Some judges don’t get directly involved in trying to settle a case. Some do.
And some of the judges who get directly involved in the efforts to settle a case make it very clear to the parties that the judge is determined to settle the case. When that happens, the case usually settles.
In 18 years of practicing law, I never saw an order like the one Judge Richard M. Berman issued to the NFL and the NFLPA on Friday. Below, I’ll explain how I would interpret it, if I was representing either the NFL or the NFLPA in this case.
Posted on Twitter by Raffi Melkonian, a Texas lawyer who has been posting various court filings to date in the case, the full order reads as follows:
“Thank you for your letter, dated July 31, 2015. I found it helpful. It is ‘OK’ to file a public version of the answer and counterclaim as you request. I always have considerable difficulty approving any sealed documents, given the keen public interest in these matters and the public’s right to know. It’s up to you whether to file any sealed motions or sealed document applications at this time.
“I have two further suggestions. First, because I already have a good understanding of your positions from your submissions to date, you need only each file a 15 page double spaced memo (further supporting your positions) by August 7, 2015. In the nature of a reply brief, perhaps.
“Second, I am scheduling a status/settlement conference for Wednesday, August 12, 2015 at 11:00 a.m., with your principals (including, without limitation, Mr. Goodell and Mr. Brady). Let’s see what we can accomplish at that conference and if there is a need for more written submissions, the August 14, 2015 submission date you propose is fine.
“I am also scheduling a status/settlement/oral argument conference for Wednesday, August 19, 2015 at 10:00 a.m., again with your principals (including, without limitation, Mr. Goodell and Mr. Brady). Please jointly confirm all dates by 3:00 p.m. on Monday, August 3, 2015. . . .
“Lastly, I request that you all engage in comprehensive, good-faith settlement discussions prior to the conference on August 12, 2015. Magistrate Judge James C. Francis, IV is available to assist you if you wish.”
First, it’s clear that the judge has been studying the case and knows the issues. He probably already has an idea regarding how he would rule on the case; there’s really not much either side can do to change his mind in only 15, double-spaced pages.
Second, he’s determined to get the case settled. By directing the two sides to engage in “comprehensive, good-faith settlement discussions” before the first of not one but two settlement conferences with Judge Berman presiding, he expects the parties to arrive at the first conference with their latest settlement positions clearly established (e.g., NFL at a two-game suspension and an acknowledgement of guilt and Brady at a two-game fine and no acknowledgement of guilt). At that point, Judge Berman will then have two opportunities to pressure the side that needs to be pressured the most (and it possibly will be both sides that need pressure) to resolve the case before he issues a ruling.
Third, the invitation to utilize the services of Magistrate Judge James C. Francis IV to assist in any settlement talks before August 12 isn’t an invitation. If they don’t take Judge Berman up on the offer, he won’t be happy -- unless they can settle the case without using Judge Francis as the facilitator/mediator of settlement discussions over the next 11 days.
Fourth, and as surmised on Friday, Judge Berman expects Goodell and Brady to appear in court for both conferences on August 12 and 19. Whoever resists showing up on either of those days does so at his own peril.
For Brady, it will mean missing two days of work. Although the team’s training-camp schedule hasn’t been announced beyond August 3, August 12 comes one day before the preseason opener against the Packers, at Gillette Stadium. On August 19, the Patriots will be in the middle of a three-day visit to West Virginia, for joint practices with the Saints.
For Goodell, it will mean shuffling whatever schedule he already has in place for those days. The NFL’s lawyers will likely tell him that nothing is more important than showing up for the conferences with Judge Berman.
Fifth, it’s clear that Judge Berman won’t be inclined to keep any documents under seal, based on this sentence: “I always have considerable difficulty approving any sealed documents, given the keen public interest in these matters and the public’s right to know.” In other words, the full transcript of the Tom Brady appeal hearing eventually will be released, if the case isn’t settled.
That’s a win for the NFLPA and Brady. Although the NFL would say that the parties agreed to seal the transcript, a source with knowledge of the situation tells PFT that the NFLPA agreed to seal the transcript at the insistence of the NFL.
The best way to keep the transcript from ever being released to the public (barring a leak) would be to settle the case before the judge has to decide whether to approve the filing of the transcript under seal. And Judge Berman knows that. And now the NFL and NFLPA know that he knows that.
I’m tempted to think the case could settle this week, without Goodell and Brady having to appear before Judge Berman. But if the two sides are at an impasse over whether a settlement would include a suspension of any duration, it won’t be easy to break that log jam without getting an idea of how Judge Berman feels about what amounts to an all-or-nothing proposition in court.
Eventually, Judge Berman may have to privately inform the side against which he’s inclined to rule that it will either accept the best deal it can get, or it will get nothing and like it.