What is your idea of Settlement? Serious replies (moderated!)

[ColtsBlueFL]

The thing about giving someone ultimate power is that you have done just that. You cannot then say you don't like how they use that power.

 

Cannot have your cake and eat it.

 

They gave Goodell Exceptional power, but not ultimate.  He doesn't possess the right to rule with evident partiality or undue bias, or fraudulently. But these must be proven to the Judge.  This situation is not like the Rice and Peterson cases where punishments were out of whack to the old/new policies or altered/lenghtened etc. I've told what I think should happen in a settlement (and maybe one gets done)earlier, but not what I think will happen.  I'm ready to voice that opinion.

 

I feel that the NFLPA has not proven undue bias or fraud, and no blatant disregard for the CBA.  The circumstantial evidence the report shows and NFL arguments could be reasonably interpreted by Goodell as Brady was more likely than not to be aware.  Thus, even if the Judge doesn't agree absolute proof was shown, the report allows Goodell to reach that conclusion.  And that is the standard for the NFL. Thus, along with precedent before in ruling on arbitration cases, Judge Berman will confirm the award.  Brady will not have to admit guilt, he'll just have to stew for 4 games at the beginning of the year.

 

I believe Judge Berman also sees the propensity for the NFLPA to run to Federal court at the drop of a hat that seems favorable to their cause.  Thus if he vacates the award against precedent and not have undue bias or fraud on his side, and the NFL decides to swiftly and strongly punish players after their own investigation and then a fast tracked appeal, then the Southern District docket will be filled with suits to vacate arbitration awards...  and with the current CBA neither side can back out until I believe 2021. Recently there has been a multitude of incidents, and no reason the tide will turn back.

 

End the end, I think it is better for Brady to settle to reduced games, and the NFL to not have Brady admit guilt as deduced in the Wells report.  But the egos and 'roll the dice' attitude displayed by both sides make it appear a settlement wont be reached Wednesday, but maybe September 3 will unfold a late minute agreement, just before Judge Berman rules.

 

I say neither side blinks, Judge Berman confirms the award, and the then comes the question, will the NFLPA appeal, and get an injunction?  (I think they will to get Brady on the field in 2015)

 

Should the NFLPA get the award vacated, with the NFL appeal?  Interest times ahead.

[ViriLudant]

I'm still waiting for a response to my post above.

CA2 has already ruled that a specific penalty always supersedes a general penalty.

Therefore, Goodell, by law, has to rule using the equipment fine.

[ColtsBlueFL]

I'm still waiting for a response to my post above.

CA2 has already ruled that a specific penalty always supersedes a general penalty.

Therefore, Goodell, by law, has to rule using the equipment fine.

 

The Supreme Court allows Judge Berman to disregard that with this ruling-

 

From the Supreme Court of the U.S.:

 

"...the recent [Oxford Health Plans LLC v. Sutter] decision, which upheld an arbitrator's questionable decision, the Supreme Court is telling lower courts not to interfere with the arbitration process."

 

Here's the Supreme Court decision-

 

"The Supreme Court affirmed, holding that the sole question under section 10(a)(4) is "whether the arbitrator (even arguably) interpreted the parties contract, not whether he got its meaning right or wrong." This conclusion flowed from the "limited review" inherent in section 10(a)(4), which "permits courts to vacate an arbitral decision only when the arbitrator strayed from his delegated task of interpreting a contract, not when he performed that task poorly." Convincing a court of an arbitrator's error—"even his grave error"—was not enough under section 10(a)(4) to justify vacating the award. In colorful language, the court concluded: "the arbitrator's construction holds, however good, bad, or ugly." Because Oxford chose arbitration and agreed with Sutter that an arbitrator should determine what that contract meant (including whether its terms approved of class arbitration), the court could not conclude that the arbitrator "exceeded his powers" under section 10(a)(4)."

[amfootball]

I think because Berman has already indicated that he has major issues with the Wells report in terms of Brady's guilt than that would also indicate that he believes the process to punish was not fair due to lack of any evidence. Now that is only the merit side of the case. Kessler in his latest brief filed on Friday notes all of the procedural issues with this case that violate the CBA. So we will see where things go Wednesday but it is a very strong list of violations by the NFL to give Brady due process.

 

Second, as has been mentioned here, this NY court has typically upheld artibitration cases but it should be noted that most arbitrators are chosen by agreement of both sides, and often their bill is paid by both sides. So they are impartial. Furthermore, most arbitrations are conducted under well established arbitration rules, such as the American Arbitration Association and the arbitration is very similar to a real trial. There are lawyers representing both sides, there is discovery by both parties and at the hearing both sides present witnesses and evidence. Witnesses are cross examined. The hearing is conducted more like a trial and has the feel of a fair, adversarial trial where both sides get to put on their case and attack the other side's case.

Very different than the clown show put on by the NFL in their "arbitrations."
 

[ColtsBlueFL]

I think because Berman has already indicated that he has major issues with the Wells report in terms of Brady's guilt than that would also indicate that he believes the process to punish was not fair due to lack of any evidence. Now that is only the merit side of the case. Kessler in his latest brief filed on Friday notes all of the procedural issues with this case that violate the CBA. So we will see where things go Wednesday but it is a very strong list of violations by the NFL to give Brady due process.

 

From what I've been able to determine, the breaks in the CBA must demonstrably show one of these below-

• the award was procured by corruption, fraud, or undue means;
• there was evident partiality or corruption in the arbitrators;
• the arbitrators were guilty of misconduct in refusing to postpone the hearing, even in light of sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy, or of any other misbehavior by which the rights of any party have been prejudiced;
• the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made;
• the arbitrators disregarded a clearly defined law or legal principle applicable to the case before them (Manifest Disregard of the Law); or
• there is no factual or reasonable basis for the award (Complete Irrationality).

 

Second, as has been mentioned here, this NY court has typically upheld artibitration cases but it should be noted that most arbitrators are chosen by agreement of both sides, and often their bill is paid by both sides. So they are impartial. Furthermore, most arbitrations are conducted under well established arbitration rules, such as the American Arbitration Association and the arbitration is very similar to a real trial. There are lawyers representing both sides, there is discovery by both parties and at the hearing both sides present witnesses and evidence. Witnesses are cross examined. The hearing is conducted more like a trial and has the feel of a fair, adversarial trial where both sides get to put on their case and attack the other side's case.

Very different than the clown show put on by the NFL in their "arbitrations."

 

 

For the second part, in [AT&T Mobility LLCv. Concepcion] and also in [American Express Co. v. Italian Colors Restaurant]

 

"By holding parties to the deal they struck regarding the resolution of their disputes, the Court properly vindicates the FAA’s freedom-of-contract mandates. Ensures that the FAA’s command to enforce arbitration agreements trumps other interests like the argument challenging the fairness of neutral provision.  I think the Supreme court essentially says 'you both agreed to the arbitration process in the CBA.  Everything it contains.  You made your bed, now you must lie in it.'

 

Let's wait and see what happens Wednesday.

[amfootball]

For the second part, in [AT&T Mobility LLCv. Concepcion] and also in [American Express Co. v. Italian Colors Restaurant]

 

"By holding parties to the deal they struck regarding the resolution of their disputes, the Court properly vindicates the FAA’s freedom-of-contract mandates. Ensures that the FAA’s command to enforce arbitration agreements trumps other interests like the argument challenging the fairness of neutral provision.  I think the Supreme court essentially says 'you both agreed to the arbitration process in the CBA.  Everything it contains.  You made your bed, now you must lie in it.'

 

Let's wait and see what happens Wednesday.

From reading Kessler's brief, he believes the NFL has violated the following points from your summary:

• there was evident partiality or corruption in the arbitrators
• the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made;
• the arbitrators disregarded a clearly defined law or legal principle applicable to the case before them (Manifest Disregard of the Law); or
• there is no factual or reasonable basis for the award (Complete Irrationality).

Although it is interesting, given how much time everyone has talked about the CBA and given the judge's focus on merits last Wed, I do wonder just how much the CBA is going to come into focus especially if he believes in order to settle the NFL needed to come off of having Brady consent to the Wells report as the PA did consent to his non-coop. So we will see what direction he goes on Wed. Should be interesting.

[ColtsfaninTexas]

If I am Tom Brady, I am not accepting any sort of suspension. It sounds like the NFL has a huge burden of proof in order to get the courts to side with them..

[ColtRider]

I'm still waiting for a response to my post above.

CA2 has already ruled that a specific penalty always supersedes a general penalty.

Therefore, Goodell, by law, has to rule using the equipment fine.

Regarding the CA2. Not when it comes to "detrimental conduct". Specific penalties fall under general penalties in Brady's case according to the NFL, NFLPA, and their binding CBA. Goodell merely enforces them by his disciplinary discretion. There is no split or specific penalty phase under "detrimental conduct". It's exactly like the military, "unbecoming" language. A large latitude exists.

[amfootball]

FYI - Brady will be in court tomorrow even though Berman said his attendance was not required. It is not known yet if Goodell will be there or not. http://espn.go.com/boston/nfl/story/_/id/13461494/tom-brady-new-england-patriots-plans-attend-wednesday-court-hearing

 

I am happy Brady will attend as I think it is important for him to be there to show the judge how serious this is to him but more importantly to negotiate a settlement with the league. It is for this same reason that I also hope Goodell attends.

[Gramz]

FYI - Brady will be in court tomorrow even though Berman said his attendance was not required. It is not known yet if Goodell will be there or not. http://espn.go.com/boston/nfl/story/_/id/13461494/tom-brady-new-england-patriots-plans-attend-wednesday-court-hearing

I am happy Brady will attend as I think it is important for him to be there to show the judge how serious this is to him but more importantly to negotiate a settlement with the league. It is for this same reason that I also hope Goodell attends.

Finally, something we agree on.

Now if these two can come to a settlement...that would be fantastic.

[amfootball]

@AlbertBreer
Per source, with settlement talks at a standstill, the judge informed Patriots QB Tom Brady there's no need for him to be there tomorrow.

 

 

So much for a settlement. No court reporting either tomorrow. Everything behind closed doors. Brady will be back with Pats for tomorrow for joint practice with Saints.

[Gramz]

@AlbertBreer

Per source, with settlement talks at a standstill, the judge informed Patriots QB Tom Brady there's no need for him to be there tomorrow.

So much for a settlement. No court reporting either tomorrow. Everything behind closed doors. Brady will be back with Pats for tomorrow for joint practice with Saints.

Hmm. Judge sounds a bit irritated and obviously not up for any grandstanding that doesn't involve moving toward a settlement.

[amfootball]

Hmm. Judge sounds a bit irritated and obviously not up forcany grandstanding that doesn't involve moving toward a settlement.

Who is grandstanding? Brady went there to be in on the settlement talks and the judge sent him home which indicates to me that the NFL is not budging off the Wells report so they will let this go to court.

[Gramz]

Who is grandstanding? Brady went there to be in on the settlement talks and the judge sent him home which indicates to me that the NFL is not budging off the Wells report so they will let this go to court.

They were told last week that neither were needed at this hearing. Not needed, means don't show. So why would you show up, unless...... oh nevermind. We're getting off base here again.

[amfootball]

They were told last week that neither were needed at this hearing. Not needed, means don't show. So why would you show up, unless...... oh nevermind. We're getting off base here again.

The judge said they were not required to attend. He did not say not to show. It is also good counsel to show up at your own court case IMO. And it has been reported that both Brady and Goodell were there today for the settlement talks which apparently went nowhere.

[Gramz]

The judge said they were not required to attend. He did not say not to show. It is also good counsel to show up at your own court case IMO. And it has been reported that both Brady and Goodell were there today for the settlement talks which apparently went nowhere.

Oh for the love of God. I was quoting something YOU posted stating the judge said "no need".

No need infers no reason for you to show.

No need, not needed, what's the difference?

[amfootball]

Oh for the love of God. I was quoting something YOU posted stating the judge said "no need".

No need infers no reason for you to show.

No need, not needed, what's the difference?

This seems like semantics I think. My main point is that if your court case is going on then it is probably a good idea to be there especially with settlement talks going on. As I said, Goodell was there as well today.

 

It is disappointing that there seems to be this standstill so I guess we will just have to wait for the ruling unless something surprising happens tomorrow.

[ColtsBlueFL]

It's not wonder there are no compromises here.  Kessler rips off a fiery mad brief ripping everything Goodell ever did or thought of doing in his life,

 

THE AWARD VIOLATES THE LAW OF THE SHOP, AS TESTIFIED TO BY GOODELL, THAT THE NFL IS “REQUIRED TO GIVE PROPER NOTIFICATION” OF PLAYER DISCIPLINE

The Award Ignores the Player Policies and Their Notice of Only a Collectively Bargained Fine for a First-Time Offense

 

Brady Indisputably Had No Notice of the Competitive Integrity Policy

 

The NFL Has No Defense for the Lack of Notice That Brady Could Be Disciplined Under a “General Awareness” Standard

 

Brady Had No Notice He Could Be Suspended for Declining to Produce Personal Communications

 

THE AWARD DEFIES THE UNDISPUTED ESSENCE-OF-THE-CBA REQUIREMENT OF FAIR AND CONSISTENT DISCIPLINE

 

THE PROCEEDINGS WERE FUNDAMENTALLY UNFAIR

 

GOODELL WAS AN EVIDENTLY PARTIAL ARBITRATOR

 

 

And the  NFL  /  Nash telling Berman he doesn't have the authority to overrule Goodell ..  etc...

 

THE AWARD MAY NOT BE VACATED BASED ON A CHALLENGE TO THE COMMISSIONER’S ANALYSIS OF THE “LAW OF THE SHOP.

 

THE COMMISSIONER’S FACTUAL FINDINGS MAY NOT BE DISTURBED

 

THE UNION’S ARGUMENT THAT THE COMMISSIONER UPHELD THE DISCIPLINE ON A “DIFFERENT” BASIS IS INSUPPORTABLE

 

Yeah, talks today were going to go swimmingly.  Riiiiight.   Should be fun when Judge Berman has to rule, and I see appeals (and an injunction if Brady should lose) in any event taking this on that 2 year civil case track Berman warned about....

[Track Guy]

IMO Brady shouldn't have to take a suspension because the NFL didn't prove the Patriots, let alone Brady, definitively did anything wrong. There's just too much gray area on this one. The league should just eat it and take a sack, so to speak. But small a fine for dignity's sake make be a reasonable compromise that the unimaginably rich Brady family would accept. 

[ColtsBlueFL]

Homework for those that have nothing else to do...    {as if....}

 

http://ftpcontent3.worldnow.com/wfxt/pdf/brady-new.pdf

 

http://ftpcontent3.worldnow.com/wfxt/pdf/nfl-response.pdf

[Gramz]

Homework for those that have nothing else to do...    {as if....}

 

http://ftpcontent3.worldnow.com/wfxt/pdf/brady-new.pdf

 

http://ftpcontent3.worldnow.com/wfxt/pdf/nfl-response.pdf

Oh geez.....   looking for a few of my lawyer friends on here to read this, and summarize in a way that I can understand.

[ColtsBlueFL]

Oh geez.....   looking for a few of my lawyer friends on here to read this, and summarize in a way that I can understand.

 

Yup, because oral arguments begin tomorrow as a settlement seems light years away.  Both sides willing to risk all in a ruling, and a lengthy appeal to follow.  Super man is right.  No matter the ruling, Brady wont see a suspension for two more years.  Maybe Brady isn't so interested in playing 7 years more now, with the possibility of suspension in 2017 or in 2018.

 

I'm a litle surprised by the dug ing position the NFL has allegedly taken.  They want no part of the NFLPA or courts to take power away from the Commissioners/owners.  Especially without compromising something in return

[horseshoeblue22]

Honestly at this point, if I were the NFL, I would propose no suspension, no fine, on the condition that Brady publicly admits his involvement.

Then we all are happy it's over, and we can look forward to actual football.

[da_pats_troll]

Do I dare wade in?

 

IMHO,  I would love for the judge to put the whole thing on hold. Order the NFL to use a court appointed service to record PSI levels before/halftime/after each game, then reconvene after the season. If the data then shows that the measurements from the AFCCG were still abnormal, uphold the suspension and fine. If after a season of data, its within the dataset collected, allow the NFL to graciously reconsider its position.

 

Bradys not retiring next year. He'd still pay if the data does not support him.

[NewColtsFan]

For what it's worth....    or not.....

 

Shefter had a report Tuesday,  8/18,  that Brady would agree to sit-out a game or two, but ONLY under the explanation that it was for a lack of cooperation.

 

There would not be any admission of any guilt,  and there would not be an acceptance of the Wells Report.

 

I haven't seen more of this since this afternoon,  so I'm not sure if it's accurate,  but it seems like a reasonable trial balloon to float...

 

We may learn more tomorrow.....

[F.T. Walton]

IMO Brady shouldn't have to take a suspension because the NFL didn't prove the Patriots, let alone Brady, definitively did anything wrong. There's just too much gray area on this one. The league should just eat it and take a sack, so to speak. But small a fine for dignity's sake make be a reasonable compromise that the unimaginably rich Brady family would accept. 

When you look at this issue and ask yourself "would I like to be convicted in the court of public opinion based on untruths and media manipulation", you come to a conclusion like Track Guy above.

 

A good settlement would be vacate all fines and penalties. The reason for this is the league will be gathering data during the coming season, and the IGL predicts that those footballs will show deflation (or possibly inflation) as the game goes on.  Just like the tires on my car or your car.

 

This is nonsense, and is making the league look ridiculous.  I don't want Mark Cuban's prediction that the NFL will implode in 10 years to become true.

[amfootball]

For what it's worth....    or not.....

 

Shefter had a report Tuesday,  8/18,  that Brady would agree to sit-out a game or two, but ONLY under the explanation that it was for a lack of cooperation.

 

There would not be any admission of any guilt,  and there would not be an acceptance of the Wells Report.

 

I haven't seen more of this since this afternoon,  so I'm not sure if it's accurate,  but it seems like a reasonable trial balloon to float...

 

We may learn more tomorrow.....

IF that is true and the NFL still won't settle than I really do hope Berman strips them of their disciplinary powers.

 

BTW, this will set a terrible precedent for players going forward that they can be suspended for not turning over their personal phones.

[jvan1973]

IF that is true and the NFL still won't settle than I really do hope Berman strips them of their disciplinary powers.

Berman couldn't do that if he wanted to

[pgt_rob]

Brady says he's open to some kind of Deflategate suspension but only for not cooperating with the investigation.

[Andrew Luck's Beard]

Brady says he's open to some kind of Deflategate suspension but only for not cooperating with the investigation.

So can they just give him four games for failing to cooperate and let this whole thing end...

[amfootball]

Berman couldn't do that if he wanted to

He can make the NY court system the default court for all appeals. That would limit Goodell.

[jvan1973]

He can make the NY court system the default court for all appeals. That would limit Goodell.

That isn't stripping them from their disciplinary privileges

[amfootball]

That isn't stripping them from their disciplinary privileges

It would limit them a lot in terms of the kangaroo court. I really can't believe they want this case to potentially affect the way they handle discipline but maybe Cuban was right after all.

[Gramz]

I had really hoped that they would come to some sort of an agreement and settlement. I am losing that hope.

What a fiasco.

[amfootball]

I had really hoped that they would come to some sort of an agreement and settlement. I am losing that hope.

What a fiasco.

From what I am reading, there is a chance Berman could force a settlement today depending on how he tips his hand in terms of his ruling. I am not very hopeful but at least it is a glimmer of a potential settlement.

[Gramz]

From what I am reading, there is a chance Berman could force a settlement today depending on how he tips his hand in terms of his ruling. I am not very hopeful but at least it is a glimmer of a potential settlement.

I don't think he can force a settlement, but I get what you're saying. He can certainly Strongly suggest they come to one and send a message of how he's leaning as far as how he will rule if they don't.

[bababooey]

From what I am reading, there is a chance Berman could force a settlement today depending on how he tips his hand in terms of his ruling. I am not very hopeful but at least it is a glimmer of a potential settlement.

He can't force a settlement. He is simply hoping they can make a choice together so he doesn't have to.

[csmopar]

I don't think he can force a settlement, but I get what you're saying. He can certainly Strongly suggest they come to one and send a message of how he's leaning as far as how he will rule if they don't.

Yeah today could be interesting.....

[ViriLudant]

For what it's worth.... or not.....

Shefter had a report Tuesday, 8/18, that Brady would agree to sit-out a game or two, but ONLY under the explanation that it was for a lack of cooperation.

There would not be any admission of any guilt, and there would not be an acceptance of the Wells Report.

I haven't seen more of this since this afternoon, so I'm not sure if it's accurate, but it seems like a reasonable trial balloon to float...

We may learn more tomorrow.....

Bert Breer denied this report, said that it was false.

[ViriLudant]

Final hearing is now 8/31, decision by 9/4.