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Under Tom’s Thumb Conference Championship Trash Talk 2018

Here we are in the penultimate weekend of the professional football season for 2017-2018. The final four. And, usually, a far better weekend of football than that of the Super Bowl.

The early game is Jacksonville at New England. There has been a lot of chatter about this one. Started with chatter about the Jag’s awesome defense and D-Line ability to get to and rattle Brady. And, to be fair, Brady is nowhere near his usual self if you can really put the wood to him. But then things went bonkers with news of the injury to Tom’s thumb. Hand. Whatever. If Betty Grable had “Million dollar Legs”, you have to wonder what Brady’s right hand is worth. Word is, however, after not doing much in practice Thursday, he back at it on Friday and looking good. Pats are favorites by 7.5, and that seems about right. The Jag’s defense sure seems to be everything advertised. Calais Campbell was panned as costing way too much for Jax to pick up off the Cardinals in free agency. All he has done is have an all-world season and be in contention for defensive player of the year. Jalen Ramsey is almost as good as his mouth says he is. So, the defensive edge goes to the Jags. But Tom Brady, bum thumb or no, just has way more savvy and mojo in big games than Blake Bortles does. The fact that Pats killer Tom Coughlin is with Jacksonville now gives serious pause. But as appealing as it seems, no way to bet against New England.

The late game is Vikes at Eagles in Philly. Hey, a lot of folks thought this game would be Atlanta at Saints. The number one seeded Eagles were even home dogs against Atlanta, but they won a hard fought game. Same for the Vikes, who literally needed the “Minneapolis Miracle” in the last second to emerge. But emerge they did. And now they are favorites by 3.5 over the, yet again, home dog Eagles. Not long ago, Nick Foles and Case Keenum were both on the Rams. Now they are squaring off in the NFC Championship game. Keenum is on a far more, and better, roll than Foles. My prescription is same as last week for Philly…take the shackles off and let Foles rip. You are going to either win or die, might as well let him play. They did not really do that last week and still managed to eek out a win. Maybe their defense is that good, we shall see. I’ll take the Vikes though.

Okay, that is it, let er rip. Music is, obviously, by the Stones. If you have super vision, and look close enough, maybe you can spot me just left of center stage, about ten to fifteen people back. It was a hell of a beautiful day.

Week Five NFL Trash Talk: The Return of Brady

It may not be the biggest game of week five, but all eyes will be on Tom Brady and his return from the idiotic, dishonest and petulant suspension manufactured by Roger Goodell and the NFL. That is going to be the story.

What can we expect? I think I’ll bet on Brady being Brady, especially with the Pats also getting Gronk and Rob Nincovich back. In fairness, Gronk suited up and played a few snaps last week as a test drive, but this will be his first real game back from hamstring recovery time out. Is there some analogue? Yes, there is! Ben Roethlisberger came back from a suspension against the same Cleveland Browns in 2010:

The only real parallel for Brady is two-time Super Bowl winner Ben Roethlisberger and his four-game suspension in 2010 for violating the league’s personal conduct policy.

The Steelers went 3-1 in his absence. They won their first three games without Roethlisberger, but lost the fourth at home. His first game back came against the Browns. (How’s that for a parallel?)

Roethlisberger said during his suspension he worked with his private coach, George Whitfield, four days a week. In the week leading up to the game, the Steelers extended individual drills in practice by 30 minutes to give Roethlisberger more work with his receivers.

Then came his season debut, a Week 6 game against the Browns (because of a bye the previous week). On his opening drive, Roethlisberger threw an interception to Joe Haden inside the red zone.

“I just got a little antsy,” Roethlisberger admitted after the game. “The ball was coming out what we call ‘hot,’ coming out high and strong.”

But he settled down after the first drive, and completed 16 of 27 passes for 257 yards, three touchdowns, and an interception as the Steelers rolled to a 28-10 win.

The Steelers went on to finish the 2010 season with a 12-4 record, and Roethlisberger led them to an appearance in the Super Bowl.

I think Pats fans would be fine tracking that parallel.

In other games, on Thursday night the Cardinals rebounded with a solid win over the hapless 49ers, and look to have Carson Palmer back next week against the Jets on the Monday Night Football game. Hopefully the Cards have righted their leaky ship. We’ll see.

The Falcons at Broncos could be a really good game. The Dirty Birds are flying high so far this year with Matt Ryan and Julio Jones. Last week, Ryan threw for over 500 yards, and Jones hauled in 300 yards worth of that. But this is the Broncos defense, not the suddenly porous Panthers, and the game is in Mile High. The really interesting thing here is that Denver is starting rookie Paxton Lynch even though Trevor Siemian is on the active roster. Be interesting to see if Siemian ever gets his job back.

The 3-1 Texans visiting the 4-0 Vikings is also a great matchup. The Texans are not flashy, but have been surprisingly solid on both sides of the ball so far. The Vikes all world on defense and surprisingly effective with Sam Bradford at QB. Houston is a decent team, and Brock Osweiller will only get better as he settles into his job, but hard to see the Vikes not moving to 5-0. Have to admit, the Bills at Rams doesn’t sound like a great game, but it may really be! Jets don’t look like their bleak road is going to get any easier as they are visiting Big Ben and the Steelers, who are suddenly clicking on all cylinders. Then there is the Giants at Lambeau to see the Packers for the SNF game. Should be an easy call, but the Cheese have had some Swiss like holes in them, and are only 2-1 coming off an early bye. Pack are favored by 7, but this game worries me for Pack. Going to be hard to watch the debate with the Packers on the TV.

Okay, with all the Trumpian excitement, it is a short Trash Talk week, but off we go! Today’s music is an awesome slow burn up to crescendo with I Ain’t Got Nothing But The Blues by the great Joe Williams. It starts off slow, but watch out.

The Return of Football Trash Talk: Brady Versus the Ess Eee See

Oh, hai there, I am back from a very busy day at the law biz and then a long night at friend’s 60th birthday party. Complete with mini Michael Buble knockoff. Dude had everything but the voice recorded, and then sang the vocals. Weird. Anyway, football is back, even if only college this weekend. But there are some important goings on in the NFL too.

I like the move by the Vikes to get Bradford. The first rounder is a large price, but Bradford is a proven NFL starting QB, who occasionally looks very good. The AZ Cards proved three years ago what happens to Super Bowl level teams when they lose their starting QB, and it wasn’t pretty. The Vikes have a pretty good O-Line and Adrian Peterson. If Bradford stays healthy for the year, this could be a brilliant move. And if Bridgewater’s knee is as bad as feared, he may be dicey for next year too.

Man, the Houston Cougs destroyed the Sooners. I guess it is not that big of a shock, especially as the game was in Houston. But still. Houston doesn’t have the most difficult schedule, they may be in the mix late into the year. And for Bob Stoops,another one of those brain farts he has come to be known for.

UCLA has played a miserable game against Texas A&M. The Bruins have been a flaky team for a long time, maybe still are. LSU and Wisconsin on the hallowed Frozen Tundra is a pretty good game through one half, with the Badgers up 6-0; second half should be great. Alabama should dispatch the chain gang the USC Trojans are fielding this year pretty easily, as should Florida with UMass (this would be a better basketball game). Locally the Arizona Wildcats are hosting BYU in Phoenix at Cardinals Stadium. Year five is make or break for Rich Rod, and BYU is never an easy out. We shall see on that. Notre Dame/Texas and Ole Miss/FSU are featured Sunday and Monday games respectively; I’ll go with the favorites in both.

Some interesting cut downs in the NFL today. Kap stays on the Niners (but they did cut Jim Whit’s favorite, Jeff Driskel), but Sanchez was released by the Broncs and is already in Dallas. Sanchez is better than the current backup for rookie Dak Prescott, but the Cowboys better hope the rook is as good as he looked in preseason. But regular season NFL defenses are another thing, and the Cowboys may be in serious trouble. The Packers cut Josh Sitton, a very good O-Lineman and the Ravens Justin Forsett, very recently a 1,300 yard starting RB. Both are a little stunning.

The Jets are keeping four QB’s on their roster, and it is not clear that any of them are really winners. But that’s the Jets Jets Jets. And then there is the Pats, who have only four receivers on their 53 man roster, and two of them Amendola and rookie Malcomb Mitchell have injury issues as the season starts. So, it is not real clear who exactly Jimmy G will be throwing to while Brady whiles away his time cheering for the Wolverweenies. Of course, having a couple of tight ends like Gronk and Bennett sure helps things. And undrafted free agent DJ Foster, from ASU, who looked good in pre-season, is very adept at the slot from his college days and has a little experience outside to boot.

So, as I update this post, UCLA and the Aggies are in overtime and Phred’s Wisconsin Badgers have completed the upset of LSU. Tough start to the new season for Les Miles and the Ess Eee See. Let’s hope there is some well deserved hurt put on the Bama Tide later on tonight. Well, that is it. Thanks to Marcy for getting up a stub post while I was cavorting about. It remains in its entirety below. Music is a very early live take by the Stones of Mercy Mercy. It is very tasty.

The real (college) football has already started and yet Mr. bmaz says he has better things to do than post a Trash Talk.

So I’ve decided that since 1) Brady has donned a classic 90s hair doo so he looks like he did when he and I were both Wolvereenies 2) he’s headed back to his our stomping grounds to honorarily lead the team while he’s prohibited to even show up in Foxboro 3) Jim has already been yapping his mouth about the Ess Eee See, I thought I’d make this the first of a series of four tributes to Tommy, until Mr. bmaz gets around to posting something more substantive.

In another very important development, the FBI has just revealed that Hillary will have to stay away from the White House during her first four months as President because she was exonerated on the underlying crime but destroyed a few phones.

Hillary Phones

This may or may not mean Tommy Brady is bound to become President sometime later in life.

 

Tom Brady Taps Out of Deflategate and Other Trash Talk

Just posted a few minutes ago on Tom Brady’s Facebook page:

Screen Shot 2016-07-15 at 10.46.18 AM

Frankly, I am stunned. From the jump, Brady seemed to be a guy that would fight to the bitter end because he truly believed he was innocent and that the conduct of Roger Goodell and the NFL was dishonest and oppressive. And, frankly, every bit of research and evaluation of the case indicates that is exactly the case. My early analysis, which I still believe holds up nearly 100% is here. I touched significantly on why the Deflategate litigation was critical not just to Tom Brady, but to all organized labor operating ind a Collective Bargaining Agreement (CBA). That is quite so, and the NFLPA has already indicated they may – may – continue on as a union to litigate this issue. We shall see, though they will be weakened without Brady being involved.

Having said that I am completely stunned Brady has tapped out, there are cognizable reasons for it. His best shot of success was with his petition for wn banc review in the 2nd Circuit, but that was denied Wednesday morning. To go further, Brady would have to file a petition for certiorari with the Supreme Court and seek to obtain a stay of his suspension while the cert petition was processed. That would have been a tall order. The first stop would have beed the 2nd Circuit itself, which just dumped him, and then with Ruth Bader Ginsburg as the assigned Circuit Justice for the 2nd Circuit, and lastly to the full SCOTUS (which is not even in session currently).

I have a couple of sports law attorney friends I have found along the Deflategate way that thought Brady had a shot at a stay, maybe even odds as good as 50%. I thought that was probably entirely too optimistic, and not we will never know as the NFLPA does not have any need for a stay without Brady’s suspension hanging in the mix.

Just spitballing here, but I am going to guess that Bill Belichick, Bob Kraft and the interests of the team were the deciding factor for Brady, and not the thin odds. You see, even if Brady had been granted a stay, unless the Supremes granted cert, there is a real chance that the four game suspension rears its ugly head again at the end of the season and/or even the playoffs. If the Patriots are going to lose Tom Brady, it is far better that it be in the first four games, most of which they may have a decent shot at winning even without Brady, than have it be at the end of the year or playoffs. Nathaniel Grow at Sports Law Blog has a good discussion of the timing issue it Brady had actually obtained a a stay. So, dollar to donuts, this was not just the deciding factor, but the only real factor. Money was never an issue.

Just so you know, the Pats open here in Arizona against the Cardinals on Sunday Night Football on NBC, and then are at home in Foxborough against the the Dolphins, Texans and Bills. They can win some, if not most, of those games with Jimmy G at QB.

So, there you go, Deflategate comes to an ignominious end, at least as to Tom Brady. But there are other sports issues in the air, not to mention a boatload of politics and other matters. So feel free to use this thread as an open forum.

Killer Football Is Trashing Its Real Capital

So we are on to week two of Trash Talk for the nascent NFL season, and week three for the NCAA. There is a ton that could be unpacked as to the particular players, plays and whatnot but, as was the case with the first week, I have little inclination to do so anymore, at least not at great length. Maybe just a little later on, but there are more pressing matters at hand.

Football is hard to turn away from, it is great pageantry and spectacle. It is incredibly compelling sport. But the game is at a crossroad as to its deadly nature and its decimation of its real capital: the players. A stunning article came out yesterday from PBS Frontline:

A total of 87 out of 91 former NFL players have tested positive for the brain disease at the center of the debate over concussions in football, according to new figures from the nation’s largest brain bank focused on the study of traumatic head injury.

Researchers with the Department of Veterans Affairs and Boston University have now identified the degenerative disease known as chronic traumatic encephalopathy, or CTE, in 96 percent of NFL players that they’ve examined and in 79 percent of all football players. The disease is widely believed to stem from repetitive trauma to the head, and can lead to conditions such as memory loss, depression and dementia.

In total, the lab has found CTE in the brain tissue in 131 out of 165 individuals who, before their deaths, played football either professionally, semi-professionally, in college or in high school.

Wow. We have known for quite a while about CTE and its debilitating, and sometimes deadly, effects on football players. But the starkly presented facts portrayed in the PBS piece are really eye opening. And people are talking about it. It is in the regular news rotation at CNN this morning, and you know how muchit had to pain the programmers and producers at CNN a LOT to eat into their All Trump, All The Time philosophy.

But the NFL is being a good corporate citizen and proactively protecting their players, right? No, maybe not so much. While Roger Goodell and the NFL paint a happy face on their “improvements”, the real fact of the matter is that their “progress” is mostly just another Roger Goodell and NFL PR shitshow. Do take a look at the above trailer for the movie “Concussion” set to be released in December. It looks fantastic.

Again, from the PBS Frontline article we started out with:

The film, Concussion, starring Will Smith, traces the story of Bennet Omalu, who in 2005 shocked the football establishment with an article in the journal Neurosurgery detailing his discovery of CTE in the brain of former Pittsburgh Steelers center Mike Webster. At the VA lab and elsewhere, CTE has since been found in players such as Hall of Famer Junior Seau, former NFL Man of the Year Dave Duerson, and Colts tight end John Mackey, a past head of the player’s union.

While the story is not a new one, for the NFL, it represents a high-profile and potentially embarrassing cinematic interpretation of a period in which the league sought to refute research suggesting football may contribute to brain disease.

From 2003 to 2009, for example, the NFL’s now disbanded Mild Traumatic Brain Injury Committee concluded in a series of scientific papers that “no NFL player” had experienced chronic brain damage from repeat concussions, and that “Professional football players do not sustain frequent repetitive blows to the brain on a regular basis.”

In the case of Omalu, league doctors publicly assailed his research, and in a rare move, demanded a retraction of his study. When Omalu spoke to FRONTLINE about the incident for the 2013 documentary, League of Denial: The NFL’s Concussion Crisis, he said, “You can’t go against the NFL. They’ll squash you.”

“THEY WILL SQUASH YOU”. Yes, that is exactly the consistent message from the oh so “fan friendly” good ‘ole NFL of Roger Goodell, and the billionaire owner baby tyrants he works for. Little different than coal mine owners, the NFL cares primarily about their bottom line. First they look at the purse. This is why the Brady/NFLPA case is so important. And why Bountygate, Ray Rice and Adrian Peterson’s cases before it, were all so important. And, yes, even the disciplinary travails of James Harrison. They all reflect the ad hoc, arbitrary and capricious, and self serving nature of the treatment of labor by owners and management in the NFL.

You may see them only as millionaire malefactor petulant football players out doing bad things and think they deserve what they get. And maybe that is true in most cases. Ray Rice absolutely assaulted his fiancé and now wife Janay. Adrian Peterson, engaged in punishment of a child that was pretty common when I was a kid, but is entirely medieval by today’s standards.

Say what you will, where there is wildly disproportionate power between ownership/management and labor, and where there has been a collectively bargained agreement to protect labor, that must be jealously protected. That is exactly why Tom Brady is so critical. Brady is no gangster nor domestic abuser. He is the furthest thing from it; indeed, Brady is Mr. Clean Cut GQ All American. If Roger Goodell and the NFL he represents can arbitrarily, capriciously and imperiously take out Tom Brady – on trumped up junk with no credible evidentiary basis whatsoever – and can do so in a biased and unfair process, then all of labor loses. Not just high flying football players, but teachers, autoworkers, miners, and rank and file employees of all stripes and colors.

I digressed a little from today’s CTE issue, but the labor issue is intertwined. The players need more honesty, more protection, and more complete future medical coverage from the NFL because of the disease that is CTE. That, my friends, is a labor issue, and a huge one. And Roger Goodell and the NFL are already acting in bad faith in their “settlement” efforts as to long past players. It is simply pitiful.

So, what about this week? I dunno. The Broncos looked like toast through 7 of their first 8 quarters of the season. But, the Donks are 2-0. If Manning and Kubiak can find a mutual equilibrium, watch out, because Von Miller, Aqib Talib and the defense are some flat out ball hawks. Yak all you want about Peyton’s decline and fall, and maybe it is true. But do NOT sleep on these guys.

Cowboys, Gents or Iggles? Yeah, I have no clue there either.’Boys looked best week one, not sure I buy it. Why is RGIII still on the active roster of the Washington Professional Football Franchise? Seriously, the Washingtonians are like the Duggars of football; it is on public view, but it is all horrible. The Eagles? Hmmm, Chip Kelly’s troops better show up this week or else the great hype is dead.

Aaron Rodgers is a renaissance man (this is a fantastic article). Oh, and Go Pack! against those pesky Seasquawks. This time it is at Lambeau in title town. There are other games of note too, including, of course Bill Bel and the Brays at the Wagon Circling Bills. That is shaping up to be some big fun.

So, go whoop it up and have some fun. The game goes on, even if a reckoning is necessary. The music number today is First I Look At The Purse by the J. Geils Band, and is in honor of the craven Roger Goodell and the NFL I described above.

Beyond Deflategate: The NFL Season Begins

Hi there! How ya doing! Because I have been oppressed with this Tom Brady porn bullshit from blog partner and sister, that Wheel person. Very ugly and unnecessary. But I am going to let it stand for all of posterity, not to mention both of our posteriors. Still, you have to wonder when enough is enough (like when she hijacked my last post).

I used to love her, but….

So, enough about yer local riff raff, and about #Deflategate (which was bullshit from the inception) let’s get on to the game at hand. That would be the Patriots versus the Steelers.

Yes, Brady has a giant chip on his shoulder. Yes the Pats are defending Superbowl champs and Big Ben and the Steelers are not. Nevertheless, this is one hell of a season opening game. In fact, it is pretty hard to imagine a better one under the circumstances. Say what you will about how any got there, there are only a precious few at the top of all time winners in the Super Bowl era. They include the Steelers and Pats. And, yes, the Steelers, for all the Pats glory in the last 15 years, are still winning that overall matchup. The 49ers, Packers, Cowboys and Gents are totally in there, but the more recent elite are pretty clear.

So, here we are. Steelers have Big Ben and….what? Ben Roethlisberger and Antonio Brown are as good a duo as you can get. But without Bell, who is suspended, in the backfield, that is going to place some extra pressure on the Steelers offense. A face Bill Belichick undoubtedly knows. By the same token, the Pats pass defense rests on a backfield without either Darrell Revis of Brandon Browner. Pretty easy to see Malcomb Butler continuing to become a stud above and beyond his one play Super Bowl XLIX heroics, but similarly hard to see there not being some early hiccups in that road. Would not want to be Butler on Antonio Brown tonight.

But will DeAngelo Williams, who will sub for Bell and Cody Wallace, who is subbing for center Maurkice Pouncey, be able to pick up the slack? Yes, I think so, but not nearly enough.

That said, the Patriots are without LeGarrette Blount, due to a one game suspension. I think that Dion Lewis (who is potentially breakout star) and Travaris Cadet will come out of nowhere to semi-carry the load. So, both sides have some issue at running back, but, hopefully, capable backups. I’d give a slight edge to the Pats, but by a VERY slight margin.

We all know the QB’s on these two respective teams. They are both great. Hard to see an edge here other than the psychological harden that Brady may have. But I am not putting that much in that, Ben will come to play too.

Comes down to defense. Call me crazy, and probably you should for this, but I think the Pats have the edge on the new, dick LeBeau-less, and untested, Steeler’s defense. Troy Polamalu and Ryan Clark ain’t walking through that tunnel. Especially so with the questions in the Pittsburgh offensive line. If there is a win here, that, and a pissed off Brady, are where I see it. And that is where I see it, the Steelers are good, but the Brady’s come out roaring and winning tonight. don’t make me regret this Deflators!

So, there you have it. #Deflategate is still a legal pile of dubious garbage manufactured, as is now even more clear, by an arbitrary and capricious, if not arrogantly craven, Roger Goddell and the NFL. We shall deal with that more later. For now, trash it up and let loose the dogs of football war.

And that is that. On top is an incredible Taiwanese animation on the latest ESPN slanted bunk trying to give cover to the NFL for #Deflategate. It’s really awesome. Lower is one of my newest favorite bands, this one from down under, specifically Perth, Boom! Bap! Pow! Yeah, that is their name, and they are killer.

The real football season is upon us folks, rip this joint.

Even Millionaire Workers Like Tom Brady Need Solidarity

President Obama’s at a labor breakfast in Boston today. He offered this message.

Screen Shot 2015-09-07 at 12.16.21 PM

 

Clearly, the President is pandering to his audience. Bostoners like Brady, unlike much of the country.

But it’s an important point, one which has been missing from a lot of the coverage of DeflateGate. Brady will play on Thursday not just because he had better lawyers than the NFL, nor because Roger Goodell is a douchebag who’s not even competent at being a tyrant, but also because he’s a member of a union that had negotiated certain rules with the bosses, one of which was that certain kinds of violations get treated a certain way (in this case, that equipment violations involve a team fine, but no suspensions).

Mind you, I keep wondering why the NFL, after having been embarrassed with the BountyGate, Ray Rice, and Adrian Peterson disciplinary procedures, would adopt an even more abusive approach with Brady, when they were dealing with an alleged crime that wasn’t even as serious or as politically unpopular as the others (setting aside how much most people hate the Pats, of course). It’s possible they did so because they got so far ahead of themselves when they launched an investigation — and leaked highly derogatory and false information — in response to rumors about overinflated balls that they were left with no choice but to double down. But partly, the serial leaks feel like part of the plan here. In which case, I think it at least possible the NFL went after Brady so hard because he has always been active in the Players Association, and was the named plaintiff in 2011 when the players sued the NFL on anti-trust grounds.

Tom Brady may look like a hero, a badass quarterback, or a cheat to fans (depending on whom you’re asking), but maybe to every owner not named Kraft, he looks like a union rabble rouser?

I don’t know the answer to that, but as the league appeals Judge Berman’s ruling, I hope some people ask whether the NFL is just acting so stupid because they are that stupid, or whether there’s something more going on.

In any case, the President may have been pandering. But his point is sound. If even millionaire workers like Tom Brady need a union — need solidarity with other workers to achieve some measure of justice — then we all probably could use more of it.

Happy Labor Day! Go Patriots!

Update: As a number of people are noting, the NFL released a graphic asking which QB will be in next year’s Super Bowl that left the reining champ off.

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.

ESPN Is Gutless, Chris Mortenson Has Tiny Deflated Balls and Other Deflategate Trash Talk

Hi there! Been a while, hope this account still works and State Secrets or something has not overcome due process on this here blog.

So, here we are in the waning days of summer. I would have written more about the Formula One Circus but, frankly, it has mostly bored the heck out of me this year. The, still, best driver in F1 is stuck in a crappy underperforming McLaren and has to drive his ass off and hope for attrition to even score a point. That would be Fernando Alonso if you haven’t guessed. While lesser drivers, with far better machinery, you know, those like the two insolent crybabies at Mercedes, have such superior equipment that they wrongfully think they are kings. It is all enough to make an old school fan like me puke. Well, enough about the circus, let’s get to the real meat and potatoes of this blog’s sports coverage, the NFL.

As you may have heard, there is a little kerfuffle called #Deflategate that has been going on since before the last SuperBowl. On one side, we have an arrogant all powerful giant human jackass (no, not Dick Cheney this time) named Roger Goodell, and on the other, we have the epitome of bright and light, the All American Hero, and lover of supermodels, Tom Brady. If you think this is not a fair fight, and Brady is the clear winner, advance and collect your winnings.

Okay, back to Chris Mortensen’s apparently shriveled journalistic balls. Let me be clear, this is just opinion (even if putatively well founded opinion), but what kind of “balls” does a man who is spoon fed lying ass bullshit by “NFL Sources” in the form of a tweet that said:

The NFL found 11 of the Patriots’ 12 game balls for Sunday’s 45-7 AFC Championship Game win over the Indianapolis Colts were under-inflated by two pounds per square inch each, league sources told ESPN’s Chris Mortensen on Tuesday.

Obviously, as the actual testing (not to mention the late great “Wells’ Report) confirmed, that was an outright giant flaming LIE. Call it what it is, it was not a minor discrepancy, it was an outright flaming lie. A lie that led directly to the public outcry that begat what we now know as the multi-million dollar boondoggle bullshit “#Deflategate”.

Peter King (no, not the militant chickenhawk moron from Long Island, the other one from Sports Illustrated) was fed the same blatant inflammatory lie by what appear to be NFL officials, but King had the balls, and intellectual integrity, to apologize.

Did Chris Mortensen or THE WORLDWIDE LEADER, ESPN, have the intellectual and moral integrity to apologize? No, of course the craven bastards did not. In fact, Mortensen silently deleted his original tweet. What a gutless and tiny balled coward. And ESPN has proved itself to be an oppressive behemoth that is willing to put itself, and its allegiance to the NFL, above their journalistic ethics. How pathetic.

That blatantly false report germinated the entire waste of time that is now #Deflategate. Seriously, without Mortensen’s and ESPN’s relentlessly trumped up and featured false report, tagged on by King and SI, there would simply never have been #Deflategate. But it was clearly something the NFL wanted pushed, and they got their want, one way or another. Oh, by the way, is there further evidence that ESPN and Chris Mortensen may be dishonest news sources without a shred of credibility? Yes, yes there is. Mortensen reported that the Kraft family and Patriots had apologized to him. Was that true? No, according to the Krafts on behalf of the Patriots, that was blatantly false.

Here is the thing: #Deflategate is a house of cards built on a pile of dung. If you have an iota of concern for fundamental fairness and due process, you ought be offended – even if this is only a civil labor law mess involving millionaires against billionaires. It all matters, and the labor law principles in play here are beyond critical to all union workers and collective bargaining agreements, not just those of rich athletes. So, yeah, don’t kid yourself, this matters. A lot. If Tom Freaking Brady cannot get fundamental fairness and due process on a collectively bargained agreement, how the hell do you think a UAW, Teamster, teacher, or any other union member will? If you haven’t noticed, labor in this country is under direct attack. Don’t be the guy (or girl!) that aids that attack just because this iteration of the conflict involves Tom Brady and/or rich athletes. This matters, both in general as to all workers under labor agreements, and to your hometown sports teams and players too.

So, there you have Chris Mortensen and his tiny disingenuous balls, but what about some overall facts and law on #Deflategate? Got you kind of covered. And this is especially timely since the last big actual live court day is coming up on Monday, August 31st. So, here we go with some various background resources for you. If you are interested, please read them, you will be better informed. If not, that is cool too, but understand there are very good reasons I take the stances I have on #Deflategate. Off we go!

Soooo….where to start? How about a prediction, you want a prediction?? Sorry, don’t have one. BUT, I will say this, I have read most of the transcripts and filings, and I do not subscribe to the thought that Judge Richard Berman’s clearly antagonistic position to the NFL/Goodell side is all posturing trying to force a settlement. Is there some of that going on? Trust me, almost certainly. By the same token, by my experience, and I have a little, there is simply no way Berman is being as consistently pointed and dubious of one side, the NFL/Goodell, as he has been without being convinced their argument is lame. Yes, judges often play “devil’s advocate”, but what Berman has engaged in strikes me as well beyond that.

So, while I won’t make a prediction, the Brady/NFLPA side must feel pretty positive about how it has gone so far. I am understating that a little.

So, on what grounds do I think Brady and the NFLPA may win on? Two grounds – 1) Notice and 2) Process denial regarding evidence and witnesses by the NFL, to wit, Jeff Pash and related evidence.

First off, the “Notice” argument. A new net friend I have met in this process, but one I greatly respect, Dan Werly, has summarized “Notice” quite well here.

Then there is the “Pash preclusion”. Jeff Pash is the General Counsel to the NFL. He is also its Executive Vice President. Those are not necessarily copascetic if a corporate entity wants to maintain even the reduced semblance of “attorney/client privilege” of having a “corporate counsel”. Seriously, this kind of privilege comes close to vapor when you commingle your attorney with corporate leadership. But that is exactly what the NFL has done here, and much more. And that is peanuts compared to the fact that the NFL made Pash the effective, really de facto, co-independent “investigator” (they even stated it in a press release) along with Ted Wells and then gave Pash editorial control over the so called “Independent Wells Report”. then Goodell refused to make Pash available for testimony, stating that he was irrelevant and privileged.

Ooops, did the arrogant Goodell and the NFL bugger their own ruse beyond belief as to Pash? Yes, and it is crystal clear. Even Judge Berman was incredulous.

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Then, later…

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Yes, arbitration decisions are given “great deference” by courts, and generally are not disturbed. But they can be when they present genuine issues of fairness and partiality. #Deflategate may be a silly case to most of the lay public, but these are serious and critical issues in labor law, and if the exacerbated issues in the Brady case cannot be addressed by a court, then pretty much no labor arbitration can ever be. For a far more detailed explication of the Pash problem, see this outstanding piece by Ian Gunn.

I invent the wheel only when I need to (and mostly when clients pay me to); I try to not do so when it has already been done by worthy people before me. Dan Werly, Dan Wallach, Michael McCann, Brian Holland, Alan Milstein, Raffi Melkonian and Ian Gunn are folks that did the hard lifting while I was, mostly, away frolicking at the beach in La Jolla when the most critical filings came out. All fantastic people that I came to know because of Roger Goodell’s #Deflategate folly. Hat’s off to them, as well as Stephanie Stradley with some fantastic early scene setting. These are all serious people that you should follow, not just for #Deflategate, but for any sports related law and thought. I think all, including me, feel Brady and the Players Association have the far better hand, in both posture and presentation, than Goodell and the NFL. Really, it is not even close, though there is no telling what Berman will do in the end. By this time next week, we will know.

Welp, I may have focused on #Deflategate more than I intended. Or not. This post was meant as an acerbic discussion point, not a full on explication, which would have consumed thousands of additional words. F1, and sports in general have just been boring lately, as you can tell by how often I have bothered to write about them. But the legal machinations in #Deflategate have been fascinating, at least to me. The All American boy Brady, the Boris Badanov evil Goodell, the flamboyant crusading Player’s Association lawyer Jeffrey Kessler, the Snidely Whiplash Ted Wells to the calm but annoyed judge Richard Berman. The characters are all there.

So, that’s it. Rock on lug nuts. Trash talk like you are Michael Jordan. Do it up. But, if you don’t agree with my #Deflategate thoughts, you can send some Dead Flowers. By the US Mail. And don’t forget the roses…

Big Games and the End of the Hokey Pokey Era Trash Talk

My my, there is a lot going on in the sporting world this weekend, so let’s take a look at some of the more interesting bits and pieces. First off there was some big news in Ann Arbor yesterday that pretty much answers the burning question from last weeks trash talk, namely who will scuttle their flailing football coach sooner, Michigan or Florida? The answer is in, and it is the Michigan Men! Michigan Athletic Director Dave Brandon has resigned effective immediately, and that will almost certainly spell the end of the Brady Hokey era for the Wolverweenies.

There are a couple of updates to items on the Docket Report. First, there was a hearing in EDVA on the appeal lawsuit of the Washington Redskins from the negative trademark decision in the administrative patent court system. The hearing was on a motion to dismiss and the early reports are the court was dubious about the dismissal effort and seemed inclined to retain jurisdiction. If so, that probably favors Dan Snyder and the Skins, because it will allow additional evidence to supplement the narrow and limited administrative record. It will be interesting to see what the decision is here. Secondly, the Ray Rice appeal hearing is set for next Wednesday, and the hearing officer, Judge Barbara Jones, has ordered Roger Goodell to testify. Some people are discussing a settlement, but I would be surprised. This could be fascinating seeing good attorneys cross-examine Goodell.

Then there are the games. The World Series is over, and congratulations to the San Francisco Giants who won a compelling series over the Kansas City Royals. The Cicago Cubs have hired Joe Maddon as their new manager after he quite suddenly up and left the Tampa Bay Rays. That is a great move for the Cubs, but the Cubbies are career killers for managers. RIP Joe Maddon. And the NBA season has started, so there is that. But we are really about football here, so let’s get to it, and there are a lot of big match ups on tap.

You would think that there is no way possible that the biggest game is not Peyton versus Brady and the Broncos at Patriots in the quarterback battle of the ages. Nope, that ain’t it. No, the biggest game this weekend is the Cardinals at Jerryworld to take on the Cowboys. The Cards, along with the aforementioned Broncos, have the best record in the NFL to date with only one loss on the season. The Cowboys were up there too before last week’s close loss to an inspired Redskins squad. This really shapes up as a great game. The Cowboys Demarco Murray has passed Jim Brown with eight straight games over 100 yards to open a season. But the Cards have perhaps the leagues best run defense. The Cowboys can be thrown on, and Carson Palmer has finally got Larry Fitzgerald untracked. Tony Romo is hurting and has not practiced all week. Oh, and by the way, the Honey Badger is back. All the factors point to the Cardinals having the edge. So I am picking the ‘Boys on the basis that they are home, and pissed about their performance against the Skins.

The other big game is of course Broncos at Patriots. Both Brady and Manning are playing lights out currently, and the Pats are on a bit of a roll. Any matchup between these two quarterbacks is an instant classic candidate, and this one is no different. I am going to assume ‘Ole Noodle Arm Manning and Brady cancel each other out. once you get past that, and even understanding Gronk is really rounding into the old Gronk, the Broncos simply have more and better weapons on offense. The Broncos also have a better defense, and they get the pick here. The only other really interesting game on the NFL schedule is Ravens at Steelers. Oddsmakers have it a draw right now, but I think Big Ben and the Stillers have found a groove and pull out the home win at the Big Catsup Bottle.

In college, the unquestioned game of the week is number 3 Auburn at number 4 ‘Ole Miss. After today, one of the teams will be done for the playoff discussion. The Rebels are favored by two at home, and that sounds about right to me. The other really good match ups are in the Pac-12, which has provided every bit as much excitement and compelling football this year as the SEC. Stanford is at Oregon, and the Trees have a history of manhandling the Ducks and giving them fits. Stanford is having an off year, but seemed to find an offensive groove last week. Still, I think the Quackers have the edge. Number 12 Arizona is at number 22 UCLA and I smell an upset here. Lastly, in a night game, number 17 Utah is at number 14 ASU. Utah is always superbly coached by Kyle Willingham and is consistently a better team than people give them credit for. But ASU has some momentum and, as long as they don’t get caught looking forward to next week’s tilt with Notre Dame, should take care of business in Sun Devil Stadium, though I expect a tight game.

Welp, that is it for this week. Rock on. This week’s music by Gerry Mulligan, Dave Brubeck, Doc Severinsen and the Cincinnati Pops with Duke Ellington’s classic “Take the A’Train”.