Patriots being investigated after Colts game (1 Viewer)

[Run It Up]

Not a lawyer, but the lawyers outside New England have been fairly consistent that the law favors the NFL in a big way here. Courts are really unlikely to overturn the results of an arbitration, especially one resulting from a collectively bargained process.

Still suspect the Judge is hammering the NFL because he knows they have the stronger case and need more incentive to settle.

Unless the NFL violated the CBA which is what is being argued and overwhelmingly looks like happened.

 

[Bossman]

NE homers:would you rather have Brady take 1 game but only admit he didn't cooperate, OR just a fine, but he must admit he was "generally aware" of tampering w/balls?

Neither situation is likely. Word is that Brady is willing to accept a fine for obstruction, but is not going to admit that he had anything to do with intentionally deflating footballs.

The whole thing will be interesting since footballs are going to be tested at halftime now. I hope we see the actual results of the testing this year so we can see if field conditions actually bring the ball pressure down 2 PSI or so in the cold wet weather. If that's the case (and it almost certainly is) then this whole thing is going to be even more embarrassing.

of course they would be down 2 PSI or more. however, if you bring them inside to check, they have a little time to warm up, and are still low, then we have a problem.

... and why would they ever need to bring all of the balls back in at halftime? Too hard to put a gauge in them on the sidelines?

I'm looking forward to the results of the first game in the single digit temps ... December, Green Bay or Chicago ... 10.6 psi, 10.7 psi, 10.4 psi, etc. etc. (x 48 balls) ... lol ... Goodell is an ###.

 

[PatsWillWin]

This whole thing is a sham. Goodell purposefully torpedo'ed the whole thing, knowing it would eventually get tossed out. He gets to save face in front of 31 other owners seeking their pound of flesh over the Patriots institutionalized pattern of cheating, while still allowing his Golden Boy to play in his showcase opening day match-up, and without significantly penalizing his BFF.

What a crock.

Seriously? Do you think Goodell is "saving face" right now? I think he's making himself, his office, and the league look like clowns. Even the Giants owner said publicly the other day that he just wants the whole thing over with.

If Goodell was looking to maximize "face-saving" he could've let Brady off the hook at the appeal. At that time, Kraft (for some ridiculous reason) had already accepted the fine and a 1st round pick. A 1st round pick is hardly a slap on the wrist, especially when you're own investigator exonerated the team.

If Goodell had let Brady off the hook there, Brady goes home happy, the NFL doesn't take weekly spankings in federal court, and he can "save face" with the other 31 owners by pointing to the 1st round pick he took from the Patriots as basically a lifetime ######## achievement award.

I think he thought he was going to win because the CBA made him the master of the universe. Just like he thought he could punish Ray Rice a second time because of PR backlash.

He's incompetent. Or he's listening to incompetent people.

 

[PatsWillWin]

Daniel Kaplan of SportsBusiness Journal adds that Berman called it a “quantum leap” to go from Brady being “generally aware” of ball deflation to NFL Commissioner Roger Goodell’s reference to a “scheme” in his ruling on Brady’s suspension appeal. Berman also took issue with the NFL not making general counsel Jeff Pash available to testify, saying that other cases have been “vacated” over similar issues, and with Goodell comparing the reasons for Brady’s suspension with those for the use of performance-enhancing drugs.

 

[PatsWillWin]

Not a lawyer, but the lawyers outside New England have been fairly consistent that the law favors the NFL in a big way here. Courts are really unlikely to overturn the results of an arbitration, especially one resulting from a collectively bargained process.

Still suspect the Judge is hammering the NFL because he knows they have the stronger case and need more incentive to settle.

Generally speaking, everyone agrees that is true. There are still labour laws that need to be followed that supercede CBA's. The judge seems to be making pointed references and questions indicating that the NFL did not follow them.

 

[Bayhawks]

Not a lawyer, but the lawyers outside New England have been fairly consistent that the law favors the NFL in a big way here. Courts are really unlikely to overturn the results of an arbitration, especially one resulting from a collectively bargained process.

Still suspect the Judge is hammering the NFL because he knows they have the stronger case and need more incentive to settle.

Unless the NFL violated the CBA which is what is being argued and overwhelmingly looks like happened.

Are you referring to the NFL not letting Pash testify or something else, specifically? Because from what I understand, not letting Pash testify "might" be construed as a violation of federal law/code, NOT a violation of the CBA.ETA-saw the post above after I posted this.

 

[Run It Up]

Not a lawyer, but the lawyers outside New England have been fairly consistent that the law favors the NFL in a big way here. Courts are really unlikely to overturn the results of an arbitration, especially one resulting from a collectively bargained process.

Still suspect the Judge is hammering the NFL because he knows they have the stronger case and need more incentive to settle.

Unless the NFL violated the CBA which is what is being argued and overwhelmingly looks like happened.

Are you referring to the NFL not letting Pash testify or something else, specifically? Because from what I understand, not letting Pash testify "might" be construed as a violation of federal law/code, NOT a violation of the CBA.ETA-saw the post above after I posted this.

Talking about the multiple instances where Goodell broke/created new precedence and applied rules and punishment to Brady that didn't apply to him. In addition to not allowing Pash to testify, the appeal he arbitrated was a kangaroo court.

Im sure there is more, but the NFLPA's general argument is that Goodell abused his authority and overstepped the CBA.

 

[The General]

For what it's worth regarding the Pash guy not giving testimony:

Stephen Brown ‏@PPVSRB 10h10 hours agoManhattan, NY
Nash called Pash "not relevant." Called the issue a "red herring" and said Brady team opted not to seek his testimony when it had 2nd chance

 

[Bayhawks]

Not a lawyer, but the lawyers outside New England have been fairly consistent that the law favors the NFL in a big way here. Courts are really unlikely to overturn the results of an arbitration, especially one resulting from a collectively bargained process.

Still suspect the Judge is hammering the NFL because he knows they have the stronger case and need more incentive to settle.

Unless the NFL violated the CBA which is what is being argued and overwhelmingly looks like happened.

Are you referring to the NFL not letting Pash testify or something else, specifically? Because from what I understand, not letting Pash testify "might" be construed as a violation of federal law/code, NOT a violation of the CBA.ETA-saw the post above after I posted this.

Talking about the multiple instances where Goodell broke/created new precedence and applied rules and punishment to Brady that didn't apply to him. In addition to not allowing Pash to testify, the appeal he arbitrated was a kangaroo court.

Im sure there is more, but the NFLPA's general argument is that Goodell abused his authority and overstepped the CBA.

OK-I get what the NFLPA is arguing, and I understand their points. I haven't read/seen anything where the judge has given the impression that the CBA was violated. The NFLPA saying "he violated the CBA," and the judge saying "you violated the CBA" are 2 different things. I was just wondering if there was something from the hearing today (or last week) where the judge gave the impression that the CBA had been violated. That's why I asked about the Pash thing, b/c while he said that might be cause to have an arbitration hearing decision over-turned, my understanding is because that would be a violation of federal law, not the CBA. I can't find any indication that the judge has indicated the CBA has been violated, although he has questioned the NFL's findings.

 

[Burl]

The more and more I read on this topic, the more and more convinced I am that the NFL is going to win this case.

 

[Baloney Sandwich]

The impression I've got is the first time they were in front of Berman, he was very critical of the facts the NFL used to punish Brady. Yesterday, he was even more critical of the process which to me tied into whether the CBA and/or federal law were properly followed.

I still think there is a decent possibility he rules in favor of the NFL but I can't imagine the hearings have gone the way the NFL anticipated when they rushed to the court of their choosing to have the case heard.

 

[Burl]

The impression I've got is the first time they were in front of Berman, he was very critical of the facts the NFL used to punish Brady. Yesterday, he was even more critical of the process which to me tied into whether the CBA and/or federal law were properly followed.

I still think there is a decent possibility he rules in favor of the NFL but I can't imagine the hearings have gone the way the NFL anticipated when they rushed to the court of their choosing to have the case heard.

I think they are going about as well as they expected. They know the more critical he is of them, the more likely he will rule in their favor. The holes that he is poking in their case have been hashed and rehashed in this thread 50 times already, none of this is new information so it isn't as if any of this is hurting them in the eyes of the public (except NE of course).

 

[Ditkaless Wonders]

NE homers:would you rather have Brady take 1 game but only admit he didn't cooperate, OR just a fine, but he must admit he was "generally aware" of tampering w/balls?

Neither situation is likely. Word is that Brady is willing to accept a fine for obstruction, but is not going to admit that he had anything to do with intentionally deflating footballs.

The whole thing will be interesting since footballs are going to be tested at halftime now. I hope we see the actual results of the testing this year so we can see if field conditions actually bring the ball pressure down 2 PSI or so in the cold wet weather. If that's the case (and it almost certainly is) then this whole thing is going to be even more embarrassing.

It is the ideal gas law, not the ideal gas suggestion. We know the effect of temperature on pressure. Sure, there are some minor variables based on the container for the gas (footballs and their stitching is not perfectly uniform), but we know what happens.

 

[TDorBust]

NE homers:would you rather have Brady take 1 game but only admit he didn't cooperate, OR just a fine, but he must admit he was "generally aware" of tampering w/balls?

I would highly doubt the NFL would allow any lowering of the suspension without Brady coming out and saying he was at least aware of the tampering.

Everyone keeps listening to the NFL "Experts" who say Brady might get off while every Legal Expert that I hear keeps talking about how the Federal Judge will not rule against the arbitrator and process and that the Judge is simply trying to scare the two sides into settling.

 

[TDorBust]

The impression I've got is the first time they were in front of Berman, he was very critical of the facts the NFL used to punish Brady. Yesterday, he was even more critical of the process which to me tied into whether the CBA and/or federal law were properly followed.

I still think there is a decent possibility he rules in favor of the NFL but I can't imagine the hearings have gone the way the NFL anticipated when they rushed to the court of their choosing to have the case heard.

I thought I hear this morning again how the ESPN Legal Analysts actually thought this was showing huge favor for the NFL as the judge was simply trying to scare the NFL into settling with Brady outside of court.

On the flipside everyone who knows nothing about legal preceedings is saying this shows favor for Brady. I will see if I can find the clips from the ESPN Legal Analysts as there was two of them.

 

[ChromeWeasel]

NE homers:would you rather have Brady take 1 game but only admit he didn't cooperate, OR just a fine, but he must admit he was "generally aware" of tampering w/balls?

Neither situation is likely. Word is that Brady is willing to accept a fine for obstruction, but is not going to admit that he had anything to do with intentionally deflating footballs.

The whole thing will be interesting since footballs are going to be tested at halftime now. I hope we see the actual results of the testing this year so we can see if field conditions actually bring the ball pressure down 2 PSI or so in the cold wet weather. If that's the case (and it almost certainly is) then this whole thing is going to be even more embarrassing.

I really don't get why folks keep saying this. The Pats had a guy named "The Deflator" who prepped balls for TB. Whether it happened in the AFCCG or not, somewhere down the line deflation was happening. Just don't let teams manage their own balls anymore. Have BB pass on their patented ball prep process and let the league do it for all games --

If the balls test out in the same PSI range next year, under scrutiny, it totally exonerates the Patriots. It is possible that they did nothing wrong.

If the balls never come in below 12.5 PSI (unlikely due to science) it suggests that the Pats really were doctoring balls.

Basing your whole case on the fact that one of the equipment guys has a suspicious name is pretty ridiculous. I'd like to see how the footballs actually measure in real live game conditions. So would anyone else who is actually being fair about this.

 

[ChromeWeasel]

OK-I get what the NFLPA is arguing, and I understand their points. I haven't read/seen anything where the judge has given the impression that the CBA was violated. The NFLPA saying "he violated the CBA," and the judge saying "you violated the CBA" are 2 different things. I was just wondering if there was something from the hearing today (or last week) where the judge gave the impression that the CBA had been violated. That's why I asked about the Pash thing, b/c while he said that might be cause to have an arbitration hearing decision over-turned, my understanding is because that would be a violation of federal law, not the CBA. I can't find any indication that the judge has indicated the CBA has been violated, although he has questioned the NFL's findings.

I already posted this in the thread. Berman has specifically said that he sees legal ground to vacate the arbitration.

From Stephens Twitter:

• My impression: Berman tipped his hand a bit to NFL in an effort to make the sides settle.
• Berman: "There are some basic procedures of fairness that have to be followed.... You got to let someone make their case."
• He grilled Nash on why the Brady team wasn't able to call Jeff Pash (need to doublecheck that name) wasn't allowed to be called as witness.
• Berman: "I don't understand the thinking to not allow Mr. Pash as a witness. Who else but Pash had the opportunity to edit the Wells Report?
• Berman: "I believe some arbitration awards have been vacated" because a witness was not allowed to be called without explanation. (ChromeWeasel edit: this seems like a HUGE statement from the judge)
• Berman: "The next time someone tampers with a ball but cooperates, what suspension would he get?"
• Nash again deferred to Goodell's judgement on that.
• To which Berman said "I have a little trouble with that."
• Berman then grilled Nash on Goodell's comparison of ball tampering/deflation to steroid use. Berman very skeptical of that point.
• Berman: How did he pick steroid use to explain he suspended Mr. Brady four games?"

 

[PatsWillWin]

NE homers:would you rather have Brady take 1 game but only admit he didn't cooperate, OR just a fine, but he must admit he was "generally aware" of tampering w/balls?

I would highly doubt the NFL would allow any lowering of the suspension without Brady coming out and saying he was at least aware of the tampering.

Everyone keeps listening to the NFL "Experts" who say Brady might get off while every Legal Expert that I hear keeps talking about how the Federal Judge will not rule against the arbitrator and process and that the Judge is simply trying to scare the two sides into settling.

Do you read Mike McCann and Andrew Brandt? Because they don't think it is this simple.

 

[ChromeWeasel]

http://www.usatoday.com/story/sports/nfl/patriots/2015/08/19/deflategate-tom-brady-roger-goodell-new-england-patriots/31977247/

NEW YORK – NFLPA lead counsel Jeffrey Kessler, commanding the attention of the surrounding lawyers, leaned in and whispered a joke.

Laughs filled the room.

If their body language didn't deliver the message, the smiles stretched across their faces finished the job.

The group stood in the eighth-floor cafeteria at the U.S. District Court for the Southern District of New York, just moments after completing what was a masterful day in court. They needed a breather.

They exhaled. They exuded confidence. They knew that – at least on Wednesday – they won.

Attorneys for both the NFL and the players union participated in an oral argument conference before Judge Richard M. Berman in a hearing that is part of an expedited timeline that seeks to resolve the Deflategate legal process, and Patriots quarterback Tom Brady's four-game suspension, before Sept. 4.

Wednesday's hearing allowed both sides to present their most compelling case — and for Judge Berman to point out the flaws in each, always with the goal of getting both sides to settle.

But after Judge Berman grilled NFL lead counsel Daniel Nash for the second consecutive week, we may have gotten our first glimpse as to which way Berman is leaning if he were to rule in this case. For the 60 minutes that Nash stood at a lectern on the 17th floor of the courthouse before approximately 60 spectators, Berman peppered him with questions.

"Why wouldn't you produce Mr. Jeff Pash, who is the league's general counsel, and make him available for testimony in Mr. Brady's June 23 appeal?"

"The union created this issue," Nash replied. "What Commissioner Roger Goodell issued was a judgment that he was not a relevant witness."

"But he edited the Wells Report," Berman interrupted. "He's a lawyer. He's an executive on the NFL's staff. Why not make him available?"

Nash didn't have an answer.

"How could Mr. Goodell, in his decision to uphold the (four-game suspension), equate the act of intentionally deflating footballs to a player taking performance-enhancing drugs?"

"Mr. Goodell found that the deflation of the balls was to gain a competitive advantage, which he deemed an example of conduct detrimental to the league," Nash said. "The judgment involves the integrity of the game."

"I have a little trouble with that," Berman responded. "Everything involves the integrity of the game."

Nash, again, didn't have an answer.

There were more examples just like those, too.

You know that time in a fight when you can pinpoint one side starting to take advantage? The exact moment when one side begins to build momentum?

Wednesday was that moment in Deflategate.

Though Berman continues to push for a resolution before the start of the NFL season, after today's clear victory for the NFLPA, it's hard to envision a settlement happening. The union knows it has steam and may be past the point of settling.

The NFLPA thinks it can win. And if it does, Brady wouldn't have to accept a reduced suspension. Or any suspension.

The problem is that the NFL also appears to think its argument can't be trumped. Citing the power of the CBA, Nash dismissed Kessler's arguments as "misstating the record."

The next step is another court date, set for Aug. 31, for which Berman requested Brady and Goodell be present.

If there was one instance, however, that captured the essence of the day, it was when Kessler was about to outline the fourth and final ground on which the union is basing its argument.

Berman stopped and posed an innocent question.

Of those four grounds, he asked, was there one that carried more significance?

"Well, you can put this one first," Kessler shot back, "because we would win with any one of them."

If Wednesday's hearing was any indication, he may just be right.

 

[ChromeWeasel]

NE homers:would you rather have Brady take 1 game but only admit he didn't cooperate, OR just a fine, but he must admit he was "generally aware" of tampering w/balls?

I would highly doubt the NFL would allow any lowering of the suspension without Brady coming out and saying he was at least aware of the tampering.

Everyone keeps listening to the NFL "Experts" who say Brady might get off while every Legal Expert that I hear keeps talking about how the Federal Judge will not rule against the arbitrator and process and that the Judge is simply trying to scare the two sides into settling.

What legal experts are these that you are referencing? Everything I've read since court discussions began have been saying that this is more and more favorable for Brady. Are you getting information from NFL.com?

 

[Bayhawks]

<p>

OK-I get what the NFLPA is arguing, and I understand their points. I haven't read/seen anything where the judge has given the impression that the CBA was violated. The NFLPA saying "he violated the CBA," and the judge saying "you violated the CBA" are 2 different things. I was just wondering if there was something from the hearing today (or last week) where the judge gave the impression that the CBA had been violated. That's why I asked about the Pash thing, b/c while he said that might be cause to have an arbitration hearing decision over-turned, my understanding is because that would be a violation of federal law, not the CBA. I can't find any indication that the judge has indicated the CBA has been violated, although he has questioned the NFL's findings.

I already posted this in the thread. Berman has specifically said that he sees legal ground to vacate the arbitration.



From Stephens Twitter:

• My impression: Berman tipped his hand a bit to NFL in an effort to make the sides settle.
• Berman: "There are some basic procedures of fairness that have to be followed.... You got to let someone make their case."
• He grilled Nash on why the Brady team wasn't able to call Jeff Pash (need to doublecheck that name) wasn't allowed to be called as witness.
• Berman: "I don't understand the thinking to not allow Mr. Pash as a witness. Who else but Pash had the opportunity to edit the Wells Report?
• Berman: "I believe some arbitration awards have been vacated" because a witness was not allowed to be called without explanation. (ChromeWeasel edit: this seems like a HUGE statement from the judge)
• Berman: "The next time someone tampers with a ball but cooperates, what suspension would he get?"
• Nash again deferred to Goodell's judgement on that.
• To which Berman said "I have a little trouble with that."
• Berman then grilled Nash on Goodell's comparison of ball tampering/deflation to steroid use. Berman very skeptical of that point.
• Berman: How did he pick steroid use to explain he suspended Mr. Brady four games?"

Right, but none of that is specifically about the CBA. I'm not trying to say the judge doesn't seem to be setting the stage for ruling against the NFL, I'm just asking if he has noted any specific violations of the NFL's CBA, b/c I haven't seen any.

 

[GregR]

The more and more I read on this topic, the more and more convinced I am that the NFL is going to win this case less I care and the more I just want it to end.

My take.

 

[ChromeWeasel]

Here's another opinion by an attorney:

<p>

OK-I get what the NFLPA is arguing, and I understand their points. I haven't read/seen anything where the judge has given the impression that the CBA was violated. The NFLPA saying "he violated the CBA," and the judge saying "you violated the CBA" are 2 different things. I was just wondering if there was something from the hearing today (or last week) where the judge gave the impression that the CBA had been violated. That's why I asked about the Pash thing, b/c while he said that might be cause to have an arbitration hearing decision over-turned, my understanding is because that would be a violation of federal law, not the CBA. I can't find any indication that the judge has indicated the CBA has been violated, although he has questioned the NFL's findings.

I already posted this in the thread. Berman has specifically said that he sees legal ground to vacate the arbitration.

From Stephens Twitter:

• My impression: Berman tipped his hand a bit to NFL in an effort to make the sides settle.
• Berman: "There are some basic procedures of fairness that have to be followed.... You got to let someone make their case."
• He grilled Nash on why the Brady team wasn't able to call Jeff Pash (need to doublecheck that name) wasn't allowed to be called as witness.
• Berman: "I don't understand the thinking to not allow Mr. Pash as a witness. Who else but Pash had the opportunity to edit the Wells Report?
• Berman: "I believe some arbitration awards have been vacated" because a witness was not allowed to be called without explanation. (ChromeWeasel edit: this seems like a HUGE statement from the judge)
• Berman: "The next time someone tampers with a ball but cooperates, what suspension would he get?"
• Nash again deferred to Goodell's judgement on that.
• To which Berman said "I have a little trouble with that."
• Berman then grilled Nash on Goodell's comparison of ball tampering/deflation to steroid use. Berman very skeptical of that point.
• Berman: How did he pick steroid use to explain he suspended Mr. Brady four games?"

Right, but none of that is specifically about the CBA. I'm not trying to say the judge doesn't seem to be setting the stage for ruling against the NFL, I'm just asking if he has noted any specific violations of the NFL's CBA, b/c I haven't seen any.

The CBA requires that the arbitration be 'fair and consistent.' Berman is showing that the NFLPA has legitimate grounds here, SPECIFICALLY stating that a witness was not called. He even says that arbitration awards have been vacated for that. I don't know how much you specific you need things to be made.

http://www.usatoday.com/story/sports/nfl/patriots/2015/05/15/nflpa-appeal-letter-tom-brady-roger-goodell-troy-vincent-deflategate-ted-wells/27371977/

 

[ChromeWeasel]

Another lawyer's take on things going against the NFL:

http://www.si.com/nfl/2015/08/19/deflategate-hearing-tom-brady-roger-goodell-richard-berman

While U.S. District Judge Richard Berman continues to implore attorneys for the NFL and NFLPA to settle their dispute over Tom Brady’s four-game suspension, the judge has perhaps unintentionally signaled to Brady that he might be better off waiting for a decision.

In court on Wednesday, Judge Berman raised numerous criticisms about the methods used by the NFL to investigate and punish Brady. These criticisms are important because, barring a settlement, Judge Berman will make a decision on whether the NFL’s process and procedures in the Brady matter reflect a lawful application of Article 46 of the league's collective bargaining agreement.

Here are my three key takeaways:

1. Be careful reading into Judge Berman’s questions

Before examining Judge Berman’s concerns about the NFL’s case, it’s worth highlighting several caveats.

First, most of Judge Berman’s discussions with attorneys for the NFL and NFLPA have been behind closed doors and not open to the public. We do not know whether his tone and areas of interest are different in those confidential discussions. It is conceivable that Judge Berman is markedly more critical of the NFLPA’s case without the media present. Perhaps Judge Berman wants the media to hear his disgust with the NFL’s methods because he reluctantly believes that he’s obligated to rule for the NFL. Remember, under federal law, Judge Berman is compelled to accord Goodell, as the arbitrator, high deference. Judge Berman may ultimately feel bound to rule in a way that he would rather not. In the meantime, perhaps Judge Berman wants to express numerous grievances about the NFL’s system of justice so that the media remembers them when his decision is rendered.

Second, judges sometimes play the role of devil’s advocate, where they seem critical of one side but in fact are inclined to agree with that side and are only testing themselves as to why they agree. It is possible that Judge Berman wants to exhaust every weakness in the NFL’s case before he’s willing to accept it.

Third, judges’ questions are not always predictive of how they’ll rule. It is not unusual for attorneys to complain that they thought they would win a case based on the judge’s apparent sentiments during oral arguments, only to unexpectedly lose when the written order was published. Judges can be very hard to predict. This could prove true of Judge Berman in Brady v. NFL.

2. With that caveat out of the way, Judge Berman seems very dissatisfied with how the NFL investigated and punished Brady

Published reports of Judge Berman’s remarks on Wednesday reveal a judge deeply perplexed by the NFL’s system of justice. Most notably, Judge Berman sharply questioned why the NFL refused to let Brady’s legal team ask questions of NFL general counsel Jeffrey Pash during Brady’s appeal on June 23. Remember, Pash edited the so-called “independent” report authored by attorney Ted Wells, whom the NFL had hired to investigate the Deflategate controversy. Pash’s role in the Wells Report—the key source of information used by Goodell to punish Brady—made Pash a potentially crucial witness in Brady’s appeal. Judge Berman went so far as to warn the NFL that an arbitration award can be vacated if a key witness was made unavailable in an arbitration hearing.

The significance of Judge Berman’s commentary about Pash’s availability is that it cuts to the lawfulness of the NFL’s process—the very issue that lies at the heart of the legal dispute over Brady’s suspension. Last week Judge Berman openly wondered why the NFL would conclude that Brady played some role in deflating footballs when there is no direct evidence of Brady’s involvement. Those comments attracted headlines, but Judge Berman’s critique today should be far more worrisome for the league: It specifically concerns process, rather than facts or evidence. If Judge Berman concludes that the NFL’s process in investigating and punishing Brady was fundamentally unfair, he would be inclined to rule for Brady.

Judge Berman highlighted other perceived problems about how the NFL went about punishing Brady. The judge was especially baffled why Goodell would compare Brady’s possible knowledge of a scheme involving the air pressure in footballs—an equipment issue—to the use of drugs and steroids. Recall that in his decision upholding the suspension, Goodell wrote, “In terms of the appropriate level of discipline, the closest parallel of which I am aware is the collectively bargained discipline imposed for a first violation of the policy governing performance enhancing drugs; steroid use reflects an improper effort to secure a competitive advantage in, and threatens the integrity of, the game.” As attorneys for the NFLPA have insisted in their pleadings, NFL rules dictate that first-time offenses of equipment violations—even those that “affect the integrity of the competition and can give a team an unfair advantage”—only result in fines. Also, the NFL’s rules on drugs and steroids are part of a separate policy from Article 46 and its “conduct detrimental” language. Here again Judge Berman seemed dissatisfied with the NFL’s process: Goodell’s choice of analogy is vulnerable to being deemed irrelevant and inconsistent.

Further, Judge Berman raised questions about the legal relevance of Brady’s alleged “general awareness” of a ball deflation scheme prior to the AFC Championship Game. The judge concluded that “general awareness,” a phrase used by Wells in his report to conclude that Brady was probably at fault but a phrase not contained in any collectively bargained policy, was inapplicable. While Judge Berman could still find that Goodell possessed other grounds to punish Brady, his remarks underscore the vulnerability of the NFL to a key process argument: the rationales and policies used to punish Brady have arguably changed.

3. Settlement seems like a long shot, but after today, the NFL might want to offer Brady a better deal

As I wrote ahead of Wednesday's hearing, the NFL and NFLPA seem unlikely to settle. It’s possible, however, that Judge Berman’s critical remarks about the NFL’s process could cause the league to back off its apparent insistence that Brady admit to participating in a ball deflation scheme. Brady has little incentive to make such an admission. For starters, he insists that he is innocent. He would also potentially commit perjury by admitting to participating in a scheme that, while previously under oath, he denied. Lastly, after today Brady is probably more confident than ever that Judge Berman will rule in his favor.

That said, if the NFL offers Brady a deal in which he is only required to admit to being less cooperative than he could have been—without admitting to any role in or knowledge of football deflation—Brady might take it, especially if the accompanying penalty is only a fine.

Some may wonder why Brady would settle if he did nothing wrong and if Judge Berman seems to favor his case. They can also point out that Brady’s level of cooperation was good enough for Wells to testify that he did not think Brady should have been punished for non-cooperation. Yet there are at least three reasons why a settlement might still work for Brady.

First, as explained above, Judge Berman’s critical statements about the NFL do not necessarily mean he will rule against the NFL. To reiterate, one can never be be certain what a judge us actually thinking.

Second, a settlement is a compromise that requires give and take. Typically the parties to a settlement are not elated with it, but both can live with it. Brady would need to offer something to the NFL to convince it to settle, or else the league would roll the dice with Judge Berman and, potentially, a three-judge panel on the U.S. Court of Appeals for the Second Circuit.

Third, a settlement would provide Brady with closure. Don’t underestimate the value of putting an end to a miserable experience as litigation tends to be for parties. Deflategate would be over. Brady could return his entire focus to football and getting ready for the season. If the only tradeoff for Brady is an admission that he was not fully cooperative and if the penalty is merely a fine or even a one-game suspension, it might make sense for Brady to take it.

Along those lines, let’s suppose there is no settlement and that Judge Berman rules in Brady’s favor by vacating the four-game suspension. There would be euphoria in New England, but the legal controversy would not be over. Judge Berman would only be vacating the actual arbitration award—Goodell’s decision to uphold the four-game suspension. It’s possible the NFL could conduct another hearing to review Brady’s four-game suspension, although clearly Goodell would not be the presiding officer for that second NFL hearing. In this scenario, Brady would be able to play as usual, but a second NFL hearing would be looming over his head. NFLPA attorney Jeffrey Kessler has asked Judge Berman to take possibility of a second NFL hearing off the table, but it’s not clear that Judge Berman would go along with such a stipulation.

Regardless of whether there is a second NFL hearing over Brady’s four-game suspension, the NFL would likely appeal Judge Berman vacating Brady’s suspension to the U.S. Court of Appeals for the Second Circuit. This would launch a process that would take months. And if the Second Circuit ultimately reverses Judge Berman, Brady would be required to serve his suspension at a later date. This could perhaps occur during a crucial point in the Patriots’ 2015 season or at the start of the 2016 season. To be sure, it’s possible that the NFL would not appeal to the Second Circuit, but that seems unlikely. Consider the enormous amounts of energy, time and money the league has already spent in pursuing its punishment of Brady. I have a hard time envisioning the NFL, one of the most litigious professional sports leagues around walking away from a legal fight.

Whether the NFL and NFLPA make any progress towards a settlement will be known by Aug. 31, the next court date in this litigation, Judge Berman has required both Brady and Goodell to attend court that day. It will be the most pivotal hearing yet since it will likely be the last one before a ruling. If no settlement is reached, Judge Berman is expected to issue a ruling by Sept. 4. And then the appeals would likely commence and the Deflategate saga would spill into the 2015 season.

 

[dansav]

Looks like this story is fizzling. A lot of owners and players and posters just want this over with...

 

[Bayhawks]

Here's another opinion by an attorney:

<p>

OK-I get what the NFLPA is arguing, and I understand their points. I haven't read/seen anything where the judge has given the impression that the CBA was violated. The NFLPA saying "he violated the CBA," and the judge saying "you violated the CBA" are 2 different things. I was just wondering if there was something from the hearing today (or last week) where the judge gave the impression that the CBA had been violated. That's why I asked about the Pash thing, b/c while he said that might be cause to have an arbitration hearing decision over-turned, my understanding is because that would be a violation of federal law, not the CBA. I can't find any indication that the judge has indicated the CBA has been violated, although he has questioned the NFL's findings.

I already posted this in the thread. Berman has specifically said that he sees legal ground to vacate the arbitration.



From Stephens Twitter:

• My impression: Berman tipped his hand a bit to NFL in an effort to make the sides settle.
• Berman: "There are some basic procedures of fairness that have to be followed.... You got to let someone make their case."
• He grilled Nash on why the Brady team wasn't able to call Jeff Pash (need to doublecheck that name) wasn't allowed to be called as witness.
• Berman: "I don't understand the thinking to not allow Mr. Pash as a witness. Who else but Pash had the opportunity to edit the Wells Report?
• Berman: "I believe some arbitration awards have been vacated" because a witness was not allowed to be called without explanation. (ChromeWeasel edit: this seems like a HUGE statement from the judge)
• Berman: "The next time someone tampers with a ball but cooperates, what suspension would he get?"
• Nash again deferred to Goodell's judgement on that.
• To which Berman said "I have a little trouble with that."
• Berman then grilled Nash on Goodell's comparison of ball tampering/deflation to steroid use. Berman very skeptical of that point.
• Berman: How did he pick steroid use to explain he suspended Mr. Brady four games?"

Right, but none of that is specifically about the CBA. I'm not trying to say the judge doesn't seem to be setting the stage for ruling against the NFL, I'm just asking if he has noted any specific violations of the NFL's CBA, b/c I haven't seen any.

The CBA requires that the arbitration be 'fair and consistent.' Berman is showing that the NFLPA has legitimate grounds here, SPECIFICALLY stating that a witness was not called. He even says that arbitration awards have been vacated for that. I don't know how much you specific you need things to be made.

http://www.usatoday.com/story/sports/nfl/patriots/2015/05/15/nflpa-appeal-letter-tom-brady-roger-goodell-troy-vincent-deflategate-ted-wells/27371977/

I'm not sure what that month old article was for?I'm aware of the Pash comments; as I've already noted, I believe that is about a violation is federal law/statute, not the CBA. I also understand the CBA calls for a fair arbitration, but saying "this doesn't seem fair" is a generalization, not specific. I was asking if Berman had cited any specific violations of the CBA.

As I've said, Berman seems to be finding more fault with the NFL, and he may find in the NFLPAs favor based on the general idea of unfairness, I was interested if he had made specific comments.

 

[moleculo]

NE homers:would you rather have Brady take 1 game but only admit he didn't cooperate, OR just a fine, but he must admit he was "generally aware" of tampering w/balls?

Neither situation is likely. Word is that Brady is willing to accept a fine for obstruction, but is not going to admit that he had anything to do with intentionally deflating footballs.

The whole thing will be interesting since footballs are going to be tested at halftime now. I hope we see the actual results of the testing this year so we can see if field conditions actually bring the ball pressure down 2 PSI or so in the cold wet weather. If that's the case (and it almost certainly is) then this whole thing is going to be even more embarrassing.

I really don't get why folks keep saying this. The Pats had a guy named "The Deflator" who prepped balls for TB. Whether it happened in the AFCCG or not, somewhere down the line deflation was happening. Just don't let teams manage their own balls anymore. Have BB pass on their patented ball prep process and let the league do it for all games --

If the balls test out in the same PSI range next year, under scrutiny, it totally exonerates the Patriots. It is possible that they did nothing wrong.

If the balls never come in below 12.5 PSI (unlikely due to science) it suggests that the Pats really were doctoring balls.

Basing your whole case on the fact that one of the equipment guys has a suspicious name is pretty ridiculous. I'd like to see how the footballs actually measure in real live game conditions. So would anyone else who is actually being fair about this.

not really.

 

[Stealthycat]

he testing this year so we can see if field conditions actually bring the ball pressure down 2 PSI or so in the cold wet weather.

is this a serious question ? you have ever seen deflation in cold weather? its a hard scientific fact

 

[GregR]

I've seen Sept 4th kicked around a lot as a date that the judge is expected to give a ruling by.

But according to an ESPN article, the NFL and NFLPA are the ones asking for him to rule by Sept 4, but, "Berman also said offering an opinion in the case by Sept. 4 would be a quick turnaround for him, and he told attorneys in the case "not to hold him" to the date".

So just a heads up, that date might be a little less certain than we (or at least I) were led to believe.

 

[Bayhawks]

he testing this year so we can see if field conditions actually bring the ball pressure down 2 PSI or so in the cold wet weather.

is this a serious question ? you have ever seen deflation in cold weather? its a hard scientific fact

It doesn't even look like a question at all. What are you talking about?

 

[TripItUp]

This is certainly trending in the right direction for Brady. The judge pushing so hard for a settlement is only a good thing.

Worst case scenario, Brady keeps the same suspension which his ADP has already assumed.

Based on recent news, Brady is undervalued IMHO.

 

[Old Smiley]

NE homers:would you rather have Brady take 1 game but only admit he didn't cooperate, OR just a fine, but he must admit he was "generally aware" of tampering w/balls?

Neither situation is likely. Word is that Brady is willing to accept a fine for obstruction, but is not going to admit that he had anything to do with intentionally deflating footballs.

The whole thing will be interesting since footballs are going to be tested at halftime now. I hope we see the actual results of the testing this year so we can see if field conditions actually bring the ball pressure down 2 PSI or so in the cold wet weather. If that's the case (and it almost certainly is) then this whole thing is going to be even more embarrassing.

I really don't get why folks keep saying this. The Pats had a guy named "The Deflator" who prepped balls for TB. Whether it happened in the AFCCG or not, somewhere down the line deflation was happening. Just don't let teams manage their own balls anymore. Have BB pass on their patented ball prep process and let the league do it for all games --

If the balls test out in the same PSI range next year, under scrutiny, it totally exonerates the Patriots. It is possible that they did nothing wrong.

If the balls never come in below 12.5 PSI (unlikely due to science) it suggests that the Pats really were doctoring balls.

Basing your whole case on the fact that one of the equipment guys has a suspicious name is pretty ridiculous. I'd like to see how the footballs actually measure in real live game conditions. So would anyone else who is actually being fair about this.

not really.

Why the heck wouldn't you want to test the balls in actual conditions? Let's do it just out of curiosity. None of this "random" ####, though. Test 'em all. Officiating crews overworked? Give each crew another guy -- the pressure guy.

Who knows what we'll find out? Maybe fumbles are affected in some way by something we didn't even know. Or not. Whatever. Let's find out. What's wrong with that?

 

[The Man Who Met Andy Griffith]

I think they are going about as well as they expected. They know the more critical he is of them, the more likely he will rule in their favor. The holes that he is poking in their case have been hashed and rehashed in this thread 50 times already, none of this is new information so it isn't as if any of this is hurting them in the eyes of the public (except NE of course).

Seriously? I'm not a lawyer, but I've followed lots of cases over the years, and generally speaking, when the judge is ripping one side to shreds in arguments, that is not a good sign for that side.

 

[moleculo]

NE homers:would you rather have Brady take 1 game but only admit he didn't cooperate, OR just a fine, but he must admit he was "generally aware" of tampering w/balls?

Neither situation is likely. Word is that Brady is willing to accept a fine for obstruction, but is not going to admit that he had anything to do with intentionally deflating footballs.

The whole thing will be interesting since footballs are going to be tested at halftime now. I hope we see the actual results of the testing this year so we can see if field conditions actually bring the ball pressure down 2 PSI or so in the cold wet weather. If that's the case (and it almost certainly is) then this whole thing is going to be even more embarrassing.

I really don't get why folks keep saying this. The Pats had a guy named "The Deflator" who prepped balls for TB. Whether it happened in the AFCCG or not, somewhere down the line deflation was happening. Just don't let teams manage their own balls anymore. Have BB pass on their patented ball prep process and let the league do it for all games --

If the balls test out in the same PSI range next year, under scrutiny, it totally exonerates the Patriots. It is possible that they did nothing wrong.

If the balls never come in below 12.5 PSI (unlikely due to science) it suggests that the Pats really were doctoring balls.

Basing your whole case on the fact that one of the equipment guys has a suspicious name is pretty ridiculous. I'd like to see how the footballs actually measure in real live game conditions. So would anyone else who is actually being fair about this.

not really.

Why the heck wouldn't you want to test the balls in actual conditions? Let's do it just out of curiosity. None of this "random" ####, though. Test 'em all. Officiating crews overworked? Give each crew another guy -- the pressure guy.

Who knows what we'll find out? Maybe fumbles are affected in some way by something we didn't even know. Or not. Whatever. Let's find out. What's wrong with that?

by all means - test all you want. I don't really care. If you try to draw conclusions that <12.5 psi = cheating, you would be wrong. you have to account for temperature effects, which is actually really easy and straight-forward to do.

 

[Old Smiley]

by all means - test all you want. I don't really care. If you try to draw conclusions that <12.5 psi = cheating, you would be wrong. you have to account for temperature effects, which is actually really easy and straight-forward to do.

If you had two studies, one on the Exponent model and the one I'm suggesting, and the results conflicted, which would you go with?

 

[Burl]

I think they are going about as well as they expected. They know the more critical he is of them, the more likely he will rule in their favor. The holes that he is poking in their case have been hashed and rehashed in this thread 50 times already, none of this is new information so it isn't as if any of this is hurting them in the eyes of the public (except NE of course).

Seriously? I'm not a lawyer, but I've followed lots of cases over the years, and generally speaking, when the judge is ripping one side to shreds in arguments, that is not a good sign for that side.

When the judge has gone on record OVER and OVER again stating he wants a settlement, it wouldn't be in his best interest to rip the side that is losing the case to encourage one. He's trying to knock the NFL (the actual winning side) down a peg to make them sweat a little to force them into a settlement for fear of losing. Like it or not everything the judge has been shredding is basically trumped by the CBA.

 

[GreekFreak]

Yea Exponent seems real independent and unbiased

http://www.robertblecker.com/deflategate-the-smoking-gun/

 

[moleculo]

by all means - test all you want. I don't really care. If you try to draw conclusions that <12.5 psi = cheating, you would be wrong. you have to account for temperature effects, which is actually really easy and straight-forward to do.

If you had two studies, one on the Exponent model and the one I'm suggesting, and the results conflicted, which would you go with?

wait, what exactly are you suggesting?Exponent's model has to do with bringing cold footballs into a warm locker room and checking their pressure.

If you do the same thing and come up with different results, I'd go with your experimental data over Exponents. Data always wins over theoretical models. That's a big part of my defense of the Exponent data - they do have experimental data to back up their conclusions; no one else does. I would be more than happy to change my tune in the face of new data.

Unfortunately for TB12 and the Pats, they relied on an economist to criticize Exponents work rather than replicate the experiment and present their own data.

 

[moleculo]

Yea Exponent seems real independent and unbiased

http://www.robertblecker.com/deflategate-the-smoking-gun/

wait, so the needles differed in length by less than an inch?

THIS.CHANGES.EVERYTHING.

 

[Old Smiley]

Yea Exponent seems real independent and unbiased

http://www.robertblecker.com/deflategate-the-smoking-gun/

wait, so the needles differed in length by less than an inch?

THIS.CHANGES.EVERYTHING.

Look at the pictures. Look at how they placed the gauges against the rulers. At this point in the game, are we going to call that an honest mistake?

 

[JIslander]

Yea Exponent seems real independent and unbiased

http://www.robertblecker.com/deflategate-the-smoking-gun/

So now we have an economist AND a death penalty expert weighing in on the report.

 

[moleculo]

Yea Exponent seems real independent and unbiased

http://www.robertblecker.com/deflategate-the-smoking-gun/

wait, so the needles differed in length by less than an inch?

THIS.CHANGES.EVERYTHING.

Look at the pictures. Look at how they placed the gauges against the rulers. At this point in the game, are we going to call that an honest mistake?

OMG, this is super critical to the overall conclusions. We should totally toss everything out because of trick photography.You know, before I thought that these two pressure gauges, of the same size, shape, and color were nearly identical. Now that you point out that one needle is less than an inch longer than the other, they look completely different. Only a buffoon would think they are similar...It's almost a whole inch!1!!!1!!

 

[Dr. Octopus]

Yea Exponent seems real independent and unbiased

http://www.robertblecker.com/deflategate-the-smoking-gun/

So now we have an economist AND a death penalty expert weighing in on the report.

That guy is awesome. I had him for three different classes. He is brilliant.

 

[Old Smiley]

The economist questioned the way Exponent handled their numbers. That's what economists do. The lawyer called Wells/Exponent on what looks like a lawyerly dirty trick. That's the kind of thing lawyers are supposed to be able to spot.

Nothing to do with chemistry. No one is out of their lane.

 

[Da Guru]

My money is on Brady playing week 1. If this were a criminal trial it would not go to jury.

The best hope for the NFL to save face is to offer a Brady a 1 game suspension and hope he accepts it but why should he?

 

[Bayhawks]

Yea Exponent seems real independent and unbiased

http://www.robertblecker.com/deflategate-the-smoking-gun/

wait, so the needles differed in length by less than an inch?

THIS.CHANGES.EVERYTHING.

Look at the pictures. Look at how they placed the gauges against the rulers. At this point in the game, are we going to call that an honest mistake?

OMG, this is super critical to the overall conclusions. We should totally toss everything out because of trick photography.You know, before I thought that these two pressure gauges, of the same size, shape, and color were nearly identical. Now that you point out that one needle is less than an inch longer than the other, they look completely different. Only a buffoon would think they are similar...It's almost a whole inch!1!!!1!!

Hey man, ask those guys who like to send #### pics (cough, cough, Brett Favre, cough, cough); trick photography that adds an inch is very important.

 

[Old Smiley]

Yea Exponent seems real independent and unbiased

http://www.robertblecker.com/deflategate-the-smoking-gun/

wait, so the needles differed in length by less than an inch?

THIS.CHANGES.EVERYTHING.

Look at the pictures. Look at how they placed the gauges against the rulers. At this point in the game, are we going to call that an honest mistake?

OMG, this is super critical to the overall conclusions. We should totally toss everything out because of trick photography.You know, before I thought that these two pressure gauges, of the same size, shape, and color were nearly identical. Now that you point out that one needle is less than an inch longer than the other, they look completely different. Only a buffoon would think they are similar...It's almost a whole inch!1!!!1!!

Why do you cheat it then? Because you're going to ignore the ref's recollection about which gauge he used because it doesn't work for your case you're building. But you're going to totally accept the same ref's recollection as to 12 numbers he didn't give a hoot about.

 

[rick6668]

Yea Exponent seems real independent and unbiased

http://www.robertblecker.com/deflategate-the-smoking-gun/

Terrific. I should've asked you along time ago for these pictures. Holy ####, honey, you got it! You did it! The case cracker, me in the shower! I love this! That's it!

 

[moleculo]

Yea Exponent seems real independent and unbiased

http://www.robertblecker.com/deflategate-the-smoking-gun/

wait, so the needles differed in length by less than an inch?

THIS.CHANGES.EVERYTHING.

Look at the pictures. Look at how they placed the gauges against the rulers. At this point in the game, are we going to call that an honest mistake?

OMG, this is super critical to the overall conclusions. We should totally toss everything out because of trick photography.You know, before I thought that these two pressure gauges, of the same size, shape, and color were nearly identical. Now that you point out that one needle is less than an inch longer than the other, they look completely different. Only a buffoon would think they are similar...It's almost a whole inch!1!!!1!!

Why do you cheat it then? Because you're going to ignore the ref's recollection about which gauge he used because it doesn't work for your case you're building. But you're going to totally accept the same ref's recollection as to 12 numbers he didn't give a hoot about.

lol. If I was them, and wanted to "cheat it", I simply wouldn't have included a close-up of the needle, and I certainly wouldn't have included a ruler. No one would have even noticed that there was no ruler in the pic.

 

[Jrodicus]

Yea Exponent seems real independent and unbiased

http://www.robertblecker.com/deflategate-the-smoking-gun/

wait, so the needles differed in length by less than an inch?

THIS.CHANGES.EVERYTHING.

Look at the pictures. Look at how they placed the gauges against the rulers. At this point in the game, are we going to call that an honest mistake?

OMG, this is super critical to the overall conclusions. We should totally toss everything out because of trick photography.You know, before I thought that these two pressure gauges, of the same size, shape, and color were nearly identical. Now that you point out that one needle is less than an inch longer than the other, they look completely different. Only a buffoon would think they are similar...It's almost a whole inch!1!!!1!!

Why do you cheat it then? Because you're going to ignore the ref's recollection about which gauge he used because it doesn't work for your case you're building. But you're going to totally accept the same ref's recollection as to 12 numbers he didn't give a hoot about.

So wait a second....a few psi doesn't affect a football or the outcome of a game, but the length of the needle on a psi gage makes all the difference in the world?

Thanks, Prof. Beakman.