Lawyers are bracing for Tuesday ruling from Judge Berman

AP

During 18 years of practicing law, I once showed up for a court-ordered mediation session in a case where the two sides were very far apart in their settlement positions. Scheduled to last three hours, the meeting began with the mediator asking the two sides to state their current positions. Fifteen minutes later, the mediator said, “Well, we can either sit here and look at each other for the next two hours and forty-five minutes, or we can go do something useful with our time.”

That’s basically what happened in a Manhattan federal court today during the third and final attempt to try to settle the litigation arising from Patriots quarterback Tom Brady’s four-game suspension. And for good reason; the NFL continues to refuse to even discuss a reduced suspension until Brady makes some sort of an admission regarding knowledge of whatever the equipment guys were or weren’t doing.

So now the two sides will play the waiting game. And they won’t have to wait long. Per a source with knowledge of the situation, the lawyers currently expect a decision from Judge Richard M. Berman on Tuesday.

Whenever it comes, a decision could take several different forms. Later tonight, I’ll make a list of all the potential outcomes. Which guarantees that it will be an outcome that I didn’t anticipate.

68 responses to “Lawyers are bracing for Tuesday ruling from Judge Berman

  1. And the rest of the league is bracing for Brady and the Pats to stomp them…again…

  2. I’m glad the judge is going to judge. That is why they went to him. He tried to pawn it off back to the two parties, not do what you are paid to do, make the correct call and bury this thing already.

  3. Judge Berman will rule for Tom Brady. He will rule for Justice.

    Because railroading an employee and denying his rights should never be Judicially acceptable in The United States of America.

    We are the Land of the Free. Home of the Brave. That’s why Judge Berman will rule for Brady.

    #ExonerationDay

  4. The Ginger Hammer and his minions know all is lost and frankly don’t care. The moment they knew was when Judge Berman started to question the actual process. While it is true the judge basically knows the NFL railroaded Brady he can’t rule on that. However the fact that the Ginger Hammer ran the appeal with an iron fist and did not let Brady’s lawyers question Pash is the hammer the judge will use to vacate the fine and suspension. See you against the Steelers Tom.

  5. I don’t expect there will be many people on the roads tomorrow. We as a nation will be seated with our families and with our ears tuned to the radio for those magic three words: “this just in …”

  6. Mara did absolutely nothing to assist wth a settlement and no joke said he didn’t want to participate becuase it would be a disadvantage for division rival Cowboys as his reason becuase they play against the pats week 4. I’m sure the judge just loved hearing that, good luck NFL front office (not really.)

  7. Brady is guilty under the “more probable than not” burden of proof outlined in the CBA.

  8. Damn take a game suspension and an admission of not cooperating, but don’t admit to the truth. Both sides save face to a degree. How hard is that?

    Brady’s fans will claim victory but will at least shut up.

  9. The NFL cracks me up. They reached a decision on a 4 game suspension based on nothing. They admitted that it was based on nothing in the hearings with the judge. So of course they want Brady to admit to guilt. It is the only thing they would have. As it stands now they have zero. Had Brady admitted anything they had his admission of guilt. The NFL is pathetic. I hope it gets sent back to redo the appeal hearing with tagliabue presiding. He will laugh goodell out of the hearing just like he did with the saints players…

  10. Brady will be allowed to play but must watch all four quarters of at least four games this week. Same for Goddell.

    Is there anything more punishing than watching a week four preseason game? Aside from playing in one?

  11. If Judge Berman were smart, he would see that Goodell abused his commissioner powers and hid behind the CBA as an excuse to railroad and frame Brady, while conducting a sting operation with the help of Mike Kensil and Troy Vincent. Then when Goodell and Ted Wells found they had no evidence Brady did anything wrong, they decided to smear Brady with that bogus story about Brady destroying his cell phone. Look what he did! He must be guilty! I feel sorry for people buying this trash who are so easily brainwashed by the anti Patriot agenda of the NFL and ESPN. They were basically in cahoots with each other on this to make the Patriots look bad. Goodell is clearly a mad man and his dictatorial reign must be stopped.

  12. The fact that Brady is innocent or they have no proof has nothing to do with it. They agreed to this collective bargaining agreement. It is within Goodell’s right to be a tyrant. The judge can only lawfully rule in favor of the NFL, but they’ve lost this publicity stunt.

  13. Depends on what the judge is actually being asked to judge here.

    1. Judging the outcome of the investigation and punishment?

    2. Judging the rights Goodell has under the negotiated CBA to meter out such a suspension and if Brady was afforded them?

    I’ve not seen a good answer on this. IMO if this was as simply as slapping the NFL – he wouldn’t have pushed so hard for mediation which leads me to believe it’s #2. Which also leads me to believe that the NFL has the authority under the CBA which Tom Brady is a party to, to meter out the suspension with Goodell as the judge/jury/executioner.

    NFL fans – you need to realize there’s ZERO chance the judge is going to rule that Goodell has to relinquish his power in this regard. To do so would violate the NEGOTIATED AND AGREED UPON terms of the CBA, which he’s not going to do.

    This goes against Brady et. al.

  14. Fire Roger??

    Then the owners will just need to find a more popular puppet to toss in front of the public for awhile until he/she wears out their popularity……

  15. pantsfreezone says:
    Aug 31, 2015 8:28 PM
    I’m not sure who has looked less intelligent throughout this entire debacle. Brady, Goodell, Patriots’ fans or Florio.

    ————-

    I vote for you. But Goodell is close.

  16. Judge Berman has already made a point to illustrate how unfair and corrupt the League is.

    Even if he reluctantly finds in the NFL’s favor (and I think the NFL failed on MULTIPLE levels of procedure in this case) Goodell has been outed as a liar, while his integrity and that of the owners are in serious question (meaning the Owners would have fired Goodell if THEY had any integrity)

    If Brady loses I’d think Judge Berman will rule favorably on his motion for an injunction pending appeal. If Brady wins and Berman vacates then he plays anyways

    But I’m hoping Judge Berman orders a TRULY indpednent review and forces the NFL to reveal ALL notes as anything that Wells and Goodell wanted to hide in their investigation (such as Jastremski and McNally’s testimony) clearly bodes well for the Patriots with an independent arbitrator and the court of public opinion

    Either way, Brady wins and Goodell just has yet to realize he’s already lost.

  17. This goes against Brady. The judge is unlikely to overlook the sanctity of the collective bargaining agreement. This would go against to much case law. The CBA gives the commissioner this power. He did not over step that power by enough to overturn case law that has been in place since Samuel Gompers. Days.

  18. Damn take a game suspension and an admission of not cooperating, but don’t admit to the truth. Both sides save face to a degree. How hard is that?

    Brady’s fans will claim victory but will at least shut up.
    ________________________________

    The NFL did not offer this option

  19. Anybody wanna bet Judge Berman does not vacate the award and the NFL’s decision is upheld and Brady immediately files a 2nd Circuit Court appeal?

    Anybody? It’s what’s gonna happen.

  20. igotgamenj says:
    Aug 31, 2015 8:45 PM
    And the rest of the league is bracing for Brady and the Pats to stomp them…again…

    As a diehard Miami Fan .. BRING IT !!!!

    3 4

    THEY HAVE…FOR THE LAST 20 YEARS

  21. Quote {whichever side loses}

    “While we are dismayed by the Judge’s decision, in the greater interest of the League and our desire to focus on the great game of football (cue the fife and drums here) we will accept it and abide by it with no further appeal. We will have no further comment, other than to thank the Judge for his work toward a quick resolution so we can all move beyond this.”

  22. The longer it goes on, the worse it will be for Brady/Pats. Their clock is running out of sand. The NFL just has to sit back and wait.

  23. teal379 says: Aug 31, 2015 8:41 PM

    Depends on what the judge is actually being asked to judge here.

    1. Judging the outcome of the investigation and punishment?

    2. Judging the rights Goodell has under the negotiated CBA to meter out such a suspension and if Brady was afforded them?

    I’ve not seen a good answer on this.

    ————————————————————

    This is it this is the real scope of judicial review: U.S. Code Title 9 Section 10.

    Judge Berman’s review is limited to the scope of the arbitrator’s (Goodell) decision. Below are the four grounds that Berman may find grounds for vacatur of the arbitrator’s decision, 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.

    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.

    Perhaps Mr. Florio as posted a better summation of the limited scope of review, I’ve yet to read.

  24. I don’t see how Berman can make an informed decision without both teams calling witnesses. There does appear to be CBA violations in Vincent’s original letter. I think Goodell had to assign – or designate – him to the case formally, which I don’t believe he did.

    The NFLPA needs to get Goodell on the stand to have him lie about procedures.

  25. Wow, miami fan is feeling it!!! Lol. Tell me again when your team made the playoffs??

  26. Just a little Football 101 for those who don’t know their history of so-called Patriots “scandals”

    Tuck Rule – a rule that few heard of which everyone agrees was properly utilized and applied. Unless you want to break the rules and they go the Patriots way, this is not a scandal.

    SpyGate – A 2007 violation of a 2006 rule on camera placement (all teams film signal calling, just not from the field after 2006 – that’s why coordinators cover their mouths kids!) If a jealous Patriot-hater can explain to me how a new 2006 rule violation invalidates all Super Bowls of the past, I’m all ears.

    What Spygate is NOT – since there’s clearly confusion. It has nothing to do with filming a Ram’s PRACTICE. That was an erroneous story and the newspaper that reported it had to retract it. Look up the word “retract” if necessary.

    IneligibleGate – No controversy, just some butthurt people. Belichick knows the rules better than most other coaches, the officials – and most certainly ALL OF YOU.

    DeflateGate – First you need to learn 11 of 12 balls were not significantly under inflated.The whole basis of the investigation(witch-hunt) is FALSE. Exponent has proved what the PSI should have been regularly and what PSI was that day is a difference of ONE or TWO TENTHS of a PSI. Second you need to remember 3 out 4 Colts balls were under the legal limit. I wonder why the stopped testing the rest of Colts balls

    Now go back to ignoring all of this as it gets in the way of your amusing animosity towards even the mention of the name “Patriots”. Btw New England surviving witch hunts since 1600’s.

  27. There is nothing in the CBA that gives Goodell unlimited powers. He arbitrarily updated the Personal Conduct Policy and that in itself is a violation of the CBA. Every time his rulings have wound up in front of an unbiased party he has lost.

    So, while he may think he has the ability to do whatever he wants, the courts and well established labor laws have smacked him back down.

    It will be the same outcome this time, Brady has a much better case than Hardy, Rice, Peterson and Vilma did.

  28. Well, this should be a slam dunk according to Shannon Sharpe on first take today. He claims he heard from several sources that the Patriots and Brady had been warned about ball deflation issues beforehand.

    This is an astonishing revelation considering he’s the first one to bring this to light after 7 months of intense media scrutiny, a 243-page investigative report, an appeal hearing and finally having the case heard before a federal judge.

    Thank the lord for BSPN’s unbiased reporting and upholding of journalistic integrity throughout this whole ordeal. They would certainly never let anyone perpetuate untruths without correcting it in prime time.

  29. I think that one of the things Judge Berman can rule on is whether Brady was afforded his CBA appeal rights. An appeal is supposed to be heard by a neutral arbiter, isn’t it? And whether he was given a fair hearing and full due process under the CBA.

  30. The NFL will appeal until it goes to a court that will rule the only way it can. The CBA is a lousy document but it will be the determinant of any final ruling.

    My guess is that Brady will be the first to blink and give up appealing, after Kraft gets in his ear and tells him it’s become way too much of a distraction. He will issue a statement of innocence but say he is putting the team and season first now.

    Mankind will continue to be worse off for this farce.

  31. wte1 says:
    Aug 31, 2015 8:19 PM
    Judge Berman will rule for Tom Brady. He will rule for Justice.

    Because railroading an employee and denying his rights should never be Judicially acceptable in The United States of America.

    We are the Land of the Free. Home of the Brave. That’s why Judge Berman will rule for Brady.

    #ExonerationDay

    ———————————————————-
    Well said wte1
    Every thinking American should recognize what the NFL is doing for what it is – Tyranny plain and simple.

    It is, in the end, against everything we have been taught as Americans to believe. It is what happens when power is allowed to run amok uninhibited by laws.

    Like Brady or not, what the NFL owners have allowed to happen here is nothing short of disgraceful.

  32. I can think of no reason to invite Mara unless it is to give the NFL one last chance to make a better offer. Since it did not, I can only think the judge is going to punish them for being not only biased and unfair in their initial ruling, but pig headed stubborn about it afterwards.

  33. This goes FOR Brady.

    The judge is unlikely to overlook the REPEATED VIOLATIONS of the collective bargaining agreement and a FUNDAMENTAL UNFAIRNESS, through obvious arbitrator bias, that violated the Federal Arbitration Act

  34. guadalahonky says:
    Aug 31, 2015 9:01 PM

    Anybody wanna bet Judge Berman does not vacate the award and the NFL’s decision is upheld and Brady immediately files a 2nd Circuit Court appeal?

    Anybody? It’s what’s gonna happen.
    —————–

    I will. It’s either suspension vacated, case over, or it’s going back to an impartial arbitrator.

    There’s no way the NFL wins as the case now stands.

  35. I see Goodell’s next role as some sort of evil warlord in Game of Thrones. He gets captured and has his head cut off. Something not as drastic will happen when judge Berman rules against Goodell and the rest of Goodell’s cronies. What a sad lot of incompetent administrators. Good times lie ahead for the NFL. The long wait is almost over.

  36. grscott99 says: Aug 31, 2015 9:17 PM

    There is nothing in the CBA that gives Goodell unlimited powers. He arbitrarily updated the Personal Conduct Policy and that in itself is a violation of the CBA. Every time his rulings have wound up in front of an unbiased party he has lost.

    So, while he may think he has the ability to do whatever he wants, the courts and well established labor laws have smacked him back down.

    It will be the same outcome this time, Brady has a much better case than Hardy, Rice, Peterson and Vilma did.

    ———————————————————-

    This has nothing to do with today’s judicial review hearing, but what the NFL League office has is going to decide this case, and that is the burden of proof.

    This punishment was handed down because the independent prosecutor announced there was a preponderance of evidence standard and that Tom Brady ‘more probable than not’ knew.

    That was the burden of proof Ted Wells had to prove, his report provided that and he followed the rule book all.

  37. I disagree. I think a ruling can only take on 2 forms.

    1) Justice is served & Brady is punished as he should be.

    2) corruption prevails prooving the rich can buy themselves out of anything.

  38. mmack66 says: Aug 31, 2015 9:35 PM

    guadalahonky says:
    Aug 31, 2015 9:01 PM

    Anybody wanna bet Judge Berman does not vacate the award and the NFL’s decision is upheld and Brady immediately files a 2nd Circuit Court appeal?

    Anybody? It’s what’s gonna happen.
    —————–

    I will. It’s either suspension vacated, case over, or it’s going back to an impartial arbitrator.

    There’s no way the NFL wins as the case now stands.

    ———————————————————–

    There was nothing in the 4 grounds of judicial review for Judge Berman to vacate. Nothing.
    And Kessler had no case eaither.

    Plus, if Brady reportedly would not offer any conciliatory language to the league in the hearing, who does have the stronger case, the league did not come off their position either.

    Next move is Brady’s appeals to 2nd Circuit. I’ll be hear to remind you.

  39. For clarity’s sake:

    There was nothing in the 4 grounds of judicial review for Judge Berman to vacate. Nothing.
    And Kessler had no case either.

    Plus, if Brady reportedly would not offer any conciliatory language to the league in the hearing, and the league does have the stronger case, the league did not come off their position either.

    Next move is Brady’s appeals to 2nd Circuit Court

  40. On what planet does a settlement require an admission of guilt? It’s just the opposite. Neither side ever wanted to settle. Let’s just see what the judge says, and see what the next step is.

  41. It seems to me that Berman has himself already illustrated in court, without prompting from Kessler, numerous criteria which Goodell has blatantly and callously broken from start to finish in this process and has clearly exhibited bias

    The Patriots Haters have brainwashed themselves into believing that the CBA gives Goodell the right to conduct a blatantly unfair investigation and hearing process

    It does not. Goodell has an obligation to act in a fair and unbiased manner – and he has proven he cannot, along with now being a proven liar.

    So ignore the Haters saying “If Goodell wanted to execute Brady in a public square there’s nothing anyone can do to stop him because the players GAVE him that right”

    It didn’t. And he can’t fabricate a scandal either.

  42. We, the Dolphins, made the playoffs the last time you win a SuperBowl without cheating. #SpyGate #deflateGate

    By the way, Pete Carroll was your SuperBowl MVP.

    Regardless how innocent Brady may claim or may be, a ruling against a CBA would be tough. The CBA gives Goodell more power than rationally expected. A ruling against the CBA goes against case studies and previous rulings and opens up hundreds if not thousands of previous rulings against not only the NFL but local unions.

  43. DrinkingTheDeliciousTearsOfTheHaters so you’re still not man enough to tell us what you mean by BSPN? You got your very own little inside slight, but you’re not man enough to say it.

    Or is it that you’re too PC, to say it? Either way, I smell a real coward.

  44. I honestly have no idea how Berman could write an explanation of a ruling for the NFL in this case. He has openly stated the reasons he has to overturn this suspension and the case precedence right in court. He’s mocked the NFL’s process, impartiality, and evidence. Flat told him he has the precedence needed to overturn the suspension too. He’d have to somehow take back pretty much everything he has said in court to somehow find for the NFL.

  45. xtutx says:
    Aug 31, 2015 8:18 PM
    I’m glad the judge is going to judge. That is why they went to him. He tried to pawn it off back to the two parties, not do what you are paid to do, make the correct call and bury this thing already.
    =======

    You display an almost stunning lack of understanding as to how the civil court system works in this country. Over 90% of these cases are settled before trial.

  46. Brady is guilty under the “more probable than not” burden of proof outlined in the CBA.
    ——————————-
    That is absolutely correct. This is not a criminal case, and the burden of truth is much lower.

  47. Judge Berman will rule for Tom Brady. He will rule for Justice.

    Because railroading an employee and denying his rights should never be Judicially acceptable in The United States of America.

    We are the Land of the Free. Home of the Brave. That’s why Judge Berman will rule for Brady.

    #ExonerationDay

    ———————————————————-
    Well said wte1
    Every thinking American should recognize what the NFL is doing for what it is – Tyranny plain and simple.

    It is, in the end, against everything we have been taught as Americans to believe. It is what happens when power is allowed to run amok uninhibited by laws.

    Like Brady or not, what the NFL owners have allowed to happen here is nothing short of disgraceful
    —————————————-

    Above, are two examples of the word Homer…..

  48. xtutx says:
    Aug 31, 2015 8:18 PM
    I’m glad the judge is going to judge. That is why they went to him. He tried to pawn it off back to the two parties, not do what you are paid to do, make the correct call and bury this thing already.

    =-=-=-=-=-=-=
    The reason why judges do that is to a) save precious judicial resources for the cases that need to be adjudicated (ex: the ton of criminal cases clogging the system), b) save everybody work, c) help the parties achieve something manageable, saving them time and money.

    Our federal courts have bigger fish to fry than a dumb squabble between billionaires that should have (but was not) sorted out in the CBA (because of greed). To help push the parties toward settlement, many judges offer up threats of ways they could rule. He should show up tomorrow and disappoint all parties, flip them the bird, and tell them to change the CBA so these billionaires can’t waste precious public money again.

  49. @guadalahonkey: “There is nothing in the four grounds of Judicial Review for Judge Berman to vacate.”
    ———————————————————————————–

    I’m not exactly sure how you can make that statement after reading the testimony that was made public during the Brady appeal hearing. You have read the transcript; correct?

    Remember, this is the transcript the NFL demanded that remain sealed and that Judge Berman then ruled should be made public. Why do you think the NFL wanted it sealed and the judge forced it into the public domain? For their own purposes. The NFL clearly inteded to hide the testimony of Well’s clarifying he wasn’t really “independent,” and the denial by Goodell to allow Pash, Kensil and Gardi to be called.

    Those two things, alone, are enough to vacate on Subsections (a)(2) and (a)(3).

    (a)(2) standards to vacate can be met with the testimony that Wells gave himself. “Where there was evident partiality or corruption in the arbitrators, or either of them;” Wells was NOT independent, this is a fact. Therefore, Goodell clearly must have been “partial” to his hired investigator’s findings. And this isn’t even considering the bombshell that Pash was able to review and comment on the report PRIOR to its release.

    (a)(3) standards to vacate can be met with the part “or of any misbehavior by which the rights of any party have been prejudiced.” Goodell not allowing the NFLPA to call Pash, Kensil or Gardi during the appeal showed “prejudice” to the “rights” of both Brady and the NFLPA.

    No court, and I mean none, can overturn a vacate ruling on these standards. Judge Berman made the Brady appeal hearing transcript public so that he would be standing on indisputable ground.

  50. Really only matters to Pat’s fans how this judge rules,because the rest of us know this is not over by a long shot.The NFL will appeal and fight to the end,and so will Brady.In the court of public opinion Brady is already guilty.

  51. frankfortschooldropout says:
    Aug 31, 2015 8:28 PM

    Damn take a game suspension and an admission of not cooperating, but don’t admit to the truth. Both sides save face to a degree. How hard is that?

    Brady’s fans will claim victory but will at least shut up.

    ~~~~~~~~~~~~~~~~~~~~~~
    Brady was willing to take a one game suspension for not cooperating which the NFL easily has a case for (even though Brady was told there would be no punishment and that they didn’t need his cell phone) but Brady isn’t going to admit to something he did not do and quite frankly…I don’t blame him. He’s too good to lie down and have his integrity or status as the GOAT put down by lies.

  52. guadalahonky says:
    Aug 31, 2015 9:49 PM

    … This punishment was handed down because the *independent prosecutor* announced there was a preponderance of evidence standard and that Tom Brady ‘more probable than not’ knew.

    That was the burden of proof Ted Wells had to prove, his report provided that and he followed the rule book all.

    ~~~~~~~~~~~~~~~~~

    Independent prosecutor? That’s rich.

    What’s the matter? Are these words too big for you to understand their meanings?

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