odon59

And if they beat the Steelers and Jets, their playoff odds are 99%.

Also one of my favorite plays in recent memory. Nice front side blocking by the oline, and textbook backside wall by three receivers. Also very nifty piece of running. That kind of 3rd and long conversion will demoralize an opponent. Pretty awesome all around.

In the previous thread, after reading the briefs filed with the court, I predicted Judge Berman would overturn the suspension on notice grounds. This was Brady's strongest argument. It's possible the Nfl will appeal to the second circuit, but they probably won't get a stay of Bermans ruling in the mean time.

It's very common for trial judges to apply pressure on parties to settle by asking questions that aren't necessarily germane to how the case/motion would be decided as a matter of law. In other words, just because Judge Berman asked questions about the evidence and factual conclusions doesn't mean he plans on relitigating the whole thing in his courtroom. Just my two cents.

Ohhhhhhh that makes so much more sense now. He's been criticized constantly within the sports law community for filing Clarett's suit in Manhattan, where he lost badly on appeal. There is no doubt that the 8th Circuit's antitrust law is much more favorable to plaintiffs, and that was the main claim in Clarrett's suit. Maybe he's just using this to save face?

This is an interesting read. A cursory look at the 2d Cir (NY) cases cited doesn't reveal they are really that favorable to Brady (one case was non-precedential, meaning it isn't supposed to be cited or relied on in future decisions, and the other actually confirmed the arbitration award, which is what the league wants). Time will tell... By the way, my reasoning for writing my initial post was 1) I had a little bit of knowledge but none of my lawyer friends wanted to talk about it, so I needed a forum, and 2) I wanted to hear a discussion that is more informed that whatever Adam Schefter or Bill Polian decides to spew on ESPN on any given day. I think I succeeded in both, so thanks for engaging!

That could be the case. My overall reading was that the league is quite exposed on this issue, but I could be wrong.

Yes that's basically it. This is a great question that unfortunately I do not know off hand. Below is a quote from the judge in the Peterson case in Minnesota, setting forth the standard of review for arbitration awards. Arbitration awards, however, are not inviolate, and the court need not merely rubber stamp the arbitrator's interpretations and decisions. The court must vacate the award if it fails to “draw its essence” from the agreement, such that the arbitrator imposed “his own brand of industrial justice.” Associated Elec., 751 F.3d at 901. An arbitration award may also be vacated when the arbitrator “exceed[ed] the authority given to him by the CBA or decide[d] matters parties have not submitted to him.” Doerfer Eng'g v. NLRB, 79 F.3d 101, 103 (8th Cir.1996). Nat'l Football League Players Ass'n v. Nat'l Football League, No. CIV. 14-4990 DSD/JSM, 2015 WL 795253, at *5 (D. Minn. Feb. 26, 2015)

No Brady would have been better off in Minnesota, which he tried to do. But honestly I don't know how much better off he would have been. The big NYC case that is cited for showing the this region is pro-league is the Maurice Clarrett case, which was an antitrust claim and not a labor dispute.

The standard for reviewing an arbitrator's decision is, ironically, whether the decision was "arbitrary or capricious." What that means exactly has been interpreted differently in different forums. Federal courts in Minnesota have been more apt to find in favor of the players, whereas NYC is more league friendly.

Brady's strongest argument is with respect to "Notice." The CBA requires that players have adequate notice, either being verbally informed or receiving notice in writing, as to what conduct they may be disciplined for and the extent of that punishment. Brady makes several arguments as to notice, but the two strongest ones, in my view, are that 1) only teams, not individual players, are subject to punishment for equipment tampering and 2) Brady did not have notice that he could be subject to discipline for being "aware" of the wrongful conduct of others - in this case the ball boys. 1) With respect to the argument that Brady didn't have notice that he could be personally punished for equipment tampering, Brady points to the lack of any provision in the CBA for equipment tampering punishment as well as the league's unilateral policy on equipment tampering, which explicitly says that teams are subject to punishment and is silent on players. In response, the NFL argues that it didn't punish Brady under the equipment tampering policy, but rather the suspension is valid because Brady's conduct was detrimental to the league. Conduct detrimental to the league is something that the players do have notice as to their potential punishment. However, keep the idea of "conduct" in mind when reading below: 2) "Awareness v. Conduct" - this is where I think Brady, much to my chagrin, has them. The Wells report concludes only that Brady was "more likely than not generally aware." Brady argues that nothing in the CBA or league policies put him on notice that he could be punished for his "awareness" of the conduct of others. Goodell got really slippery when it came to this. In the appeal, Goodell took the evidence in the Wells report along with an "adverse inference" based on Brady destroying his phone, that Brady had in fact been directly involved. So on one hand the league used the Wells report for its fact finding and conclusions, but then on appeal it only used the Wells report for individual facts but came to its own heightened conclusions. So the question for the Judge here is, did Goodell act arbitrarily in going from "generally aware" to actually involved in his findings? I think the answer to that is yes, but we shall see.

Well to that end, this is THE CIVIL CASE. Brady doesn't have any other recourse. The CBA bars players from filing some end-around lawsuit to relitigate the underlying facts. Also, in regards to the speculation that the judge could just delay delay delay - that's true but Brady could just file an application for a temporary restraining order or preliminary injunction, which would force the judge to rule quickly. All of this is moot because the judge said he would rule by Sept. 4.

I'm a lawyer and I read the briefs filed by Brady and the league last week. I think Brady's arguments are very strong compared to the league's. I'd say 70/30 chance that the judge grants Brady's motion to vacate the suspension. Also, Kelly the Dog, the procedural posture of the federal court litigation doesn't really make the ball boys' testimony relevant. It's all about whether the NFL followed its own policies and the CBA in dishing out this punishment.

I'm a lawyer and read the briefs filed by Brady and the NFL last week. I think Brady's arguments are very strong compared to the league's. My conclusion is the judge will likely grant Brady's motion to vacate. Happy to discuss my reasoning.