Tom Brady suspension upheld.. Everything

[NPT]

I've read says he's gonna take it to federal court. My question (mainly for lawyers I guess) is doesn't the NFL have legal right to make it's own rules and enforce them as long as none are illegal? What do you think Brady's argument in court will be? The NFL doesn't have to prove he did anything wrong do they or am I mistaken?

 

[TheOriginalHappyGoat]

I've read says he's gonna take it to federal court. My question (mainly for lawyers I guess) is doesn't the NFL have legal right to make it's own rules and enforce them as long as none are illegal? What do you think Brady's argument in court will be? The NFL doesn't have to prove he did anything wrong do they or am I mistaken?

Brady has a lot of possible directions he could go with this, but he's pretty much screwed the pooch on all of them by destroying his cell phone. He had a duty not to destroy evidence as soon as a lawsuit was foreseeable, and if it's true that he destroyed the phone on the advice of lawyers (which is what the NFLPA claimed, according to the Rog), those lawyers are going to be up on ethics charges.

Anyway, Brady's best bet would have been to show that the Rog's decision was arbitrary and capricious, or that the actual disciplinary process is a violation of the CBA or relevant labor law. That first avenue is probably off the table now, leaving only the second one, which is going to be tough.

Brady blew just about every chance he had to win in court when he destroyed that phone.

 

[Rockfish1]

Brady has a lot of possible directions he could go with this, but he's pretty much screwed the pooch on all of them by destroying his cell phone. He had a duty not to destroy evidence as soon as a lawsuit was foreseeable, and if it's true that he destroyed the phone on the advice of lawyers (which is what the NFLPA claimed, according to the Rog), those lawyers are going to be up on ethics charges.

Anyway, Brady's best bet would have been to show that the Rog's decision was arbitrary and capricious, or that the actual disciplinary process is a violation of the CBA or relevant labor law. That first avenue is probably off the table now, leaving only the second one, which is going to be tough.

Brady blew just about every chance he had to win in court when he destroyed that phone.

Without disagreeing with any of Goat's cogent points, Brady should attack Roger Goodell and the farce that is the NFL "process". It's hard to have less credibility than the Cheatriots, but In fact Goodell and the NFL have less. (Just so we're clear, that Pats' latest cheating had no bearing on the outcome of that game. As Colts players rightly said, the Pats would have won if the game had been played with beach balls or bowling balls. But the Pats cheat.)

 

[TheOriginalHappyGoat]

Without disagreeing with any of Goat's cogent points, Brady should attack Roger Goodell and the farce that is the NFL "process". It's hard to have less credibility than the Cheatriots, but In fact Goodell and the NFL have less. (Just so we're clear, that Pats' latest cheating had no bearing on the outcome of that game. As Colts players rightly said, the Pats would have won if the game had been played with beach balls or bowling balls. But the Pats cheat.)

Yep. That's what I meant to refer to. I might have typed that on my phone and thus cut it short.

Basically, by destroying the phone, any argument that involves even peripherally the question of Brady's innocence is off the table. There won't be a defamation suit, for example. But, his lawyers can and should attack the process itself as per se violative of Brady's rights. In fact, I told our resident Patriot fan over on the OTF this exact thing weeks or even months ago. The wording of the NFLPA's statement suggest that is the line they are going to take.

But that's going to be a very tough case to prove.

 

[zeke4ahs]

Without disagreeing with any of Goat's cogent points, Brady should attack Roger Goodell and the farce that is the NFL "process". It's hard to have less credibility than the Cheatriots, but In fact Goodell and the NFL have less. (Just so we're clear, that Pats' latest cheating had no bearing on the outcome of that game. As Colts players rightly said, the Pats would have won if the game had been played with beach balls or bowling balls. But the Pats cheat.)

The Ravens are the ones who should be ticked. It certainly could have played a part in that game. And then, of course, the Colts would have played the Ravens at home.

 

[iuwclurker]

I'm a Packers fan so I couldn't care less, except that I think the Steelers will be the toughest opponent in the Super Bowl so I'd rather see the federal appeal last until next year. How likely is that?

 

[CO. Hoosier]

I've read says he's gonna take it to federal court. My question (mainly for lawyers I guess) is doesn't the NFL have legal right to make it's own rules and enforce them as long as none are illegal? What do you think Brady's argument in court will be? The NFL doesn't have to prove he did anything wrong do they or am I mistaken?

Brady is pretty well boxed in

He has two contracts which individually or together most assuredly will limit his rights. He has signed a professional services agreement which contains NFL-required standards of conduct . He is also part of the collective bargaining agreement which defines all the process which is due him concerning the suspension. The merits of whether he is actually guilty as charged is likely off of the table. I would also expect that Brady was given all the process that was due him by the NFL. This isn't the first rodeo for the NFL so you'd think that they would know how to comply with their own processes. It is my understanding that Brady will not challenge the suspension.

However, the NFLPA will file a challenge. Brady has allegedly agreed that the union can pursue a case on his behalf. The union's claim is that the type of offense isn't clearly spelled out in the collective bargaining agreement, thus the player did not have adequate notice that the assumed-to-be-true collusion with the equipment handlers would result in a suspension. This is kind of a two-edged sword. The judge will assume that Brady violated the rules, but that he did not have notice that a suspension would result. I think this is a technical point and will focus on how far the league can go in interpreting and applying ambiguities in the CBA.

 

[Marvin the Martian]

I hope he appeals it and wins an injunction. This suspension is a horrible travesty of justice. Any court in their right mind will grant said injunction until the case is heard sometime after the season begins. At that point, the court should immediately rule against Brady and force him to serve his 4 games. The NFL giving him a suspension in a game against the Steelers is the real travesty.

-Signed,
A Bengals Fan

 

[MyTeamIsOnTheFloor]

I've read says he's gonna take it to federal court. My question (mainly for lawyers I guess) is doesn't the NFL have legal right to make it's own rules and enforce them as long as none are illegal? What do you think Brady's argument in court will be? The NFL doesn't have to prove he did anything wrong do they or am I mistaken?

In a unionized workforce, the ability to create/enforce rules, including work rules, depends on the language of the collective bargaining agreement and past practice.

If the NFL has any duty (arising from either the collective bargaining agreement or the parties past practice) to bargain over a rule, they may NOT have the right to "make its own rules and enforce them" - they may have given up that right.

Game rules - MUCH more likely the answer is yes,
Conduct rules - possible they gave their unilateral rights away in bargaining.

Same type of issue will impact (but may not completely control) Goat's point about "spoliation of evidence" (destroying the phone). In a regular lawsuit, Goat is right - once you believ there might be a lawsuit, you (and your lawyers) have an affirmative duty to to take affirmative steps to preserve evidence, including electronic evidence. (The battle over preservation of electronic evidence subsumes many lawsuits these days.) But a labor law dispute is much different, and this ultimate case will likely wind up in arbitration, not court.

There will be a quick "injunction" hearing and a judge will decide if Brady can play while the case proceeds (I suspect he will play), but the ultimate decision (can NFL/Goodell do THIS in THIS WAY) requires interpretation of a collective bargaining agreement, and judges don't do that. That is for arbitrators. And that process won't be quick (unless both sides put their foot on the gas and try to get done quick. But the union can easily drag this out until after this season.)

Lots of issues here, and process matters as much/more than substance.
NFL rights.
Team rights.
Brady rights.
Union rights.

All of which are slightly different.

 

[iubud]

The Ravens are the ones who should be ticked. It certainly could have played a part in that game. And then, of course, the Colts would have played the Ravens at home.

Exactly. The air pressure isn't significant in most games. This type of cheating might help prevent a fumble or incomplete pass that can possibly change a close game like the Baltimore playoff game. It is a small factor, but a lot of small things can add up.

 

[Rockfish1]

In a unionized workforce, the ability to create/enforce rules, including work rules, depends on the language of the collective bargaining agreement and past practice.

If the NFL has any duty (arising from either the collective bargaining agreement or the parties past practice) to bargain over a rule, they may NOT have the right to "make its own rules and enforce them" - they may have given up that right.

Game rules - MUCH more likely the answer is yes,
Conduct rules - possible they gave their unilateral rights away in bargaining.

Same type of issue will impact (but may not completely control) Goat's point about "spoliation of evidence" (destroying the phone). In a regular lawsuit, Goat is right - once you believ there might be a lawsuit, you (and your lawyers) have an affirmative duty to to take affirmative steps to preserve evidence, including electronic evidence. (The battle over preservation of electronic evidence subsumes many lawsuits these days.) But a labor law dispute is much different, and this ultimate case will likely wind up in arbitration, not court.

There will be a quick "injunction" hearing and a judge will decide if Brady can play while the case proceeds (I suspect he will play), but the ultimate decision (can NFL/Goodell do THIS in THIS WAY) requires interpretation of a collective bargaining agreement, and judges don't do that. That is for arbitrators. And that process won't be quick (unless both sides put their foot on the gas and try to get done quick. But the union can easily drag this out until after this season.)

Lots of issues here, and process matters as much/more than substance.
NFL rights.
Team rights.
Brady rights.
Union rights.

All of which are slightly different.

That's a good post.

 

[IUJIM]

In a unionized workforce, the ability to create/enforce rules, including work rules, depends on the language of the collective bargaining agreement and past practice.

If the NFL has any duty (arising from either the collective bargaining agreement or the parties past practice) to bargain over a rule, they may NOT have the right to "make its own rules and enforce them" - they may have given up that right.

Game rules - MUCH more likely the answer is yes,
Conduct rules - possible they gave their unilateral rights away in bargaining.

Same type of issue will impact (but may not completely control) Goat's point about "spoliation of evidence" (destroying the phone). In a regular lawsuit, Goat is right - once you believ there might be a lawsuit, you (and your lawyers) have an affirmative duty to to take affirmative steps to preserve evidence, including electronic evidence. (The battle over preservation of electronic evidence subsumes many lawsuits these days.) But a labor law dispute is much different, and this ultimate case will likely wind up in arbitration, not court.

There will be a quick "injunction" hearing and a judge will decide if Brady can play while the case proceeds (I suspect he will play), but the ultimate decision (can NFL/Goodell do THIS in THIS WAY) requires interpretation of a collective bargaining agreement, and judges don't do that. That is for arbitrators. And that process won't be quick (unless both sides put their foot on the gas and try to get done quick. But the union can easily drag this out until after this season.)

Lots of issues here, and process matters as much/more than substance.
NFL rights.
Team rights.
Brady rights.
Union rights.

All of which are slightly different.

Heard a lawyer today on the radio state that a successful injunction would be unlikely, saying that unless there is a high likelihood of a Brady victory, the courts would most likely rule against it.???

 

[iuwclurker]

In a unionized workforce, the ability to create/enforce rules, including work rules, depends on the language of the collective bargaining agreement and past practice.

If the NFL has any duty (arising from either the collective bargaining agreement or the parties past practice) to bargain over a rule, they may NOT have the right to "make its own rules and enforce them" - they may have given up that right.

Game rules - MUCH more likely the answer is yes,
Conduct rules - possible they gave their unilateral rights away in bargaining.

Does this respond to what you're saying about the CBA?

Goodell: "Finally, the CBA-mandated standard NFL Player Contract, which Mr. Brady signed, makes clear and provides notice that, in the event of a finding of conduct detrimental, the Commissioner may "suspend Player for a period certain or indefinitely."

 

[TheOriginalHappyGoat]

There is going to be an interesting legal twist. The NFLPA has, as expected, filed in Minneapolis. They will argue that the first-filed rule shouldn't apply here because the NFL clearly filed only for the purpose of forum-shopping, knowing that the issues raised in this case would be similar to issues currently before the court in Minnesota. There appears to be some 2nd Circuit case law that would back such an argument. If the NFLPA can successfully win the venue battle, Brady's chances of winning go up considerably.

 

[iuwclurker]

There is going to be an interesting legal twist. The NFLPA has, as expected, filed in Minneapolis. They will argue that the first-filed rule shouldn't apply here because the NFL clearly filed only for the purpose of forum-shopping, knowing that the issues raised in this case would be similar to issues currently before the court in Minnesota. There appears to be some 2nd Circuit case law that would back such an argument. If the NFLPA can successfully win the venue battle, Brady's chances of winning go up considerably.

Isn't the NFLPA filing in Minnesota "forum-shopping" as well? Or even moreso. What does Tom Brady vs. NFL have to do with Minnesota?

 

[MyTeamIsOnTheFloor]

There is going to be an interesting legal twist. The NFLPA has, as expected, filed in Minneapolis. They will argue that the first-filed rule shouldn't apply here because the NFL clearly filed only for the purpose of forum-shopping, knowing that the issues raised in this case would be similar to issues currently before the court in Minnesota. There appears to be some 2nd Circuit case law that would back such an argument. If the NFLPA can successfully win the venue battle, Brady's chances of winning go up considerably.

And the choir said, "why should the outcome change from court to court?"

And Minnesota court then said "y'all go to New York - and have fun storming the castle."

 

[MyTeamIsOnTheFloor]

Does this respond to what you're saying about the CBA?

Goodell: "Finally, the CBA-mandated standard NFL Player Contract, which Mr. Brady signed, makes clear and provides notice that, in the event of a finding of conduct detrimental, the Commissioner may "suspend Player for a period certain or indefinitely."

In part, yes.

There is also (almost) always a provision in a union contract called "Management Rights" that addresses the scope of the right to make/change rules. Also usually some provisions about disciplinary processes.

"Industrial peace" do cost.

 

[iuwclurker]

Minnesota ruling:

Looks like the NFL is one step ahead of Brady every step of the way.

 

[TheOriginalHappyGoat]

Minnesota ruling:

Looks like the NFL is one step ahead of Brady every step of the way.

That was fast. Brady's cooked.

 

[iuwclurker]

That was fast. Brady's cooked.

Time will tell. My sense is that the Patriots screwed up by covering up and resisting blame from the moment the video of McNally going into the bathroom with balls surfaced. They should have immediately stated remorse for the "apparent" indiscretion of an employee, ignored all the Ideal Gas Law crap and accepted some minimal punishment. At least this would have not compounded the problem with Brady.

As for Brady, he should have been told by his superiors to do the same. As indignantly innocent as Brady claims to be, there's absolutely no reason for him to not have immediately offered up his cell phone, the very day Deflate-Gate hit the news, and any other cooperation. He's the chaste-as-the-driven-snow Golden Boy here, so he has a lot to lose by not sacrificing whatever minimal loss of privacy he would endure. He did none of that, for all intents and purposes. The NFL has every reason to conclude the Deflator-in-charge is as guilty as sin.

 

[TheOriginalHappyGoat]

Time will tell. My sense is that the Patriots screwed up by covering up and resisting blame from the moment the video of McNally going into the bathroom with balls surfaced. They should have immediately stated remorse for the "apparent" indiscretion of an employee, ignored all the Ideal Gas Law crap and accepted some minimal punishment. At least this would have not compounded the problem with Brady.

As for Brady, he should have been told by his superiors to do the same. As indignantly innocent as Brady claims to be, there's absolutely no reason for him to not have immediately offered up his cell phone, the very day Deflate-Gate hit the news, and any other cooperation. He's the chaste-as-the-driven-snow Golden Boy here, so he has a lot to lose by not sacrificing whatever minimal loss of privacy he would endure. He did none of that, for all intents and purposes. The NFL has every reason to conclude the Deflator-in-charge is as guilty as sin.

Actually, I can think of a lot of good reasons not to turn the phone over. I can't think of any good reasons to destroy it. Well, I can, but none of them make Brady look good. But it's all going to be irrelevant. The only question put before the court is going to be, "Did The Rog have the authority to suspend Brady for this?" The court will almost certainly answer "Yes" and it's game over.

 

[iuwclurker]

Actually, I can think of a lot of good reasons not to turn the phone over. I can't think of any good reasons to destroy it. Well, I can, but none of them make Brady look good. But it's all going to be irrelevant. The only question put before the court is going to be, "Did The Rog have the authority to suspend Brady for this?" The court will almost certainly answer "Yes" and it's game over.

I can too, but do any of those reasons remotely counterbalance the hit to his reputation, assuming his cell phone contained absolutely nothing damning?


Do you think the court will even grant an injunction? Even hear the case?

 

[iuwclurker]

By the way, Brady had 10,000+ text messages on his phone!?!?! Sheesh. Does he do anything else in the off-season but text?

 

[TheOriginalHappyGoat]

I can too, but do any of those reasons remotely counterbalance the hit to his reputation, assuming his cell phone contained absolutely nothing damning?


Do you think the court will even grant an injunction? Even hear the case?

Hypothetical: Brady's not a saint and he's worried there is evidence on his phone of things he's done that might endanger his marriage. His wife is even richer than he is. Even if he's innocent of deflating balls, if he's got that kind of thing in his closet, the reputation hit might be the lesser of two evils.

 

[iuwclurker]

Hypothetical: Brady's not a saint and he's worried there is evidence on his phone of things he's done that might endanger his marriage. His wife is even richer than he is. Even if he's innocent of deflating balls, if he's got that kind of thing in his closet, the reputation hit might be the lesser of two evils.

I get it but don't buy it. Nothing stopped him from asking for a private conference with Goodell. Nothing had to come out. Again, assuming Brady was really innocent and ignorant of ball deflation.

Frankly, I don't believe for a minute Kraft's insinuation that Goodell's on a witch hunt. Goodell hates being lied to. He takes it personally and he takes protecting the League personally. Brady's lying through his teeth. You can easily see that in this picture:

I've never seen a more conscience-ravaged face.

 

[SuperHoosierFan]

Hypothetical: Brady's not a saint and he's worried there is evidence on his phone of things he's done that might endanger his marriage. His wife is even richer than he is. Even if he's innocent of deflating balls, if he's got that kind of thing in his closet, the reputation hit might be the lesser of two evils.

Can't imagine the level of temptation he and other players are hit with everyday. That very well could be why he destroyed his phone, but you'd think he'd have a totally separate phone for that kind of stuff.

 

[CO. Hoosier]

I get it but don't buy it. Nothing stopped him from asking for a private conference with Goodell. Nothing had to come out. Again, assuming Brady was really innocent and ignorant of ball deflation.

Frankly, I don't believe for a minute Kraft's insinuation that Goodell's on a witch hunt. Goodell hates being lied to. He takes it personally and he takes protecting the League personally. Brady's lying through his teeth. You can easily see that in this picture:

I've never seen a more conscience-ravaged face.

Maybe Brady is looking forward to a political career.

Destroying electronic data and the medium it is preserved on is an important political skill.

 

[Noodle]

Great posts in this thread. I have no idea how this will play out, but I do agree that from this point forward whether Brady was responsible in some way for balls being deflated is largely irrelevant. The only real issue will be whether the process and resulting penalty were proper. If forced to predict what happens I don't think Brady will miss game this season unless he gets hurt

 

[TheOriginalHappyGoat]

Great posts in this thread. I have no idea how this will play out, but I do agree that from this point forward whether Brady was responsible in some way for balls being deflated is largely irrelevant. The only real issue will be whether the process and resulting penalty were proper. If forced to predict what happens I don't think Brady will miss game this season unless he gets hurt

One question, as someone not really familiar with how quickly things move in federal court. Is there any chance at all that Brady is opening himself up to the possibility of losing, and having the suspension upheld near the end of the season? I.e., could the final decision be made in, say, December? Or does the NFLPA have enough tools in its bag to ensure that it gets pushed back to at least the next offseason? The Star Caps case lasted three years, but the Peterson case went relatively quickly, although I think that one is still on appeal, so I guess it's technically not over.

There are two reasons for these questions.
1. Obviously, if Brady does serve the suspension, he doesn't want it to happen at the end of a season.
2. I wonder if Brady knows he'll eventually lose, but he's just trying to delay the suspension until after his retirement, which can't be too far off at this point.

 

[hoot1]

Certainly Brady can afford a suit which fits.

 

[TheOriginalHappyGoat]

Certainly Brady can afford a suit which fits.

And a hanger for his jacket. Jesus.

 

[davegolf]

Don't get the cell phone argument? The phone itself is irrelevant I think because all call numbers, emails and texts are saved in he "Cloud" and can be retrieved by Court Order. I could be wrong but was told that is the way it works. I know my past statements have all call numbers and text numbers accessed on the AT&T website.

 

[Noodle]

Don't get the cell phone argument? The phone itself is irrelevant I think because all call numbers, emails and texts are saved in he "Cloud" and can be retrieved by Court Order. I could be wrong but was told that is the way it works. I know my past statements have all call numbers and text numbers accessed on the AT&T website.

You are wrong.

 

[davegolf]

Heard Shawn King former NFL quarterback on the radio this week. He said that he sees no issues as quarterbacks have been playing with the air pressure for years so the ball fits more comfortably in their hands based on size and weather conditions.

 

[davegolf]

You are wrong.

Maybe about the actual text content but just checked my phone bill and all call numbers and times are retained in your billing statement. There is disagreement on what and how much text information is saved but we all know there is or was " text " mining by the government at least prior to expiration of Patriot Act.

 

[SuperHoosierFan]

Maybe about the actual text content but just checked my phone bill and all call numbers and times are retained in your billing statement. There is disagreement on what and how much text information is saved but we all know there is or was " text " mining by the government at least prior to expiration of Patriot Act.

You can see that a text was sent between two particular numbers and whether or not there was an attachment, but the actual text content and what the attachment actually was can't be recovered. Like, you would know I sent a text to my friend Dave, but you don't know if I said "hello" or "when are we robbing that bank again?"

 

[NPT]

You can see that a text was sent between two particular numbers and whether or not there was an attachment, but the actual text content and what the attachment actually was can't be recovered. Like, you would know I sent a text to my friend Dave, but you don't know if I said "hello" or "when are we robbing that bank again?"

Call in the NSA...they have it all.