Deflation-gate

Well, that's nice. It' good to have the science on the table. Unfortunately, that table is in a different courtroom and is many months too late. The issues before the 2nd Circuit have nothing to do with deflated footballs. They have to do with contract law and the scope and legitimacy of arbitration. Maybe they should have had someone from the law school on their committee.

Although the Brady/NFLPA petition does not make errors of fact a grounds, it does mention issues of fact a number of times, as here on page 4:

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However, as NFL officials later admitted, no one involved understood that environmental factors alonesuch as the cold and rainy weather during the gamecould cause significant deflation.

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And the Guidelines for Appeals Courts: Definitions includes category "C. Clearly Erroneous" as a grounds for appeal. The first full sentence of the Standards of Review for Civil Proceedings says, "Findings of fact are reviewed for clear error." An arbitrator not only cannot make up his own process of industrial justice, he can't make up his own facts.The problem with Brady's facts is that they're ones of science and not of simple observation and deduction. Deflategate is not about whether it was Colonel Mustard in the library with the candlestick. It's not about fingerprints and guns and rifling marks and powder burns and blood spatters and DNA, things that although scientific fall into a simple enough category that everyone understands them and they are standard fare in TV crime dramas.But the Ideal Gas Law is evidently pretty challenging for the majority of people. When it first became part of the public debate people as prominent as an MIT professor, Bill Nye, and Neil deGrasse Tyson got it or parts of it wrong (in his defense, Tyson understood all the principles but failed to convert temperatures to degrees Kelvin when applying the Ideal Gas Law).Goodell used the Wells report which used the Exponent report to make up facts about Deflategate. What with two gauges measuring .4 PSI apart, and with referees not being certain which gauge they used for which footballs before the game, and with the initial and final temperature of each football being unknown, and with no direct evidence of ball tampering, and with no direct link between Brady and any tampering by Jastremski and McNally for which there is also no direct evidence, and with a purely natural explanation available, hard conclusions of ball deflation constitute "clear error."So while the petition includes far broader grounds and doesn't mention "clear error," it might possibly influence the court's decision about a rehearing.--Percy

The New England Patriots today filed an Amicus Curiae brief in support of Tom Brady's petition for a rehearing before the full 2nd Circuit.The brief states that there are two important issues: precedent and fundamental fairness.Concerning precedent the brief states that the 2nd Circuit majority ruling:

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...conflicts with settled circuit precedent by ignoring the terms of the NFL CBA and granting the arbitrator sweeping and illogical "authority" to change the grounds for its decision after an appeal has been taken. But the impact of the majority opinion is not limited to professional football. It threatens to undermine vital principles governing arbitration of collective bargaining agreements throughout the national economy.

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Concerning fundamental fairness they say:

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...the Commissioner treated Mr. Brady's appeal not as an appeal but as a continuation of the investigation. The Commissioner made new findings and shifted the basis for his discipline of Mr. Brady in a decision from which Mr. Brady then had no appeal rights. Among the most critically unfair aspects of the process, in addition to the points made in Appellees' Petition, was to refuse to provide Mr. Brady with Paul Weiss's notes of its interviews of the NFL officials who observed the halftime testing of footballs.

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The brief discusses issues of fact concerning the Wells report and football PSI in order to stress the magnitude of the Commissioner's error in not making Weiss's notes available.The brief also discusses the "paucity of evidence against Mr. Brady" that he had any "knowledge of or involvement in" football tampering.The brief also draws attention to a misstatement of fact by the Commissioner of which I wasn't previously aware. In his finding Goodell stated that he didn't find credible Brady's statement that he and Jastremski only discussed the preparation of footballs the day after the AFC Championship Game, that he believed they must have also talked about football deflation, and that Brady must therefore have been lying.This was untrue. Brady evidently did testify that he and Jastremski had talked about both football preparation *and* football deflation, but Goodell felt safe in the misrepresention because he didn't know that the transcripts of the arbitration hearing would later be ordered to be made public. Once public the misrepresentation became clear. This may be old news, I don't know, but this is the first I've heard about it.--Percy

The AFL-CIO yesterday filed an Amicus Curiae brief in support of Tom Brady's petition for a rehearing before the full 2nd Circuit. This adds to the two amicus briefs already filed by professors and by the New England Patriots, and in this case adds some substantial weight.The brief is so short and cogent that I shall simply quote from it. This is from the introductory letter:

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A review of the substance of the Commissioner’s decision makes clear that, in hearing the appeal, the Commissioner was acting in a role of an employer seeking to justify his own initial disciplinary decision rather than as a neutral arbitrator.

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This is from the body of the brief:

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Because the Commissioner — who issued the discipline to Brady in the first instance — failed to follow basic procedural fairness and acted arbitrarily as an employer seeking to justify his own disciplinary decision rather than as a neutral arbitrator considering an appeal — his decision should be vacated. While the NFL and NFLPA bargained to allow the Commissioner to hear appeals of disciplinary decisions, they did not agree to let the Commissioner, sitting as an appellate arbitrator, to act in a manner that is arbitrary and capricious. Regardless of who hears appeals, labor arbitration always must be fundamentally fair.

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The Supreme Court has made clear that elementary requirements of impartiality taken for granted in every judicial proceeding are not suspended when the parties agree to resolve a dispute through arbitration. Commonwealth Coatings Corp. v. Cont’l Casualty Co., 393 U.S. 145, 145 (1968). Even a cursory review of the Commissioner’s decision makes clear that he acted in the self-serving role of an employer justifying his own disciplinary decision rather than as a neutral arbitrator considering an appeal.

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It is well-established that an arbitrator [i]s to look only at the evidence before the employer at the time of discharge and, therefore, the correctness of a discharge must stand or fall upon the reason given at the time of discharge. United Paperworkers Int’l Union v. Misco, 484 U.S. 29, 39-40 & n.8 (1987) (citation and quotation marks omitted). Other reasons can’t be added later when the case reaches arbitration merely in an attempt to strengthen the employer[’]s defense. N. BRAND & M. BIREN, DISCIPLINEAND DISCHARGE IN ARBITRATION Ch. 2.II.A.3, p. 50 (2d ed. 2008). Otherwise, the Association’s bargained-for right to appeal [an] action taken against a player by the Commissioner for conduct detrimental, JA345 (CBA Art. 46 1(a)), is rendered meaningless.

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The Commissioner, rather than limiting his review to his initial rationale for the discipline, instead change[d] the factual basis for the disciplinary action after the appeal hearing conclude[d], Slip Op. 1 (Katzmann, C.J., dissenting). The initial discipline was based on the Commissioner’s finding that Brady was at least generally aware of the actions of the Patriots’ employees involved in the deflation of the footballs and that it was unlikely that their actions were done without [Brady’s] knowledge. JA329. In its appeal, the Association, therefore, contested whether the evidence relied upon by the Commissioner constituted a legally adequate basis upon which to impose this . . . discipline, JA 1119, i.e., whether general aware[ness] of the wrongful actions of others is a sufficient basis for discipline under the CBA.

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Rather than engage with this issue to test the correctness of [the discipline] based upon the reason given at the time,’ M Misco, 484 U.S. at 39 n.8 (1987), the Commissioner attempt[ed] to strengthen the employer[’]s defense, BRAND & BIREN, DISCIPLINE AND DISCHARGE, p. 50. As the dissenting panel member explained, the Commissioner made a change [that] was material to the rationale for his initial disciplinary decision — from a theory that it was more probable than not that Tom Brady . . . was at least generally aware of the inappropriate activities of [Jim] McNally and [John] Jastremski involving the release of air from Patriots game balls, to a theory that Brady ‘knew about, approved of, consented to, and provided inducements and rewards in support of a scheme by which, with Mr. Jastremski’s support, Mr. McNally tampered with the game balls[,]’ i.e., that Brady knowingly engaged in a quid pro quo. Slip Op. 3 (Katzmann, C.J., dissenting) (quoting JA14 and SA51) (emphasis in Slip Op.).

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The substantiality of the Commissioner’s shifting rationale for Brady’s discipline, ibid., serves as strong evidence that the Commissioner was not acting as a neutral arbitrator considering an appeal at all, but rather as an employer seeking to justify his own initial disciplinary decision. The panel majority therefore erred in extending deference to the Commissioner’s decision.

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--PercyEdited by Percy, : Typo.

Kenneth Feinberg yesterday filed an Amicus Curiae brief in support of Tom Brady's petition for a rehearing before the full 2nd Circuit. This adds to the three amicus briefs already filed by professors, by the New England Patriots, and by the AFL-CIO. Kenneth Feinberg served as a negotiator in some famous victims cases, such as 9/11, the BP oil spill, and the Boston Marathon bombing, and as arbitrator in cases involving the Zapruder film and Holocaust legal fees.His brief is phrased in more legalistic language than the others and so I won't quote from it, but with this fourth friend of the court brief and Brady's own brief a clear consensus of legal opinion against the NFL is emerging:

• Goodell violated the CBA when he added new offenses and conclusions to the original finding.
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• Goodell violated the CBA when he ruled new and unprecedented penalties for equipment violations.
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• Goodell violated fairness by assigning in-house counsel to the case (Jeff Pash) and then ruling that Brady could not have full access to the results of the investigation. Concerning fairness Feinberg is actually pretty clear, so I will quote a portion of that part of his brief:
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  3. Selection of a Non-Neutral Does Not Waive Right to a Fair Arbitration. It is relatively common for parties to select a non-neutral arbitrator, but this does not vitiate the arbitrator’s obligation to act without bias.

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Fairness has always been the key issue at the center of Deflategate. In science we like to say that the most extreme claims require the best evidence. In the law we'd like to believe that the most extreme penalties also require the best evidence, but now after nearly a year and a half there is no evidence of purposeful deflation and no evidence of Brady involvement. ESPN's Kevin Seifert comments along the same lines today:

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Deflategate is 500 days old and we still don't know if it happened.

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Real doubt exists at the most basic and existential level imaginable. Did anything unnatural happen to footballs used in the 2014 AFC Championship Game? The NFL, backed by a multimillion dollar third-party report, believes it did. Science, reason and innate skepticism diminish the certainty of its answer.

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But courts of appeal do not rule on matters of fact. At best they might accept arguments on issues of fact as indications of bias. We're left hoping that Goodell's own arrogance caused him to commit violations that finally result in the correct penalty, i.e., none, even though the erroneous original finding can never be changed, at least not in the eyes of the NFL.--PercyEdited by Percy, : Name correction in last point of list: "Troy Vincent" => "Jeff Pash"

Will it never end? How many friend of the court briefs supporting Brady are going to be filed?However many it ends up being, yet another Amicus Curiae brief was filed yesterday in support of Tom Brady's petition for a rehearing before the full 2nd Circuit. I don't have time just at the moment to read and summarize this, but I will get to it as soon as time makes itself available.--PercyEdited by Percy, : Grammar.

As many as possible. I was involved with one patent case that was heard at the Supreme Court. I am not going to reveal enough details to allow figuring out who the client was. The head of the intellectual property section of our firm used every resource he could find to encourage influential folks from academia and industry to file amicus briefs on behalf of issues related to our client. Sometimes lawyers who practice in a particular area are chomping at the bit to file briefs and need little urging. For example when an import defendants rights case is before the supreme court, you can normally count on the ABA, groups of law professors, and defendant's attorney groups to file briefs.While this is not yet a Supreme Court case, re-hearings do face long odds in most courts and it behooves Brady's team to get as many amicus briefs as possible in front of the judges as they are deciding on whether to rehear. The NFL can probably rely on the long odds against getting a rehearing.

Strangely I can't find the article now, but Brady's legal team requested the amicus briefs from the professors, the AFL-CIO, Ken Feinberg and the Patriots. While several of the briefs were very well argued (I'm thinking of those from the AFL-CIO, Feinberg, and the law and industrial relations professors), that they were solicited and not spontaneous diminishes their value in my eyes. That doesn't make what they say less convincing, but it does put their motives into question, especially the AFL-CIO's, who explicitly stated their high level of concern about the impact on labor arbitration going forward. If their concern was so great, why did they have to wait to be asked before filing the brief?When Brady first filed his petition for a rehearing the odds for success were put at around 1% or less. But as the specific legal issues become more and more clear in people's minds they've been thinking the odds are increasing. Myself I put them at 50/50 about now. The judges on the 2nd Circuit have to be considering the possibility that if the ruling is allowed to stand then the future will find them reviewing cases that cite Brady v. NFL, not a very tantalizing prospect. On the other hand maybe they're thinking the Supreme Court should look it, if they so choose.--Percy

I wouldn't make too much of this. Lawyers are generally busy folks, and writing an appellate brief is a substantial effort, with the quality of work bearing directly on the lawyer's reputation. The hours spent on the brief cannot be charged to the client and more than likely, in the case of a request for rehearing, that effort will be of zero effect.. Lawyers do perform pro-bono work, but they normally have their own ideas about where that time should be spent. Brady's team can increase the likelihood that someone will take on the project by doing at least some of the work to get lawyers together to work jointly on the brief. I don't see anything wrong with that. What questions would you ask about their current motives? Do you think being asked means that they were not as outraged or concerned as you believed them to be? You have some sense about these things?Because I do not practice in this area, I have no sense of where this judgment sits compared to other cases, and no way to estimate what some judge I've never been in front of might consider important. We do have a small sample of the judges on the panel and currently they have voted 2-1. Maybe the make up of the rest of the panel is dissimilar. Who knows.In the areas in which I do practice, my own history of trying to predict the outcome of appellate cases is rather dismal. A coin flip would be better. With the exception of patent cases that go before the Supreme Court, my own predictions are correct less than half of the time. In situations where I am involved in the case, my prediction track record is even lower. On the other hand, I have had nearly perfect success with Supreme Court patent cases by using the rule that the SC always does the opposite of what the patent attorney briefs ask for. I cannot recall a single patent case in the past decade that did not produce a result that the Patent Bar Briefs argued against.Perhaps you can do better. But if you cannot, that's no reflection on you. Nobody is real good at predicting what a federal appellate court will do.

You're so literal sometimes. "Putting their motives into question" doesn't mean there are questions for them. It means that they stated motives (particularly in the case of the AFL-CIO) that could be called into question. If you want it phrased as a question then I guess it would be, "Doesn't the fact that you had to be asked to submit your brief mean that you overstated your level of concern about the impact of the Brady ruling on the future of arbitration?" While I was never able to put anywhere near as fine a point on things as Kessler and Olson and the better amicus briefs, I did identify the key issues through each part of the process, so I'm pretty confident that the odds are way better than the thousand-to-one odds for most petitions for rehearing. As just a sports case it wouldn't have much of a chance, but emphasizing the impact to arbitration across the labor/management spectrum greatly improves the chances. Plus the dissenting judge was the chief judge of the 2^nd Circuit. He'll be arguing for a rehearing, and a few of those amicus briefs will allow him to make extremely effectively argued points. I especially liked this from the AFL-CIO brief:

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The proposed amicus brief is desirable because it provides a clear explanation to the Court of the lack of procedural fairness in the underlying decision. A review of the substance of the Commissioner’s decision
makes clear that, in hearing the appeal, the Commissioner was acting in a role of an employer seeking to justify his own initial disciplinary decision rather than as a neutral arbitrator.

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That's pretty much sums up what I've been trying to say in this thread.It's interesting to note that the various briefs for rehearing state the same thing about neutral arbitrators in different terms. The AFL-CIO brief stresses that the Commissioner did not act as a neutral arbitrator, but Goodell is not a neutral arbitrator. As head of the NFL he is definitely a non-neutral arbitrator. The Feinberg brief correctly notes Goodell's non-neutral status, and makes clear that the appointment of non-neutral arbitrators is not uncommon, but makes the further point that a status of non-neutrality does not remove the arbitrator's obligation to act without bias.The AFL-CIO brief doesn't make the "non-neutral but unbiased" distinction and just uses the term "neutral" to imply a requirement that all arbitrators be unbiased. I prefer Feinberg's approach.--Percy

I think my question has merit.They still wrote the brief after being asked, and apparently did what you consider an excellent job in some cases. They must have some motive for writing the brief. So if they could be suspected of not writing the for the reasons you initially mentioned, what would other folks suspect to be their motive. In fact, this is not just about some random person. You said that having to be asked lowers your own opinion.The vast majority of appellate briefs are solicited. In really huge cases in front of the Supreme Court, particularly after cert is granted, more are unsolicited. Your estimate was a fifty percent chance. That's about 500 times as large as the odds you are quoting for the typical petition.How many of those petitions are you familiar with? I admit that I've never read a rehearing petition for anything other than the Federal Circuit, but I'm not speculating beyond saying that rehearings are historically rarely granted. At least when you opine on the Supreme Court you have some familiarity with the personalities. My guess is that you know nothing about this particular court and even less regarding the relative merit of this petition and those others.Edited by NoNukes, : No reason given.

Your question indicated a misunderstanding of what the term "called into question" means. You're a "literally interpret everything" machine. Yes, way better than the usual odds. Naturally there's no way anyone could know the actual odds, I just used the term 50/50 in the sense of a toss-up. You have just *got* to get a better feel for when people are just talking casually and stop taking everything so literally. "Omigod, he mentioned an actual number, I'll challenge it. Is that 50.0%? How do you know it's not 50.1%?"Well, good luck with your guesses. One of us was right about the science, right about arbitration, and right that the big issue is fairness, and it wasn't you.--Percy

If you say that some circumstance calls motive into question, what would be the best way for me to figure out what your reasoning is. I think I asked an appropriate question. It appears that you would rather fight about how literally I interpreted your question.Let me provide an alternative view regarding motivation. The motivation of most amicus briefs can be questioned. Most of them are by parties with an interest in the question, and many times that interest is not purely academic. In many cases lawyers will be arguing in favor of the law being interpreted in their clients benefit. Certainly, one might suspect that a union will submit a brief favoring union over management for example. One would want to read the brief and see if that were the case. If that were my suspicion, I think my opinion would not be enhanced by knowing that they submitted the brief with or without solicitation.I'd be less likely to question a brief from academia on the same basis. Did you have an opinion about the outcome of the appellate court hearing before that began?For some reason this seems to be a topic that you take personally. In this case my initial question was intended to simply probe your opinion. It seems that few of my posts on the subject have failed to provoke a personal response, and that post in particularly that disagree with you on any aspect create even more emotion. There is nothing personal at stake here.Edited by NoNukes, : No reason given.

Since there's nothing personal at stake here then maybe the next time you have a guess that I "know nothing" about something you could keep it to yourself. I know you don't have the same level of interest that I do and that you're not as informed, and I think that's fine. One would think that that would make you more circumspect with comments like I "know nothing," but it doesn't seem to. Plus your greater knowledge about the law seems to give you a false confidence that more often leads you to error than insight once you step away from legal minutia.I do not spew uninformed and unsupported opinions into my messages. I'm obviously very interested in Deflategate because I believe Tom Brady got a raw deal, so I read a lot on both sides of the issue (the New York and Buffalo papers are good for anti-Patriot perspectives), and I form my opinions out of what I read. I'm not alone in believing that the odds are closer to 50/50 now, for example see Brady Getting a Rehearing 'Closer to a Toss-up' Now. There have been a couple articles that included information about the makeup of the 2nd Circuit and how they might vote on the petition (can't seem to find them now).I don't mind having my opinions challenged, but I'm not going to remain silent when told I "know nothing." I'm going to object, on two grounds. First, I know much more than nothing about Brady's petition chances, but I consider that the minor ground. Much more important, second but not lesser, such accusations have no place in dispassionate and objective debate. If by evidence and argument you show that someone knows nothing, fine.I did already explain what "calling their motives into question" means when I said it could be phrased like this: "Doesn't the fact that you had to be asked to submit your brief mean that you overstated your level of concern about the impact of the Brady ruling on the future of arbitration?"--Percy

However Brady fares before the 2nd Circuit and (if necessary) the Supreme Court, it seems inevitable that it will be the enduring judgment of most of the country that Brady is guilty of football tampering, and that this is further evidence that the "Cheatriots" deserve their reputation.It also seems inevitable that Goodell's reputation as a clown when it comes to administering justice within the NFL will be just as enduring. A couple recent articles make clear why it is deserved:

• The case for Tom Brady: An arbitrator’s take (Washington Post)
  
• Former Dolphins Coach’s Legal Filing Against Ted Wells Rings Familiar Bell For ‘DeflateGate’ (CBS/Boston)

The first article, written by lawyer/arbitrator David Evans, speaks for itself:

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Arbitrators are an extension of the justice system and operate under the same basic principles as our courts.
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But by agreeing to a non-neutral arbitrator for disciplinary appeals, the bargaining party – here, the NFL Players Association – does not forfeit all of the procedural protections applied in labor arbitrations. Agreeing to the Commissioner's authority to hear disciplinary appeals is not the same thing as agreeing to allow the Commissioner to run amok.
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No arbitrator, partial or impartial, should have allowed the “independent investigator's” law firm to represent the NFL's interests at the hearing and deny Brady access to potentially exonerating information. No arbitrator should have allowed the NFL's General Counsel to avoid cross-examination about his role in preparing the very report on which the Commissioner based his punishment. No arbitrator acting in good faith should have issued a final award analogizing Brady's “offense” to steroid use and without even mentioning or discussing the schedule of collectively bargained fines arguably applicable to such offenses. And certainly no reasonable arbitrator should have conjured up new grounds to support his own decision after he had imposed discipline on other discredited grounds. These are the hallmarks of a fundamentally unfair arbitration and represent one of the rare exceptions where the courts can and should intervene.
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The Second Circuit should not allow the public's perception of the arbitration process to be sullied by a Commissioner impersonating an arbitrator.

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The second article requires a bit of explanation. It notes the parallels between the Brady case and the Richie Incognito case. When I was listing prior Goodell misadventures the case of Richie Incognito did not come to mind, but now because of a suit brought by former Miami offensive line coach Jim Turner we can see the parallels to Deflategate. Lawyer Ted Wells was the independent investigator in both cases, and as Turner bluntly put it, "Independent investigator my [butt]."In a sport as coarse as football where the most common word of sneaked recorded conversations is "bleep" it defies belief that a player could be suspended for verbal abuse and harassment of a teammate, yet that's what happened to Rickie Incognito. When the accusations came to light he was suspended from the Miami Dolphins for the rest of the 2013 season. The NFL hired Ted Wells to investigate, and one result was that the Dophins fired offensive line coach Jim Turner, who was also found culpable. Turner filed suit against Ted Wells and his law firm in mid-2015.The charges in the Turner lawsuit parallel the Brady claims, that a "high ranking National Football League official...attended many of the interviews conducted during their supposedly independent investigation." During Deflategate arbitration Brady was denied access to the internal notes and communications from the NFL's law firm, one of the chief grounds of the appeal challenge to the 2nd Circuit. Turner had no arbitration hearing because as a coach he is not a member of the NFLPA and has no right to arbitration, but he has filed for discovery of this same information, and Wells is fighting it tooth and nail (his attempt to avoid discovery has already been denied by the court once, but last week he filed another request). One wonders why and can be forgiven for suspecting that the information will further document a pattern of NFL behavior designed to yield the result they want while denying people due process.--Percy