Update on Deflategate appeal

[Jet Fan RI]

From today's Providence Journal.

Brady lawsuit The NFL has told a federal appeals court that commissioner Roger Goodell was well within his authority to suspend Brady in the "Deflategate" controversy. The NFL made its arguments in a brief filed on Monday with the 2nd U.S. Circuit Court of Appeals in Manhattan. The court has been hearing an appeal of a judge's ruling that nullified Brady's suspension. It will hear oral arguments in March before issuing a decision. In papers filed earlier this month, the NFL Players Association argued Goodell ignored the collectively bargained agreement between the league and the union when he upheld the suspension in July. The NFL countered in its papers that the contract gives Goodell authority to discipline players for conduct "detrimental to the integrity of the game." —The Associated Press contributed to this report.

 

[SackExchange]

I guess I never understood the Pats/Pats fans/Pats media hacks argument that Goodell did not have the authority to punish Brady for violating league rules.

I know they're used to Goodell covering up for the Pats, but that doesn't mean he can't punish them.

 

[Jet Fan RI]

I guess I never understood the Pats/Pats fans/Pats media hacks argument that Goodell did not have the authority to punish Brady for violating league rules.

I know they're used to Goodell covering up for the Pats, but that doesn't mean he can't punish them.

Yep. Probably a good chance the suspension is reinstated.

 

[ucrenegade]

suspend him for playoffs the ultimate fu and it might finally curtail their cheating

 

[Jet Fan RI]

suspend him for playoffs the ultimate fu and it might finally curtail their cheating

Unfortunately, the article says oral arguments in the appeal will happen in March. So if he's going to be suspended for the playoffs, it would have to be for next season.

 

[JohnnyBaseball1]

The argument the NFLPA used was essentially this: the CBA has specific language regarding punishment for equipment tampering, and it is a fine, not a suspension. Further, there has been other instances of equipment tampering carried out by team employees, and even when that tampering resulted in a benefit for a player, that player was never held responsible, and in the past the NFL had never investigated the player, much less suspended them. The court found there was insufficient evidence to say that Brady directed the tampering, even if he had, the CBA says that a fine is the appropriate punishment for equipment tampering, and the NFL never held players responsible for the equipment tampering of employees, even when the player would benefit from that tampering. These factors together meant that the CBA gave Brady no notice that this type of behavior could result in this type of punishment, indeed, the court ruled that it could not, and that to levy a punishment that is in contravention of the CBA was an impermissible exercise of Goodells's authority as commissioner, which is not unlimited.

Agree or disagree, but that was the argument.

 

[Jet Fan RI]

The argument the NFLPA used was essentially this: the CBA has specific language regarding punishment for equipment tampering, and it is a fine, not a suspension. Further, there has been other instances of equipment tampering carried out by team employees, and even when that tampering resulted in a benefit for a player, that player was never held responsible, and in the past the NFL had never investigated the player, much less suspended them. The court found there was insufficient evidence to say that Brady directed the tampering, even if he had, the CBA says that a fine is the appropriate punishment for equipment tampering, and the NFL never held players responsible for the equipment tampering of employees, even when the player would benefit from that tampering. These factors together meant that the CBA gave Brady no notice that this type of behavior could result in this type of punishment, indeed, the court ruled that it could not, and that to levy a punishment that is in contravention of the CBA was an impermissible exercise of Goodells's authority as commissioner, which is not unlimited.

Agree or disagree, but that was the argument.

Of course, there was more than just the equipment tampering. Obstructing the investigation is probably the more severe violation. And if it's just a fine, can the NFL hang the $5 million investigation cost on him, plus a punitive fine of proportional dimension?

 

[JohnnyBaseball1]

Of course, there was more than just the equipment tampering. Obstructing the investigation is probably the more severe violation. And if it's just a fine, can the NFL hang the $5 million investigation cost on him, plus a punitive fine of proportional dimension?

My instinct is to say no. To fine Brady and expect him to pay for the investigation, I believe, would be wildly inconsistent with how the league has treated other players in the past and that's not allowed. And basically, the idea is that the players never agreed to be subject to authority that is not contained in the CBA. To take action outside the parameters of the CBA is to subject players to authority they never agreed to be bound by, and had no notice they would be bound by. To take the obstruction and then dump it on top of the tampering to multiply the punishment is questionable, I think. Unless there is a provision for it in the CBA, what it means is that the players never agreed to it, and they have a right to be protected by the agreement they agreed to. If not, if the commissioner can take action that contravenes the CBA, then it means that the CBA offers no protection and is basically illusory. Not even the NFL wants to make that argument, which is why they say his action was permissible under his authority under the CBA under the Conduct Detrimental clause. The court basically said that it would undermine the protections of the CBA if that vague language could nullify specific language governing that situation. If it could, then the rules the players agreed to are merely illusory, and that's not the players intent in this agreement.

It's tough and complicated to decide who should win a case, but I do think the argument is relatively straightforward and there's no reason to act like the NFLPA had no leg to stand on at all. Most players don't have the standing or chutzpah to sue the NFL; if they did, this might have happened sooner.

 

[mykcuz]

My instinct is to say no. To fine Brady and expect him to pay for the investigation, I believe, would be wildly inconsistent with how the league has treated other players in the past and that's not allowed. And basically, the idea is that the players never agreed to be subject to authority that is not contained in the CBA. To take action outside the parameters of the CBA is to subject players to authority they never agreed to be bound by, and had no notice they would be bound by. To take the obstruction and then dump it on top of the tampering to multiply the punishment is questionable, I think. Unless there is a provision for it in the CBA, what it means is that the players never agreed to it, and they have a right to be protected by the agreement they agreed to. If not, if the commissioner can take action that contravenes the CBA, then it means that the CBA offers no protection and is basically illusory. Not even the NFL wants to make that argument, which is why they say his action was permissible under his authority under the CBA under the Conduct Detrimental clause. The court basically said that it would undermine the protections of the CBA if that vague language could nullify specific language governing that situation. If it could, then the rules the players agreed to are merely illusory, and that's not the players intent in this agreement.

It's tough and complicated to decide who should win a case, but I do think the argument is relatively straightforward and there's no reason to act like the NFLPA had no leg to stand on at all. Most players don't have the standing or chutzpah to sue the NFL; if they did, this might have happened sooner.

I really think it comes down to tampering, and refusing to interview. There is no clause in the cba that said the player must be notified of the penalty. I would argue the players are notified when they sign the cba. The nflpa also agreed to the commissioners discretion clause, which had been a long standing clause in the nfl. I believe the issue is the pa found a favorable judge who was willing to inappropriately apply standards of criminal law, to a private contract.

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[Jet Fan RI]

My instinct is to say no. To fine Brady and expect him to pay for the investigation, I believe, would be wildly inconsistent with how the league has treated other players in the past and that's not allowed. And basically, the idea is that the players never agreed to be subject to authority that is not contained in the CBA. To take action outside the parameters of the CBA is to subject players to authority they never agreed to be bound by, and had no notice they would be bound by. To take the obstruction and then dump it on top of the tampering to multiply the punishment is questionable, I think. Unless there is a provision for it in the CBA, what it means is that the players never agreed to it, and they have a right to be protected by the agreement they agreed to. If not, if the commissioner can take action that contravenes the CBA, then it means that the CBA offers no protection and is basically illusory. Not even the NFL wants to make that argument, which is why they say his action was permissible under his authority under the CBA under the Conduct Detrimental clause. The court basically said that it would undermine the protections of the CBA if that vague language could nullify specific language governing that situation. If it could, then the rules the players agreed to are merely illusory, and that's not the players intent in this agreement.

It's tough and complicated to decide who should win a case, but I do think the argument is relatively straightforward and there's no reason to act like the NFLPA had no leg to stand on at all. Most players don't have the standing or chutzpah to sue the NFL; if they did, this might have happened sooner.

You make it sound almost obvious that Brady should win the appeal. And I'm sure you know a lot more about the CBA than I do. But I will say this: At least one Pat fan lawyer on another site said he thought it was obvious that the judge had overstepped his authority in eliminating the suspension, and that he expected the decision to be reversed on appeal. I guess it all comes down to the details of the CBA, the judges' interpretation of it, and the arguments made in the case. But it is surprising that knowledgeable people can come to opposite conclusions regarding the strength of either side's case.

 

[mykcuz]

Sheldon Richardson was not notified that he would be punished for driving 125mph with weed and a minor, but I'm sure he will be punished for it.

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[JohnnyBaseball1]

I really think it comes down to tampering, and refusing to interview. There is no clause in the cba that said the player must be notified of the penalty. I would argue the players are notified when they sign the cba. The nflpa also agreed to the commissioners discretion clause, which had been a long standing clause in the nfl. I believe the issue is the pa found a favorable judge who was willing to inappropriately apply standards of criminal law, to a private contract.

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I think the point is that they DID agree to a specific clause governing equipment tampering, and they agreed, collectively, that the punishment for that infraction would be a fine. When the commissioner comes in and punishes that infraction with a 4 game suspension, the players, collectively, through the NFLPA, said "that is not what we agreed to, you are overstepping your authority under the CBA." The court agreed. They didn't apply a criminal standard here, indeed, Brady was not on trial, he was the plaintiff. The question was whether Goodell had the authority under the CBA, and that question turned on the issue of whether the conduct detrimental clause gave the commissioner the power to go beyond the plain language of the section governing equipment tampering. The court said he did not. This is certainly a point on which people may disagree, and it is perfectly plausible to say that the Conduct Detrimental clause DOES cover this and that Goodell did NOT overstep his authority in suspending Brady. That is a perfectly reasonable position to take. But it is not what the court decided.

Let us remember that the only thing the Wells report found about Brady was that "it is more probable than not that Brady was at least generally aware" of the misconduct of the Jastremski and McNally. The court said that there had never been a case where a player was investigated and suspended for being generally aware of the misconduct of others, even when that misconduct would benefit the player who was aware of the misconduct. Let's get this out there: absent the CBA, the commissioner has no right to punish anyone. I am not party to the CBA, and he has NO AUTHORITY WHATSOEVER over my conduct. So the CBA is the document that outlines and defines his powers and responsibilities. Only by agreeing to the CBA do players become subject to his authority. So the CBA has to define the limits and parameters of what he may do.

Just as a hypothetical, imagine that Brady had been suspended for the entire season? Would that have been permissible? How about banned from the league? Does the commissioner's power extend that far? Is there any limit? Would it be ok if Mo Wilkerson was found to be aware of the misconduct of someone working within the organization, so they suspend him for the year?

The intent of the parties entering the agreement matters, and there is no way that it was the intent of the NFLPA to give the commissioner unlimited power to discipline players. Why bother negotiating the section governing equipment tampering if the intent was to give the commissioner full discretion to discipline players as he sees fit?

But again, these are legal issues that wouldn't come up unless someone actually sued the NFL. There may be plenty of examples where the commissioner overstepped his authority, legally speaking, but the player just accepted it and moved on, because only Brady has the cachet necessary to actually get away with suing the NFL.

 

[JohnnyBaseball1]

You make it sound almost obvious that Brady should win the appeal. And I'm sure you know a lot more about the CBA than I do. But I will say this: At least one Pat fan lawyer on another site said he thought it was obvious that the judge had overstepped his authority in eliminating the suspension, and that he expected the decision to be reversed on appeal. I guess it all comes down to the details of the CBA, the judges' interpretation of it, and the arguments made in the case. But it is surprising that knowledgeable people can come to opposite conclusions regarding the strength of either side's case.

Personally, I have no particular opinion, really. I read the decision and tried to understand the argument the court made. All I've tried to do here is describe that argument so that we can discuss what the court actually said and did. As a Jets fan, obviously, I want him suspended, and as an observer and human being, it seems obvious to me that he was most likely totally guilty of directing the equipment tampering, because it seems implausible that Jastremski and McNally would take it upon themselves to do for no particular reason. There would be no need for courts at all if the best way to resolve every dispute was obvious, or if it was always clear who was right and who was wrong. But that's not the way it is. The more cases you read, the more you realize that there are often multiple plausible, reasonable arguments. I have described the NFLPA argument because it is the one I am familiar with, and the one the court accepted. I am very certain that the NFL has its own legally plausible arguments as to why Goodell was within his rights to suspend Brady. Ultimately, a court has to resolve the dispute, and in doing so, will accept the argument of one side and reject that of the other.

When you say "I guess it all comes down to the details of the CBA, the judges' interpretation of it, and the arguments made in the case" you are completely right. There is a legal principle called "stare decisis," which is latin for "let the decision stand" and the basic notion is that once a case is decided, unless there is a compelling reason to overturn it, future courts will rely on the reasoning of the prior court and attempt to apply the same rules and reasoning to subsequent cases. Eventually, with enough cases, a body of case law develops, and the purpose of lawyers is to read those cases, find out how they are similar and how they are different, articulate the rules that are governing those cases, and try to make an argument as to why the present case is either the same or different than prior cases, i.e. the rules of those cases SHOULD apply, because this case is the same, or those rules should NOT apply, because this case is different. This is why the prior treatment of players in Brady's situation matters; because as a matter of general principle, a court will want to treat him as it has treated other people in his situation. But every situation is different. The law is not as black and white as people seem to think. There isn't a book, "The Law" and you look in the index and find out what the law is for your situation. It is less objective and more subjective than people realize. It is a process and it is always evolving. It relies on semantics and analogies. It can get quite muddled, really. But their purpose is to resolve disputes; eventually, they have to take a side. But courts make mistakes, too. And that is why there is an appeals process.

Honestly, I'm not that well versed on the law and I can't say whether I think that the court decided correctly or incorrectly. I haven't done the research necessary to have that kind of opinion. I am just describing what the court said in their decision. I think if we're going to discuss it, we should try to understand it. But with the caveat that understanding it all can be a little complicated, reasonable people can disagree about what the result should be.

 

[Jet Fan RI]

I think the point is that they DID agree to a specific clause governing equipment tampering, and they agreed, collectively, that the punishment for that infraction would be a fine. When the commissioner comes in and punishes that infraction with a 4 game suspension, the players, collectively, through the NFLPA, said "that is not what we agreed to, you are overstepping your authority under the CBA." The court agreed. They didn't apply a criminal standard here, indeed, Brady was not on trial, he was the plaintiff. The question was whether Goodell had the authority under the CBA, and that question turned on the issue of whether the conduct detrimental clause gave the commissioner the power to go beyond the plain language of the section governing equipment tampering. The court said he did not. This is certainly a point on which people may disagree, and it is perfectly plausible to say that the Conduct Detrimental clause DOES cover this and that Goodell did NOT overstep his authority in suspending Brady. That is a perfectly reasonable position to take. But it is not what the court decided.

Let us remember that the only thing the Wells report found about Brady was that "it is more probable than not that Brady was at least generally aware" of the misconduct of the Jastremski and McNally. The court said that there had never been a case where a player was investigated and suspended for being generally aware of the misconduct of others, even when that misconduct would benefit the player who was aware of the misconduct. Let's get this out there: absent the CBA, the commissioner has no right to punish anyone. I am not party to the CBA, and he has NO AUTHORITY WHATSOEVER over my conduct. So the CBA is the document that outlines and defines his powers and responsibilities. Only by agreeing to the CBA do players become subject to his authority. So the CBA has to define the limits and parameters of what he may do.

Just as a hypothetical, imagine that Brady had been suspended for the entire season? Would that have been permissible? How about banned from the league? Does the commissioner's power extend that far? Is there any limit? Would it be ok if Mo Wilkerson was found to be aware of the misconduct of someone working within the organization, so they suspend him for the year?

The intent of the parties entering the agreement matters, and there is no way that it was the intent of the NFLPA to give the commissioner unlimited power to discipline players. Why bother negotiating the section governing equipment tampering if the intent was to give the commissioner full discretion to discipline players as he sees fit?

But again, these are legal issues that wouldn't come up unless someone actually sued the NFL. There may be plenty of examples where the commissioner overstepped his authority, legally speaking, but the player just accepted it and moved on, because only Brady has the cachet necessary to actually get away with suing the NFL.

It did more than what I have bolded above. It also demonstrated technically that manual deflation had in fact occurred. While I am no expert on legal matters, I am an expert on the technicalities presented in the report, and I am convinced of the accuracy of the methods and results, with the protestations from others duly noted, and refuted, to my satisfaction.

As to what you say in the bolded statement, it is true that that is exactly the way Brady's involvement was described in the report. And there is a very good reason it was described in just that way: That is the standard in the CBA which is required to be reached to conclude that the cheating occurred, So insofar as the occurrence of the manual deflation, and Brady's level of involvement in doing it are concerned, those were proven to the extent required.

So the only question now is whether the commissioner in fact had the authority to dole out the punishments he did. Given the differing opinions by legal experts on that matter, I consider it an unresolved issue. And I think there is a chance the appeal could go either way. But I lean toward thinking the original ruling will be overturned.

 

[ReallyBigfan]

I think that Goodell has been pretty clear that the lack of cooperation and obstruction were huge factors in the suspension. Wiping his cell phone when the investigator had been asking for access to it as part of his investigation? That sure feels like a smoking gun in the hand of someone with something to hide. And that seems like a bona fide "integrity of the game" issue.