Judge Doty wonders whether Goodell “understands there is a CBA”

AP

While Judge Richard M. Berman hasn’t been exactly friendly to the NFL’s position in the case the NFL filed to uphold the suspension of Patriots quarterback Tom Brady, it could have been worse for the league.

If the NFL hadn’t won the race to the courthouse (thanks to the head start that Arbitrator Roger Goodell provided to Commissioner Roger Goodell), the NFL Players Association may have filed the first lawsuit in Minnesota. And lawsuit could have landed on the docket of Judge David Doty. And whatever the outcome in New York before Judge Berman, it could have been worse before Judge Doty.

On Wednesday, Judge Doty heard oral arguments in the NFLPA’s request for a finding that the league and Goodell are in contempt of court by failing to act in response to Judge Doty’s order vacating the Adrian Peterson suspension. The union contends that the league merely waited for Peterson’s suspension to end under its original terms, taking no action to reconsider the punishment in the wake of the decision that the league applied the new Personal Conduct Policy retroactively to Peterson and deferring to the effort to appeal Judge Doty’s decision to a higher court.

I’m not sure the Commissioner understands there is a CBA,” Judge Doty said in open court, via Tom Pelissero of USA Today.

At one point, Judge Doty asked NFLPA outside counsel Jeffrey Kessler whether the union wants a My Cousin Vinny-style punishment for Goodell.

“Jail time – is that what you want?” Doty asked Kessler. “Do you want us to put the Commissioner in jail?”

Kessler said he merely wants an order directing arbitrator Harold Henderson to issue a new ruling consistent with Judge Doty’s order, along with an award of attorney’s fees arising from the effort.

Judge Doty took the matter under advisement, directing the parties to attempt to work out their differences with the involvement of Magistrate Judge Jamie S. Mayeron.

169 responses to “Judge Doty wonders whether Goodell “understands there is a CBA”

  1. I don’t think Doty would have the ability to actually put Goodell in jail if NFL loses the hearing (although, let’s face it, raise your hand if the thought of Goodell being led away in cuffs excites you) but just the mere fact that Goodell has again taken a massive blow to his ego and credibility.

    I don’t care if the NFL is still printing money, if the owners’ excuse for keeping this incompetent moron in power is “he makes us money” well then they all need a swift kick to the nuts.

  2. “Jail time – is that what you want?” Doty asked Kessler at one point. “Do you want us to put the commissioner in jail?”

    HECK YEAH! Is there a spot available in Guantanamo?

  3. Judge Doty, put down the pipe and back away slowly. Time to leave Denver and return to the lutefisk and hot dish munchies at the old folk’s home.

  4. “Jail time – is that what you want? Do you want us to put the Commissioner in jail? Because I totally will. Seriously. Just ask for it. Please tell me you want me to put him in jail. Please!”

  5. Goodell’s echo chamber is so extreme that his own lawyers probably tell him they won even though he loses every time. Probably thinks AP’s suspension was upheld, the Saints scalped opponents for profit, and the Patriots employ robotic gophers that plant bags of pills in Irsay’s limo just to frame him.

  6. “The Union may have agreed to Mr. Goodell serving as arbitrator under Article 46, but it did not agree he could abdicate his responsibility as an arbitrator under the LMRA and FAA and conduct fundamentally unfair proceedings in which he cast aside undisputed CBA requirements, adjudicated his own conduct, and issued an unprincipled arbitration award based on his unilateral notions of industrial policy. This is exactly the type of “extreme” case that even the NFL now concedes the Court has the power to vacate”

    –Jeffrey L. Kessler

  7. This is the Goodell NFL I guess. Hyper litigious, everything publicized, sensationalistic. Joe Thomas was right that it’s becoming more like the WWE. It might drive more revenue, if the league is just a soap opera and not a great sport the fans will eventually get tired of it and bail. Best to let the drama stay on the field for long term success.

  8. Emperor Goodell is ABOVE all that court nonsense !!!

    Doesn’t Doty know

    the RULES don’t apply to him ?

    Contempt of court with a few days in jail…

    might get Goodell’s attention.

  9. How long are the billionaire owners going to put up with this nonsense? They need to start with hiring a new team of Lawyer’s that don’t use litigation in the Federal Court System as the end all.

    What an unbelievable waste of tax payer money. What a complete waste of the court and court employee’s time having to deal with a bunch of Billionaire bozos that allow the Commissioner to play children’s games in our courts.

    By the way, WE ARE ALL PAYING FOR THIS… and not just in taxes to support the court system. We pay because the cost of the lawyers and the law suites are paid as an expense win or lose, and the expenses drive the ticket prices. Jeffery Kessler has to be laughing all the way to the bank.

  10. “If the NFL hadn’t won the race to the courthouse (thanks to the head start that Arbitrator Roger Goodell provided to Commissioner Roger Goodell), the NFL Players Association may have filed the first lawsuit in Minnesota.”

    Well Mike…you’re the lawyer…but IIRC, the NFLPA DID file in Minnesota, but the judge there (not Doty) sent the case to N.Y.

  11. Wonder what all those people who want Brady to admit he did it and take his 4 games are thinking now? Brady is getting railroaded by a maniacal and corrupt commissioner of little to no direct testimony. Florio reported a few excerpts of what Doty said. Read the full story. Doty was inclined to put Goodell in jail for a few days. Hyperbole or not, that is a federal judge saying this and that will not be lost on the 32 owners on Richard Berman in NY.

  12. Judge Doty may be right, but clearly he is looking for his 15 minutes of fame, too. So he talks about jail time, My Cousin Vinnie, and whether the Commissioner knows there is a CBA. He was sure looking for a sound bite or a headline and he got it.

    And now he gets nationally known.

  13. Funny, I’ve been wondering the same about the NFLPA. Or, if the NFLPA recalls what rights they granted Goodell and the league in exchange for more money for players.

  14. I don’t think the Pats realize there’s one in the Brady case.
    Judge should have “punted” this long ago.
    That’s why he’s pushing so hard for a settlement.
    He knows he really shouldn’t be hearing this at all.

  15. Seems to me that the Judges don’t really want to make decisions regarding the NFL, instead trying to make sides work it. How’s that been working so far. The Judge gave Goodell and order that he ignored, and theres no consequences. Same thing with the Brady debacle, those two sides are not going to work anything out, because Brady feels he’s been railroaded and won’t give up the fight. The NFL thinks they are the Gods and no one should question their authority. I’m calling BS on the NFL.

  16. Oh he knows there is one. His arrogance allows him not to care. It will backfire as his complete disregard of the CBA will cause him to lose in court

  17. Oh…. how awesome would it be for a jail sentence to be imposed. Something small, like 30 days…

    I think I would probably end up suffering death by laughing too hard….

  18. I’m not sure Judge Doty understands that the CBA gives the commissioner the ultimate decision making power regarding player discipline. On the other hand, he probably does, and that’s why he’s not ruled on the case, knowing that legally he’s got to side with the league, like it or not.

  19. Regardless of what happens with this court case, those of us that can read and process information understand that this was a frame job from the start and a league that runs this way will lose the trust of everyone involved. Fans, players, coaches, owners, etc…If Goodell would go so far as to frame one of the greatest players ever what would keep him from manipulating a game for his own interest? Goodell needs to go and the sooner the better.

  20. Does the NFLPA realize there is one? Not necessarily in this instance but in the instance concerning Brady’s suspension – the commissioner has authority to do what he did – according to the last CBA – so if you don’t like it – change the CBA next time.

  21. The Judge isn’t the only wondering if Goodell knows there is a CBA. Goodell seems to think the court of public opinion is the way to determine discipline. How many cases does the NFL have to lose before they adhere to the CBA?

  22. (Nice point) from an earlier Florio piece. At what point does the US law allow Commissioner Goodell to trade hats and become Arbitrator Goodell, and back? The only way to remotely address this is via direct testimony from Commissioner Goodell or VP Pash, testimony of which was denied, by Arbitrator Goodell. This is some bizarre stuff.

  23. Except for the fact that bad faith practices can violate agreements like the CBA. If the NFLPA can prove Goodell acted in bad faith not only will the lose the suit it could however unlikely cancel out the CBA.

  24. So Doty, a known Pro-Union Judge, says this. Gee wonder why the league got smart and will not let cases get to Him.
    For all the statements about Goodell knowing if there is a CBA, what the hell does the Union know? They are the ones who agreed to it and now don’t like it. Why doesn’t D Smith get more fault about that?

  25. I can picture Judge Doty talking to Kessler and Goodell like Moe talking Larry and Curley while knocking their heads together, “Why I oughta! You knuckleheads! Figure it out!”

  26. I dont think the judge has read the CBA and the entitlement it gives Goodell.

    He, and others, may not like it, but a fair and impartial judge would uphold the agreement.

    This guy isn’t sounding like either of those things, and any ruling he made would get overturned on appeal because of it.

    That’s why he’s passing the buck.

  27. You people saying the players gave up their rights in the CBA so Goodell can do what he wants…that give him the right to serve as judge jury and executioner ?

    And do you really believe he is going about Brady’s case In a fair way ? And his reason for doing so and his point of reference is The Wells report ?

  28. Finally, Doty says what I have been thinking.

    As an aside, could the web masters here move the “Report Comment” button away from the thumbs up and down buttons. I have inadvertently hit it when I was trying to give a thumbs up.

  29. All of these people touting that the CBA gives Goodell ultimate power must work in Asia where there are no labor laws. They must think you can violate any laws or rights as long as you have a contract in place. These are the same people who tout “Freedom of Speech” to tell lies about Brady.

  30. Really? Does Judge Doddering Fool know there’s a Constitution? This clown is the PA’s pet judge. His rulings always favor labor over management and that bias runs through his decisions without fail. That’s why the PA runs to Minnesota to file every time. Look for the NFL to file more suits outside this guy’s jurisdiction in order to get fair hearings.

  31. In the future, a best-selling movie will FOREVER PRESERVE the disgraceful actions of the current NFL office.

    The NFL is blinded by their environment (their perceived power and nobody is above them).

    Also, many folks in the media took a stand against the Patriots based on fake information. Because of job security, they wouldn’t change their views to reality.

    NFL office, breaking news: THIS IS AMERICA!

    The NFL thought they could wiggle around their official 19 Jan. letter to Mr. Kraft that stated all tested Colts’ footballs were within the permissible PSI ranges — INCREDIBLE and UNTRUE letter sent by the NFL.

    Then …. the TRUTH and WRATH of the Ideal Gas Law (IGL) deflated their paper ship.

    Is it surprising the Missouri Supreme Court, in a separate case, ruled in May, 2015 against Goodell and stated: ….“the terms of the contract designating the NFL commissioner, an employee of the team owners, as the sole arbitrator with unfettered discretion to establish the rules for arbitration are unconscionable and, therefore, unenforceable”.

    Finally, who made the decision at halftime to STOP testing the Colts’ remaining 8 footballs (only four balls tested, 3 found deflated)?

  32. The sad part is the players agreed that arbitrator and commissioner is the same person. That’s all on them. This is getting really old. Can’t wait til the 4th.

  33. I wonder if the NFLPA knows that there’s a CBA. You know, yhe one they signed giving the commish all the powers that he’s using? How about they give back the percentage points of profits that they received in return.

  34. Combine Judge Doty’s comments, here, with those of John Dowd’s and you have to imagine the NFL is in real hot water.

    For those that don’t know, John Dowd was special counsel in the Pete Rose investigation and the lead investigator when MLB looked into George Steinbrenner. Yesterday, he produced a published article that calls into question the NFL’s credibility for years to come. A short quote reads:

    “When sports authorities don’t enforce their own rules with transparency and fairness, the game is equally compromised. What is happening today with the NFL undermines the concepts of integrity and fairness in the application of the rules and threatens to damage football’s credibility for years to come.”

  35. Haters, the CBA does not make Goodell king. He’s not Henry the VIII and Brady is not Ann Boleyn.

  36. “Jail time – is that what you want?” Doty asked Kessler. “Do you want us to put the Commissioner in jail?”

    Normally, that is what judges do in contempt of court cases, isn’t it?

    The threat of incarceration seems to be one of the few things to motivate millionaires.

  37. Shame is that – Paul Tagliabue was SO good!

    This guy is tearing down all the good work that Tagliabue did….

    The phony over-hugging players during the draft… the ego-mania…

    DISASTER!

  38. This is more about grandstanding by the judge than anything else. These guys all love the spotlight. No one would care who Doty was if he wasn’t the “players v owners judge.” The deal was collectively bargained by both the NFLPA and the owners, and it is pathetic that so many things are still unclear for as much time, money, and lawyers were involved in getting it done.

    The fact is that it’s a horrible CBA for the players, because the players were not united enough to cover all the bases, or get better treatment. The NFL is exploiting every vague area, every un-contested item, and every available loophole, because in nearly every case, the owners have the advantage.

    Goodell is taking the brunt of it, but make no mistake, he is acting on behalf of the owners. Maybe not all 32 every time, but if he was bad for business, he would be gone.

  39. To all you who think the CBA gives Goodell “ULTIMATE POWER”, you are wrong. It does not.

    This is still America.

    Fundamental fairness is still required, CBA or no CBA.

    Free Brady.

  40. Not a good day for the players union. Do they even know that there is a CBA?
    Great job of bargaining when they need their pet socialist judge to hear all their cases against the CBA.

  41. For the crimes of arrogance, ignorance, and attempted murder of the NFL, I hereby sentence the defendant, Roger Goodell, to 32 consecutive lifetimes in prison, sharing a cell with Aaron Hernandez until such a time as he is executed by the Great State of Massachusetts. – Judge Doty

  42. In all seriousness, why not put the commissioner in jail for 90 days? Might do wonders for the league, and Lord knows he is as deserving of a 90 bid and all that comes with it as anyone else I can think of.

  43. In my opinion most of the people posting comments in this and the Brady thing supporting the NFL probably work for the NFL. There is no other logical explanation.

  44. Brady;ll NEVER admit guilt and why would he?

    Goodell is a pretender. He’s trying to be like the big boys who actually practice law.
    He’s like that one kid in the neighborhood who’s the only one who doesn’t have a big wheel yet.

    Other quotes from the article:

    “The NFLPA filed its motion in May against the NFL, the NFL Management Council and Goodell, whom Doty noted multiple times Wednesday isn’t an attorney while…”

    “Because Goodell — who wasn’t present Wednesday — lacks legal expertise, Doty said, he doesn’t understand contempt and only would’ve been acting on the advice of his attorneys on such matters.”

    Serious shots by Doty on Goofdell. Basically calling out the owners for hving this clown as their Commissioner.

  45. Well…interestingly…according to Roger I. Abrams, Professor of Law at Northeastern University, maybe it’s Judge Doty who doesn’t understand the CBA (despite decades of having heard cases involving the NFL):

    “The Ray Rice decision played an important role in Judge Doty’s reasoning (regarding the Peterson decision). He found that decision, by former federal judge Barbara Jones, to have established the “law of the shop,” that is, the controlling principles under the parties’ collective bargaining agreement. This “law” was that the Commissioner could not apply his revised disciplinary policy to conduct that occurred before it was announced. Mr. Henderson rejected that argument, which was made to him by the Players Association. Instead, he interpreted the collective bargaining agreement as giving the Commissioner “broad discretion” in imposing discipline. Judge Doty flatly states: “The Court disagrees.” That is exactly what a court is not supposed to do — agree or disagree with an arbitrator. Judge Doty did not have the power to review Henderson’s reading of the contract language on the merits.

    Judge Doty also misunderstood the nature of arbitration under a collective bargaining agreement. While it may be true that one court decision in a jurisdiction might control later cases, that is certainly not the way labor arbitration operates. The Ray Rice decision did not create binding precedent. Judge Doty writes that he can find no valid basis to distinguish the Peterson case from the Rice case. That, of course, was Harold Henderson’s job, not David Doty’s, as long as he carried out that task by interpreting the parties’ contract. It does not matter whether the court on review agrees or disagrees with that contract reading.”

  46. So people really think that the CBA holds firm even if there is no real evidence, or in the face is dishonesty and charades? Oh because it’s the Patriots oh ok then that’s fair.

  47. Since Goodell likes fining teams and individuals so much, I think a does of his own medicine should satisfy everyone involved. $250,000 should do it.

  48. I don’t think anyone understands what is happening here. Doty finds this ridiculous on both sides.

    Goodell has no respect for the rules but this hearing is pointless for AP.

  49. I know the right thing to do is vacate Brady’s suspension … Article 46 has a 4 year shelf life… and so does Goodell.

    I know a lot of Patriots haters want this to stick and Brady be suspended…but in all fairness … this has to be overturned.

    No Proof
    The cell phone “destruction” is a false distraction
    There was no cheating
    The Wells report is toilet paper
    Fire Goodell and clean out the NFL office in NYC
    The owners need new truely Independent leadership (without ties to NFL teams)

    Free Tom Brady!!!

  50. Comments from the judge, who is not presiding over the case. Did Judge Wapner or Judge Judy have any opinions you want to share?

    This is the stupidest article yet, Florio. But since you’ve taken the decided stance of pandering to Patriot fans here, nothing really surprises me with biased pieces like this.

    Still it does not change the fact that Goodell understands the CBA better than the Patriots legal team does.

    That same CBA, that you and Doty claim Goodell does not understand, is going to prevent Berman from overturning the award because his judicial review powers over this case are so limited by the contents of that same CBA.

  51. The Wells Reports have proven to be nothing more than toilet paper, yet people still want to hate Tom Brady and Richie Incognito for the findings of those Wells reports. Make sense? Not to me, either.

  52. I don’t understand why some of you persist in the delusion that the CBA grants unlimited powers to the commissioner.

    Obviously it doesn’t, or Goodell wouldn’t be having his suspensions vacated on a regular basis.

  53. I like my NFL to be able top punish players for clear transgressions. Has the NFLPA ever agreed with a punishment that a player reveived regardless of transgression.
    A normal man at a normal job would have been fired for any of these issues that have been in the news the last year or so.

  54. mmack66 says:
    Aug 27, 2015 11:03 AM

    I don’t understand why some of you persist in the delusion that the CBA grants unlimited powers to the commissioner.

    ———————————————————–

    Because I have read the brief and I’ve read Article 46, and I know what they contain. By your statement, I can tell that you have read, nor understand the power that gives the NFL in the course of judicial review.

    If you read it, you would see how strong the league’s case is, and in contrast, how weak Kessler’s case is.

    How weak? To wit, Brady’s lawyers were arguing that Brady did not know he would be punished for spoliation of evidence for destroying his phone, for god’s sake.

    Innocent people don’t destroy evidence, and you can’t cry privacy issues because Wells made an offer to Brady’s agent, Don Yee, to cherry pick the documents off of the phone and show just those to Wells, and that too was rejected by Brady legal defense. This was one of many blunders by Brady’s defense team.

    The NFL’s case is based on Article 46, which gives Goodell the power to arbitrate the decision, and there are legal precedents in place, a decision written by Judge Sotomayer of the Supreme Court, that argues that when an arbitrator’s decision was “improvident or even silly,” it does “not provide a basis for a court to refuse to enforce the award.” Even when the federal judge considering the arbitration award is “convinced that the arbitrator committed serious error, it does not suffice to overturn [the arbitrator’s] decision.”

    In short, the NFL’s case goes on to show that Brady, McNally, & Jastremski are not credible witnesses, and that the investigation presented it’s burden of proof by the preponderance of evidence standard they presented.

    As a matter of fact, NFL attorneys needed only nine pages in a brief they filed to describe the unquestioned legal doctrine that limits what Berman can do.

    It may be the shortest brief the NFL has filed in its massive history of litigation.

    Game. Set. Match. NFL.

  55. @guadalahonky:

    I agree with you. There is, however, one stipulation:

    (This is from the same law professor who lambasted Doty, BTW.)

    “If the court on review finds the decision to be “totally arbitrary and capricious,” it will set it aside.”

    Now, given Berman’s prior statement that he felt it would take a quantum leap to move from one part of the NFL’s case to another, it MIGHT (and I say that very cautiously) fall into the “totally arbitrary and capricious” category, but I doubt it. It’s rare indeed to bring out that big hammer in CBA cases. But it’s not totally outside the realm of possibility. Still, as I’ve said before in this case, I believe that the NFL’s case is strong, and the NFLPA’s case is weak.

  56. sbaltimore says:
    Aug 27, 2015 1:35 PM

    @guadalahonky:

    I agree with you. There is, however, one stipulation:

    (This is from the same law professor who lambasted Doty, BTW.)

    “If the court on review finds the decision to be “totally arbitrary and capricious,” it will set it aside.”

    Now, given Berman’s prior statement that he felt it would take a quantum leap to move from one part of the NFL’s case to another, it MIGHT (and I say that very cautiously) fall into the “totally arbitrary and capricious” category, but I doubt it. It’s rare indeed to bring out that big hammer in CBA cases. But it’s not totally outside the realm of possibility. Still, as I’ve said before in this case, I believe that the NFL’s case is strong, and the NFLPA’s case is weak.
    ———————————————————-

    Is Judge Berman really going to risk looking bad, knowing full well that his award could be overturned by U.S. Court of Appeals? It’s happened before as the 2nd Circuit quickly reversed a prior ruling against the league.

    I think Berman will try one more time to do what he has been doing, hard questioning of the side who has the decidedly stronger case, the NFL in this instance, in order to get them to come to the bargaining table.

    But the league office won’t and they have no reason to because all Brady’s legal team has done, is run a smear campaign against the investigator, Wells, and the Commissioner.

    Kessler did this because they have no case.

    The NFL is done screwing around, they are out to win, and they have the case to do it. Read Goodell’s 20 page decision if you haven’t, the strength of the NFL position evident in that document is indisputable.

    Kessler cannot make the same claim. The one thing he can do is have his legal team and Brady’s attorney Don Yee, put a halt to making these personal attacks in the press. They are trying to drag this into the court of public opinion, because they know they have a weak case and cannot win in a court of law.

    Kessler’s best move is to shut up, and ask the courts and the league office for mercy for his client.

  57. guadalahonky says:
    Aug 27, 2015 1:09 PM

    Because I have read the brief and I’ve read Article 46, and I know what they contain. By your statement, I can tell that you have read, nor understand the power that gives the NFL in the course of judicial review.

    If you read it, you would see how strong the league’s case is, and in contrast, how weak Kessler’s case is.

    How weak? To wit, Brady’s lawyers were arguing that Brady did not know he would be punished for spoliation of evidence for destroying his phone, for god’s sake.
    ——————–

    **Brady argued that he was not informed that he would be suspended for not turning over his phone or its contents. Goodell only learned at the appeal hearing that Tom got rid of his phone, so he was not suspended for that act.

    Innocent people don’t destroy evidence, and you can’t cry privacy issues because Wells made an offer to Brady’s agent, Don Yee, to cherry pick the documents off of the phone and show just those to Wells, and that too was rejected by Brady legal defense. This was one of many blunders by Brady’s defense team.

    The NFL’s case is based on Article 46, which gives Goodell the power to arbitrate the decision, and there are legal precedents in place, a decision written by Judge Sotomayer of the Supreme Court, that argues that when an arbitrator’s decision was “improvident or even silly,” it does “not provide a basis for a court to refuse to enforce the award.” Even when the federal judge considering the arbitration award is “convinced that the arbitrator committed serious error, it does not suffice to overturn [the arbitrator’s] decision.”
    ——————————

    **Don’t cherry pick information from the Garvey Supreme Court case to try and support the NFL’s case. That info was debunked a day or two ago.

    **The Commissioner still has to be fair, not arbitrary and capricious. He also needed to allow Tom Brady to see the notes on the Wells investigation, and talk to Jeff Pash at the appeal hearing. Goodell has already had several decisions overturned in Federal court.

    In short, the NFL’s case goes on to show that Brady, McNally, & Jastremski are not credible witnesses, and that the investigation presented it’s burden of proof by the preponderance of evidence standard they presented.
    ————————–

    **The NFL has stated that they have no evidence against Tom Brady, and there is no testimony from Jastremski or McNally on record, so you can’t make any statements as to their credibility.

    As a matter of fact, NFL attorneys needed only nine pages in a brief they filed to describe the unquestioned legal doctrine that limits what Berman can do.

    It may be the shortest brief the NFL has filed in its massive history of litigation.

    Game. Set. Match. NFL.
    ——————

    **Goodell loses yet again in Federal Court.

    **Thanks for playing.

  58. A showing of bad faith by one part whether it be in negotiations or practice of the CBA can supersede any agreement. I think it can be reasonably stated that the NFL has shown said bad faith

  59. mmack66 says:
    Aug 27, 2015 2:16 PM

    Goodell has already had several decisions overturned in Federal court.

    ———————————————————–

    Was Goodell the arbitrator in those matters?

    The answer is no, he was not. Article 46 is now fully utilized as well in this instance as Goodell is now the Arbitrator. And the cases you are mention were for personal conduct issues, a different infraction, this issue is completely different, this is ‘conduct detrimental to the integrity of the game’.

    This is a different matter.

    It was a different judge in the prior ruling.

    Bootomline: NFL has the stronger case and the federal court will uphold the decision written by Goodell.

  60. @guadalahonky:

    I agree, and have posted the same opinion — that Berman is coming down harder on the NFL in order to try to force a settlement because the NFL’s case is stronger.

    One question, however, that’s been troubling me since the details of all the legal wranglings came to light: Do you think the NFL made a mistake by limiting its scope to just the AFCCG, rather than broadening its scope to games, if not years, leading up to the AFCCG?

  61. I still have not found the wording in Article 46 of the NFL CBA that makes the Commissioner so powerful, that not even a Federal judge can reverse his decisions.

  62. One question, however, that’s been troubling me since the details of all the legal wranglings came to light: Do you think the NFL made a mistake by limiting its scope to just the AFCCG, rather than broadening its scope to games, if not years, leading up to the AFCCG?
    ===
    How would you propose that they “broaden the scope” to games for which there is NO data instead of only BAD data?

  63. sbaltimore says:
    Aug 27, 2015 2:40 PM

    @guadalahonky:

    I agree, and have posted the same opinion — that Berman is coming down harder on the NFL in order to try to force a settlement because the NFL’s case is stronger.

    One question, however, that’s been troubling me since the details of all the legal wranglings came to light: Do you think the NFL made a mistake by limiting its scope to just the AFCCG, rather than broadening its scope to games, if not years, leading up to the AFCCG?

    ———————————————————–
    I think they had to pick their battles in that regard.

    I believe the league decided the strongest case could be made surrounding the AFC Championship game, and if the decision was made in their favor, they would have the competition committee draft new rules about the protocol of the handling of game balls in the future.

    If the Patriots cheating went deeper than the championship game, the league really, really, didn’t want to know as it would have been a real black eye for the league, a Chicago Black Sox type scandal in scope.

  64. “How weak? To wit, Brady’s lawyers were arguing that Brady did not know he would be punished for spoliation of evidence for destroying his phone, for god’s sake.”

    ___________________________________
    @guadalahonky

    The NFLPA’s case is not that they did not know that brady could be punished for not handing over/destroying his phone. it’s that there was no prior notice of punishment. something that the NFL is required to provide to the players per the CBA. huge difference. furthermore, the precedent for not complying was a $50k fine, not a suspension.

  65. The answer is no, he was not. Article 46 is now fully utilized as well in this instance as Goodell is now the Arbitrator. And the cases you are mention were for personal conduct issues, a different infraction, this issue is completely different, this is ‘conduct detrimental to the integrity of the game’.
    ===
    A46 is being misused here. A46 is for gambling on games, throwing games, and other things of that nature. This is defined in the CBA. That’s what conduct detrimental to the integrity of the league or the game is. It’s not taking a few tenths of a PSI out of a football.

    As Judge Berman sarcastically said when told that the commissioner considered this to be conduct detrimental to the game, “Everything is conduct detrimental to the game.”

    It’s not, and the league’s error is trying to treat this offense – whatever it was – as if it is. Players are notified of specific penalties for equipment violations, including a catch-all – which this might be. Those penalties – and not some made up A46 BS – are what should be imposed, because those penalties are what the CBA specifies. Specific provisions of a contract or law control when in conflict with more general provisions.

    (Never mind notice issues for “generally aware” or the application of a team policy to a player… or the fact that the NFL has multiple policies covering different behaviors that impose and grant different rights and responsibilities to individuals that conflict with one another. Probably nearly NFL fan can agree on this: the regulatory environment of the NFL is a mess and needs to be cleaned and unified.)

  66. guadalahonky says:
    Aug 27, 2015 2:29 PM

    Was Goodell the arbitrator in those matters?

    The answer is no, he was not. Article 46 is now fully utilized as well in this instance as Goodell is now the Arbitrator. And the cases you are mention were for personal conduct issues, a different infraction, this issue is completely different, this is ‘conduct detrimental to the integrity of the game’.

    This is a different matter.

    It was a different judge in the prior ruling.

    Bootomline: NFL has the stronger case and the federal court will uphold the decision written by Goodell.
    ———————————–

    Article 46 is now fully realized? What does that even mean? Article 46 doesn’t mention ANYTHING about the Commissioner also being the arbitrator.

    It doesn’t matter what the “infraction” was, Goodell still has rules to follow.

    Court cases set precedents that are used in later cases.

    Quite frankly, the NFL has no case, and if they are sticking with the belief that Roger Goodell is infallible, well, they have already lost.

  67. I think they had to pick their battles in that regard.

    I believe the league decided the strongest case could be made surrounding the AFC Championship game, and if the decision was made in their favor, they would have the competition committee draft new rules about the protocol of the handling of game balls in the future.

    If the Patriots cheating went deeper than the championship game, the league really, really, didn’t want to know as it would have been a real black eye for the league, a Chicago Black Sox type scandal in scope.
    ——————————–

    This guy is more delusional than limakey.

  68. smasonsmith says:
    Aug 27, 2015 2:52 PM

    One question, however, that’s been troubling me since the details of all the legal wranglings came to light: Do you think the NFL made a mistake by limiting its scope to just the AFCCG, rather than broadening its scope to games, if not years, leading up to the AFCCG?
    ===
    How would you propose that they “broaden the scope” to games for which there is NO data instead of only BAD data?
    ——————————

    Where there’s a Patriot, there’s a way.

  69. mmack66 says:
    Aug 27, 2015 2:51 PM

    I still have not found the wording in Article 46 of the NFL CBA that makes the Commissioner so powerful, that not even a Federal judge can reverse his decisions.

    ———————————————————-

    It is about the precedent set by Judge Sotomayer of the Supreme Court and the opinion she wrote on the Maurice Clarett case.

    But let’s take this one step at a time:

    Under the collective bargaining agreement between the players and the owners, commissioner Roger Goodell has the power to hear and to decide the appeal. The players gave Goodell this authority in the bargaining process. Goodell also has the authority to name an arbitrator, even declare himself the arbitrator, and Goodell decides on all issues of fairness.

    The CBA was passed in 2011, so the time to complain about that has come and gone.

    So, Jeffrey Kessler leads the Brady legal team and he will argue that Brady did nothing wrong, that the Wells report failed to establish that Brady had a role in the inflation of the game balls, that the penalty is too harsh, and that Goodell was not a neutral arbitrator.

    None of these arguments offers a compelling reason for a judge to reverse Goodell’s decision.

    All of the arguments were raised in detail in the arbitration hearing, and Goodell answered each one of them in persuasive detail in his 20-page opinion.

    Now to your question: If federal judges were to offer reviews of arbitrator decisions made throughout the nation, their dockets soon would be filled with arbitration cases. Throughout American business and industry, there are agreements to submit disputes to arbitration. It is viewed as a less-costly and more-efficient way to resolve issues. It avoids the expense and the endless delays of litigation. Not to mention that Supreme Court ruling, that precedent ruled in arbitrator’s favor looms large.

    The judge also risks looking very bad being overruled by a higher court, which also has happened before.

    If both sides are dug in, he’ll simply rule in favor of the stronger case, which in this case, is the NFL’s side.

  70. Article 46 is now fully realized? What does that even mean? Article 46 doesn’t mention ANYTHING about the Commissioner also being the arbitrator.
    ===
    Yeah… It does. Last sentence of 46.2.a allows for the Commissioner to serve as hearing officer in any 46.1.a appeal at his discretion.

    He still has to follow FAA and other federal law though.

  71. “And the cases you are mention were for personal conduct issues, a different infraction, this issue is completely different, this is ‘conduct detrimental to the integrity of the game’.”
    ________________________________________
    @guadalahonky

    per the NFL personal conduct policy, criminal activity is considered conduct detrimental to the integrity of the game. that’s what ray rice was punished for and that’s what adrien peterson was punished for.

  72. So, Jeffrey Kessler leads the Brady legal team and he will argue that Brady did nothing wrong, that the Wells report failed to establish that Brady had a role in the inflation of the game balls, that the penalty is too harsh, and that Goodell was not a neutral arbitrator.

    None of these arguments offers a compelling reason for a judge to reverse Goodell’s decision.
    ===
    Judge Berman seemed to disagree.

  73. Both sides are dug in for two different reasons:

    A.) Goodell & Well$ are ‘All In’ because they have been PAID to do ‘whatever it takes’ to STOP Brady & the Patriots from a SB Repeat. No other reason then that – PERIOD.

    B.) Brady is determined to win because all the EVIDENCE points STRONGLY to VICTORY. The CBA is not on Goodel’s side since he violated the by laws on Integrity, Fairness and the violations code. The CBA will be used by Judge Berman as a basis for finding that the NFL overstepped the boundaries clearly stated in the CBA for punishment for Rule 17 Football violation. Kessler, the NFLPA & Judge Berman all KNOW this.

  74. Goodel is attempting to punish Brady for ” ‘Conduct detrimental to the integrity of the game’.”

    Goodel & the NFL’s MISTAKE is that they have ZERO EVIDENCE to prove, or even remotely suggest, that Brady has done that.

    Judge Berman has already stated this directly to Goodel & the NFL.

    The Kangaroo Court of Goodel, ESPN & the NFL is OVER People – Wake Up = You have been PAWNED.

  75. @guadalahonky:

    They certainly chose to limit the scope, no doubt about that; I just hope it doesn’t backfire. Because the texts seemed to reference games prior to the AFCCG, and IIRC, that might have been the area in which Berman said the leap was quantum from the evidence to the charge. But don’t hold me to that — there’s just been too much legal talk flying around the past past couple of months to keep it all straight.

  76. First of all Judge Sotomayor wasn’t a Supreme Court justice when she made her decision in the Maurice Clarett case.

    Second of all, the case, nor her decision had anything at all to to with arbitration.

    And third of all, Maurice Clarett wasn’t an NFL player at the time.

  77. I agree with you sbaltimore, the back and forth communications between the three parties did go back into the 2014 season.

    But, once this is over the league will reword the language and it’s rules concerning the protocol of handling of the home game balls by the officials.

  78. Correction: It wasn’t the texts; the “quantum leap” statement from Berman was made with regard to the Wells report and Goodel’s finding of Brady’s participation in the scheme.

  79. Goodel is attempting to punish Brady for ” ‘Conduct detrimental to the integrity of the game’.

    In the immortal words of tweety bird the hypotwits

  80. Judge Doty sees that Goodel is deserving of Jail Time for intentionally violating a Judge’s Order.

    Judge Berman sees Goodel as attempting to order the US Courts to submit to Goodel’s Rule.

    Doty & Berman will soon teach Goodel exactly ‘Who is in charge.’

  81. sbaltimore says:
    Aug 27, 2015 3:54 PM

    @guadalahonky:

    They certainly chose to limit the scope, no doubt about that; I just hope it doesn’t backfire. Because the texts seemed to reference games prior to the AFCCG, and IIRC, that might have been the area in which Berman said the leap was quantum from the evidence to the charge. But don’t hold me to that — there’s just been too much legal talk flying around the past past couple of months to keep it all straight.
    ——————————

    The only game referenced in the text messages was a game where footballs were over-inflated by the referees.

    The quantum leap that Goodell made was from the conclusion of the Wells report that Brady was “generally aware” of “inappropriate activities” to the conclusion after the appeal hearing that Tom Brady was part of a scheme to deflate footballs, despite the NFL not having any evidence that Tom Brady was involved in anything of the sort.

  82. guadalahonky says:
    Aug 27, 2015 4:17 PM

    Can’t wait for next week.

    If the appeal is not settled and Berman has not ruled on the case, Brady’s suspension will start on Saturday, Sept. 5.
    ———————-

    They’ll likely just file for an injunction.

  83. mmack66 says:
    Aug 27, 2015 4:27 PM

    guadalahonky says:
    Aug 27, 2015 4:17 PM

    Can’t wait for next week.

    If the appeal is not settled and Berman has not ruled on the case, Brady’s suspension will start on Saturday, Sept. 5.
    ———————-

    They’ll likely just file for an injunction.
    __
    They can file, but there’s no guarantee it’ll be granted.

  84. The Herald reported that Brady would not ask for an injunction. Reason being, if the suspension is upheld, Brady would then miss games at the end of the season instead of the start of the season.

    An injunction is no lay-up.

  85. How weak is Kessler’s case?

    Here’s the point he raised on Tuesday: Kessler told Judge Berman Goodell should have fined Tom Brady for DeflateGate, not suspended him.

    No wonder Judge Berman is leaving him alone, he got enough problems.

    Judge Berman is so limited in his judicial review that he can only overturn the award A.) if Goodell violated the essence of the NFL’s collective-bargaining agreement with the union or B.) if Goodell failed to disclose a conflict of interest.

  86. Show me where he hasn’t violated the CBA? Yes it gives him certain power but not abusive arbitrary power. No other player has been suspended for obstruction. That includes Farve. Where in the CBA odes he have the power to violate precedent?

  87. There are four grounds on which Berman can vacate Goodell’s decision to uphold Brady’s four-game suspension, according to U.S. Code Title 9 Section 10:

    1.) Where the award was procured by corruption, fraud, or undue means;

    2.) Where there was evident partiality or corruption in the arbitrators, or either of them;

    3.) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon 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; or

    4.) Where 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.

    ‘Have any of these four grounds for vacatur occurred’ is the only judicial review that Judge Berman can apply here. This is not an appellate court that’s reviewing the whole process. That would be a de novo, that means a do-over, and a do-over is not permitted in this case under American law.

    Highly unlikely Judge Berman finds that any of these grounds for vacatur will be met.

  88. Dan, you forget Farve case is completely different than Brady’s. Brady’s case itself is a precedent. Brady’s violation was to circumvent a known rule to gain an unfair advantage that has a direct result on the final score and stats of that game. He violated the public’s confidence in the end results. A picture of Little Brett does none of those.

  89. guadalahonky says:
    Aug 27, 2015 5:55 PM

    There are four grounds on which Berman can vacate Goodell’s decision to uphold Brady’s four-game suspension, according to U.S. Code Title 9 Section 10:

    1.) Where the award was procured by corruption, fraud, or undue means;

    2.) Where there was evident partiality or corruption in the arbitrators, or either of them;

    3.) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon 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; or

    4.) Where 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.

    ‘Have any of these four grounds for vacatur occurred’ is the only judicial review that Judge Berman can apply here. This is not an appellate court that’s reviewing the whole process. That would be a de novo, that means a do-over, and a do-over is not permitted in this case under American law.

    Highly unlikely Judge Berman finds that any of these grounds for vacatur will be met.
    ————————–

    On the contrary. It looks like Judge Berman will have to play eenie meenie miney moe in order to pick one, since Goodell has pretty much violated each one of those.

  90. Guad, I feel the same way about how the judge is treating Kessler. He has only made unique comments that seem to me have little relevance to the matter before him. Kessler has no case.

  91. Don’t know if you been to court. I have the Judge is not there to be your friend. The Judge is there to challenge both sides and see who blinks first. The Judge is there to challenge your credibility or how believable you are. The Judge will do that by grilling both sides then evaluate each sides persona and case. From what I am seeing the NFL is being challenged harder. Judges do that to parties they are unsure of as well as the accusing party which is at least as much the NFL. I am reading the former I see the judge having his doubts about the validity of the NFL’s case as well as the enforcing of the rules in bad faith as compared to the expectations of the CBA. I have been to court and have seen employers and employees slug it out when the employers accused the employee. The employer in that judges eyes exercised bad faith even though like Goodell they had similar power. The employer lost

  92. Yes the stories of the TB and Farve cases are different but the issue is the same defining obstruction and punishing it. Both are alleged to have obstructed. Yet Farve was only fined.So does that mean the NFL puts more of an emphasis on integrity over public appearance? They should put equal emphasis on both

  93. Dan, Brady destroyed evidence in a case about cheating. He went beyond obstruction. The issues or circumstances are totally different. It might be called the same as a catch all phrase but that is the only thing they have in common.

  94. manzoa says:
    Aug 27, 2015 3:25 AM
    Really? Does Judge Doddering Fool know there’s a Constitution? This clown is the PA’s pet judge. His rulings always favor labor over management and that bias runs through his decisions without fail. That’s why the PA runs to Minnesota to file every time. Look for the NFL to file more suits outside this guy’s jurisdiction in order to get fair hearings.

    =================================

    seems to me that you havent seen the other judge (you know, the one from new york, nfl offices hometown) ripping apart the nfls case as well.

  95. Actually hey lima key yes the stories are different. What is not is the fact that both were obstructive. Also just so we are straight the NFL is putting more emphasis on integrity than public image? Shouldn’t they be putting equal emphasis on both. Now as for TB are you aware of this?

    Brady’s agents also offered to provide cell phone records and a solution to tracking down text messages.

    Neither Wells nor Goodell ever notified Brady that not producing his phone would mean discipline for non-cooperation

    At his hearing, Wells told Brady and his agent that they did not need his cellphone for the investigation He was told that twice in Feb and in May

    Brady instructed his assistant to replace the phone after he was told it would not be subject to any investigation.
    Goodell submitted a report that disputes none of this
    This site Forbes ABC news are among my sources

  96. [ x ] 1.) Where the award was procured by corruption, fraud, or undue means;

    [ x ] 2.) Where there was evident partiality or corruption in the arbitrators, or either of them;

    [ x ] 3.) Where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon 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; or

    [ x ] 4.) Where 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.
    ——————–

    Perfect score! Way to go Rog!

  97. When the NFL decided that Kessler could not interview specific people within the NFL offices during the appeal phase they violated the “or of any other misbehavior by which the rights of any party have been prejudiced” aspect of U.S. Code title 9 section 10, part 3.

    Kessler’s inability to call Pash, Kensil or Gardi to testify is going to be the basis for Berman ruling in favor of Brady; and the simple fact is that NO potential ruling after Berman’s will overturn him.

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