Brady's suspension lifted

[Prickly Pete]

We have some real legal eagles here at TBD.

 

"Yes, Your Honor. On the evening in question per say, Your Honor..."

 

I am excited to watch Tom Brady compete against the Bills. His presence will add greatly to our entertainment in Week 2.

[Tuco]

I'm aware that you were responding to another issue but I would like your opinion on the legitimacy of the judge's ruling regarding that the league, specifically Pash, a well respected and Harvard trained attorney, did not abide by the rules of discovery when he wouldn't provide his notes and respond when he was asked to answer questions during the discovery hearing?

 

Roger Goodell, before this ruling, had arbitrators review five different disciplinary cases. All his rulings were altered by the impartial authority. This case makes it six consecutive cases that when outside authorities examined his cases they find his rulings to be very problematic. The deficient pattern is obvious.

 

The court that the league ran to in order to uphold its ruling is known to be very supportive to arbitration rulings. Most of the legal commentators who commented on this case before the ruling felt that the league would win this case because of this court's favorable history toward arbitration decisions.

 

The end result is that the judge not only ruled in Brady's favor but more importantly he clearly rebuked RG and the unfair process that he guided. It is acknowledged by most everyone on both sides of this issue that Roger Goodell has almost unlimited authority in disciplinary matters. He continues to find a way to screw things up in his role as the sheriff.

 

Very often the commissioner with insufferable sanctimony preaches the importance of maintaining the integrity of the league. What he has demonstrated (to me) is that because of the capricious manner in which he conducts himself in these types of proceedings he has undercut the league's credibility on issues related to integrity.

 

I have said it before and I will say it again that although I disagree with your take on this issue I appreciate your well reasoned and expressed point of view. I'm more ready than ever for the season to start and this manufactured legal crisis to end. How Tyrod Taylor plays is an issue that I am really more concerned with and excited over.

I agree they blew it bad with Pash. I am somewhat bothered by the fact the league loses every time they go to court. In this case I think it's clear to everyone once the investigation started everybody involved realized this has been an ongoing issue. But the judge seemed to constantly refer to only the one game. I guess the NFL didn't actually specify they were probably punishing for more than that, and apparently they should have, except they really didn't have anything to go on other than common sense and conclusions drawn from lies, evidence tampering and refusals for follow up interviews by any of the involved parties.

 

If the league is required to make their case without the benefit of the power of subpoena, and the perpetrator is allowed to stonewall at every turn, the league would never be able to punish anybody without visual and audio evidence in triplicate. So every time a CBA comes around the league fights tooth and nail to keep the power of discipline under the commissioner's domain and it's supposed to be wide ranging - all encompassing even. We have no way of knowing what the league gives up to keep that disciplinary authority. It could be 1% of total revenues for all we know (about $10 mil extra in salaries per team), maybe more. The point is a wide range of disciplinary authority is supposed to belong to the commissioner but it seems it doesn't.

 

So we have a judge who's not supposed to be ruling on guilt or innocence (and technically didn't) making a courtroom point of asking about direct evidence to find guilt, and consistently referring to just the single game when it's obvious there was more there. This could have been done behind closed doors but was done in open court. So, it seems, the league is held to the standard of bearing the burden of proof while at the same time not being afforded the means to elicit such proof. Then the judge smacks the league down for not not cooperating and obfuscating during the appeal, which is the same thing the league was met with during their investigation only on a wider scale. Cooperation is also a part of the CBA, but in the end the league got smacked down for stonewalling but not the player.

 

By not being able to secure evidence and witnesses the league is forced to draw conclusions from speculation and common sense. They're supposed to have the authority to do that through a negotiated agreement. Yet the judges always seem to minimize that. It's an important part of the CBA but it always seems to get pushed aside. The judges never outright cite any law that says they can't maintain that authority through negotiation, but there always seems to be singular issues which they decide don't fall under the disciplinary umbrella that's supposed to exist.

 

Now, it seems, after 6 tries, the courts have effectively stripped that wide range of authority while the union is left still holding onto whatever they gained by giving it. That part doesn't sit well with me and I don't understand why judges don't allow the commissioner a wider range when it's clearly what they bargained for at arms length negotiations.

 

Yes, please start the season.

Edited September 4, 2015 by Tuco

[Formerly Allan in MD]

OJ was acquitted so Brady has good company. Would love to see him get knocked out of the game in week two by a nice clean devastating hit. If were gonna beat those clowns might as well do it while they are at their best. No Revis so Sammy should run wild.

So Brady equates to an unconvicted murderer?

[Rob's House]

Not at all. I read the brief and am wholly unconvinced by Judge Berman's decision. He really seemed to have it in for the NFL.

 

Look at section IV(A) on notice (the first, which usually means the author's view of their best, argument). The judge keeps harping on how Brady did not know he could be suspended for "being generally aware" (which is a crock, I think that anyone who read the texts and considered all of the other circumstantial factors, such as the swag given to Tweedledumber, the calls to Tweedledumb right after the story broke, and Brady's destroyed cell phone knows full well that Tommy Boy was more than "generally aware" here, but that's the language Wells used) of the balls being deflated by his flunkies after being stolen from the refs. The same applies for obstructing a League investigation--in fact, he says that since no one before has ever been suspended for obstruction, you can't do that here (begging the question of how one ever gets to suspend such an obstructionist dirtbag in the first place). The judge goes on to say that the "conduct detrimental" catch all is too general to apply here to allow suspension in a case like this. Combined, that means that the rules should somehow be clear that when stealing balls and deflating them, you can be suspended. WTF? Is that really necessary? The NFL somehow needs to spell all that out in its CBA in order to punish a cheater? What a mess of an opinion from a policy standpoint.

 

I was also wholly unconvinced by the arguments about Pash--he had Ted Wells on the stand basically saying "I don't even know what Pash did to the report which must mean that his changes were so minor" (which as someone who's worked in that environment and field can tell you that in reality this means that some junior associate took a few lightweight comments from Pash (who felt he had to contribute something) that were so lightweight he didn't even need to run them by the boss--they may have honestly been typos) and that was not good enough for Berman to set aside the NFL's view that Pash's testimony was worthless to the Pats*. It's almost like he was looking for reasons to crater the League's decision.

 

In his final argument, he seems to be saying that despite arbitration by its terms having different discovery rules, no, you need to allow full discovery as you would in litigation. Ridiculous (in my opinion at least).

 

Once again, I'm not a litigator, but I am unconvinced by his arguments, which are a real world, operational nightmare for the League going forward. This literally eviscerates the League's ability to impose discipline unless said discipline is explicitly described in the CBA. As noted above, creative cheaters (of which we have the best in our division) will have a field day with this.

 

I also find it somewhat funny that a number of posters here who in other contexts I've seen spout pro-business/conservative principles so readily support what can really only be described here as liberal judicial activism of a judge helping out an employee against his employer.

The problem with your argument is you're making a common sense inference that Brady must have had more than "general knowledge," and you're probably right, but the NFL investigation upon which the penalty was based only said it was more probable than not that he had general knowledge. You can't overcome your own evidence. The NFL rightfully lost.

 

 

And deflating football's a little isn't that big a deal.

 

It's what the league AND THE NFLPA put in there and agreed to.

 

The NFLPA are the real morons here; the court should have told them "Tough ****, you idiots, you agreed to this. Next time, don't be morons." Not "You idiots, you agreed to this. But I'll bail out you morons."

I feel the need to give much respect to Tom here because even though we're on different sides of this issue he is doing a magnificent job of presenting his case.

[TSOL]

I feel the need to give much respect to Tom here because even though we're on different sides of this issue he is doing a magnificent job of presenting his case.

Yeah, right. Cuz that's EXACTLY how federal judges talk.

[Rob's House]

Yeah, right. Cuz that's EXACTLY how federal judges talk.

What do you mean by that?

[DC Tom]

I feel the need to give much respect to Tom here because even though we're on different sides of this issue he is doing a magnificent job of presenting his case.

 

To me, or to Tom Brady? If me, please refer to me as DC Tom, so no one confuses me with that cheating son of a B word.

 

And I suspect the problem is less that Brady had "at least general knowledge," than the report used the phrasing it did. If they'd instead said "done with Brady's awareness and tacit approval," it's probably just as accurate given the evidence that is available, but much more damning.

[TSOL]

Just with the "idiots" and the "morons" and the "tough****"

I don't see those guys sitting on the bench saying that kinda stuff. Apparently I misunderstood your response to him though.

[DC Tom]

Just with the "idiots" and the "morons" and the "tough****"

I don't see those guys sitting on the bench saying that kinda stuff. Apparently I misunderstood your response to him though.

 

I'm sorry. From now on I'll strictly post formal amicus briefs on the subject. Would you find that more suitable?

 

[TSOL]

I'm sorry. From now on I'll strictly post formal amicus briefs on the subject. Would you find that more suitable?

 

Yeah, that would probably be a good idea, you know, so EVERYONE could understand what you mean

[Prickly Pete]

This all started with John Harbaugh's bitter resentment (anybody doubt how deep that well goes?). What should have been a simple fine for under-inflated footballs, was turned into a witch hunt. I would love to know what role he may have played in setting up "the sting". If it is appealed, I hope he is called to the stand somehow.

Edited September 4, 2015 by HoF Watkins

[Go Kiko go]

Tuco nailed it. I have no idea how you can read that and overturn the case. Its BS but they agreed to it.

It's based on a fundamental theory of statutory and contractual interpretation. There were two main provisions under the CBA that would appear to apply to what Brady did: the equipment violation provision, and this catch-all "conduct detrimental" provision. When two different provisions of an agreement both appear to be applicable to some situation and you have to figure out which one controls, the provision that is more specific to that situation controls the outcome. Thus, Judge Berman reasoned, the more specific equipment violation provision should govern this situation, not the more general "conduct detrimental" provision.

 

Try this example: suppose a college academic conduct policy said that cheating on an exam results in a grade of zero for that exam, but the policy also had a general provision that provides that engaging in conduct detrimental to the college, as determined by the dean, could result in various punishments, including expulsion from the university. If you decide to cheat on an exam and get caught, and the dean expels you, the college is going to have an awfully hard time justifying that decision. The question becomes, "what did these parties agree to?", and if a rule exists that specifically deals with that particular situation, that rule is the best indicator of what the parties intended to happen in that situation. That's basically what happened here (at least with respect to this part of the decision).

 

Now, I think it's fair to ask whether intentionally tampering with footballs should really be considered an "equipment violation," which could suggest that the more specific equipment violation provision was not applicable here. But that's a different question altogether.

Edited September 4, 2015 by Go Kiko go

[Mango]

It's based on a fundamental theory of statutory and contractual interpretation. There were two main provisions under the CBA that would appear to apply to what Brady did: the equipment violation provision, and this catch-all "conduct detrimental" provision. When two different provisions of an agreement both appear to be applicable to some situation and you have to figure out which one controls, the provision that is more specific to that situation controls the outcome. Thus, Judge Berman reasoned, the more specific equipment violation provision should govern this situation, not the more general "conduct detrimental" provision.

 

Try this example: suppose a college academic conduct policy said that cheating on an exam results in a grade of zero for that exam, but the policy also had a general provision that provides that engaging in conduct detrimental to the college, as determined by the dean, could result in various punishments, including expulsion from the university. If you decide to cheat on an exam and get caught, and the dean expels you, the college is going to have an awfully hard time justifying that decision. The question becomes, "what did these parties agree to?", and if a rule exists that specifically deals with that particular situation, that rule is the best indicator of what the parties intended to happen in that situation. That's basically what happened here (at least with respect to this part of the decision).

Unless to cheat on that exam you pay your flunky friend to go and steal the exam from the professors office. In which case you've opened up quite the can of worms.

[Mr. WEO]

It's based on a fundamental theory of statutory and contractual interpretation. There were two main provisions under the CBA that would appear to apply to what Brady did: the equipment violation provision, and this catch-all "conduct detrimental" provision. When two different provisions of an agreement both appear to be applicable to some situation and you have to figure out which one controls, the provision that is more specific to that situation controls the outcome. Thus, Judge Berman reasoned, the more specific equipment violation provision should govern this situation, not the more general "conduct detrimental" provision.

 

Try this example: suppose a college academic conduct policy said that cheating on an exam results in a grade of zero for that exam, but the policy also had a general provision that provides that engaging in conduct detrimental to the college, as determined by the dean, could result in various punishments, including expulsion from the university. If you decide to cheat on an exam and get caught, and the dean expels you, the college is going to have an awfully hard time justifying that decision. The question becomes, "what did these parties agree to?", and if a rule exists that specifically deals with that particular situation, that rule is the best indicator of what the parties intended to happen in that situation. That's basically what happened here (at least with respect to this part of the decision).

 

Now, I think it's fair to ask whether intentionally tampering with footballs should actually be considered an "equipment violation," which could suggest that the more specific equipment violation provision was not applicable here. But that's a different question altogether.

 

Best post on this topic yet.

[Rob's House]

It's based on a fundamental theory of statutory and contractual interpretation. There were two main provisions under the CBA that would appear to apply to what Brady did: the equipment violation provision, and this catch-all "conduct detrimental" provision. When two different provisions of an agreement both appear to be applicable to some situation and you have to figure out which one controls, the provision that is more specific to that situation controls the outcome. Thus, Judge Berman reasoned, the more specific equipment violation provision should govern this situation, not the more general "conduct detrimental" provision.

 

Try this example: suppose a college academic conduct policy said that cheating on an exam results in a grade of zero for that exam, but the policy also had a general provision that provides that engaging in conduct detrimental to the college, as determined by the dean, could result in various punishments, including expulsion from the university. If you decide to cheat on an exam and get caught, and the dean expels you, the college is going to have an awfully hard time justifying that decision. The question becomes, "what did these parties agree to?", and if a rule exists that specifically deals with that particular situation, that rule is the best indicator of what the parties intended to happen in that situation. That's basically what happened here (at least with respect to this part of the decision).

Sorry DC Tom Brady, but this guy wins.

[NoSaint]

Thanks for your insight GKG (and the others that have taken the time to educate themselves on the case and share opinions based on expertise on both sides)

[Kelly the Dog]

To me, or to Tom Brady? If me, please refer to me as DC Tom, so no one confuses me with that cheating son of a B word.

 

And I suspect the problem is less that Brady had "at least general knowledge," than the report used the phrasing it did. If they'd instead said "done with Brady's awareness and tacit approval," it's probably just as accurate given the evidence that is available, but much more damning.

That is definitely what Wells believed if anyone read the report. It wasn't at all "general knowledge." Wells was positive he did it because of all of the various factors that all led to guilt. Everything. But in retrospect perhaps it was a mistake by using those words. That is not at all Wells' conclusion. And the judge used that against them. Like he used other stuff they did against them when he didn't have to and shouldn't have.

 

It's rather remarkable that he would put so much emphasis on, say, the NFL not allowing Pash to be interviewed at the appeal when he knew full well that the Patriots and Brady's team didn't allow THE TWO GUYS WHO ACTUALLY KNEW WHAT HAPPENED to be interviewed again in the investigation as well as the appeal hearing.

It's based on a fundamental theory of statutory and contractual interpretation. There were two main provisions under the CBA that would appear to apply to what Brady did: the equipment violation provision, and this catch-all "conduct detrimental" provision. When two different provisions of an agreement both appear to be applicable to some situation and you have to figure out which one controls, the provision that is more specific to that situation controls the outcome. Thus, Judge Berman reasoned, the more specific equipment violation provision should govern this situation, not the more general "conduct detrimental" provision.

Try this example: suppose a college academic conduct policy said that cheating on an exam results in a grade of zero for that exam, but the policy also had a general provision that provides that engaging in conduct detrimental to the college, as determined by the dean, could result in various punishments, including expulsion from the university. If you decide to cheat on an exam and get caught, and the dean expels you, the college is going to have an awfully hard time justifying that decision. The question becomes, "what did these parties agree to?", and if a rule exists that specifically deals with that particular situation, that rule is the best indicator of what the parties intended to happen in that situation. That's basically what happened here (at least with respect to this part of the decision).

Now, I think it's fair to ask whether intentionally tampering with footballs should really be considered an "equipment violation," which could suggest that the more specific equipment violation provision was not applicable here. But that's a different question altogether.

That's a good explanation but it was pretty clear by both the Wells report and the Vincent letter that the NFL didn't make a choice between one and two. They said you did this wrong (cheating) and you did that wrong (lying and obstructing) and both were punishable offenses. So we are deciding on a punishment that includes both offenses and more. Why does it have to be one or the other?

 

They were not punishing him under one or the other provisions. It was both.

[NoSaint]

That is definitely what Wells believed if anyone read the report. It wasn't at all "general knowledge." Wells was positive he did it because of all of the various factors that all led to guilt. Everything. But in retrospect perhaps it was a mistake by using those words. That is not at all Wells' conclusion. And the judge used that against them. Like he used other stuff they did against them when he didn't have to and shouldn't have.

 

It's rather remarkable that he would put so much emphasis on, say, the NFL not allowing Pash to be interviewed at the appeal when he knew full well that the Patriots and Brady's team didn't allow THE TWO GUYS WHO ACTUALLY KNEW WHAT HAPPENED to be interviewed again in the investigation as well as the appeal hearing.

That's a good explanation but it was pretty clear by both the Wells report and the Vincent letter that the NFL didn't make a choice between one and two. They said you did this wrong (cheating) and you did that wrong (lying and obstructing) and both were punishable offenses. So we are deciding on a punishment that includes both offenses and more. Why does it have to be one or the other?

Wouldn't his post simply be saying we refer to equipment, and cooperation issues, and stray away from the open ended conduct detrimental

[Kelly the Dog]

Wouldn't his post simply be saying we refer to equipment, and cooperation issues, and stray away from the open ended conduct detrimental

His would seem to. Yes. And I am not a lawyer obviously. But I think he used an example and analogy that didn't fit perfectly or even well here. The NFL didn't based the punishment by choosing one or the other, and it cannot be a legal tenet that you have to choose one way or another when someone breaks a multitude of laws. The NFL clearly decided, again by the conclusions of the report laid out in extreme detail, as well as Vincent's letter to Brady, as well as Goodell's 20 page appeal doc, that they thought Brady both broke the rules of the game AND obstructed the investigation, and they did not punish him on one or the other but both. They did not decide which one "controls" because each is a punishable offense. "Conduct detrimental" applies to both the altering of the balls AND obstruction of the investigation. There were two serious offenses according to the league, both of which may get some kind of suspension.

 

There is no way that the league or the law says you have to punish someone on one thing or the other and not both when you are doing two completely separate and different things wrong.

[DC Tom]

It's based on a fundamental theory of statutory and contractual interpretation. There were two main provisions under the CBA that would appear to apply to what Brady did: the equipment violation provision, and this catch-all "conduct detrimental" provision. When two different provisions of an agreement both appear to be applicable to some situation and you have to figure out which one controls, the provision that is more specific to that situation controls the outcome. Thus, Judge Berman reasoned, the more specific equipment violation provision should govern this situation, not the more general "conduct detrimental" provision.

Try this example: suppose a college academic conduct policy said that cheating on an exam results in a grade of zero for that exam, but the policy also had a general provision that provides that engaging in conduct detrimental to the college, as determined by the dean, could result in various punishments, including expulsion from the university. If you decide to cheat on an exam and get caught, and the dean expels you, the college is going to have an awfully hard time justifying that decision. The question becomes, "what did these parties agree to?", and if a rule exists that specifically deals with that particular situation, that rule is the best indicator of what the parties intended to happen in that situation. That's basically what happened here (at least with respect to this part of the decision).

Now, I think it's fair to ask whether intentionally tampering with footballs should really be considered an "equipment violation," which could suggest that the more specific equipment violation provision was not applicable here. But that's a different question altogether.

Except that the equipment violation clause of the CBA refers specifically to club discipline of players for tampering with club equipment. Not league discipline. There is no league discipline specified in the CBA for equipment tampering.

 

Thus, why it falls under the "conduct detrimental" catchall, as cheating (and interfering with the officials' duties, for that matter.)