Brady v. NFL: No Settlement; Judge Berman to Decide

[Amnorix]

Can't find the old thread. Brady and Goodell were back in NYC today for settlement talks. No progress.

Judge Berman said he would likely decide "in the next day or two" and definitely before September 4th.

Interesting how the narrative among the national writers has evolved.


http://sports.yahoo.com/news/roger-g...180816187.html


NEW YORK – They arrived surrounded by lawyers, each wearing a blue suit and displeased expression. Here was Roger Goodell and here was Tom Brady back in federal court in a fight over power, ego and legacy, as much as whether the footballs were deflated in January's AFC championship game.

New York Giants owner John Mara came in an attempt to soften the face of the league's side a bit. Jay Feely, a long-time NFL kicker and friend of Brady's from back at the University of Michigan, arrived to stand by his side.

Once again, nothing worked. A private meeting in front of Judge Richard M. Berman yielded nothing. No one budged. No one backed down. No settlement was reached.
And now both sides roll the dice and sit and wait for a ruling.

"Tomorrow or the day after," Berman said of when he would likely announce whether to vacate Brady's four-game suspension. He assured it would come before Sept. 4, when both sides requested an answer so the New England Patriots can begin preparing for the season opener with or without their star quarterback.

So that's that, all or nothing, all or everything, all eyes on the court docket here.

For Brady it's either a quarter of the season lost or a measure of redemption gained. For Goodell it's either a reaffirmation of the totality of his authority or another humiliating public defeat.

There may be appeals and requests for stays and thus months still to go, what will be won, what may not be done. None of that minimized the tension and drama inside Berman's 17th-floor courtroom here on Monday, when a case that started as a curiosity on that playoff night boiled toward a milestone, if not a conclusion.

Berman clearly knows how he is going to rule and likely has much of the decision already written. He's read and heard it all over the past month. There were no new arguments on Monday. The chief attorneys, Daniel Nash of the NFL and Jeffrey Kessler of the NFL Players Association, both merely stood and praised the efforts of all sides even though, as sometimes happens, they just couldn't reach a settlement.

"This is a time Mr. Nash and I are going to agree," Kessler joked.

The inability to find common ground is not a surprise. Tom Brady was simply never going to admit he had any role in the tampering of those footballs, or even that the footballs were ever tampered with in the first place.

First off, after he said as much under oath and then introduced the transcript into federal court, doing so would risk a perjury charge. More importantly though, it would be a complete reversal, making him a liar and a cheat, crushing his image among not just fans but, most importantly according to those that know him best, his own children.

He also very well may be innocent. The NFL never produced much of a case against him, let alone that the footballs were even unnaturally deflated.

So the only way a settlement could go down was for Goodell to drop any demands for an admission of guilt. He'd have to settle for Brady merely acknowledging a failure to fully cooperate with the investigation. That, however, would be a serious concession from a commissioner who's built his career on cracking heads among misbehaving players.

So there was the irresistible force clashing with the unmovable object, each willing to lose in court as long as he could still save face.
It has been, if nothing else, a remarkable showdown of oversized personalities.

In court Monday, the two men, rich and famous and atop their chosen professions, refused to even look at each other.

When the session was adjourned, both were forced to awkwardly wait for the galley to clear out of media and observers, leaving them within a few feet of each other a couple table rows apart.

Brady stood first and wandered over to one wood-paneled wall of the ornate courtroom. He stuffed his hands in his pocket, looking as intense as any tight fourth-quarter drive. Feely stood by his side and the two eventually hugged.

Goodell, seated in front, stood slowly and also put his hands in his pocket, looking down and then turning in the opposite direction of Brady, trying to wear a face of nonchalance.

Eight months into this scandal, after swings of allegations and misrepresentations, of false media leaks and broadside-legal attacks, the distrust and disgust were clear: Two men known for their ability to smoothly glide through life, with fashion and fabulous hair, looked strangely uncomfortable.

No one ever wants to sit in this position, leaving it to another man, federal judge or not, to declare whether he or she is a cheat or a fraud or a bully or a bum.

Here these two are though, going down that awkward path together. Their lives are seemingly too charmed for this, yet they were like a couple of rivals on opposite sides of the schoolyard, unwilling to even acknowledge the other's presence in front of onlookers.

The stakes seem higher for Goodell, if only because his legal argument here is based on the 1981 Supreme Court decision MLBPA v. Garvey, which essentially prohibits judges from interfering with the decision of arbitrators even if they are horrendously flawed or based on inaccurate facts. Arguing you have the right to be a dictator isn't ideal in public relations terms.

As such, Goodell and the NFL could certainly prevail in front of Berman but do so via a ruling full of the same kind of harsh verbiage that the judge used during two prior public sessions.

It's clear that no matter which way Berman goes, he looked upon the NFL's judicial system in general, and the league's conduct in this case specifically, as lacking any semblance of fairness or competency. He could unload in the ruling and leave Goodell laid out, even if he's technically victorious.

That's the risk Goodell was willing to take. And one Brady is willing to go with, essentially entering the verdict stage with a two-pronged chance at redemption – either total or at least in the court of public opinion. A loss and a four-game suspension would hurt, but he could at least point to an impartial federal judge down in New York agreeing that Goodell is out of line.

It's certainly reasonable that the NFL initially erred when it failed to comprehend Ideal Gas Law and thus initially thought any Patriots football that measured below 12.5 pounds per square inch of inflation was a sign of nefarious conduct. It immediately went after a speeding ticket like a homicide case.

But by the time the league should've have dialed it back, it had already leaked prejudicial stories and begun building a case against Brady and two Patriots locker room attendants. The NFL never was able to find a smoking gun or much more than suspicions, but that didn't matter.

The NFL not only never backed down, it just kept doubling down, believing the full force of the league's power – both in the CBA and in its ability to manipulate national reporters – would overwhelm Brady.

The league may be correct and on the verge of a show-of-force victory. It may be wrong and headed for a comeuppance.

It's all up to Judge Berman now. Who knows what he thinks and who knows what he'll rule. On Monday he seemed eager to make it known though as he sent the two men in fancy blue suits off into the Manhattan morning, Goodell via a black Escalade, Brady in a Chevy Suburban. Each is left awaiting his word.

The QB v. the Commissioner, it's all or everything now.

[MagicHef]

Originally Posted by Amnorix

The problem for Berman, Brady and the NFLPA is that the NFLPA gave the Commish the power to be judge, jury and executioner. It's all rather insane, but arbitration provisions and awards are granted EXTREME deference by the courts. Courts really want to empower arbitrators, not disempower them.

What are you expecting?

[Amnorix]

Originally Posted by BigRichard

How many times does this need to be repeated in these threads... he wasn't punished for the balls he was punished for his lack of cooperation.

How many times does this need to be said that you are wrong -- the NFL has NEVER said that. NEVER made it clear that it was lack of cooperation that resulted in his suspension. Indeed, their lawyer said it was BOTH the deflation AND the failure to cooperate.

[Amnorix]

Originally Posted by MagicHef

I can. The NFLPA negotiated the current CBA and agreed to give the commissioner the power he has. He used that power, the NFLPA is now trying to argue against the CBA they agreed to.

IMO, he'll throw it out, maintaining Brady's suspension.

He may at that. It will be interesting to see what language he uses. He could uphold the suspension while crucifying the NFL. That would be quite a bit of fun to read, if that's the way it goes down.

[Tombstone RJ]

if the judge pulls a stupid supreme court ruling and sides with Brady, Goodell can appeal. This is one simple reason why said judge is a complete idiot for hearing the case. Don't kid yourself, this judge is an idiot for even accepting the case.

[AustinChief]

The problem here is that our us vs them mentality will cause people to blame Brady or the Pats (who are cheaters of course) when the blame for ALL OF THIS resides with the NFL. This whole fiasco is a result of their ridiculous pandering to Peyton Manning and Brady in the first place. Then they did a slipshod job of "investigating" things. THEN they decided to issue a ruling based not on facts but on what would best play with the media.

This whole mess is on Goodell and the NFL.

[Tombstone RJ]

Originally Posted by AustinChief

The problem here is that our us vs them mentality will cause people to blame Brady or the Pats (who are cheaters of course) when the blame for ALL OF THIS resides with the NFL. This whole fiasco is a result of their ridiculous pandering to Peyton Manning and Brady in the first place. Then they did a slipshod job of "investigating" things. THEN they decided to issue a ruling based not on facts but on what would best play with the media.

This whole mess is on Goodell and the NFL.

IF Brady had just cooperated and not destroyed evidence, I'M absolutely positive Goodell would have lowered the suspension to maybe 2 games. This situation rests on Brady's shoulders more than the furer's shoulders IMHO.

[ChiliConCarnage]

I'm not an official Unfrozen Caveman lawyer but I assume the ruling will uphold the NFL's decision.

The judge seemed to be trying to instill some doubt in the NFL from the coverage I've seen. That makes me assume they have the much stronger case and he was trying to coerce them into being more willing to negotiate a settlement.

[Amnorix]

Originally Posted by MagicHef

What are you expecting?

I won't be surprised with either result. I think Berman HATES what/how the NFL has done what it has done, but the law is pretty strong for the NFL. But Berman is pretty pro-labor, and if he isn't going to throw out this arbitration ruling, then there practically is no arbitration ruling that CAN be thrown out.

I suspects he overturns the NFL, vacating the suspension, and relies primarily on fundamental fairness (refusal to allow Pash to testify). If he really wants to go hog-wild, he could go on and on about Goodell's obviously lack of neutrality, which he can argue (though I doubt case law supports) means he is entitled to less deference than an arbitrator might get in other situations.

You can trust that the opinion is largely written already, and that whoever loses will definitely appeal. If Brady wins, the NFL appeal has a reasonable chance of succeeding at the Second Circuit. If the NFL wins, Brady's appeal is VERY UNLIKELY to succeed at the Second Circuit.

Note that I wouldn't bet a nickel on which way Berman will go. I suspect he WANTS to rule for Brady, but he might not find a way to comfortably do so, given how slanted the law is in the NFL's favor.

[Amnorix]

Originally Posted by ChiliConCarnage

I'm not an official Unfrozen Caveman lawyer but I assume the ruling will uphold the NFL's decision.

The judge seemed to be trying to instill some doubt in the NFL from the coverage I've seen. That makes me assume they have the much stronger case and he was trying to coerce them into being more willing to negotiate a settlement.

Hard to read tea leaves. I've seen federal judges (magistrates, typically) beat up one side because they were blind as to the weaknesses of their case. In other words, he was beating up the side with the weaker case.

But I've also seen what you're suggesting. Goes both ways, and generally the judge beats up on whoever is more unreasonably stubborn, in the judge's view.

[AustinChief]

Originally Posted by Tombstone RJ

IF Brady had just cooperated and not destroyed evidence, I'M absolutely positive Goodell would have lowered the suspension to maybe 2 games. This situation rests on Brady's shoulders more than the furer's shoulders IMHO.

There wouldn't even have been a situation if the NFL hadn't changed the rule on how footballs are handled... because Peyton Manning wanted it changed.

[Tombstone RJ]

Originally Posted by Amnorix

I won't be surprised with either result. I think Berman HATES what/how the NFL has done what it has done, but the law is pretty strong for the NFL. But Berman is pretty pro-labor, and if he isn't going to throw out this arbitration ruling, then there practically is no arbitration ruling that CAN be thrown out.

I suspects he overturns the NFL, vacating the suspension, and relies primarily on fundamental fairness (refusal to allow Pash to testify). If he really wants to go hog-wild, he could go on and on about Goodell's obviously lack of neutrality, which he can argue (though I doubt case law supports) means he is entitled to less deference than an arbitrator might get in other situations.

You can trust that the opinion is largely written already, and that whoever loses will definitely appeal. If Brady wins, the NFL appeal has a reasonable chance of succeeding at the Second Circuit. If the NFL wins, Brady's appeal is VERY UNLIKELY to succeed at the Second Circuit.

Note that I wouldn't bet a nickel on which way Berman will go. I suspect he WANTS to rule for Brady, but he might not find a way to comfortably do so, given how slanted the law is in the NFL's favor.

If Berman does this, Goodell can appeal. If Goodell appeals it will take months to resolve. The question is, can Brady still play or are the suspensions upheld?

[Tombstone RJ]

Originally Posted by AustinChief

There wouldn't even have been a situation if the NFL hadn't changed the rule on how footballs are handled... because Peyton Manning wanted it changed.

I agree, and if you look at the pats turnover ratio before and after this rule change, it's significant which tells me Brady has been doing this stuff for YEARRRRRS!

There's no one stat that affects wins and losses more than turnovers. The Broncos, KC and the Pats all play in outdoor stadiums, look at the Pats turnover ratio compared to the Broncos and KC's turnover ratios since the rule change.

[Amnorix]

Originally Posted by Tombstone RJ

If Berman does this, Goodell can appeal. If Goodell appeals it will take months to resolve. The question is, can Brady still play or are the suspensions upheld?

If Berman vacates the suspension, then it is gone. The NFL can then either appeal the ruling to the 2nd Circuit (which it is 99% likely to do), or follow some other course, such as no appeal, and move on (0.00000000000000001% chance of this) or try to fix the procedural mistakes and "do it again" in some fashion.

It would be pretty bright of them, I think, to turn to a neutral arbitrator (Tagliabue?) and have him handle it. Unlikely, however, given that the NFL is constantly engaged in proving they have the biggest dick, err, hammer, in town.

In this scenario, Brady will still be able to play until Berman's ruling is overturned or superceded in some fashion.

Worst case for Brady/Pats, is that the suspension is vacated, but then ends up only being delayed, and then gets imposed in December or in the playoffs or something. Nightmare result there.

[Tombstone RJ]

Originally Posted by Amnorix

If Berman vacates the suspension, then it is gone. The NFL can then either appeal the ruling to the 2nd Circuit (which it is 99% likely to do), or follow some other course, such as no appeal, and move on (0.00000000000000001% chance of this) or try to fix the procedural mistakes and "do it again" in some fashion.

It would be pretty bright of them, I think, to turn to a neutral arbitrator (Tagliabue?) and have him handle it. Unlikely, however, given that the NFL is constantly engaged in proving they have the biggest dick, err, hammer, in town.

In this scenario, Brady will still be able to play until Berman's ruling is overturned or superceded in some fashion.

Worst case for Brady/Pats, is that the suspension is vacated, but then ends up only being delayed, and then gets imposed in December or in the playoffs or something. Nightmare result there.

Are you sure about this? I thought Goodell can simply uphold the suspension regardless how the court rules which is another reason that this dumbass judge should have never taken the case.

[Amnorix]

Originally Posted by Tombstone RJ

I agree, and if you look at the pats turnover ratio before and after this rule change, it's significant which tells me Brady has been doing this stuff for YEARRRRRS!

Except the stats you refer to aren't nearly as odd as that one article suggested, and, second, Jastrzemski is actually pretty new to handling the balls.

Plus all the evidence suggests that this whole inflation thing only blew up (pun intended) after the JEts game when the refs inflated the ball to 16 or whatever PSI.

There's no one stat that affects wins and losses more than turnovers. The Broncos, KC and the Pats all play in outdoor stadiums, look at the Pats turnover ratio compared to the Broncos and KC's turnover ratios since the rule change.

I've never seen a coach harsher on players who fumble. Ridley's fumble rate wasn't even that bad, but he was repeatedly benched for it, and then ridden out of town.