The Deflategate Decision: Brady Has Been Freed!

Screen Shot 2015-09-03 at 11.32.25 AMemptywheel sez: We interrupt this in depth legal discussion to point out that the WOLVEREENIES ARE BACK!!

 

Better still, they’ve got unbeatable juju going into tonight’s game against Utah. That’s because (unreported among all the other less important Deflategate legalisms) the Wolvereenies have ALREADY worked together to score today.

 

That’s right.

You see, Jay Feely and Tommy Brady combined to score a point in Judge Berman’s decision today. On Monday, former UM kicker Jay Feely ’99 testified on behalf of former UM QB Tom Brady ’00 (just like me!!!). Feely explained about how when the Jets got busted for fucking with their balls in 2009 — in a game against Division rivals the Pats, against Tom Brady — he, the kicker who allegedly benefitted from the improperly doctored balls, faced no punishment.

If you’re not going to punish Jay Feely, Judge Berman suggested, you can’t punish Tommy Brady. At least, you can’t expect Tommy to think he’ll get punished, because his college buddy didn’t in the equivalent situation.

Anyway this is surely a great omen for the Wolverines and their new savior Jim Harbaugh.

So go Blue!


Deflated BallWell, at long last love, the #Deflategate decision from Judge Richard Berman in SDNY is in, and the big winner is Tom Brady.

The 40 page full decision is here

One key line in the decision on the general right of the court to set aside an arbitration is:

“The deference due an arbitrator does not extend so far as to require a district court to countenance, much less confirm, an award obtained without the requisites of fairness or due process” (citing Kaplan v. Alfred Dunhill of London, Inc.)

Boom.

I previously did a very partial background on the case, and how it germinated from blatantly false information (still uncorrected and/or withdrawn) from Chris Mortenson and ESPN. The bottom line is the NFL’s position was that the Commissioner, Goodell, simply has the power to do whatever he wants under Article 46 of the NFL/NFLPA collective Bargaining Agreement (CBA).

The Players Association, on behalf of Tom Brady, makes four core arguments in seeking to vacate Goodell’s arbitration decision:

1) There was not actual notice to Brady of prohibited conduct and that he could be suspended for it (See here for a further description)

2) That there were not adequate and reliable standards for testing game balls, and therefore punishment based on the same is unreasonable

3) That Goodell was a blatantly partial arbitrator, and

4) That the arbitration process lacked fundamental fairness in that key witness testimony and evidence was unreasonably denied to Brady and the NFLPA (See here for a further explanation).

Frankly, Brady is arguably entitled to a decision in his favor on all four. What Berman did is, primarily, rely on the first ground, notice with a backup of ground four, lack of fairness from denial of the Pash testimony and investigative notes.

CN_SebJWIAUg8iYThe critical language from the decision is:

The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four- game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel Jeff Pash; and (C) denial of equal access to investigative files, including witness interview notes.

So, there you have it, please feel free to unpack this further in comments. This is a momentous decision, not just for Brady and the NFL, but, as I explained in my earlier post, for collectively bargained labor in general. There is a lot of importance here to much more than Tom Brady. Though Brady is certainly the big winner today.

Brady is free! For now anyway, it is nearly a certainty that the NFL will appeal to the 2nd Circuit and we will go through this all again.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
58 replies
  1. bmaz says:

    Holy crap….Ouch!

    It is the “law of the shop” to provide professional football players with (advance) notice of prohibited conduct and of potential discipline. See. e.g., Langhorne, slip op. at 25 (“Any disciplinary program requires that individuals subject to that program understand, with reasonable certainty, what results will occur if they breach established rules.”). Because there was no notice of a four-game suspension in the circumstances presented here, Commissioner Goodell may be said to have “dispense[d] his own brand of industrial justice.” 187 Concourse Assocs., 399 F.3d at 527 (citation omitted). “When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement ofthe award.” United Steelworkers of Am. v. Enter. Wheel & Car Com., 80S. Ct. 1358, 1361 (1960).

    • Ed Walker says:

      I don’t know the names of the ESPN panel I watched for most of an hour while exercising this AM, but they were stupefied that Goodell lost, and seemed slow to recognize the significance of the fact that he has lost 5 huge cases lately. The ABC legal guy was also gobsmacked. Apparently he had been listening to the NFL side, and was simply shocked to see the strength of Judge Berman’s decision. He seems to think the appeal is a loser.
      .
      I’d say Goodell is in trouble. The panel agreed that the NFLPA would eventually win so many of these that the NFL would start to think about getting rid of Goodell. They agreed that Kraft is really angry at the League, and that can’t be good. They agreed that the League can’t take too many more such huge losses, regardless of the appeal.
      .
      One of the panelists, not Shechter (sp?), pointed out that the NFLPA had agreed to discuss the player conduct rules as part of the collective bargaining agreement, but Goodell refused. The nub of the decision is the arbitrary activity of the NFL, so I bet we will see a collective bargaining move on that issue eventually.

  2. orionATL says:

    and still, after all the smoke (ing) and legaisms,

    brady likely conspired to deflate the footballs to gain an advantage (which he should have guessed he did not need).

    smoking and mirrors isn’t likey to change public opinion on that, uhm, score.

    or on the impression of a general tendency of the patriots to cheat for game advantage.

    but who cares? its a game; it’s not war or politics; it’s for fun.

    • bmaz says:

      Bullshit. Complete and total bullshit. There is not one single shred of competent evidence to support that claim. None.
      .
      And, furthermore, this is NOT “just for fun”; as I have consistently stated, this is seminal labor law that carries over to all union collective bargaining disputes. It IS important.

      • orionATL says:

        oh, bmaz :))

        of course labor law is important (so is what brady actually did with the ball crew, but THAT we will never know.).

        i got lots of t-shirts for sale – “free tom brady’s rrreputation” – cheap.

        • Rich says:

          Right on. Momentous my ass. For Bmaz, is Brady allowed to defend himself? Well, yes. That’s nothing to do with Labor Law. My god get yourheadout of your ass. But, is Brady allowed to destroy evidence and intimidate witnesses?

      • bloopie2 says:

        Perhaps no competent evidence for this legal proceeding. But enough “generally aware” and/or circumstantial evidence from which an observer is left with the impression that, even if the Patriots didn’t illegally deflate these particular balls in this particular game, they (including Brady) were all along fully aware of the rules and were doing whatever they could, without getting caught, to avoid them. They tried to make us believe otherwise, and failed miserably. But hey, you do what you can to gain an advantage, and so long as you don’t get caught, it’s fair, right? Nice guys finish last.

        • bmaz says:

          Say what you will, to impose discipline, there was a burden, even if only a preponderance burden (or as the idiots, Wells and NFL, terms it, “more likely than not”. That is semantics, it is still a basic preponderance burden.
          .
          In NO way, shape, nor form, did the NFL meet any burden of proof, of any kind, with which to support imposing punitive sanction. And, seriously, this is not even debatable.
          .
          The rest is only downhill from there. Out of petulance, belligerence and arrogance by the NFL. They got their ass handed to them, and appropriately so. Couldn’t happen to a more deserving set of assholes short of Cheney, Addington and Yoo.

  3. Bay State Librul says:

    Drinks are on the house

    Framegate is over.

    The Wells Report: “a slanted, flawed and ultimately slandering piece of white hot garbage it is.”

    Let’s celebrate Labor Day and our right to “due process”

    The NFL is a corrupt organization.

    Can we get our lost first round pick back?

    Brady is Free……………..

    I’m starting to drink at 4PM today.

    Hoist one to Tommy.

  4. orionATL says:

    sorry, bmaz. i was teasing you about something you had put a lot of yourself into. that was unwise and unkind of me.

    were i head of espn news i would have had you lead the commentary at every turn. you knew the facts well and the law well and you actually put lots of time into studying the issue (unlike many media commentators and interrogators). you called the events with remarkable foresight. congratulations.

    the more general legal issues you pointed to are important. perhaps the player’s association v nfl will set some precedents.

    on one matter, however, i am still very stubborn – we do not know brady’s involvement, science of pvt or no. brady could give a flat denial.

  5. bloopie2 says:

    I don’t see what makes this a seminal decision in labor law. The Judge had existing precedent that he relied on; what’s new here in that regard? Please explain. What I do see as important, other than the fact that this being a high profile case will give rich people another legal out in the future, is that we will now get a long-overdue revamp of the NFL disciplinary process, and that Goodell will need to be more cautious – but, we all figured out a long time ago that that would be coming, regardless of how the Judge ruled.

    • emptywheel says:

      What’s interesting is that rather than getting MORE careful after losing other cases, Goodell got less careful, both in not ensuring real independence in the arbitrator/investigator, and in asserting he doesn’t have to be fair.

      You’re right that bc this case is so much worse than other precedents it may not equate to new precedent–though it might.

      But it also raises real questions about why Goodell keeps getting worse, not better? Did he think that bc so many people believe the Pats are cheats he could win in public opinion (which he did, up until today, maybe) and therefore vastly expand arbitrator power in going after the Pats?

      • bloopie2 says:

        I agree, he kept getting worse, and this one is over the top bad. See my comment at #16. The owners, both as a group and many individually, are much smarter than he, and they will clamp down on him now. That’s why their best PR position is to cave and move forward. Perhaps in a few years he’ll stand up and say “We have put in place a new disciplinary process and I’m very proud of that and so now I’m going to [[get kicked out the door by my bosses]] retire.”

      • Avattoir says:

        The one ‘careful’ step he set up he himself sabotaged. The idea appears to have been to use the Wells Report to firewall him from ‘findings’ and ‘recommendations’. But then Goodell allowed (at least allowed) NFL in house counsel (at least that officer) to “amend” the Report, which even just on the basis of what the NFL was prepared to admit, rendered him part of the prosecution team (I think it’s probably worse: leaving that string dangling so obviously strongly suggests the existence of others that weren’t so obvious, which, to me, in turn suggests the real reason he refused himself and refused also that NFL legal counsel to be made available to Brady’s side. IOW, as rigged as this process was in all the ways Judge Berman found, I strongly suspect it was even more rigged than that, by far.).

        What’s extraordinary is HOW MANY things Goodell fucked up here. Goodell’s not an attorney, & attorneys are quite familiar with how non-attorney clients can screw things up – but the screw ups here INVOLVED legal counsel, at every step! Is he even incompetent as a client? It sure seems so.

  6. emptywheel says:

    For those not following twitter, Berman used the word “independent” 17 times in the opinion, often in scare quotes or bold except when quoting Goodell’s claim to be independent.

    • Bay State Librul says:

      How many times will Goodell use “the integrity of the game” in his appeal?
      ————–
      Any wager?

      • bloopie2 says:

        I think they will not appeal. Goodell went too far on this one; they know that, and they’re not going to push their luck on it. The NFL will have more leverage going forward (if that’s possible) by graciously caving on this one. So they’ll say this: “We disagree with the result but in any event we have for some time been looking into tweaking the disciplinary process to make certain it’s as fair and open as can be and this is a good time to work with the players on that business. Look forward, not back.” If they quickly put out a press release like that, not saying a word about the substance of the decision, then no one other than football fans with way too much time on their hands will give a damn any more.

        • emptywheel says:

          They’ve already said they’re going to appeal bc integrity of the game, saying they disagree w/decision.

          • bloopie2 says:

            They’ve already said they’re going to appeal? Who makes these decisions? Maybe I’m wrong about the owners being smart.

            • bmaz says:

              Dude, you are WAY misjudging what is afoot here. And you have been around a long time and your opinion is very valued by me. Might need to reset on this one!

              • bloopie2 says:

                Well, I certainly have not followed closely enough to weigh in at your level, so, point taken. And evidence or not, the “prosecution” process was so screwed up as to render the verdict meaningless. Anyhow, being a Cleveland Browns fan, I obviously dislike the Patriots, along with every other NFL team — and a lot of the time my Brownies too for their incompetence. I do think this boondoggle will lead, in one way or another, to a sea change in the NFL disciplinary process. If that’s the benefit, it may have been worth the cost.

    • emptywheel says:

      I don’t know–and neither do you.

      There’s no evidence that he did anything wrong. There’s evidence he told ball boys to MEET NFL terms.

      I agree his explanation around destroying his phone is problematic, but I also get that there are good reasons why he should not have turned it over and very very good reasons why a celebrity of the status of Brady may not want to.

      • bmaz says:

        I do not even think that is problematic in the least, certainly not legally given Wells’ statements. So, NO!

    • bmaz says:

      Yes, and there is not one shred of evidence to the contrary. NONE.
      .
      Evidence, as opposed to rank speculation, counts. There is none, and the only sworn testimony 100% and unequivocally is in Brady’s favor.

  7. Felonious says:

    From the beginning this was a carefully orchestrated public relations campaign to create the impression of wrongdoing, a campaign resulting from a failed sting operation in which the league office conspired with two franchises against a member franchise. That story had to be suppressed and the way the league decided to suppress it was to create this elaborate distraction. They picked the wrong guy in Brady and Kessler proved to be no match for the empty suits in the league office.

  8. scribe says:

    Interesting coverage on ESPN.
    .
    Stephen A. Smith called in from vacay to eat some crow, seeing as how he was in the “Brady Guilty” camp. Bayless, that uber-fan of Tebow, was crowing politely after his having been proven right on Brady’s innocence.
    .
    Shannon Sharpe, filling in, had some very interesting things to say about having been in Biebs’ position. Recall, he was accused of misconduct by a woman and, despite hundreds of texts from her indicating her malefactory intent (i.e., making it up), he noted his reputation is still trashed about it and no one believes he didn’t pay her off. Even though the case was dismissed.
    .
    Schlereth came on and then it got interesting. He and Sharpe noted that, as long as King Roger the Clown has the “Big 6” owners in his camp, he’s got no problem keeping his job. Those owners are, BTW, Mara, Rooney, Kraft, Snyder, the Carolina guy, and Jerry Jones. Note that King Roger has already f’d over Rooney – all that banning ultraviolence by taking it out on James Harrison while selling images of his greatest hits for fun and profit – and Kraft, and done a bit of a number on Jerry, too. Recall also Jerry told Kraft to bend over and take it like he did, which we all interpreted as his speaking for the majority of owners that Kraft was being a crybaby.
    .
    The fact of the matter is that the owners really don’t give a shit about how King Roger runs the league as long as they get their quarter-billion dollar checks. If he can break the union while doing so – which has been his objective all along – so much the better. Don’t forget, his hardball negotiating stance during the last collective bargaining iteration resulted in the union decertifying so as to enable the players – Biebs among them – to sue the league for antitrust violations. Recall that that settled and the NFLPA came back as a part of the settlement.
    .
    Schlereth and Sharpe both understood the collective bargaining aspects of the case and its importance, even though they may not have articulated it well for the audience. Schlereth did make one point, though, worthy of note. He reminded us that, when it comes to large organizations they don’t get knocked out in one colossal blow. They die from a thousand paper cuts. It’s just a matter of how many paper cuts these owners are willing to take.
    .
    The speakers were in a bit of a pickle as to reporting and opining accurately. ESPN lives – and dies – on its contract with the League. It’s a constant that if they aren’t fellating King Roger in their coverage, they’re getting ready to. So honest analysis of things unflattering to the League is something one should not expect to see there.
    .
    And one more thing everyone seemed to agree upon: Biebs and the Patsies will come out of the gate ON F’G FIRE. Biebs has kept his mouth shut – gotta love him as a client – and made it clear he intends to take out his angst and aggression on the field. So, Ms. EW can be happy with that.
    .
    I for one would be not dismayed to see Biebs on national TV ram the Lombardi from Super Bowl L right up King Roger’s, well, you know. Even though I’d much rather see my Stillers win.

        • What Constitution? says:

          I dunno, bmaz — you describe your previous articles about this brouhaha as “partial” — I don’t care what anyone says, I think you meant that as “not complete in scope” rather than “biased”. Righto? The NFL’s head is exploding because they never for a moment thought there were any judges left who couldn’t be counted on to rubber stamp any arbitrator’s decision, and certainly not over something as touchy-feely as “fairness”. Good on the Judge.

          • bmaz says:

            Uh, no. What I emphasized in my prior post was exactly Notice and Pash and Evidence preclusion. Here that post is, I challenge you to say I did not hit exactly the cognizable grounds Berman ruled on.

            • What Constitution? says:

              No challenge here. I wasn’t characterizing your previous comments (which have been great), I was poking fun at the ambiguity in the way you started today’s discussion, to quote: “I previously did a very partial background on the case, ” that’s all I was doing. Your take is spot on, and I just find it so amusing that the MOU types who think they can do no wrong because they’re the NFL Brass simply could never contemplate having somebody actually have the temerity to take an honest look at what they had done.

    • emptywheel says:

      One thing that hasn’t been mentioned but that I’ve been thinking of more recently is that Brady has always been active in the union, including as leading named plaintiff suing NFL for antitrust going into the contract dispute that led us to this arbitration agreement.

      Of the other players, no one is as easy to attack (bc of past attacks on Pats’ “cheating”) nor packs as much punch.

      • emptywheel says:

        Of course, Brees’ TEAM got hit in the interim, in the first of the abuse of arbitration examples. Tainted their Super Bowl season too.

        Brees was the third named plaintiff.

        Peyton? You’re next, I guess.

      • scribe says:

        I mentioned it upthread.
        .
        I think King Roger is kind of thin-skinned little rich kid bitch who would take it personally and use his office to abuse those who DARED to challenge him.

          • scribe says:

            I’m leaning that way, too.

            As to the comment immediately upthread from EW’s, the judge noticed that Biebs did better in the second half than in the first and included it in his opinion.

    • Ed Walker says:

      Scribe has a lot more patience with those ESPN types than I do. The panel, whose names I didn’t get, at 10 Central time were a lot tougher on King Roger than what I see in this post. They talked about the arbitrary calls Goodell makes, and made a big point about how Goodell sees himself as the Tough Cop on discipline, especially compared to Tagliabue.

  9. Bay State Librul says:

    Breaking news. Roger Goodell will not attend the unveiling of the Super Bowl Banner
    against the Steelers next Thursday.
    —————-

    What a dickhead!

    • scribe says:

      Well, now the Patsies can abandon that plan to not sell anything that can be thrown.
      .
      Gotta wonder whether Kraft rescinded the Patsies’ invitation; it’s usually a pro forma thing but the team invites the Commissioner to come to the unveiling.

  10. Pete says:

    Either way, the Fins were going to have to face him the usual two times this coming season.

    Will just have to come up with some different stadium chants to rattle ole Tommy Boy.

    Rumor has it even Giselle thinks he has under inflated balls.

  11. bmaz says:

    Sorry people, I have been out on my day job since shortly after the decision was announced and I posted this post……I am catching up!

    • scribe says:

      Ration your exuberance, and your bile. OK?
      .
      Here’s hoping King Roger the Clown attends games post-snowfall, and gets to compare notes with Jimmy Johnson.

  12. pdaly says:

    Good news about the judge’s decision.

    Surprised the NFL decided to appeal –I thought Goodell would be happy with a loss at the hands of a judge–since Goodell couldn’t reverse his own bad decision without looking weak.

    I don’t see this NFL appeal helping Goodell save face either except among those who praise Goodell as an awesome commissioner.

  13. bmaz says:

    For the record:
    .
    the namesake of this blog, a woman supposedly called “Emptywheel”, who “claims” to be a football fan and informed commenter theron, has exposed herself as a fraud in terms of Patriots fandom. Probably all that Lombardi tie in was all bologna too.
    .
    I dunno where we are even. Other than a giant loss of credibility by way of intentional infliction of bogus blog editing distress. And, yeah, I bet I can fashion a count that will at least get by a Rule 12(b)(6) motion.
    .
    Have already discussed associating in Jeffrey Kessler because he supports righteous actions.

    • scribe says:

      For the record:
      .
      the namesake of this blog, a woman supposedly called “Emptywheel”, who “claims” to be a football fan and informed commenter theron, has exposed herself as a fraud in terms of Patriots fandom. Probably all that Lombardi tie in was all bologna too.
      .
      I dunno where we are even. Other than a giant loss of credibility by way of intentional infliction of bogus blog editing distress. And, yeah, I bet I can fashion a count that will at least get by a Rule 12(b)(6) motion.
      .
      Have already discussed associating in Jeffrey Kessler because he supports righteous actions

      That’s tequila talking. He got his hands on the keys to the likker cabinet again.

      • scribe says:

        You needn’t worry that much about the 12(b)(6), BMAz. You, Mr. Pink Hat Patsies fan, need to worry about the 12(b)(1) motion – you have no standing to complain.
        .
        I stand with James Harrison, holding it, watching a flaming King Roger the Clown go up in flames.

  14. orionATL says:

    “… Feely explained about how when the Jets got busted for fucking with their balls in 2009 — … — he, the kicker who allegedly benefitted from the improperly doctored balls, faced no punishment… ”
    .
    well of course he didn’t. what else does one f …. ?
    .
    oh, never mind; i’m already in trouble enough.

  15. altoii says:

    The NFL appealed within a couple of hours of the decision coming down from the SDNY. To see the appeal go to the Second Circuit’s website (http://www.ca2.uscourts.gov/), click on “Dockets” at the top right, and enter “15-2801” in the Case Number/Range search box. On the Case Selection screen click the hyperlinked docket number 15-2801 to see the docket report.

    Goodell is an ass.

  16. bmaz says:

    Yep, thanks for posting that. Pretty standard notice of appeal.
    .
    Couple of takeaways:
    .
    1) No request…yet…for an expedited briefing and decision schedule. If the NFL wants to be total dicks, they will not only request expedited status, but also file their brief and reply quickly. They could, conceivably, pull off such a pace as to, if they won, still suspend Brady at the end of the season or in playoffs. That is not certain though, and doing so makes it even more evident to the courts and the world what arrogant dicks the NFL and Goodell really are.
    .
    2) There is a new player evidenced on the docket: Attorney Barbara P. Berens, a former Doty clerk who also worked as local Minneapolis counsel in the NFL anti-trust case. This is kind of interesting.

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