Green Bay TitleTown MNF Fall Is Here Trash Talk (NFL Week 3)

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Hi there lugnuts, it is time for another edition of Emptywheel’s Famous Trash Talk! I actually would have started this last night, and therefore had it up earlier this morning, but had to go out to dinner and my new iPhone 6S had been delivered and was waiting when I got home. So, you know, I had to play with that and get it set up.

Thing sure is pretty. The experience deteriorated after unboxing it though. Apparently many of the early units shipped with iOS 9 and there is a bug in that OS which cause many users to have their phones freeze up on them during the setup process. I was one of those, and a very frustrated one of those, until I called AT&T help. A lovely chap named Nate helped me through the fix, which literally took about half an hour on the phone guiding me through it all. Nate was great, and now the device is functioning beautifully. It really is a fantastic bit of electronic hardware. Today (if the tracking is accurate), my wife’s will be delivered and we will now know what to do for it too. So, a hassle at first, but pretty wowed by the product in action.

Okay, Trash Talk came, in one sense, a little early this week with my early morning post yesterday on the Patrick Kane alleged rape case in Buffalo. There are a couple of new developments. First, the Erie county DA, Frank Sedita, held a presser yesterday a few hours after I had posted. I was in court and did not see it, but here is, to me at least, the key takeaway via Michael McCann and SI:

Sedita’s revelation was the latest bizarre development in an investigation that now seems less likely than ever to result in the Chicago Blackhawks superstar being charged with any crime.

Sedita said that the bag—which had been identified by the lawyer for Kane’s accuser as proof that key evidence had been tampered with—had actually been given to the accuser’s mother when she accompanied her daughter to the hospital to have a rape test performed. She was the last known person to have the bag, he said, and it was used to store one of her daughter’s garments and not the contents of a rape test kit.

He then showed video to prove that no bag had ever been used to store the kit and to verify that the chain of custody for the evidence has always been secure.

If true, this case is dead. The only question is whether Sedita himself declines to go further, or whether he seeks the imprimatur of submitting it to a grand jury to likely decline to prosecute. McCann seems to believe it will be the former. If there is no positive evidence in the real rape kit, and the chain of custody is as Sedita has consistently stated from the start, then he probably should decline prosecution. Cases without a reasonable likelihood of conviction should not be brought, and they all too often are.

Okay, on to the games. F1 is in Suzuka Japan for the Japanese Grand Prix. Nico Rosberg took pole last night over Mercedes teammate Hamilton, with Bottas, Vettel, Massa and Raikkonen of the Williams and Ferrari teams alternating in P3 through P6. Red Bull’s Daniil Kvyat had a nasty crash, but seems to be okay. Suzuka is a great track, this could be a pretty interesting race.

As to the NCAA men, it is such a pitiful week’s schedule of games that the ESPN Game Day folks are holding fort in freaking Tucson, where Rich Rod and Arizona are hosting the UCLA Bruins and their wonder boy true frosh QB Josh Rosen. And hot damn! they have Arizona alum and southern Arizona guy Bob Baffert on the set. Excellent! UCLA looks to be a far better team. But DANGER WILL ROBINSON DANGER!this is exactly the kind of upset that very often happens down in Tucson when the Cats Bear Down. We shall see, but I take the Cats. The only other game worth squat is USC here against the Sun Devils in Tempe at night on ESPN. I actually have tickets to the game, but not sure I am going to be able to go. Neither the Trojans nor ASU appear to be as solid as was thought before the season started. I’ll take the Devils, but don’t feel good about it at all.

As to the Joes in the Pros, well, of course I am excited about the MNF game between the Chefs and Packers at Lambeau. Seriously, what is better than a rematch of Super Bowl 1 played under the lights on the not yet Frozen Tundra? Doesn’t get any better than that. The Chefs are going to do some cooking this year, but not in Mr. Rodgers’ neighborhood. Take the Pack.

Niners are coming to Phoenix, where the Cardinals are not usually very hospitable. And, shhhh! don’t tell anyone, but the Cards are getting close to having a run game. Not there yet, but getting closer. Bengals at Ravens is a critical game for the Northern Dirty Birds. Bengals looks more solid this year, but then they always do until they don’t (half ass tribute to the great Yogi Berra there). Falcons at the Cowboys will be interesting only because Romo and Dez Bryant are gone. Eagles at Jets interesting because everybody thought the Iggles would be 2-0 and the Jets Jets Jets 0-2 right about now, not the other way around.

Oh well, talk amongst yourselves and, always, rock and roll. Music this week by my new favorite band from down under, Boom! Bap! Pow!

Raising Pat Kane and Lawyers Selling Out Clients

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If you haven't seen the reportage, there is a bit of a fascinating case going on up in Erie County of New York. That would be the Buffalo area, give or take. The matter involves the star of the Chicago Blackhawks, the current Stanley Cup Champions, Patrick Kane. And it involves extremely serious rape allegations.

Several people, both on and offline, have asked me about this case. I have made a few observations on Twitter (namely that the cops have a LOT to answer for, and that this case is nuts), which I stand by, but have been unwilling, without more, and better, facts to really express much of an ultimate opinion.

I am still not willing to go to Kane’s ultimate guilt or innocence, and neither should anybody else at this point. In fact, it is revolting to the extent that many in the press, especially digital media, have putatively done so. I have long loved Dave Zirin, of The Nation, but he got out ahead of himself and criminal (frankly even civil) law here:

In the entire horrific history of male sports stars and accusations of sexual violence, there may have never been a story as nauseating as this one.

Yeah, what?? That was while he was explaining that there may actually be a heinous problem with the critical evidence of guilt. So let’s frame it in terms of the victim, right?

Okay, but which victim? Is the “victim” the one Zirin, and honestly most of us, assume, i.e. the “accuser”?

It may well be!

But, is it necessarily? No, the “victim” could well be Kane too. Usually the cops and prosecutors are putting their weight behind a civilian victim and lying against the accused. At least that is my experience. Sometimes the “State” case is only lightly shaded by the cops and prosecutors, sometimes (and this is way more than you think), it is in an unreasonably leveraged, and borderline unconscionable, manner. And this is the problem with a victim culture in criminal matters, victims get presumed and the presumption of innocence gets lost.

So, what about here where the DA is standing up and saying everybody needs to slow down on Kane? Is the DA protecting justice, or preventing it?

We don’t know. I don’t know. Dave Zirin doesn’t know. And neither do you. The publics’ emotions and feelings are not the judgment of the civil, much less criminal, justice system. Time may tell, or this case may be so fundamentally buggered up by yet unknown actors that it is never really known what happened.

But there is one way in which the accuser is absolutely a clear cut victim. She has been screwed by her, now former, lawyer, Tom Eoannou:

The lawyer for a woman accusing Chicago Blackhawks star Patrick Kane of sexual assault abruptly quit the case Thursday night, saying he’s no longer comfortable representing the woman because of how her mother reported finding an evidence bag they believed once held the woman’s rape kit.

Thomas Eoannou told reporters he believes there were, what he called, “fabrications” in the story of how the bag was found. He added that he’s no longer sure if the bag ever contained evidence from the investigation.

“I can only say that I don’t know what’s true and what’s not true,” Eoannou said during a hastily called news conference at his downtown Buffalo law office. “I received the storyline from the mother. And it’s my position that I’m not comfortable with that version of the events.”

Say what??

I don’t know where this story will ultimately go, but suffice it to say that it is some major league ethically dubious lawyering for Eoannou, to be publicly holding a press conference to say he doesn’t “have confidence” in his client’s story. Especially when he is abandoning his client in the process. On what any moron would know would be, nearly instantly, national television.

I guess Eoannou stopped a little short of calling his own client, and her mother, lying frauds, but, seriously, he did everything but that and certainly implied it. This is just flat out scummy, and arguably patently unethical lawyering, in my opinion. And it hurts lawyers, of all stripes, everywhere and taints the entire judicial system.

You don’t get to say such things as a lawyer. You CAN’T say such things as a lawyer. Not while both the active criminal investigation, and potential civil case, hang in the lurch for your client. And not while walking away like a coward from your client. Because that is selling your client, and everything you, as a lawyer, are supposed to stand for down the river. On a barge the width of the Mississippi.

Nothing good ever comes from a lawyer running his mouth to the press on a case before he really knows the facts. Far too many attorneys are tempted to self aggrandize and publicize themselves on their “big case” before they know what they are really dealing with. Thomas Eoannou should not have been yakking to the press to start with, much less have held a press availability to explain how he was shitting on his client and her case.

This is unconscionable, and unprofessional, media whoring at its worst. It brings to mind the case of David Aylor, the former lawyer for the cop charged with executing Walter Scott in South Carolina. As my friend Scott Greenfield said in that matter:

No one forces you to rush out to the spotlight and make a statement before you have a clue what evidence exists against your client, and no one forces you to rush out to the spotlight a second time when you’re exposed as the fool who shot off his mouth.

At first, the spotlight seems warm and alluring to the lawyer, a chance to get his brand out in public and make a name for himself as the kind of lawyer who can handle the big time. But stand in the spotlight long enough and it starts to burn.

Exactly. You just cannot do that, whether you represent the accused or the putative victim. You cannot bias and/or destroy your client’s case, your duty is to zealously protect the client. Here, Eoannou has prejudiced both the accuser’s case as a potential crime victim and any potential civil case she might have against Kane. That is simply impermissible irrespective of where the ultimate truth lies in the rape accusation against Patrick Kane.

UPDATE: Scribe has some good information in this comment regarding the the violations of the New York ethics code Thomas Eoannou arguably ran afoul of.

This is exacerbated by what might be the lawyer’s pretty blatant violation of the ethical rules. New York’s version of the Rules of Professional Conduct are interpreted more broadly than in other states, when it comes to disclosure of client confidences. Disclosure of anything that might embarrass the client or prejudice his rights is prohibited. The classic example is how the high-profile divorce lawyer is not allowed to acknowledge that the prominent movie star with a family values image has been to his office. This even if the star is not a client but only a prospective client.

NY RPC 1.6 states, in pertinent part:

(a) A lawyer shall not knowingly reveal confidential information, as defined
in this Rule, or use such information to the disadvantage of a client or for the
advantage of the lawyer or a third person, unless:
(1) the client gives informed consent, as defined in Rule 1.0(j);
(2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or
(3) the disclosure is permitted by paragraph (b).
“Confidential information” consists of information gained during or relating
to the representation of a client, whatever its source, that is (a) protected by the
attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if
disclosed, or (c) ….
…
(b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime;
(3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be relied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
(4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
(5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or
(ii) to establish or collect a fee; or
(6) when permitted or required under these Rules or to comply with other law or court order.

NY RPC 1.18 makes 1.6 apply to prospective clients.

This attorney might argue his second “I quit” press release was correct under 1.6(b)(3) above. But the problem is that his first run-to-TV moment was the one he should not have undertaken. It appears he did little to no investigation before running to the press. If he had, chances are he would have had a good chance of finding whatever falsity he thinks he found between TV appearances that justified his dumping out on his client. Now, not only has he cast his client as a liar, her mother – who might have been a corroborating witness – as another liar – all prejudicial to the state’s case, if any existed, for an assault against her – but he also bolluxed any civil case she might have brought in the future.

I hope his malpractice insurance is paid up.

Killer Football Is Trashing Its Real Capital

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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

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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.

Has bmaz Really Not Started Work on Trash Talk Yet? Oh No I Didn’t Want To Have To Do This…

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It seems bmaz is a bit rusty on Trash Talk, given that the SEASON starts in a less than 6 hours and there’s still no sign of a Trash Talk thread.

 

So I’m going to leave this here, in hopes it will give bmaz the proper urgency, especially now that he is an avowed Pats fan.

Update: bmaz has caught up to the rest of us, so we’ll move the trash-talking here.

The Deflategate Decision: Brady Has Been Freed!

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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

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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…

The Shame of Formula One in Bahrain

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Hamilton_spraying__3269562bThis weekend is the Grand Prix of Bahrain at the International Circuit in Sakhir, Bahrain. Three years ago I wrote about the local protests in Bahrain seeking some modicum of civil liberties and fair treatment. Instead there was a violent crackdown by the tyrannical ruling Khalifa family leading to bloodied protestors and dead bodies near the track.

There is no good reason, save for greed, that Formula One is in Bahrain this weekend but, nevertheless, there it is.
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What might the journalists report on were they allowed in Bahrain? Maybe the petrol bomb attack members of the Force India racing team were caught up in. The incident so shook the team that it withdrew from the second practice session and at least one team member left the country due to safety concerns.

How is this occurring? Why is the race still being sanctioned? Money and hegemony.

F1 Grand Prix is big money. Really big money.
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Big money and the mighty US war machine are a potent combination and, between the two of them, are permitting the disgrace occurring this weekend in Bahrain. It is a stain on international human rights, and it is a stain on Formula One. F1 and Ecclestone cravenly hide behind the false premise that they are a business and would be allowing themselves to be politicized if they were to cancel the Bahrain Grand Prix again.

The USA war machine is, obviously, the Fifth Fleet, which is based in Bahrain. That, too, is of big money and logistical importance to US Mideast hegemony. Same as the huge race sanctioning fee Bernie Ecclestone and F1 is important to their bottom line. By last report, F1 charged over $40 million as the sanctioning fee for the Bahrain race, which is far more lucrative a piece of income than many of the traditional grand prix in Europe and elsewhere. It is raw greed.

So, after canceling the 2011 race under duress, and showcasing the civil liberty atrocities of the Khalifas and their regime in 2012, there has been a lot of progress, right? There is so little mention of strife now that it must be better, right?

No.

Sure Bernie Ecclestone put some lip gloss on the money pig:

Formula One has long-insisted this is none of its business. “We’re not here, or we don’t go anywhere, to judge how a country is run,” Bernie Ecclestone pointed out two years ago. The damning Amnesty report, however, was preceded by another announcement with considerably less fanfare. In it the group Americans for Democracy on Human Rights in Bahrain said that it had concluded an agreement with F1 that the sport would begin a policy of analysing the human rights impact it might have on host nations. “Formula One Group has committed to taking a number of further steps to strengthen its processes in relation to human rights,” it read.

But there is the Amnesty report, and as laid out in the Guardian article from yesterday linked above, it is not pretty. The same denial of speech and liberty, not to mention brutal oppression still maintains in Bahrain.

Worse yet, it is clear that the presence of Formula One in Bahrain doesn’t just ignore the brutal problems, it is a significant cause of them:

He does not believe this was an isolated event. “Many journalists come to cover F1 and maybe that’s why they arrested my father,” he says, adding that it was part of a wider crackdown that has occurred in areas where there are regular protests. “If you go to the villages, you will see them surrounded by police, any gathering of six or seven people chanting will be attacked with tear gas or Kevlar bullets or birdshot; the government are not allowing any protests to happen there.”

While there are human rights issues in other countries the sport visits, the activists claim that, unlike in China for example, it is Formula One’s very presence in Bahrain that makes the situation worse. Maryam al-Khawaja, the co-director of the Gulf Centre for Human Rights who is living in Denmark having been sentenced to one year in prison in absentia for allegedly assaulting a police officer, describes the reforms since 2011 as both a smokescreen and a whitewash.

“The problem is that the F1 isn’t just being used as part of that whitewash, the F1 actually causes human rights violations in Bahrain,” she says. “Right before the race we have the government going on an arrest spree to try and prevent protest. We have protesters cracked down on during the F1 and the violence that is used is usually more than what we see for the rest of the year. F1 causes human rights violations and for that reason it should not come to Bahrain.”

That would be exactly consistent with reports from the ground in Bahrain in 2012. Nothing has changed. And nothing will change so long as powerful entities like Formula One and the US Government will blindly sanction such oppression to further their own interests.

As to the race itself, practice was as expected with the Mercedes and Ferraris leading the rest of the pack. Qualifying just concluded, however, and there was a bit of a shakeup at the top. Lewis Hamilton took his fourth pole to open the season, but Vettel took P2 followed by Rosberg and Raikkonen in the second row. No front row lockout for Mercedes as they have become expected to lately. The rest of the top 10 in order are Bottas, Massa, Ricciardo, Hulkenberg, Sainz and Grosjean.

Will the Ferrari and Williams cars have anything for Hamilton and Rosberg in the actual race? We shall see, but they are getting ever closer.

Also, baseball has started the regular season, and the Tigers and Royals look awesome so far; the Giants not so much. The NBA playoffs are starting and the NFL draft is nearly upon us.

Consider this a full Trash Talk and discuss anything you wish. And don’t be a dick like Lewis Hamilton and spray champagne into unsuspecting girl’s eardrums.

Emptywheel’s Super Bowl XLIX Trash Talk

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Welp, here we are for our last regularly scheduled Trash Talk for the football season. It may be the biggest game of the year, but it is always a tad melancholy because it means no more football. On that note, off we go.

Super Bowl XLIX is right here in the Phoenix Valley of the Sun. Except that it has not been that sunny; in fact, the end of the week has been nothing but rain, starting Thursday and through all day Friday, and it is overcast again this morning as I write. The temperature has been quite moderate and comfortable, but the overcast and rain a real downer. Curiously, none of the fans I have run into, and there are a lot of those, seem to mind in the least; but as a local, I sure hoped for better. That said, all the parties and festivities seem to have gone off just fine, and of course the gorgeous VIP crowd, between all the limos and controlled indoor settings, probably never noticed. In short, so far, so good, despite the inclement weather. I have also had great fun seeing all the Squawkers in their vaunted “12th Man” shirts. To a tee, so to speak, I see them and say “Love yer Number 12 Tom Brady Jersey!”. So far, I have not been punched yet, but there is still time.

There are so many different things to do if you are here and a fan, and it is spread out over the valley. There was the NFL Experience set up at the Phoenix Convention Center Downtown, the seemingly continuously running Super Bowl street party in and around downtown central square, and also the simply idiotic looking huge “Bud Light House of Whatever”, that appeared designed for hollow 20 something twits. 10-12 miles northwest, in Glendale, by the actual University of Phoenix Cardinals stadium, were more stages and whatnot sponsored primarily by DirecTV. I know some of the pretty people were bussed out there, and promptly bussed right out of there as soon as they could. Cause no one with any shred of common sense parties in freaking Glendale when you could be doing it in Scottsdale. Come on man. That is just the way it is, and the way it has always been. And it will always be that way, cause Glendale is a bag of Chalie Brown’s rocks on Halloween. People with money and the appropriate je ne sais quoi wouldn’t be caught dead hanging in Glendale, and that won’t be changing anytime soon.

The fact that the game is in Glendale, but all the real playahs and money somewhere else actually has some real implications locally. Yes, it is what it is, but Glendale has a problem as a result. You see, Glendale is its own municipality; it is not Phoenix, and it sure as hell is not Scottsdale or Tempe. It has its own tax and spending obligations, and it has fucked it up royally, as my friend, and the always excellent, Travis Waldron of Think Progress details:

In a world in which American cities have handed over billions of dollars in public money to finance sports arenas and stadiums, there is perhaps one city that stands above the rest as a warning for what can go wrong when they do so. It just so happens that place is Glendale, Ariz., which will host Super Bowl XLIX this Sunday.

Glendale has spent liberally on sports in the past decade and a half, luring professional hockey, football, and spring training baseball with millions of dollars of its own money and plenty of help from the state. Sunday will mark the second time it has hosted the Super Bowl, and the game’s biggest proponents are, in typical fashion, making the argument that helped sell all of this sporting infrastructure that brought teams and events to Glendale in the first place: it will be a boon for the local economy.
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The problem is that the Super Bowl almost certainly won’t generate $500 million in economic benefits for Arizona. Economic research has shown that for a variety of reasons — among them: a failure to account for costs, money that leaks out of the local economy, and money that would have been spent anyway or, in the absence of such an event, elsewhere in the city — Super Bowls and other mega-events and the publicly-funded stadiums built to host them virtually never have such an effect. They may provide minimal gains, and sometimes losses, to host cities, but they’re never major shots in the arm. Cities that believe otherwise, about stadiums or the events themselves, run the risk of major trouble.

Travis is right, the “economic stimulus” from major events like Super Bowls, NCAA National Championship games, in both football and basketball (both of which are here in the immediate future), are just never what they are cracked up to be when you factor in the hard costs to host cities. But, it goes a little further than even Travis lets on when the hard costs of the game itself, and ridiculous security therefore, are being paid by a, frankly, minor municipality like Glendale and the real big bucks are being spent in Scottsdale/Paradise Valley and Phoenix. And that, my friends, is exactly what is going on here.

And, then, there is Scottsdale/Paradise Valley. That is where the real players and action are. I live, literally, on the intersection of East Phoenix/Arcadia, Scottsdale and Paradise Valley. Even with an old rotator cuff, I can throw a rock and hit all of them. So, I went to all the glitzy parties and can tell you about them, right? Nope. For one thing, I just don’t care as much anymore, and certainly not enough to work it to get to them. But, secondly, the big money, and exclusivity, is so pervasive now that it is really hard, much more so than it once was, whether for Super Bowl XXX or even XLII.

I didn’t miss the Playboy, Victoria’s Secret or Jerry Jones parties in either of those, but trying to get into the equivalent this year was insane, and I am not going to pay to do so. You think bmaz is gonna pay $350 to go to a Scottsdale bar to hang with lowlife B-level celebs like Drake, Brody Jenner and some idiot, I never in my life heard about, named “William Lifestyle”? Uh, no. I wouldn’t pay a lousy buck to see that trashy shit like that. So, save for a one day pass I got into the ESPN live set gig at Scottsdale Fashion Square, about two miles down the road, I just didn’t partake in the festivities. (Couple pictures from that, here, here and here; featuring mostly my new friend, and totally awesome guy, Tom Jackson) Your Phoenix based Roving Reporter has failed you. Sorry about that. And, no, I won’t be going to the game either. Tickets are, in even the cheapest markets, going for $7,500 – $10,000 for any seat, and WAY more for a reasonable seat, to the game. If I had tickets, I would sell them and buy a new car, or a Cessna, or something.

Alright, let us get to the only thing that matters in a game between the two best teams in football. Deflategate. Roger Goodell was his normal sack of salted dicks self in his press conference here. What a bullshit joke. Goodell is an embarrassment. He and the NFL have ignorantly, stupidly, and against the interests of the league and the Super Bowl, weakly and cravenly not just allowed, but actively encouraged, the ginning up of the non-story of Deflategate into something that has consumed the oxygen of the Super Bowl. The only thing that matters to tight ass billionaire owner driven cracker like Roger Goodell is the money. First he looks at the purse. Players health, and fans’ desires are not even really on the list.

If that is not enough incompetence to get Goodell fired, on the heels of the ignorant and incompetent handling of the Ray Rice situation, I guess there is no such thing as incompetence to the beyond hubristic and arrogant NFL owners. As a fan, fuck that shit. Goodell and the vaunted “NFL Shield” are craven, self serving, pathetic reactionaries worried far more about covering their gravy train asses than being positive, proactive, forces for good in society. Oh, and by the way, their “evidence” and “investigation” is, once, as always, total shit. So far, the NFL has a an equipment manager that had the misfortune of taking a piss in a bathroom and a bunch of physics that even all the best scientists now admit actually could support the Patriots. What a load of sensationalistic crap. Without more (which Goodell and his crying ass stooge Ted Wells may well try to falsely gin up, same as the asinine “Mueller Report”), Bob Kraft, Tom Brady and BillBel are indeed owed an apology. As Bill Simmons said in a couple of tweets on Twitter:

The NFL is searching for a person of interest who dressed like a referee and didn’t write down the measurements of 12 footballs. We spent 3 days talking about a ball boy taking a piss. Meanwhile Walt Anderson was approving footballs with his gut feelings. What a farce.

Alright. As to the game. Yeah, sorry, there are no more cheap ass platitudes on the elusiveness and brains of Russell Wilson, the strength of the Squawks defense, the greatness of Brady and the brilliance of BillBel’s game scheming. It is all out there, but I am done with that tripe, cause at this point it is all bullshit. These are two different and both wonderfully constructed and coached teams. One will win, and one won’t. We’ll see.

Music today, at the top, is INXS. Irrespective of the team you support, sometimes you kick, and sometimes you get kicked (as lifelong Packers fan, trust me). Also, the Brady’s Balls AC/DC thing is really well done. Don’t miss the J. Geils I added late, cause it is everything. Lastly, I especially love the Favre and Carve spot (one of several related Wix spots), though, truth be told, Headmistress, and my boss, Ms. Wheel made me do it! So, thanks to one and all for a great football season. We will see you again when the start of the F1 Circus begins and/or the force moves us. You are, all, truly and always, the greatest.

Let’s rock this joint lug nuts! Gronk on bitchezz!!

NFL Conference Championship Trash Talk

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Back by popular demand, and in the face of kudzu like anti-sports grumps, it is Emptywheel’s Famous Football Trash Talk! The field is now down to four Green Bay at Seattle, and Indianapolis at New England.

The early game is the one that Phred and I will be glued to the TV for. The Packers return to the hostile confines of Seattle’s Century Link field to face the Seahawks. This is exactly where the first NFL regular season game was played this year. In that meeting, the Squawks owned the Packers. Green Bay’s defense looked unable to cope with Russell Wilson, and Rodgers refused to throw a single pass to Richard Sherman’s side of the field and Seattle waltzed away with an easy 36-16 win.

But a lot has changed in the interim. Seattle has developed their young receivers, but has lost the game changing explosiveness of Percy Harvin. And Green Bay has changed their defense around a bit with Clay Matthews being moved inside much more frequently, especially on obvious passing defense downs. But late in the season, Matthews was playing inside even on run defense because AJ Hawk just wasn’t physical enough to get it done. It seems like a small change, but the difference has been palpable. The Pack’s defense is far better than it was early in the season. Green Bay’s offense seems to be healthy and firing on all cylinders. Except one, and that is a big one, of the Discount Doublecheck variety.

I expect Rodgers will be slightly more mobile, and confident of his ability to move laterally, this week than last week against the Cowboys. He will need to be, because Seattle’s defense is a lot more lethal than Dallas’ was. The key will be whether Eddy Lacy can get untracked early and establish the run to a reasonable extent. Lacy has been healthy and very solid of late, so there is hope. If Cliff Avril, Bruce Irvin and Michael Bennett are allowed to constantly pressure Rodgers, it will be the end of the line for the Cheese. However, if the Green Bay O-line and Lacy can take some pressure off, Rodgers has the downfield accuracy to beat Seattle. That’s a big if. The Squawks are 7.5 point favorites, and I think that is maybe low. Seattle is headed here to the Super Bowl.

In the second game, the Colts go east to tilt with the Patriots. Frankly, I didn’t think Indy could beat the Broncos at Mile High. But they did, and it was not as close as the 24-13 score indicated. Andrew Luck was everywhere, extending plays and throwing darts. And the Colts’ defense was spectacular in their ability to wrap up and tackle relentlessly. There are not a lot of known names on the Indy defense, but they have been pretty impressive in this postseason.

The Pats. What is left to be said about the Patriots at this point? Tom Brady, Darrell Revis and the best coach in football, they have all of that and a Gronk. But if the Patriots want an eighth Super Bowl appearance, which would tie them for the most in NFL history (Pittsburgh and Dallas), they will likely have to do it without center Bryan Stork, who injured a knee last week. The Pats will likely go back to emphasizing their rushing attack against Indy, after gaining a historical low of 14 net yards rushing against Terrell Suggs and the Ravens. And the Pats have lit up the Colts on the ground in the past, so expect Belichick to go back to LeGarrette Blount and Bolden far more heavily Sunday. The Colts are game I am sure, but the Pats are a 6.5 point favorite and I think they will cover that and win easily.

There you have it. This is our last Sunday of football before Super Bowl XLIX, which happens to be right here in Phoenix. Time will tell who gets to Phoenix. Drink and chat it up people. Music by Phoenix’s own Glen Campbell.

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