article 46, Section 4, also known as the “one penalty” clause. This clause prohibits the commissioner and a team from disciplining a player for the same act or conduct. The Patriots have not disciplined Brady. For that reason, the one penalty clause would seemingly not hinder the NFL from re-punishing Brady.
NFL
At first glance, Ray Rice’s successful legal saga with the NFL might seem helpful for Brady in the event the NFL tries to “double punish” him. Last November, Rice convinced former U.S. District Judge Barbara Jones, who was acting as a neutral arbitrator, that the NFL wrongfully double punished him for hitting and dragging his then fiancée (now wife) Janay Palmer in a hotel. Goodell had punished Rice twice, first in July 2014 for two games and a second time in September 2014 for an indefinite period. The second suspension was in response to a second video of Rice hitting Palmer in the elevator becoming public and Goodell claiming to have not known about this video or its contents. Jones concluded that Goodell acted in an arbitrary manner when he punished Rice a second time. She highlighted testimony that indicated that the NFL already knew about the full details of the hotel incident before a second video of Rice hitting Palmer became public.
Brady’s situation is very different from that of Rice. Most obviously, it involves alleged tampering with equipment rather than the far more serious topic of domestic violence. But more critical from the perspective of NFL justice are the different roadmaps that lead to so-called double punishment. If Brady is suspended again, it would occur not because the NFL claims to have uncovered new information or evidence, but because a federal judge has vacated the first suspension and the NFL is exercising its right to punish Brady. The NFL does not lose its collectively bargained right to punish a player because a federal judge has vacated an arbitration award.
Of course, one sensible reading of Judge Berman’s ruling is that the NFL should not be able to re-punish Brady because the league never gave him adequate notice in the first place. While the NFL would likely disagree with that reasoning, it is worth considering. One interpretation is certain: If the NFL seeks to punish Brady again, it should only do so in a judicious way. The league must avoid a repeat of the process problems clearly identified by Judge Berman. If instead the league subjects Brady to another series of unfair applications of rules, it could find itself back in court for Tom Brady v. NFL II.
As an aside, the Fifth Amendment’s Double Jeopardy clause—which forbids repeated criminal prosecutions for the same specific offense—would not interfere with the NFL re-punishing Brady. Brady has not been criminally prosecuted, only punished in the form of a suspension by a private association. The Double Jeopardy clause is not implicated in this situation.
A lengthy appeals process awaits
Many football fans want the Deflategate litigation to end. What may have seemed like an interesting topic during the off-season is on the verge of extending into the regular season. If you are among those fans, I have some disappointing news for you: Judge Berman’s order in no way signals the end of the Deflategate litigation. The order only reflects the conclusion of one chapter in a case that will likely extend into 2016 and possibly 2017.
The next stage of the litigation will likely occur when the NFL files a notice of appeal with the U.S. Court of Appeals for the Second Circuit. The NFL has 30 days to do so. As I explained in another article, an appeal will be followed by the selection of three judges to serve on a panel that will eventually hear the NFL’s appeal. Two or three of the panel judges will be drawn from the 23 judges who serve on the Second Circuit, with the possibility that a federal district judge could be assigned to one of the three slots. The ideology of the panel on relevant topics such as labor relations and arbitrator discretion could vary significantly depending on which three judges are selected. Some of the judges who could be picked are considered “labor friendly” whereas others are viewed as more in line with management’s interests.
With the important caveat that we do not yet know the composition of the three-judge panel, the NFL faces an uphill climb in convincing at least two of the three appellate judges that Judge Berman misapplied the law. Although each case presents unique issues and facts, appellate courts typically do not reverse district court judges on their orders to vacate or confirm arbitration awards. The NFL will nonetheless need to persuade at least two of the three panel judges that Judge Berman’s decision to vacate Brady’s suspension reflects a misunderstanding of Article 46 and a disregard of a lengthy set of case precedents where federal district judges almost always confirm arbitration awards.
The NFL might also contend that Judge Berman altered the agreed-upon rules for the settlement hearings and in such a way that influenced the outcome. Both the NFL and NFLPA agreed that “no discovery is needed to adjudicate the parties’ motions” and that a decision would instead be based on the record used by Goodell in Brady’s appeal. Federal judges are also obligated to accord high deference to the fact-finding of arbitrators (in this instance Goodell). While this framework did not categorically preclude Judge Berman from speaking with persons outside the record, it raises questions about the potential influence of those conversations on the judge’s decision.
This seems especially at issue in regards to former New York Jets kicker Jay Feely, who attended Monday’s hearing as a member of the NFLPA’s executive committee. In an interview with CBS Sports Radio host Doug Gottlieb, Feely revealed that he spoke with Judge Berman about an incident in 2009 where the NFL sanctioned a Jets equipment assistant for possibly tampering with a kicking ball. Feely, however, was apparently not investigated by the NFL nor subjected to the “general awareness” standard used by the NFL to judge Brady in the similar fact-pattern of slightly under-inflated footballs. This serves as a powerful legal point in Brady’s favor because it suggests that Goodell has been inconsistent applying rules.
A possible question in an appeal, however, is whether Judge Berman should have even heard about Feely’s experience. One on hand, Feely’s experience might be considered part of the record used by Goodell in judging Brady since Goodell was the commissioner in 2009, when the Jets incident occurred. Feely also attended the hearing for an appropriate reason given that he is a member of the NFLPA’s executive committee—much like it was appropriate for Giants CEO and co-owner John Mara, the chairman of the NFL Management Council Executive Committee, to similarly attend Monday’s hearing. But the NFL might still question whether the NFLPA used Feely’s presence to create the opportunity for Judge Berman to hear new information. Still, one attorney who has litigated against the NFL believes the NFL will probably lose the appeal. "Judge Berman's opinion," Alan Milstein says, "is in my view bulletproof."
To be clear, the appeals process will not include new evidence or any witness testimony. Almost all of the appellate review will consist of the three appellate judges reviewing legal memoranda filed by attorneys for the NFL and NFLPA. There will be an opportunity for brief oral arguments, where the lead counsel for each side makes his or her best case to the three judges. In the Second Circuit, those arguments are typically limited to merely 10 minutes and often the judges interrupt the attorneys with questions.
In terms of timing, the typical appeal in a U.S. court of appeals takes eight to 12 months. There are many factors that influence timing, but it is safe to say that the NFL’s appeal will likely not be decided until sometime next spring or summer. The NFL could petition the Second Circuit for an expedited appeal, which would reduce the length of the timeline but likely still take two to three months. According to the Second Circuit’s relevant rules for expedited review, the NFL would have up to 35 days to file a brief, followed by the NFLPA having 35 days to respond, and followed lastly by the NFL having 14 days to respond to the NFLPA’s brief. This process of filing briefs could take anywhere between three days and 84 days. If the NFL wanted to speed up the clock by as much as six weeks, it could quickly file its briefs within one day instead of the allotted 35- and 14-day periods. Still, the panel would need to set aside time for a session of oral arguments with the attorneys and, of course, time to make a decision.
NFL could also seek a stay, but is unlikely to obtain one
A stay, as I explained more fully last week, would prevent Judge Berman from carrying out the order—in this case the vacating of Goodell upholding Brady’s suspension—until an appeal is decided. If the NFL is granted a stay, Brady would have to serve his suspension despite being the winner in Judge Berman’s decision.
Initial media reports indicate that the NFL will not seek a stay. If those reports prove incorrect, the NFL would first need to petition a stay from Judge Berman. If he denies it, the NFL would try to obtain one from the Second Circuit.
Stays are difficult to obtain and are considered extraordinary measures. The NFL also would not seem to have an especially strong argument for a stay. This is particularly apparent in regards to a showing of “irreparable harm.” There are four prongs to a stay, and one involves whether the NFL can show it would suffer irreparable harm if a stay is not granted. Irreparable harm generally refers to harm that can’t be remedied by a court order and probably will occur before an appeal is decided.
The NFL would contend that the commissioner’s collectively bargained authority to punish players would be endangered if a stay is not granted. The league might stress that players will now go to court to challenge any imposition of a penalty.
The NFLPA, however, would have a compelling argument in response. First, the NFL wouldn’t lose the ability to suspend Brady if he’s able to play in the first four games of the season. If the league wins the appeal, it could carry out the suspension at a later date—perhaps at the start of the 2016 regular season. Second, through the NFLPA, suspended players have always had the option to challenge disciplinary matters in court; Brady’s win doesn’t change that.
How the ruling impacts the NFLPA, NFL owners and Robert Kraft
Judge Berman’s ruling is technically limited to a narrow legal question—whether Goodell lawfully upheld Brady’s suspension. The ruling, however, has the potential for far-reaching consequences.
NFLPA
The NFLPA is emboldened by another court ruling that both repudiates the NFL’s system of justice and raises serious questions about how the NFL processes disciplinary matters. The NFLPA appears to be accomplishing in court what it could not accomplish at the bargaining table. The union’s win in the Brady case follows a win in the Adrian Peterson case earlier in 2015 (the NFL has appealed Peterson’s decision to the U.S. Court of Appeals for the Eighth Circuit). The NFLPA also prevailed in the 2014 arbitration award for Rice and in the 2012 arbitration award for four Saints players whom Goodell had suspended as part of the Bountygate controversy. While each of these disciplinary matters raises questions about dissimilar fact patterns and unique applications of rules, they collectively suggest that Goodell’s supposedly sweeping authority under Article 46 can be successfully challenged.
NFL Owners
Some NFL owners could demand that the league rethink the merits of Article 46 and how it has been implemented. Perhaps Article 46 supplies Goodell with too much discretion for his own good. Four attorneys—Judge Berman (Brady case), U.S. District Judge David Doty (Peterson case), former Judge Jones (Rice arbitration) and former NFL commissioner Paul Tagliabue (Saints players arbitration)—have now expressed serious reservations about the manner in which the NFL has applied Article 46. The league, however, cannot unilaterally modify Article 46 since it is a collectively bargained term. Any modification would require assent by the NFLPA. With the current CBA not set to expire until after the 2020 season, it will be several years before the NFL and NFLPA engage in a new round of collective bargaining. Usually modifications to the CBA are not made in between CBAs, but they are possible. The league’s personal conduct policy was adopted in 2007, several years before the NFL and NFLPA began negotiations for a new CBA.
Robert Kraft
Patriots owner Robert Kraft is obviously thrilled that Brady, his franchise’s best player, will not miss any games. Kraft, though, likely remains aggravated by the NFL’s severe punishment of his team for allegations contained in the Wells Report. In addition to a $1 million fine, the Patriots will lose their first-round pick in the 2016 NFL Draft and fourth-round pick in the 2017 NFL Draft. In May, Kraft reluctantly declined to challenge the punishment. He cited the “collective good” of the 32 franchises. Kraft’s explanation referred to the idea that even if the Patriots might be worse off by Kraft accepting the punishment, the league as a whole is healthier when owners aren’t openly challenging the commissioner’s authority. Kraft’s decision was met with scorn by many Patriots fans, but the 74-year-old billionaire recognized that any challenge would have faced steep odds. For one, Kraft knew that either Goodell—the same person who commissioned the Wells Report and who ultimately determined the Patriots’ punishment—or a designate of Goodell’s choosing would rule on any appeal. Second, as I explained back in May, the league constitution and other documents signed by owners as a condition of an owning an NFL franchise make it extremely difficult for those owners to sue the league.
Kraft would be in a difficult position to now renege on his earlier acceptance of the Patriots’ punishment.
The league’s deadline for the Patriots appealing passed in May. So far, it does not appear that the team will attempt to revoke Kraft’s acceptance. Jonathan Kraft, the president of the Patriots, told reporters Thursday evening that it is “not our intention” to commence a fight over the team’s penalty.
Still, the Patriots have not ruled out a challenge. If they were to pursue one, Robert Kraft would assert that his acceptance was based on false pretenses and misleading assurances. He would further contend that his acceptance should be nullified and that the deadline for his team to appeal should be tolled (extended) to present day. To advance such an argument, Kraft would highlight how Judge Berman’s ruling clearly casts doubts on the Wells Report (at least as it relates to Brady). Kraft could even sue the NFL if the league rejected his pleas for an appeal. Such a lawsuit, however, would be unlikely to prevail.
While it would be very surprising for Kraft to sue the NFL, it would be less surprising if he at least informally asks other owners to urge Goodell to reconsider the Patriots’ penalty. To be sure, those owners are Kraft’s competitors and may not want to help him out. Kraft, however, could remind them that they might find themselves in his shoes one day if what he describes as an excessive and unwarranted penalty is not corrected.
Michael McCann is a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. This fall he is teaching an undergraduate course at UNH titled “Deflategate.” McCann is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and he teaches “Intellectual Property Law in Sports” in the Oregon Law Sports Law Institute.
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You are exactly correct. The NFL and Kessler fought against the process and shoddy job the NFL did in presenting the case. This had nothing to do with the balls or if Brady knew anything. It was about an unfair process which I got railed on in another thread.
The NFL messed this up from square 1. Brady and the Pats still cheated but 4 games was a little much IMO. Jay Feely got busted in 2009 for the same thing and got nothing. No fine and no suspension. The ruling was the player was not responsible for the actions of a locker room official. Kessler presented this and Feely testified. The fact that the NFL would not budge forced Bermans hand.
The NFL should of accepted Brady's request to settle at 1 game. The punishment would of fit the crime IMO.
Based on his success against the NFL the NFL should consider hiring Kessler.
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I've got my fingers crossed on this^, But How long could that take? Before week #1!?!
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How big is infinity?
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We wish!
Look how long this appeal took. The NFL's Decision To Appeal DeflateGate Shows A Mixture Of Hubris And Recklessness
- Within hours of U.S. District Court Judge Richard Berman issuing a ruling that overturned the NFL’s four game suspension of quarterback Tom Brady, the NFL filed paperwork to appeal this decision into the U.S. Court of Appeals for the Second Circuit. Much like the NFL’s earlier refusal to settle the Brady case, the league’s most recent legal maneuver showcases an unusual mixture of hubris and recklessness.
- At the end of the day, the only direct and meaningful result of Judge Richard Berman’s ruling was that a veteran quarterback, who may or may not have been involved in deflating footballs, gets to play for his team during the first four weeks of the 2015 NFL season. In a bubble, this is not really such a big deal for the NFL. Tom Brady is a well-liked and popular player throughout the league. His appearance on the gridiron is more likely to make money for the NFL than to hurt the league’s bottom line.
Nevertheless, by appealing this decision, the NFL runs the risk that an appellate court will uphold Judge Berman’s findings in a dispute that has become far less about deflated footballs than about the NFL’s deflated internal arbitration process. Indeed, the NFL runs the likely chance that a three judge panel from the U.S. Court of Appeals for the Second Circuit will affirm Judge Berman’s rebuke of the NFL’s internal appeals process and protocol of investigations.
This is a big deal, as the NFL risks creating worse (and higher level) precedent, which almost certainly will be used against the league when Jeffrey Kessler and the NFL Players Association challenge the league’s future decisions about player discipline into the courts.
Tom Brady may be back in a New England Patriots uniform this week, but the NFL still won’t let this matter go gently into the night.
Indeed, it is easy to guess why the NFL will not leave bad enough alone. Judge Berman’s ruling marks the fourth time in four years that a neutral arbiter has overturned the league’s suspension of a player, with the other cases being Bountygate, Adrian Peterson, and Ray Rice. Berman’s ruling also showcases that even with the NFL enjoying a collective bargaining agreement that allows the league to choose their own adjudicator of player disputes, the league still cannot get the process right. And frankly, Roger Goodell and the NFL owners must be embarrassed.
Ignore some of the ridiculous statements made by this guy. This is from Forbes so...
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I don't know what to think of this.
I'm sure it really was a chance encounter, but why is a judge mingling with multi-millionaires? Even if he's one himself, it's kind of scary that he makes judgments from the perspective that most of society doesn't live.
http://pagesix.com/2015/09/06/robert-kraft-deflategate-judge-chat-at-hamptons-media-party/
Patriots owner Robert Kraft mingled with Judge Richard Berman, who overturned the NFL suspension of Tom Brady over his alleged role in Deflategate, at a Hamptons Labor Day party full of media and business power brokers.
Kraft was chatting with Berman at Discovery Communications chief David Zaslav and his wife Pam’s party at their East Hampton estate, also attended by Oprah Winfrey, Martha Stewart, Harvey Weinstein, Lloyd Blankfeinrich, NY Giants co-owner Jon Tisch and wife Lizzie, Katie Couric, and Hilaria and Alec Baldwin.
Brady won the court battle Thursday, when Berman bashed NFL Commissioner Roger Goodell for “dispensing his own brand of industrial justice.” The ruling clears Brady to play in Thursday’s season opener.
A rep for the Patriots told Page Six, “It was a chance encounter at a social event with hundreds of guests. There was a brief introduction and an exchange of pleasantries that lasted no more than a couple of minutes.”
I'm sure it really was a chance encounter, but why is a judge mingling with multi-millionaires? Even if he's one himself, it's kind of scary that he makes judgments from the perspective that most of society doesn't live.
http://pagesix.com/2015/09/06/robert-kraft-deflategate-judge-chat-at-hamptons-media-party/
Patriots owner Robert Kraft mingled with Judge Richard Berman, who overturned the NFL suspension of Tom Brady over his alleged role in Deflategate, at a Hamptons Labor Day party full of media and business power brokers.
Kraft was chatting with Berman at Discovery Communications chief David Zaslav and his wife Pam’s party at their East Hampton estate, also attended by Oprah Winfrey, Martha Stewart, Harvey Weinstein, Lloyd Blankfeinrich, NY Giants co-owner Jon Tisch and wife Lizzie, Katie Couric, and Hilaria and Alec Baldwin.
Brady won the court battle Thursday, when Berman bashed NFL Commissioner Roger Goodell for “dispensing his own brand of industrial justice.” The ruling clears Brady to play in Thursday’s season opener.
A rep for the Patriots told Page Six, “It was a chance encounter at a social event with hundreds of guests. There was a brief introduction and an exchange of pleasantries that lasted no more than a couple of minutes.”