NFL Source: Brady will serve suspension this season

[Leroi]

The reputation of the commissioner is at an all time low. An appeal and the right decision will help with Rogs street cred.

 

This needs to be hashed out this year or forget about it.

 

Owners want a punishment.

 

 

 

Imo

[Beef Jerky]

They did vs us last yr. Brady only played into the 2nd quarter and he was mainly just handing the ball off

What are you talking about? Tom Brady threw 16 passes before they took him out... Do your research before spitting out that crap.

[dave mcbride]

The reputation of the commissioner is at an all time low. An appeal and the right decision will help with Rogs street cred.

This needs to be hashed out this year or forget about it.

Owners want a punishment.

Imo

Nothing is happening this year. It's highly unlikely it'll be overturned in any case given the makeup of the second circuit.

[Augie]

I don't care if it takes 5 years and Brady and Belichick are retired. I want the black cloud to be made official.

 

#Pete Rose

[K D]

What are you talking about? Tom Brady threw 16 passes before they took him out... Do your research before spitting out that crap.

wow amazing. and he threw 60 vs us this time. the guy said they never rest their starters. clearly they did. Garappolo played the entire 2nd half.

[NoSaint]

wow amazing. and he threw 60 vs us this time. the guy said they never rest their starters. clearly they did. Garappolo played the entire 2nd half.

It was definitely rare for them and far from taking several games completely off like the post he was replying to.

[Boo Radley Boston]

So let's say it does get through the legal system in time...can Brady's team appeal again?

 

Yes and Brady will win again

[Captain Caveman]

This is kind of like me leaking to the media that I'm going to make a billion dollars and the Bills and Sabres are going to win 10 championships in the next 5 years.

[machine gun kelly]

I don't care if it is their last four games and they finish 11-5 (although it will most likely be 10-6 or 9-7). Brady will still be disgraced as well as the Patriots.

[JohnC]

 

This. Even if they hold argument in January, that opinion won't be out until late in the spring, at the earliest. Regardless, I don't think the court is going to grant this request to expedite the appeal.

 

The possibility for irreparable harm in this case was that a player was facing the possibility of being subjected to punishment that could later be found to be invalid. That crisis has been averted. I don't think the Second Circuit will be particularly moved by concerns about Tom Brady having to fret over whether or not he'll be subject to some league-imposed discipline during the 2016 season.

 

As one authoritative commentator on federal practice and procedure puts it, courts may expedite appeals under

 

"extraordinary situations, involving either the public interest or the concerns of expeditious judicial administration, where it becomes inappropriate to follow the 'sometimes-leisurely pace' established by the Rules."

 

I don't think this is an "extraordinary situation," and I would be surprised if the court grants the motion to expedite the case.

Judge Brewer's ruling was (in my opinion) a merciless rebuke of RG and the league in the manner in which this case was pursueded by them. In hindsight, he telegraphed his thoughts during the proceedings with scathing questions and responses from the bench.

 

As an attorney what would be your response if the position you promoted and argued for in court was not only defeated in an overwhelming judgment against you but was to a degree ridiculed by the judge. As an attorney what do you say in the aftermath to your client? Let's continue on? Let's try a new legal strategy? Or let's cut our losses and lay low and let time pass and maybe people will soon forget how foolish we have been.

 

As a lawyer and legal strategist what is to be gained if the odds for success are small in getting an apelate court to rule in your favor? If the apelate court also expresses its collective "displeasure" with the petitioning party then what is risked relative to what is gained is out of balance? For the sake of argument even if the league wins its case a year or two later, then what? A divisive issue that was dormant becomes prominent again and then moves on to the next legal response by the union and Brady.

 

It may appear that I am asking you loaded questions but I am being sincere here. Is it arrogance? Is it incompetence? Is it money and the attraction of billable hours that is driving this extended foolishness? There comes a point when you have to ask yourself what is the point of continuing on and what is the end game?

[/dev/null]

This season's Manning/Brady Bowl takes place on November 29th. I doubt the NFL would do anything to cast a shadow over what may be their final meeting.

 

Sometime over the next few days at the end of November or early December, I wouldn't be surprised if they announce both parties have agreed to a 2 game suspension for destroying the phone / tampering with evidence. Brady does not admit to cheating.

 

Brady sits out against the creampuff Texans and Titans

[Go Kiko go]

Judge Brewer's ruling was (in my opinion) a merciless rebuke of RG and the league in the manner in which this case was pursueded by them. In hindsight, he telegraphed his thoughts during the proceedings with scathing questions and responses from the bench.

 

As an attorney what would be your response if the position you promoted and argued for in court was not only defeated in an overwhelming judgment against you but was to a degree ridiculed by the judge. As an attorney what do you say in the aftermath to your client? Let's continue on? Let's try a new legal strategy? Or let's cut our losses and lay low and let time pass and maybe people will soon forget how foolish we have been.

 

As a lawyer and legal strategist what is to be gained if the odds for success are small in getting an apelate court to rule in your favor? If the apelate court also expresses its collective "displeasure" with the petitioning party then what is risked relative to what is gained is out of balance? For the sake of argument even if the league wins its case a year or two later, then what? A divisive issue that was dormant becomes prominent again and then moves on to the next legal response by the union and Brady.

 

It may appear that I am asking you loaded questions but I am being sincere here. Is it arrogance? Is it incompetence? Is it money and the attraction of billable hours that is driving this extended foolishness? There comes a point when you have to ask yourself what is the point of continuing on and what is the end game?

 

Well, you can't look at Judge Berman's ruling as a single decision. There were many separate components to his ruling, including the following:

 

(1) Judge Berman concluded that no player would have fair notice that a failure to cooperate with an NFL investigation could lead to a suspension, because, in the past, players have only been fined for failing to cooperate with investigations.

 

(2) He also concluded that no player would have fair notice that he could be punished merely for being "generally aware" of rule violations committed by other people.

 

(3) He rejected Roger Goodell's finding of fact that Brady was more than "generally aware" of the rule violations. Goodell concluded in his opinion that Brady was more than merely "generally aware" that the balls were being deflated: Goodell found that Brady "approved of, consented to, and provided inducements" for the balls to be deflated. Judge Berman rejected this finding, and instead decided that "the record is clear that [Goodell's disciplinary award] relies upon the Wells Report's finding that Brady was 'generally aware' of the alleged ball tapering."

 

(4) He concluded that the Player Policies that deal with "equipment violations" apply to the act of intentionally deflating footballs. In other words, he held that intentionally deflating a football is an "equipment violation."

 

(5) He rejected the NFL's attempt to punish Brady for violating the "conduct detrimental" rule. Judge Berman held that this rule, which provides for a player to be punished for engaging in "conduct detrimental" to the game, could not be applied to Brady, because that rule is very generally worded, and the "equipment violations" rule--which, as I mentioned above, Judge Berman concluded was applicable to this case--was more specific. When two rules appear to apply to a certain course of conduct, the more specific rule should generally be applied instead of the more general rule.

 

(6) He held that the NFL improperly denied Brady the opportunity to examine Jeff Pash, the "co-lead investigator" in the Wells Report. Judge Berman reasoned that failing to allow Brady to question him during the arbitration hearing violated a federal statute, which provides that an arbitrator cannot "refuse to hear evidence pertinent and material to the controversy."

 

(7) He held that the NFL improperly prevented Brady from having access to documents and notes created during the Wells investigation, because arbitrators have a duty "to insure that relevant documentary evidence in the hands of one party is fully and timely made available to the other party."

 

Each one of these conclusions is problematic for the NFL. (1) and (2) call into the question the range of conduct the NFL is permitted to punish. (3) is troubling, because federal courts usually defer to findings of fact that arbitrators make. (4) involves a questionable interpretation of one of the NFL's rules. (5) is real disaster for the NFL, because it significantly narrows the scope of the NFL's authority to punish players for engaging in "conduct detrimental" to the league. Finally, (6) and (7) have implications for the procedures the NFL has to follow during future disciplinary proceedings.

 

So, if you're the NFL, the decision has far greater implications than merely giving Brady a get out of jail free card. It calls into question a wide range of NFL rules, the authority of NFL arbitrators, and the procedures the league has to follow in conducting disciplinary proceedings.

 

It's doubtful that the court of appeals will disagree with all of Judge Berman's conclusions, so I don't think it's very likely that Judge Berman will get completely reversed and the NFL will completely "win" on appeal. But, a "win" for the NFL doesn't require a complete reversal of every one of Judge Berman's conclusions. Even if the Second Circuit agrees that the arbitration was flawed, it might not agree with all seven of those flaws that Judge Berman found. It would be a meaningful victory for the NFL to have even just a few of Judge Berman's conclusions reversed.

 

So, if I'm the NFL, even if I don't think that the Second Circuit will uphold Brady's punishment, I still appeal in the hopes that the court will narrow Judge Berman's opinion so that it doesn't call into question quite so many aspects of the NFL's disciplinary scheme.

Edited September 26, 2015 by Go Kiko go

[dave mcbride]

 

Well, you can't look at Judge Berman's ruling as a single decision. There were many separate components to his ruling, including the following:

 

(1) Judge Berman concluded that no player would have fair notice that a failure to cooperate with an NFL investigation could lead to a suspension, because, in the past, players have only been fined for failing to cooperate with investigations.

 

(2) He also concluded that no player would have fair notice that he could be punished merely for being "generally aware" of rule violations committed by other people.

 

(3) He rejected Roger Goodell's finding of fact that Brady was more than "generally aware" of the rule violations. Goodell concluded in his opinion that Brady was more than merely "generally aware" that the balls were being deflated: Goodell found that Brady "approved of, consented to, and provided inducements" for the balls to be deflated. Judge Berman rejected this finding, and instead decided that "the record is clear that [Goodell's disciplinary award] relies upon the Wells Report's finding that Brady was 'generally aware' of the alleged ball tapering."

 

(4) He concluded that the Player Policies that deal with "equipment violations" apply to the act of intentionally deflating footballs. In other words, he held that intentionally deflating a football is an "equipment violation."

 

(5) He rejected the NFL's attempt to punish Brady for violating the "conduct detrimental" rule. Judge Berman held that this rule, which provides for a player to be punished for engaging in "conduct detrimental" to the game, could not be applied to Brady, because that rule is very generally worded, and the "equipment violations" rule--which, as I mentioned above, Judge Berman concluded was applicable to this case--was more specific. When two rules appear to apply to a certain course of conduct, the more specific rule should generally be applied instead of the more general rule.

 

(6) He held that the NFL improperly denied Brady the opportunity to examine Jeff Pash, the "co-lead investigator" in the Wells Report. Judge Berman reasoned that failing to allow Brady to question him during the arbitration hearing violated a federal statute, which provides that an arbitrator cannot "refuse to hear evidence pertinent and material to the controversy."

 

(7) He held that the NFL improperly prevented Brady from having access to documents and notes created during the Wells investigation, because arbitrators have a duty "to insure that relevant documentary evidence in the hands of one party is fully and timely made available to the other party."

 

Each one of these conclusions is problematic for the NFL. (1) and (2) call into the question the range of conduct the NFL is permitted to punish. (3) is troubling, because federal courts usually defer to findings of fact that arbitrators make. (4) involves a questionable interpretation of one of the NFL's rules. (5) is real disaster for the NFL, because it significantly narrows the scope of the NFL's authority to punish players for engaging in "conduct detrimental" to the league. Finally, (6) and (7) have implications for the procedures the NFL has to follow during future disciplinary proceedings.

 

So, if you're the NFL, the decision has far greater implications than merely giving Brady a get out of jail free card. It calls into question a wide range of NFL rules, the authority of NFL arbitrators, and the procedures the league has to follow in conducting disciplinary proceedings.

 

It's doubtful that the court of appeals will disagree with all of Judge Berman's conclusions, so I don't think it's very likely that Judge Berman will get completely reversed and the NFL will completely "win" on appeal. But, a "win" for the NFL doesn't require a complete reversal of every one of Judge Berman's conclusions. Even if the Second Circuit agrees that the arbitration was flawed, it might not agree with all seven of those flaws that Judge Berman found. It would be a meaningful victory for the NFL to have even just a few of Judge Berman's conclusions reversed.

 

So, if I'm the NFL, even if I don't think that the Second Circuit will uphold Brady's punishment, I still appeal in the hopes that the court will narrow Judge Berman's opinion so that it doesn't call into question quite so many aspects of the NFL's disciplinary scheme.

Great analysis; thanks! So this may well not even really be about Brady then; that particular train has left the station and he's very likely home free. But there are other things of a more general nature that they hope to get reversed.

 

I've been saying this for a long, long time: the league made a lot of poor decisions throughout this process, and I can only chalk it up to a combination of hubris and a cavalier disregard for process.

[JohnC]

 

Well, you can't look at Judge Berman's ruling as a single decision. There were many separate components to his ruling, including the following:

 

(1) Judge Berman concluded that no player would have fair notice that a failure to cooperate with an NFL investigation could lead to a suspension, because, in the past, players have only been fined for failing to cooperate with investigations.

 

(2) He also concluded that no player would have fair notice that he could be punished merely for being "generally aware" of rule violations committed by other people.

 

(3) He rejected Roger Goodell's finding of fact that Brady was more than "generally aware" of the rule violations. Goodell concluded in his opinion that Brady was more than merely "generally aware" that the balls were being deflated: Goodell found that Brady "approved of, consented to, and provided inducements" for the balls to be deflated. Judge Berman rejected this finding, and instead decided that "the record is clear that [Goodell's disciplinary award] relies upon the Wells Report's finding that Brady was 'generally aware' of the alleged ball tapering."

 

(4) He concluded that the Player Policies that deal with "equipment violations" apply to the act of intentionally deflating footballs. In other words, he held that intentionally deflating a football is an "equipment violation."

 

(5) He rejected the NFL's attempt to punish Brady for violating the "conduct detrimental" rule. Judge Berman held that this rule, which provides for a player to be punished for engaging in "conduct detrimental" to the game, could not be applied to Brady, because that rule is very generally worded, and the "equipment violations" rule--which, as I mentioned above, Judge Berman concluded was applicable to this case--was more specific. When two rules appear to apply to a certain course of conduct, the more specific rule should generally be applied instead of the more general rule.

 

(6) He held that the NFL improperly denied Brady the opportunity to examine Jeff Pash, the "co-lead investigator" in the Wells Report. Judge Berman reasoned that failing to allow Brady to question him during the arbitration hearing violated a federal statute, which provides that an arbitrator cannot "refuse to hear evidence pertinent and material to the controversy."

 

(7) He held that the NFL improperly prevented Brady from having access to documents and notes created during the Wells investigation, because arbitrators have a duty "to insure that relevant documentary evidence in the hands of one party is fully and timely made available to the other party."

 

Each one of these conclusions is problematic for the NFL. (1) and (2) call into the question the range of conduct the NFL is permitted to punish. (3) is troubling, because federal courts usually defer to findings of fact that arbitrators make. (4) involves a questionable interpretation of one of the NFL's rules. (5) is real disaster for the NFL, because it significantly narrows the scope of the NFL's authority to punish players for engaging in "conduct detrimental" to the league. Finally, (6) and (7) have implications for the procedures the NFL has to follow during future disciplinary proceedings.

 

So, if you're the NFL, the decision has far greater implications than merely giving Brady a get out of jail free card. It calls into question a wide range of NFL rules, the authority of NFL arbitrators, and the procedures the league has to follow in conducting disciplinary proceedings.

 

It's doubtful that the court of appeals will disagree with all of Judge Berman's conclusions, so I don't think it's very likely that Judge Berman will get completely reversed and the NFL will completely "win" on appeal. But, a "win" for the NFL doesn't require a complete reversal of every one of Judge Berman's conclusions. Even if the Second Circuit agrees that the arbitration was flawed, it might not agree with all seven of those flaws that Judge Berman found. It would be a meaningful victory for the NFL to have even just a few of Judge Berman's conclusions reversed.

 

So, if I'm the NFL, even if I don't think that the Second Circuit will uphold Brady's punishment, I still appeal in the hopes that the court will narrow Judge Berman's opinion so that it doesn't call into question quite so many aspects of the NFL's disciplinary scheme.

There is an irony to the extended wrangling over this saga. By acting so arbitrarily and capriciously in this case the league may have undercut to a degree its own authority and discretion in disciplinary cases. Instead of acting with a credible level of objectivity and with a reasonable level of proportion it damaged its own authority. Or to put it another way it sabotaged itself with its non credible behavior.

 

After looking at your 1-7 list I don't see where Judge Brewer was wrong in any of his assessments. Blatant is blantant!

 

You probably get tired of my repeated response but I very much appreciate your very thoughtful comments. If I ever get arrested for a felony you will be the first call I make, whether the Miranda warning was given or not!

[dayman]

You can't see where Judge Berman was wrong? His order is hot garbage through and through. Brady didn't have fair notice that cheating would carry a penalty? Well's report materials needed to be provided to Brady before the Wells report was actually issued!? Hogwash. Brady was prejudiced b/c he crossed the lead investigator but not the second hand guy? LMFAO. When two rules apply only the more specific can be used? Utter nonsense.

[justnzane]

You can't see where Judge Berman was wrong? His order is hot garbage through and through. Brady didn't have fair notice that cheating would carry a penalty? Well's report materials needed to be provided to Brady before the Wells report was actually issued!? Hogwash. Brady was prejudiced b/c he crossed the lead investigator but not the second hand guy? LMFAO. When two rules apply only the more specific can be used? Utter nonsense.

Biased court has to be called into question as Berman was socializing with Kraft right after the case at a party in the Hamptons. This could lead many to believe that impartiality was compromised during the proceedings.

[NoSaint]

Biased court has to be called into question as Berman was socializing with Kraft right after the case at a party in the Hamptons. This could lead many to believe that impartiality was compromised during the proceedings.

That you've established someone invited them to the same party afterwards does not move the needle much.... I've been in the same room as plenty of people that i wouldn't do such a thing for.

 

You dont think the NFL would go to great lengths to prove impropriety there?

[Go Kiko go]

Great analysis; thanks! So this may well not even really be about Brady then; that particular train has left the station and he's very likely home free. But there are other things of a more general nature that they hope to get reversed.

 

I've been saying this for a long, long time: the league made a lot of poor decisions throughout this process, and I can only chalk it up to a combination of hubris and a cavalier disregard for process.

 

That's my impression, though I wouldn't necessarily say Brady is home free. The NFL could conduct a new arbitration hearing that addresses the procedural flaws and then, if he's found "guilty" again, proceed to punish him in a more limited way that isn't so disconnected from the CBA that Brady wouldn't have fair notice of the nature of the punishment (they'd probably also be wise to use a different arbitrator than Goodell...while Judge Berman didn't need to reach the question of whether it was appropriate for Goodell to serve as the arbitrator, he did express some skepticism about the propriety of that decision). So the NFL could essentially go back and try again to punish Brady, this time not doing all the things that Judge Berman told them they shouldn't have done.

 

But under these circumstances, it doesn't appear that a suspension would be likely, because the Court held (1) you can't suspend a player for failing to cooperate with an investigation (you can only fine them), at least without a change in the CBA or league rules, and (2) you can't punish a player for being only "generally aware" that other people are engaging in rule violations. Put those together, and it looks like the maximum penalty he could face--assuming that, after a new hearing, a new arbitrator decides that punishment is warranted--would be a fine.

 

However, if the Second Circuit alters some of Judge Berman's conclusions, this outcome could change (specifically, as I address below, if the Second Circuit disagrees with Judge Berman's interpretation of the "equipment violation" rule, that could open up the ability of the NFL to punish Brady under the "conduct detrimental" rule, which likely would support a suspension).

 

There is an irony to the extended wrangling over this saga. By acting so arbitrarily and capriciously in this case the league may have undercut to a degree its own authority and discretion in disciplinary cases. Instead of acting with a credible level of objectivity and with a reasonable level of proportion it damaged its own authority. Or to put it another way it sabotaged itself with its non credible behavior.

 

After looking at your 1-7 list I don't see where Judge Brewer was wrong in any of his assessments. Blatant is blantant!

 

You probably get tired of my repeated response but I very much appreciate your very thoughtful comments. If I ever get arrested for a felony you will be the first call I make, whether the Miranda warning was given or not!

 

No problem, this is a fun distraction for me. I think two of Judge Berman's conclusions--his decision to reject Goodell's finding of fact that Brady was more than "generally aware" of the rule violations, and his interpretation of the "equipment violations" rule to encompass the act of intentionally deflating a football (the equipment violations rule normally applies to things like sticking a sharpie your sock or wearing the wrong color shoes...I think it's a bit of a stretch to say that intentionally deflating a football is an "equipment violation")--are a little suspect, and may not withstand appellate scrutiny. But, because of the other flaws Judge Berman identified, even if the Second Circuit disagrees with some of Judge Berman's conclusions, as long as the Second Circuit finds some flaws, they'll likely still uphold Judge Berman's decision to vacate Brady's suspension.

 

It's basically like you described: there were so many flaws in both the process and in the reasoning underlying the punishment that it's pretty likely Brady's suspension won't stand, because all you really need is one flaw in the process to vacate the punishment and require the NFL to go back and try again a second time punish him properly.

 

You can't see where Judge Berman was wrong? His order is hot garbage through and through. Brady didn't have fair notice that cheating would carry a penalty? Well's report materials needed to be provided to Brady before the Wells report was actually issued!? Hogwash. Brady was prejudiced b/c he crossed the lead investigator but not the second hand guy? LMFAO. When two rules apply only the more specific can be used? Utter nonsense.

 

As I mentioned above, I think Judge Berman may have made some mistakes. But everything you've mentioned I believe Judge Berman got correct.

Edited September 26, 2015 by Go Kiko go

[Nanker]

Tom Brady is an !@#$.

[ALF]

The move means the case likely won't be heard until early next year -- after the regular season -- but arguments in the case could come during the postseason.

http://espn.go.com/boston/nfl/story/_/id/13739771/nfl-seeks-expedited-hearing-appeal-tom-brady-deflategate-ruling