Brady's suspension lifted

[Mr. WEO]

Like almost everyone else, the Judge assumed Pash was exactly what the NFL intitally described him as--an co-investigator. His need to alter the Wells report and then be hidden from discovery and examination spoke volumes Berman.

 

And as Go Kiko go points out and as I have said several times before the precedent for not suspending (or actually vacating suspensions) for lying or "uncooperation" was set in the bountygate disposition by Tags. You could also argue that Favre set the precedent that not turning over your phone is not a suspendable offense.

 

The NFL's team of lawyers completely screwed this up.

 

I think it's safe to say that Ted Wells will never write another "independent report" again. Total clown.

Edited September 4, 2015 by Mr. WEO

[DC Tom]

Open question to those far more well informed that I. Where does this leave Goodell? Is he now under immense scrutiny from Kraft and the other owners in the league? Is his job safe because any publicity is good publicity? Or does he have a lot of explaining to do to every single owner, putting his job in jeopardy?

 

Hopefully it leaves him unemployed. It's overdue; his dictatorially arbitrary system of discipline, the ridiculously nitpicky on-field rules implemented on his watch, and complete opaqueness in management has been damaging "conduct detrimental to the league" for years. Frankly, he should have been out on his ass after his preternaturally incompetent mishandling of Ray Rice.

 

And so should the NFLPA leadership, for their breathtakingly narrow focus on player earnings and practice time to the exclusion of a specific policy dictating the player-league relationship.

[NoSaint]

And as Go Kiko go points out and as I have said several times before the precedent for not suspending (or actually vacating suspensions) for lying or "uncooperation" was set in the bountygate disposition by Tags. You could also argue that Favre set the precedent that not turning over your phone is not a suspendable offense.

 

yup - there were a few public examples, and tags very clearly called out that aspect in bounty gate despite many on here arguing that it was only vacated due to coaches pressuring him into participation.

[Mr. WEO]

I'm sure the NFL will not be pushing for an NFLPA change of leadership...

[DC Tom]

I'm sure the NFL will not be pushing for an NFLPA change of leadership...

 

Of course not. Doesn't mean the players shouldn't get rid of them, for allowing that awful disciplinary lack-of-policy to make it in to the CBA. That's a sign of brutal incompetence.

[Mr. WEO]

 

Of course not. Doesn't mean the players shouldn't get rid of them, for allowing that awful disciplinary lack-of-policy to make it in to the CBA. That's a sign of brutal incompetence.

 

 

As a group, and among their leaders/union reps, the players have proven over and over to be unophisticated in general and concerned mainly with money in specific.

[DC Tom]

 

 

As a group, and among their leaders/union reps, the players have proven over and over to be unophisticated in general and concerned mainly with money in specific.

 

Again, doesn't mean they shouldn't. Just that they won't.

[Go Kiko go]

 

That document also says:

 

Fines listed are minimums. Other forms of discipline, including higher fines, suspension, and banishment may also be imposed, based on the circumstances of the particular violation.

 

That's a good observation, and one that Judge Berman didn't appear to acknowledge. But, your observation doesn't end the matter.

 

(1) The question still remains, would a player have fair notice that an equipment violation could result in a four-game suspension? Recall that the "conduct detrimental" provision, which was the basis for punishing Brady for obstructing the investigation, also contains an open-ended punishment provision, which includes the possibility of suspension or termination.

 

It states that if a player engages in conduct detrimental to the league, the Commissioner may "fine the Player in a reasonable amount; to suspend a player for a period certain or indefinitely; and/or to terminate [the player] contract."

 

But even though the "conduct detrimental" provision contemplates the possibility of a suspension--just like the part of the equipment violation provision you quoted--a player can only be suspended if that player had fair notice of the possibility of the suspension (and in this case, the possibility of a four-game suspension) for the particular type of conduct at issue. Judge Berman observed that, in light of the fact that NFL practice is to fine players for obstructing league investigations, not suspend them, a player would not have fair notice of the possibility of a suspension, even though the conduct detrimental provision states that a suspension is possible.

 

The same problem exists here with respect to the equipment violation provision. Even if the equipment violation provision you quoted states that a suspension could be possible, if league practice is to only hand out fines for players who violate the equipment policies, a player would not have fair notice that a four-game suspension would be possible.

 

It's also important to note two other things: one, the passage you quoted is from the "Schedule of Fines" document, which applies to more than just equipment violations (such as violations of player safety rules, fighting, physical contact with a referee, and taunting). There's a strong argument then that the statement in the equipment violations section that I quoted, which provides that "first offenses will result in fines," should control--rather than the statement you quoted--because the statement I quoted deals specifically with equipment violations, rather than the statement on the "Schedule of Fines," which applies more generally to a broad range of rule violations. Like I discussed in an earlier post, when two provisions appear to conflict, the specific should prevail over the general.

 

Two, the "Schedule of Fines" makes specific reference to the possibility of a "suspension or fine" in only one place: violations of player safety rules and flagrant personal fouls. The choice to specifically warn players about the possibility of a suspension only with respect to a certain class of rule violations further diminishes the possibility that a player would be on notice they could be suspended--for four games, no less--for an "other uniform/equipment violation," which is a completely different type of rule violation.

 

(2) You still have to confront the separate problem that players were not on notice that merely being "generally aware" that a rule violation has occurred could result in discipline. So even if the passage you quoted put players on notice that an equipment violation could result in a suspension--of four games--Brady couldn't be punished for simply being "generally aware" that such a violation occurred.

Edited September 4, 2015 by Go Kiko go

[26CornerBlitz]

@PostSports

BREAKING NEWS: NFL owners to discuss changing Roger Goodell’s role in disciplinary process http://wapo.st/1FnUABo

[Canadian Bills Fan]

@PostSports

BREAKING NEWS: NFL owners to discuss changing Roger Goodell’s role in disciplinary process http://wapo.st/1FnUABo

 

 

Whoa...

 

 

 

CBF

[TSOL]

@PostSports

BREAKING NEWS: NFL owners to discuss changing Roger Goodell’s role in disciplinary process http://wapo.st/1FnUABo

Oh, I bet Goodell has been on the phone every single moment since the decision came out. He probably has no ass left from getting it chewed this whole time.

[K-9]

Have the owners asked Goodell to withdraw the appeals of other cases recently lost? Do they want him no to pursue the appeal of the Brady case? If that happens, I'd put more weight into the opinions of Kraft and Blank. I know for a fact that there are owners that aren't happy with NE's** involvement in the various cheating scandals over the years.

 

If I were the owners, I'd use the removal of Goodell as sole arbiter as a chip in the next CBA negotiations. What is the NFLPA going to give up in return?

 

GO BILLS!!!

Edited September 4, 2015 by K-9

[NoSaint]

Have the owners asked Goodell to withdraw the appeals of other cases recently lost? Do they want him no to pursue the appeal of the Brady case? If that happens, I'd put more weight into the opinions of Kraft and Blank. I know for a fact that there are owners that aren't happy with NE's** involvement in the various cheating scandals over the years.

 

If I were the owners, I'd use the removal of Goodell as sole arbiter as a chip in the next CBA negotiations. What is the NFLPA going to give up in return?

 

GO BILLS!!!

id venture allowing some more defined punishments, such as suspensions for some of these offenses.

[JohnC]

id venture allowing some more defined punishments, such as suspensions for some of these offenses.

Abby Lowell, one of the top attorneys in the country, was asked by Tony Kornheiser on his ESPN radio show this morning what were the chances of the league winning their case on appeal. He said zero. He pointed out that usually judges defer to arbitration decisions made within labor/management contract agreements. However, he said after reading the judge's ruling in this case that he made a convincing case that the process was so blatantly flawed that there was no chance that a panel of judges would overturn his ruling. He also commented that he felt that Goodell was exhibiting horrible judgment (putting it mildly) in taking this case to the next appelate level.

 

One interesting observation about this case made in hindsight was that the judge with his pointed questions to the league sent clear signals what his thinking was regarding this case, in particular focusing on the process. The union side for the most part maintained a low key profile while watching the judge hammer away at the opposition. Their approach from a demeanor standpoint was very smart.

[NoSaint]

Abby Lowell, one of the top attorneys in the country, was asked by Tony Kornheiser on his ESPN radio show this morning what were the chances of the league winning their case on appeal. He said zero. He pointed out that usually judges defer to arbitration decisions made within labor/management contract agreements. However, he said after reading the judge's ruling in this case that he made a convincing case that the process was so blatantly flawed that there was no chance that a panel of judges would overturn his ruling. He also commented that he felt that Goodell was exhibiting horrible judgment (putting it mildly) in taking this case to the next appelate level.

 

One interesting observation about this case made in hindsight was that the judge with his pointed questions to the league sent clear signals what his thinking was regarding this case, in particular focusing on the process. The union side for the most part maintained a low key profile while watching the judge hammer away at the opposition. Their approach from a demeanor standpoint was very smart.

yup. everyone pointing to how rare it was to see a judge step in and pushing how broad the CBA was had me on the fence, but man was the NFL atrocious handling this.

 

ive heard similar feedback from a few lawyers familiar at this point. it seems the judge wrote a very well crafted decision from the feedback ive heard outside fans in this thread (and from a few that seem to really know the X's and O's of law here too, really).

[Mr. WEO]

Have the owners asked Goodell to withdraw the appeals of other cases recently lost? Do they want him no to pursue the appeal of the Brady case? If that happens, I'd put more weight into the opinions of Kraft and Blank. I know for a fact that there are owners that aren't happy with NE's** involvement in the various cheating scandals over the years.

 

If I were the owners, I'd use the removal of Goodell as sole arbiter as a chip in the next CBA negotiations. What is the NFLPA going to give up in return?

 

GO BILLS!!!

 

The owners want Goodell to "do" all the things they are telling him to and have always told him to do.

 

Nothing has changed. The star chamber speaks...

[JohnC]

yup. everyone pointing to how rare it was to see a judge step in and pushing how broad the CBA was had me on the fence, but man was the NFL atrocious handling this.

 

ive heard similar feedback from a few lawyers familiar at this point. it seems the judge wrote a very well crafted decision from the feedback ive heard outside fans in this thread (and from a few that seem to really know the X's and O's of law here too, really).

I'm reluctant to single out posters because there were a number of exceptional responses. But Go Kiko Go and Mannc not only gave persuasive arguments but they did it with great clarity. Go Kiko Go's post#418 was exceptional and convincing. Even for people who disagreed with their explanations their positions were well stated.

[NoSaint]

I'm reluctant to single out posters because there were a number of exceptional responses. But Go Kiko Go and Mannc not only gave persuasive arguments but they did it with great clarity. Go Kiko Go's post#418 was exceptional and convincing. Even for people who disagreed with their explanations their positions were well stated.

ill second that point, and appreciate that theyve stuck around to add further clarity on finer points. really the type of content that makes the board much more interesting to keep coming back to.

[Kelly the Dog]

ill second that point, and appreciate that theyve stuck around to add further clarity on finer points. really the type of content that makes the board much more interesting to keep coming back to.

I don't agree with the decision even though the league obviously made a bunch of blunders. But I totally agree that several posters here and especially GKG made excellent posts and analysis of the reasons and reasoning. Well done.

[dave mcbride]

That's a good observation, and one that Judge Berman didn't appear to acknowledge. But, your observation doesn't end the matter.

 

(1) The question still remains, would a player have fair notice that an equipment violation could result in a four-game suspension? Recall that the "conduct detrimental" provision, which was the basis for punishing Brady for obstructing the investigation, also contains an open-ended punishment provision, which includes the possibility of suspension or termination.

 

It states that if a player engages in conduct detrimental to the league, the Commissioner may "fine the Player in a reasonable amount; to suspend a player for a period certain or indefinitely; and/or to terminate [the player] contract."

 

But even though the "conduct detrimental" provision contemplates the possibility of a suspension--just like the part of the equipment violation provision you quoted--a player can only be suspended if that player had fair notice of the possibility of the suspension (and in this case, the possibility of a four-game suspension) for the particular type of conduct at issue. Judge Berman observed that, in light of the fact that NFL practice is to fine players for obstructing league investigations, not suspend them, a player would not have fair notice of the possibility of a suspension, even though the conduct detrimental provision states that a suspension is possible.

 

The same problem exists here with respect to the equipment violation provision. Even if the equipment violation provision you quoted states that a suspension could be possible, if league practice is to only hand out fines for players who violate the equipment policies, a player would not have fair notice that a four-game suspension would be possible.

 

It's also important to note two other things: one, the passage you quoted is from the "Schedule of Fines" document, which applies to more than just equipment violations (such as violations of player safety rules, fighting, physical contact with a referee, and taunting). There's a strong argument then that the statement in the equipment violations section that I quoted, which provides that "first offenses will result in fines," should control--rather than the statement you quoted--because the statement I quoted deals specifically with equipment violations, rather than the statement on the "Schedule of Fines," which applies more generally to a broad range of rule violations. Like I discussed in an earlier post, when two provisions appear to conflict, the specific should prevail over the general.

 

Two, the "Schedule of Fines" makes specific reference to the possibility of a "suspension or fine" in only one place: violations of player safety rules and flagrant personal fouls. The choice to specifically warn players about the possibility of a suspension only with respect to a certain class of rule violations further diminishes the possibility that a player would be on notice they could be suspended--for four games, no less--for an "other uniform/equipment violation," which is a completely different type of rule violation.

 

(2) You still have to confront the separate problem that players were not on notice that merely being "generally aware" that a rule violation has occurred could result in discipline. So even if the passage you quoted put players on notice that an equipment violation could result in a suspension--of four games--Brady couldn't be punished for simply being "generally aware" that such a violation occurred.

Excellent post.