Brady 4 game suspension upheld; Will go to court

[Pneumonic]

I think Berman was also clear when he said NO ONE should assume from his line of questioning that he I going to rule 11 way or the other.

 

Right now, the default is that the NFL has ruled for a 4 game suspension and upheld that suspension on appeal.

 

Brady has now appealed that ruling to the courts and HE IS ASKING the court to step into the free market and reverse the ruling of a business. Its ironic to see some argue that the courts have become to activist and then hypocritically argue that the courts should be activist in this case and step inon Brady's side.

 

Berman questioning the NFL on whether there was specific evidence of Brady breaking the rules himself may easily be a prelude to the NFL tipping him off to make his finding purely on the contractual issue that the NFLPA agreed in the CBA to make the Commish the sole arbiter and base his finding on Brady not co-operating with the investigation as any reasonable partner should have done in his NFL/NFLPA tift.

 

Berman clearly said he thinks a settlement (both sides agree to 2 games) is the better outcome. His questioning the NFL is mostly a sign to me that he needs to make the NFL scared enough to settle because Brady already fears the 4 game default.

No doubt that Berman is holding the hammer of an up or down ruling over the heads of both sides in order to settle. However, I think the signaling is strongest towards the NFL that, while he might still rule purely on the strength of the CBA, he is not impressed with the leagues position and could well vacate the ruling. I base this mostly on Berman’s use of the word "troubled" when he spoke of his view of the lack of proof of a direct connection between Brady and the alleged activities.

 

If I were to hazard a guess it is that Berman now knows that there is no settlement that entails Brady accepting direct responsibility for anything in such a suspect report and it is the NFL that needs to save face in some way to settle. I think Kessler’s point yesterday ….. to the effect of “if the league had simply offered up a fine and no suspension we all wouldn’t be wasting our time here” was on point as to how any settlement might fall. I say it’ll end up no suspension and a non co-operation fine for not handing over cell phone.

[WhitewalkerInPhilly]

I'm hearing that Berman is looming to the facts of the case. While Pats* fans are crowing, I think they should be terrified. If you want the facts doesn't everything come in?

 

Wouldn't that give the NFL full subpoena power to dig through records, including anything to see if Belicheck knew? Can't they put McNally on the stand and get three retired quarterbacks to pick put a deflated ball blindfolded?

 

The second it stops being due process, and about about evidence the NFL gets to dredge EVERYTHING.

[eball]

The sad truth to this whole mess (and yes, it is a mess for all involved) is that Brady* has almost certainly been cheating like this for years, but we'll wind up with a settlement that acknowledges no responsibility and a meaningless fine for non-cooperation.

 

At least going forward, he (and the rest of the suspiciously non-fumbling Pats**) is going to have to play with the same footballs as everyone else.

[NoSaint]

No doubt that Berman is holding the hammer of an up or down ruling over the heads of both sides in order to settle. However, I think the signaling is strongest towards the NFL that, while he might still rule purely on the strength of the CBA, he is not impressed with the leagues position and could well vacate the ruling. I base this mostly on Bermans use of the word "troubled" when he spoke of his view of the lack of proof of a direct connection between Brady and the alleged activities.

 

If I were to hazard a guess it is that Berman now knows that there is no settlement that entails Brady accepting direct responsibility for anything in such a suspect report and it is the NFL that needs to save face in some way to settle. I think Kesslers point yesterday .. to the effect of if the league had simply offered up a fine and no suspension we all wouldnt be wasting our time here was on point as to how any settlement might fall. I say itll end up no suspension and a non co-operation fine for not handing over cell phone.

it seems like if the admission of guilt is the only bridge neither side wants to cross in a settlement, its seems easier to me for him to push the nfl across. if i recall the rumors correct, there was talk of a 1 game suspension, without admission, being considered as potentially acceptable on the brady side. who knows how true 3rd hand rumors were, but i could see a judge steering both sides there for a landing point.

I'm hearing that Berman is looming to the facts of the case. While Pats* fans are crowing, I think they should be terrified. If you want the facts doesn't everything come in?

 

Wouldn't that give the NFL full subpoena power to dig through records, including anything to see if Belicheck knew? Can't they put McNally on the stand and get three retired quarterbacks to pick put a deflated ball blindfolded?

 

The second it stops being due process, and about about evidence the NFL gets to dredge EVERYTHING.

you assume the nfl wants that too.... which may be a stretch. think they want players to see if they gave direction to wells that might cause some uproar in the next cba negotiation, for example? or if the nfl was leaking incorrect info?

[Kelly the Dog]

it seems like if the admission of guilt is the only bridge neither side wants to cross in a settlement, its seems easier to me for him to push the nfl across. if i recall the rumors correct, there was talk of a 1 game suspension, without admission, being considered as potentially acceptable on the brady side. who knows how true 3rd hand rumors were, but i could see a judge steering both sides there for a landing point.

Why would the fact the Brady side was willing to go to one game with no admission be a settlement? I believe that may be true, too, that they were willing to go there. But that was their position before the judge got the case, the same way the NFL's position was at best we are willing to go to one game with admission if the admission is very contrite. Those are equal.

Edited August 13, 2015 by Kelly the Dog

[NoSaint]

Why would the fact the Brady side was willing to go to one game with no admission be a settlement? I believe that may be true, too, that they were willing to go there. But that was their position before the judge got the case, the same way the NFL's position was at best we are willing to go to one game with admission if the admission is very contrite. Those are equal.

im not sure im reading this right, havent finished my first cup of coffee.

 

i was just saying if both sides can agree on suspension and fine, the judge might give a nudge to drop the apology portion.

[Kelly the Dog]

im not sure im reading this right, havent finished my first cup of coffee.

i was just saying if both sides can agree on suspension and fine, the judge might give a nudge to drop the apology portion.

I got that from your original statement. I just don't see how that is a settlement. That is the NFL giving into the one thing they hold dear and Brady keeping the one thing they hold dear. Brady is very willing to hurt his team because of his ego (evidenced by his stance). I bet the NFL wants his admission of guilt more than the actual games.

[Tuco]

There are no angels sitting in the pews. Both sides manned the barricades instead of sitting down and working things out. Instead of commissioning a multi-million $$$ investigation and elevating the profile of the situation this issue got magnified.

 

My position has been stated many times over. I don't doubt that a transgression occurred. But the transgression that happened was inconsequential as evidenced by how it affected the game i.e. it didn't. If the league would have handled it similarly to other equipment tampering cases this manageable problem could have been dealt with more quickly and simply.

 

In my opinion Goodell was ingratiating himself with a faction of league owners who have felt that New England has a history of stretching the boundaries. It is this undercurrent of resentment that fueled this fury. Goodell played to that sentiment by the way he handled this issue.

 

There is nothing unusual to have tension in a personal or working relationship. When relations are at a normal level minor issues can be satisfactorily worked out. But when the relations are poisonous and there is distrust a small and inconsequential act can spark an avalanche of a response that damages both sides. That's what happened here.

But how many other equipment tampering cases are there? And how many of those involve denial and lying followed by complete silence in the face of the lies? It's easy to say just handle it like any other, but when you know it happened but the involved parties lie and refuse to cooperate, without the power of subpoena you're left with either spending a lot of time and money (and publicity - blowing up) to get answers or just letting things slide with minimum sanctions (not desirable - the league is very unhappy with this).

 

I have to believe once the league and Wells discovered the older texts they had to believe it's more than just a one time thing, and they had every reason to request second interviews. Yes, their proof is lacking. But the biggest reason it's lacking is non-cooperation by Brady and the Pats.* And if they have reason to believe it was more than just a one time thing (it quacks like a duck on numerous levels), which by default increases the severity of non-compliance, shouldn't the punishment be increased to reflect that?

Edited August 13, 2015 by Tuco

[KingRex]

No doubt that Berman is holding the hammer of an up or down ruling over the heads of both sides in order to settle. However, I think the signaling is strongest towards the NFL that, while he might still rule purely on the strength of the CBA, he is not impressed with the leagues position and could well vacate the ruling. I base this mostly on Berman’s use of the word "troubled" when he spoke of his view of the lack of proof of a direct connection between Brady and the alleged activities.

 

If I were to hazard a guess it is that Berman now knows that there is no settlement that entails Brady accepting direct responsibility for anything in such a suspect report and it is the NFL that needs to save face in some way to settle. I think Kessler’s point yesterday ….. to the effect of “if the league had simply offered up a fine and no suspension we all wouldn’t be wasting our time here” was on point as to how any settlement might fall. I say it’ll end up no suspension and a non co-operation fine for not handing over cell phone.

My hazard is that a settlement means everyone gives something. The current ruling is 4 games. A settlement seems to be meet in the middle at 2 games. I think 3 would be interpreted as a clear loss for Brady and 1 game as a clear loss for the NFL.

 

2 games and everyone goes home not fully satisfied but not broken.

 

Some folks may want Berman to be an activist judge and insert himself into this business arrangement and overturn the current NFL ruling but I think many are calling for less judicial activism and demand the judge insert himself into this market agreement but my sense is that most appeals are not granted and thecourt will resist activism in this case.

[NoSaint]

I got that from your original statement. I just don't see how that is a settlement. That is the NFL giving into the one thing they hold dear and Brady keeping the one thing they hold dear. Brady is very willing to hurt his team because of his ego (evidenced by his stance). I bet the NFL wants his admission of guilt more than the actual games.

got it now --

 

id say the judge doesnt much care who saves face publicly and the admission of guilt is hardly standard so it seems easier to nudge the nfl to drop. basically drop the PR campaign and just get this closed. just my 2 cents.

 

if neither side can stand to address that i guess itll be either a 3rd party review as the settlement, or we will hear from the judge as the only other options... we will see....

Edited August 13, 2015 by NoSaint

[Dan]

But how many other equipment tampering cases are there? And how many of those involve denial and lying followed by complete silence in the face of the lies? It's easy to say just handle it like any other, but when you know it happened but the involved parties lie and refuse to cooperate, without the power of subpoena you're left with either spending a lot of time and money (and publicity - blowing up) to get answers or just letting things slide with minimum sanctions (not desirable - the league is very unhappy with this).

 

I have to believe once the league and Wells discovered the older texts they had to believe it's more than just a one time thing, and they had every reason to request second interviews. Yes, their proof is lacking. But the biggest reason it's lacking is non-cooperation by Brady and the Pats.* And if they have reason to believe it was more than just a one time thing (it quacks like a duck on numerous levels), which by default increases the severity of non-compliance, shouldn't the punishment be increased to reflect that?

That's the issue for me, as well. I've repeatedly read how weak the NFL's case is because there was no smoking gun. But, it's akin to the police finding a gun in a suspected murderers house, and not being able to run ballistics on it because he routinely destroys all his firearms when people ask to see them.

 

The NFL doesn't have the evidence they needed to prove the case because Brady and the team refused to cooperate fully. So now they get to come back and say... Where's your evidence against us? Brady destroyed it the day the league asked for it. The team refused to allow the 2 key witnesses to do follow up interviews, then fired them (almost assuredly with non disclosure clauses).

 

IMO, that's why this whole thing has become one of the most ridiculous things ever. Brady had his cake and got to eat it (he cheated and it helped him get to a Super Bowl), and now when people are saying you already had your cake, he's saying.. No I didn't. Prove it. Where's my old cake?

[Kelly the Dog]

This could mean a host of different things, but I find it interesting that Brady will not be at next week's settlement meaning. I'm not saying it's to either side's advantage, but it allows both sides to be a little more honest in front of the judge, especially in his private chambers. It's like when negotiating a player's contract. The team doesn't want the player in the room when they say "He sucks at blocking!" and the agent for the player doesn't want him to be there when he says, "Okay, he's not the greatest blocker but he excels at..."

 

It now allows the NFL to say to Berman, "Does anyone really believe he's not lying?"

[JohnC]

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.

I agree with your position. The overriding legal issue is whether the league has the authority to make a determination regardless of its reasonableness or fairness. If the disciplinary system is heavily tipped toward management then that is the system you work in.

 

Especially in civil cases judges, as you are noting, put in a lot of effort into getting the parties to come to some accord before he has to make his own ruling. His job deals not only with the details of the law but also dealing with combative contestants and trying to steer them into some reasonable resolution.

 

Again, I appreciate your contribution on clarifying the issues on this topic.

[starrymessenger]

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.

That makes sense to me. I would not expect a judge in appeal to embark on a fact finding mission. He must accept the facts as disclosed in the evidence and gathered in the proceedings below. However, whether those facts meet the "preponderance of evidence" standard required by the CBA in order to justify disciplinary action is to me a question of law that the judge can and indeed should consider in coming to a decision. So I found the judge's comments referencing the lack of direct evidence of Brady's involvement in a scheme to deflate footballs interesting and I interpreted them in this light ie he is telling the League that they may not have discharged the required burden of proof with regard to this matter (leaving open the issue of having failed to cooperate, which he also spoke to). I wonder if he is not pointing them in the direction he would like them to go as a basis for settlement.

[PromoTheRobot]

If Brady escapes this, the NFL will never ever be able to police the Pats** ever again. They will be able tp do whatever the f##k they want and all Goodell will be able to do is watch.

[DrDawkinstein]

If Brady escapes this, the NFL will never ever be able to police the Pats** ever again. They will be able tp do whatever the f##k they want and all Goodell will be able to do is watch.

 

And the NFL has no one to blame but itself. They let the Pats get away with everything for over a decade, and then when they finally decide to hold them to the rules, they go way out of process. Dummies. Roger is asleep at the wheel!

[dave mcbride]

Just throwing this out there: who thinks what Brady apparently did in the Colts game is worse than this deliberate form of cheating -- http://gamedayrcom.c.presscdn.com/wp-content/uploads/2013/11/mike-tomlin-jacoby-jones1.png-- which generated a $100K fine and 0 lost draft picks? Forget about history for a second (and evidence-free suppositions about deflation below 12.5 in prior games, for that matter). One to one: which is worse?

[NoSaint]

Just throwing this out there: who thinks what Brady apparently did in the Colts game is worse than this deliberate form of cheating -- http://gamedayrcom.c.presscdn.com/wp-content/uploads/2013/11/mike-tomlin-jacoby-jones1.png-- which generated a $100K fine and 0 lost draft picks? Forget about history for a second (and evidence-free suppositions about deflation below 12.5 in prior games, for that matter). One to one: which is worse?

but tomlin stepped up and admitted he wanted to trip jones, so it doesnt count....

 

oh wait....

[Mr. WEO]

Just throwing this out there: who thinks what Brady apparently did in the Colts game is worse than this deliberate form of cheating -- http://gamedayrcom.c.presscdn.com/wp-content/uploads/2013/11/mike-tomlin-jacoby-jones1.png-- which generated a $100K fine and 0 lost draft picks? Forget about history for a second (and evidence-free suppositions about deflation below 12.5 in prior games, for that matter). One to one: which is worse?

 

yeah but.....Brady

[dave mcbride]

but tomlin stepped up and admitted he wanted to trip jones, so it doesnt count....

 

oh wait....

It would be hard from him to deny that he was "generally aware"!