Scott7975 Posted October 23, 2021 Posted October 23, 2021 12 minutes ago, Mr. WEO said: Why would a team trading for him agree not to play him? If I'm the Dolphins and the Commish calls me and says "keep him out of the game or I will put him on MY Exemption List", I'm definitely seeking arbitration ruling here. As Gunner says, Rog can't make a convincing argument that Watson did not belong on the List in Houston, but he does belong on it in Miami. He can because Watson is already sitting out.
Mr. WEO Posted October 23, 2021 Posted October 23, 2021 4 minutes ago, Scott7975 said: He can because Watson is already sitting out. Not because he's exempted. Texans made that decision. They weren't ordered to. The Commissioner could have put him on the list, regardless of the Texans' plans for Watson. If his actions have warranted a Commissioner's exemption, he should be on the List right now. If his actions haven't warranted being put on the list, then why would a change of team make him suddenly worthy of exemption? The exemption list isn't to be used as a threat to team owners. A player either belongs on it or he doesn't, regardless of his current zip code. 1
GunnerBill Posted October 23, 2021 Posted October 23, 2021 26 minutes ago, Mr. WEO said: Not because he's exempted. Texans made that decision. They weren't ordered to. The Commissioner could have put him on the list, regardless of the Texans' plans for Watson. If his actions have warranted a Commissioner's exemption, he should be on the List right now. If his actions haven't warranted being put on the list, then why would a change of team make him suddenly worthy of exemption? The exemption list isn't to be used as a threat to team owners. A player either belongs on it or he doesn't, regardless of his current zip code. I was waiting for you WEO. As I recall the two of us fighting against the tide on deflategate 🤣. Here comes take II. 1
Mr. WEO Posted October 23, 2021 Posted October 23, 2021 Just now, GunnerBill said: I was waiting for you WEO. As I recall the two of us fighting against the tide on deflategate 🤣. Here comes take II. 'ello Guv'nah! I'm putting on my powdered wig.. As you are an actual Barrister, I'll take second chair. Forward unto the breach!
GunnerBill Posted October 23, 2021 Posted October 23, 2021 Just now, Mr. WEO said: 'ello Guv'nah! I'm putting on my powdered wig.. As you are an actual Barrister, I'll take second chair. Forward unto the breach! Ha I am not a barrister. I have a law degree but I have never done pupillage. I am a chief policy advisor to the British Government on civil and administrative law though, when I am not slacking off to watch Bills All22 film.
Mr. WEO Posted October 23, 2021 Posted October 23, 2021 6 minutes ago, GunnerBill said: Ha I am not a barrister. I have a law degree but I have never done pupillage. I am a chief policy advisor to the British Government on civil and administrative law though, when I am not slacking off to watch Bills All22 film. More than qualified for this crew!
Scott7975 Posted October 23, 2021 Posted October 23, 2021 1 hour ago, Mr. WEO said: Not because he's exempted. Texans made that decision. They weren't ordered to. The Commissioner could have put him on the list, regardless of the Texans' plans for Watson. If his actions have warranted a Commissioner's exemption, he should be on the List right now. If his actions haven't warranted being put on the list, then why would a change of team make him suddenly worthy of exemption? The exemption list isn't to be used as a threat to team owners. A player either belongs on it or he doesn't, regardless of his current zip code. I agree that he should be on the list now. I don't agree that they can't put him on the list in the future. If they want to put him on the list then they will put him on the list and it will be that simple.
Hapless Bills Fan Posted October 23, 2021 Posted October 23, 2021 28 minutes ago, Scott7975 said: I agree that he should be on the list now. I don't agree that they can't put him on the list in the future. If they want to put him on the list then they will put him on the list and it will be that simple. That's basically my take on it. Like I said before, the league's Personal Conduct Policy and the Commissioner's Exempt List are the 2000 pound Grizzly Bear. My take is they mean what the NFL says they mean, when the NFL says they mean it. They were deliberately written to be vague and to not be coupled to legal proceedings. It wouldn't even surprise me if there is a trade and the trade partner has the intention to play Watson and the NFL says nothing unless there's then a loud public outcry. Whereupon the NFL then says "oh, wait, we just evaluated an additional 5 interviews with the accusers and Watson goes on the Exempt List right now, immediately!" And sure the Dolphins and Watson can fight that in court. Maybe they win, maybe they don't, maybe it grinds on for a couple months and serves as a hella distraction. 1
Mr. WEO Posted October 23, 2021 Posted October 23, 2021 19 minutes ago, Scott7975 said: I agree that he should be on the list now. I don't agree that they can't put him on the list in the future. If they want to put him on the list then they will put him on the list and it will be that simple. I am not claiming Watson should be on the list now. Nor is anyone saying the Commissioner can't put him on the list whenever he wants to, so yours is not a pertinent argument. The point being discussed is how/why Miami would not successfully challenge that action as arbitrary. In front of an arbitrator, the Commissioner can't make a cogent argument that in Houston, Watson is not exemptible, but in Miami he is. His discipline actions are independent of those of any team, so he can't argue "well I didn't suspend him because Houston sat him, but I suspended him in Miami because they wouldn't sit him." 1
Hapless Bills Fan Posted October 23, 2021 Posted October 23, 2021 2 hours ago, GunnerBill said: With respect Hapless, while I am not a US attorney nor an expert on American employment law, civil and administrative law is my day job. While our systems and our law is different a lot of the fundamental principles are similar. You can present my opinion as just one among many if you like but I come at this with a good understanding of what I am talking about. When people want respond and question that I will engage with it. Apologies if that comes across as labouring the point, that was not my intention. Edit: as for the precedent point the deflategate rulings are instructive. They basically said the NFL can't sit "wherever it wants". It concluded that Goodell has "limited authority" in his role as arbitrator under the CBA. Even the Court of Appeals that actually reinstated the Brady suspension did not disagree on that point. They simply held that Goodell had not acted outside the bounds of that authority in determining the penalty in Brady's case. Well, I'm not a US attorney nor an expert on American employment law. I acknowledge that this is far more your lane than mine. But typically when someone of lesser knowledge on a topic disagrees with someone who has greater, it's worth asking "why?" When I read through something like this about the "deflategate" ruling, that bolded above is not what I take from it: https://www.greenberglawoffice.com/deflategate/ Quote First, it is extremely difficult to overturn an arbitration decision. As stated above, courts will, in most instances, defer to the arbitrators’ decisions and uphold the award issued by the arbitrator. “Even when [the arbitration decisions a]re manifestly abusive, swear at the law and are based on rules of evidence that wouldn’t pass muster in a rural traffic court,” courts will still give “incredible deference” to these arbitration awards.[61] Only when an arbitrator has acted with fraud, bias, or corruption or has exceeded the authority given to the arbitrator under the terms of the agreement will a court overturn an arbitration decision. With the Second Circuit’s ruling, the same standard of review continues to apply to league commissioners who act as arbitrators and issue punishments, whether or not the court agrees with the extent of the punishment or not. Second, Article 46 of the CBA, aptly called the Commissioner Discipline clause,[62] grants to Commissioner Goodell the right to be judge, jury, and executioner.[63] Article 46 allows Commissioner Goodell to divvy out punishments and fines for conduct he personally feels could damage the NFL’s reputation as “conduct detrimental” to the NFL, whether this conduct occurs on the field or off, and regardless of whether there is a written rule putting the players on notice before issuing the punishments. This means that Commissioner Goodell basically has the power to make up rules on the fly and issue punishments whenever he wants. “If the commissioner wants to make up the rules as he goes along, change the grounds for punishment months after issuing discipline, and manipulate the system so that despite no legal training he can serve as an arbitrator to preside over a grievance over one of his own rulings[–]The commissioner can do that.”[64] There is no player conduct rule in the current CBA that specifically puts a player, like Brady, on notice that the player may be punished for the actions of team equipment personnel. But, regardless of this fact, Commissioner Goodell has the power under Article 46 to punish players and teams for such actions that he deems “conduct detrimental,” which encompasses the actions of other individuals.[65] And the Second Circuit, in affirming Brady’s suspension and Commissioner Goodells’ punishment, gave Commissioner Goodell “in writing . . . the ability to punish anyone, for any reason, even with limited or downright false evidence, whenever he so desires.”[66] So I don't think the Deflategate ruling is generally held by American law to have limited the NFL's authority to decide what and when conduct is "detrimental" to the NFL. This may also be of interest: https://www.espn.com/blog/nflnation/post/_/id/201523/arbitrator-confirms-nfls-enormous-disciplinary-power-with-slight-check The new CBA may have limited Goodell in that there now has to be a panel of arbitrators (I think - I can't find too much about this) and if he rules, he can no longer arbitrate the appeal of his own ruling. But none of that would prevent him from deciding that conduct is "detrimental" to the Shield, or limit him to "new legal evidence" or anything of the sort. 1
GunnerBill Posted October 23, 2021 Posted October 23, 2021 (edited) 26 minutes ago, Hapless Bills Fan said: Well, I'm not a US attorney nor an expert on American employment law. I acknowledge that this is far more your lane than mine. But typically when someone of lesser knowledge on a topic disagrees with someone who has greater, it's worth asking "why?" When I read through something like this about the "deflategate" ruling, that bolded above is not what I take from it: https://www.greenberglawoffice.com/deflategate/ So unless the new CBA has put a limit on Goodell's authority, I don't think the Deflategate ruling is generally held by American law to have done so. The key words are in your first bullet "or has exceeded the authority given to the arbitrator." That is the critical point because even the Court of Appeals that reinstated the Brady suspension accepted that the Commissioner has... and these words come directly from the judgment "a limited authority." To my mind when you apply that to the circumstances in Watson's case you get to exactly the question WEO and I have posed. "Why is he exemptable now when he wasn't in Houston?" The response cannot be "because he was being quasi disciplined by Houston" because the Commissioner's powers operate entirely independently of any team sanctioned discipline for something that falls under the Personal Conduct Policy. Goodell could have chosen to put Watson on the exempt list the night the first story broke. With no investigation. That is the power he has - and to which your third bolded alludes. However, when he takes one view for 2 months and then changes it without material change of evidence I would strongly argue that falls outside of his authority. He doesn't get to change his mind for presentational convenience. Could a lawyer argue differently? Of course. That is the nature of the civil law. It isn't absolute. But if I was advising on the risk of successful legal challenge to Goodell reversing course and putting Watson on the exempt list purely because he has been traded to a team who might play him I would advise it is medium-high which by the standard legal risk management matrix I commonly use in my job means 50-70% risk of successful challenge. And of course as I have said multiple times - there could be no challenge brought. That happens. I have advised a medium-high risk of successful challenge on things where an action has been taken anyway and no challenge is ever brought. The sensitivity of this situation certainly means that Watson and/or a trading team would tread carefully around being seen to be litigious on what is essentially an administrative point. I still go back though to where I started - the way the league best avoided this was to put him on the exempt list the moment the season started. EDIT: of course timing is on the NFL's side here where it wasn't on deflategate. That happened in an offseason so Brady missed no time while the legal action played out. Here if the NFL put Watson on the list he (unless he can get a court to rule it is prima facie unlawful and issue an exceptional injunction) misses time while any legal process plays out. Edited October 23, 2021 by GunnerBill
Hapless Bills Fan Posted October 23, 2021 Posted October 23, 2021 43 minutes ago, Mr. WEO said: The point being discussed is how/why Miami would not successfully challenge that action as arbitrary. In front of an arbitrator, the Commissioner can't make a cogent argument that in Houston, Watson is not exemptible, but in Miami he is. His discipline actions are independent of those of any team, so he can't argue "well I didn't suspend him because Houston sat him, but I suspended him in Miami because they wouldn't sit him." I doubt he would make that argument. As I've said elsewhere, the NFL is conducting its own investigation on its own timeline. All it has to do is assert that its investigation either uncovered new pertinent information that led to it taking action, coincidentally just after Watson was traded - or that it completed its initial phase and the results indicate taking that action (coincidentally just after he was traded). I think Watson and the Dolphins would have to appeal to a court of law, the arbitration is essentially what the CBA agreed to with regard to the NFL's chosen panel/Goodell acting. But that's just my opinion.
GunnerBill Posted October 23, 2021 Posted October 23, 2021 1 minute ago, Hapless Bills Fan said: I doubt he would make that argument. As I've said elsewhere, the NFL is conducting its own investigation on its own timeline. All it has to do is assert that its investigation either uncovered new pertinent information that led to it taking action, coincidentally just after Watson was traded - or that it completed its initial phase and the results indicate taking that action. I think they would have to appeal to a court of law, the arbitration is essentially what the CBA agreed to with regard to the NFL arbitrating. But that's just my opinion. Oh Watson / a trading team would have to get through the NFL appeals and into a court of law. They wouldn't win through the appeals process built into the CBA. 1
Hapless Bills Fan Posted October 23, 2021 Posted October 23, 2021 7 minutes ago, GunnerBill said: To my mind when you apply that to the circumstances in Watson's case you get to exactly the question WEO and I have posed. "Why is he exemptable now when he wasn't in Houston?" The response cannot be "because he was being quasi disciplined by Houston" because the Commissioner's powers operate entirely independently of any team sanctioned discipline for something that falls under the Personal Conduct Policy. Goodell could have chosen to put Watson on the exempt list the night the first story broke. With no investigation. That is the power he has - and to which your third bolded alludes. However, when he takes one view for 2 months and then changes it without material change of evidence I would strongly argue that falls outside of his authority. See above. I agree with you that he can't say "he wasn't exemptable in Houston but he is now, Just Because". But he doesn't have to. He isn't limited by "material change of evidence" stemming from the legal investigation. The NFL can roll its own, that's my point. 7 minutes ago, GunnerBill said: But if I was advising on the risk of successful legal challenge to Goodell reversing course and putting Watson on the exempt list purely because he has been traded to a team who might play him I would advise it is medium-high which by the standard legal risk management matrix I commonly use in my job means 50-70% risk of successful challenge. Purely because he's been traded, sure, I can see your point there. But again - Goodell is not limited to material change of evidence from the legal proceding. He can come up with some new evidence, just like the NFL did in the Josh Brown and Ray Rice cases - AFTER there was a public outcry. "I am shocked, SHOCKED I tell you by this new evidence which we strangely were totally unable to obtain and peruse previously"
Mr. WEO Posted October 23, 2021 Posted October 23, 2021 6 minutes ago, Hapless Bills Fan said: I doubt he would make that argument. As I've said elsewhere, the NFL is conducting its own investigation on its own timeline. All it has to do is assert that its investigation either uncovered new pertinent information that led to it taking action, coincidentally just after Watson was traded - or that it completed its initial phase and the results indicate taking that action (coincidentally just after he was traded). I think Watson and the Dolphins would have to appeal to a court of law, the arbitration is essentially what the CBA agreed to with regard to the NFL's chosen panel/Goodell acting. But that's just my opinion. I’m suggesting not that Watson/NFLPA would be challenging the listing, but that the Dolphins would be challenging they’re prohibition from playing the player. Their appeal would be outside the CBA. They wouldn’t be challenging Goodell’s collectively bargained (with the players/NFLPA) power to exempt. They would be challenging a bogus listing….and some new secret info that only spurred Goddell into action AFTER a trade would prove to be fertile grounds for arbitration. Plus any such “new” evidence would have to be revealed
GunnerBill Posted October 23, 2021 Posted October 23, 2021 6 minutes ago, Hapless Bills Fan said: See above. I agree with you that he can't say "he wasn't exemptable in Houston but he is now, Just Because". But he doesn't have to. He isn't limited by "material change of evidence" stemming from the legal investigation. The NFL can roll its own, that's my point. Purely because he's been traded, sure, I can see your point there. But again - Goodell is not limited to material change of evidence from the legal proceding. He can come up with some new evidence, just like the NFL did in the Josh Brown and Ray Rice cases - AFTER there was a public outcry. "I am shocked, SHOCKED I tell you by this new evidence which we strangely were totally unable to obtain and peruse previously" The difference on Rice was that the video did, at that point, leak. If there was a similar smoking gun on Watson the NFL would be home and dry. I know there were different accounts of how aware the NFL was of the video beforehand. But at least publicly they could say "ah we only just saw this." 1
Mr. WEO Posted October 23, 2021 Posted October 23, 2021 1 minute ago, GunnerBill said: The difference on Rice was that the video did, at that point, leak. If there was a similar smoking gun on Watson the NFL would be home and dry. I know there were different accounts of how aware the NFL was of the video beforehand. But at least publicly they could say "ah we only just saw this." agreed. If Goddell is asked “why didn’t Watsons behavior rise to be adequate for you to exempt him?” He can’t answer “the Texans told me they wouldn’t play him”. Likewise, if asked “so why did you exempt him once he got to Miami?”, he can’t say “the Dolphins told me they wouldn’t bench him”. as for claiming “we have new evidence” Goddell would have to prove it only came to his attention after the trade
ColoradoBills Posted October 23, 2021 Posted October 23, 2021 For the record. Just read the rules of the "exempt" list. A certain QB is not yet on the list but could be at any given time. Here’s the official definition via the NFL Player Personnel Policy Manual: The Exempt List is a special player status available to clubs only in unusual circumstances. The List includes those players who have been declared by the Commissioner to be temporarily exempt from counting within the Active List limit. Only the Commissioner has the authority to place a player on the Exempt List; clubs have no such authority, and no exemption, regardless of circumstances, is automatic. The Commissioner also has the authority to determine in advance whether a player’s time on the Exempt List will be finite or will continue until the Commissioner deems the exemption should be lifted and the player returned to the Active List. It seems to me that this is a NFL/NFLPA agreement. It's up to the commissioner to determine player status. It would have to go through the court system to determine whether a "commissioner" can put a player on the list. It seems to me no matter what fans/media say about all of this ultimately it comes down to Roger Goodell to decide Watson NFL fate.
CincyBillsFan Posted October 23, 2021 Posted October 23, 2021 9 hours ago, GunnerBill said: As I have been trying to explain though the league are potentially in difficult territory doing that if nothing has changed in his legal case. The league doesn't have cart blanche to do what it wants discipline wise. It has to apply its own policy fairly and rationally. Either what is known is bad enough that he goes on the list or it isn't. Once you start throwing factors like "well was he likely to play or not" in then you are getting subjective and rationality becomes trickier. I heard it explained on the Sirius NFL channel in the following way- "as long as Watson is getting paid the legal situation favors any decision by the NFL to keep him off the field based on personal conduct."
GunnerBill Posted October 23, 2021 Posted October 23, 2021 9 minutes ago, CincyBillsFan said: I heard it explained on the Sirius NFL channel in the following way- "as long as Watson is getting paid the legal situation favors any decision by the NFL to keep him off the field based on personal conduct." That is true while he doesn't want to play (he doesn't in Houston) and while his team doesn't want him to play. Once on of those changes the situation changes.
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