September 03, 2015

The NFL appeals only to find that Judge Berman on the bench again!

posted by tron7 at 10:44 AM on September 03, 2015

That verdict must have left Goodell feeling...

I can't do it.

posted by Mr Bismarck at 11:12 AM on September 03, 2015

This is not a day of vindication. There are more squares left on the game board. The unctuous dunce is still in office.

We're at the point with Goodell where if someone were to tell me that Matt Millen was available and willing to oversee the league, my immediate response would be: "When can he start?"

posted by beaverboard at 11:49 AM on September 03, 2015

Man ESPN is the worst.

I feel like every SpoFi comment should start with this phrase, regardless of context, in perpetuity.

posted by Ufez Jones at 01:12 PM on September 03, 2015

I wonder if anyone at the NFL suggested the response, "We asked a federal court to affirm our disciplinary process in the punishment of a player and the court told us that it couldn't. We will learn from this experience, make changes to our enforcement of player conduct and will not be filing an appeal."

Goodell may win an appeal, but at what cost? The league needs to stop the bleeding and move on.

posted by rcade at 02:41 PM on September 03, 2015

I don't care for Goodell, but I don't understand the cries for him to resign or be fired. The owners hired him to be what he istheir version of Vince McMahon. Except for the few owners who can't seem to get out of their own way, he takes all the heat away. Fans, media, and even non-football fans see him as a villainand people love to hate a heel. Is he Draconian? Absolutely. Inept? Eh. I bet a lot of people who used to hate Brady/The Patriots have sympathy now. I have an easier time believing he's a diabolical genius than Barney Fife.

posted by forrestv at 03:38 PM on September 03, 2015

National treasure Charles Pierce: "Have the National Football League's lawyers gotten their appeal filed yet, or were they too busy applying the league's concussion protocol to Roger Goodell, who got his bell rung good and proper by Judge Richard Berman on Thursday morning? I'm serious about this. If somebody asks him how many fingers he sees, and he answers, 'Article 46 of the collective bargaining agreement,' they should sideline him immediately."

posted by rcade at 04:13 PM on September 03, 2015

How do we know he played an instrumental role in increased revenue instead of just being the guy at the top when it occurred? It's not like the league was hurting before he arrived.

posted by rcade at 06:04 PM on September 03, 2015

posted by Mr Bismarck at 09:23 AM on September 04, 2015

Might be time to put the house in Maine up for sale. I'd be willing to drive a couple of hours to (let the dog) crap on his lawn. I do agree with forrestv that he may be a useful stooge from the owners' perspective depending on how involved he has been in the revenue increases.

posted by yerfatma at 09:38 AM on September 04, 2015

ESPN's Lester Munson is doubling down, predicting the "league can and probably will succeed in its appeal of Berman's ruling". He has an . . . interesting history. And if you work with him, make sure to ask for cash.

posted by yerfatma at 12:14 PM on September 04, 2015

Man ESPN is the worst.

So when can the SpoFi community admit there was no "there" there? The NFL actively tried to catch the Patriots in a sting operation, ineptly tried to collect damning data, and yet even the biased Wells report admitted there wasn't even convincing evidence of any tampering actually happening- much less involvement from Brady et al? For 80 years the NFL didn't care, didn't even know there was a natural gas law, and Brady just wanted a low end but legal 12.5 PSI football.

Shouldn't this all have been a simple off-season scientific investigation and possible rules tweak of ball pressure setting and management? Because a fair number of posters here were looking for blood, demanding Brady impale himself on a non-existent violation that at most would warrant a small fine if it even happened- of which there's never been evidence it even happened?

Don't be like Lester Munson... admit you were wrong about the alleged "Cheatriots".

posted by hincandenza at 02:13 AM on September 05, 2015

I have wanted to add my 2 cents worth to this since the decision came down. The delay is because I have a substantial piece of my forehead missing (basal cell sarcoma removal), and I haven't really felt much like writing. The doctor is sure he got all of the sarcoma, but that doesn't make my head feel much better. I guess he had to scrape down more than a couple of layers of skin to get it all.

So we're on to legal matters. I read the entire text of the decision last night, and as most have pointed out, Judge Berman confined his opinion to procedural matters and not matters of guilt or innocence. For New England fans there are plenty of little hints that Berman is quite suspicious of the NFL's finding that the balls had indeed been deliberately deflated. His continued use of quotation marks to frame the word independent in reference to the Wells report and the authors thereof shows that he believes the Wells investigation to be anything but independent.

On page 7 of the decision, the Wells Report is quoted as saying, "the reduction in pressure of the Patriots game balls cannot be explained completely by basic scientific principles, such as the Ideal Gas Law, based on the circumstances and conditions likely to have been present on the day of the AFC Championship Game." In the next sentence of the decision, Berman further cites the Wells report as saying, "[o]ur scientific consultants informed us that the data alone did not provide a basis for them to determine with absolute certainty whether there was or was not tampering, as the analysis of such data is ultimately dependent upon assumptions and information that is uncertain." The NFL has never disclosed any measurement data of ball pressure, either before the game or at halftime. The results of any such measurements would be dependent on the gauge used, the atmospheric conditions prevailing at the time of measurement, and how long the balls had been contained within that atmosphere. I have read nothing to indicate that such variables were noted in the measurement data. The one measurement mentioned in the decision comes on page 4, in the Background part of the decision, where the Wells Report is again quoted. "During the course of the January 18, 2015 AFC Championship Game, Colts linebacker D'Qwell Jackson intercepted a pass thrown by Patriots quarterback Tom Brady. The intercepted ball was apparently handed to the Colts equipment staff, who used a pressure gauge and determined that the football was inflated to approximately 11psi, i.e., below the range of 12.5 to 13.5 psi specified in Rule 2, Section 1 of the 2014 NFL Official Playing Rules ("Playing Rules"). NFL officials collected and tested eleven Patriots game balls and four Colts game balls at halftime and concluded that all eleven of the Patriots' game balls measured below 12.5 psi. The balls were re-inflated to approximately 13 psi and placed back in play." With the stories that the Colts had been "tipped off" about deflation and that there was possibly a "sting operation" going on, I would be very suspicious of any measurement made on the Indianapolis sideline after Colts' personnel in possession of an inflation needle had handled the football. True enough that 11 psi would fall outside the range that could be predicted by the Ideal Gas Law, but once there had been an opportunity for unsupervised handling of the ball, that measurement must be questioned.

The entire paragraph above is my opinion of why the Wells Report, being very lacking in specifics, did not impress Judge Berman. Instead, Berman focused his opinion on labor law and the CBA. The areas Berman chose to use to vacate the suspension were the lack of notice to Brady that he would be subject to a suspension of 4 games, the equating of the alleged offense to the use of performance enhancing substances, the use of the "Competitive Integrity Policy" as the basis for Brady's punishment, the refusal of the NFL to allow the NFLPA to question Jeff Pash, and the refusal of the NFL to provide the NFLPA with investigative files, including witness interview notes.

From what I have read, many attorneys feel that the NFL faces an uphill fight to get Berman's decision overturned. The lack of notice comes in part from using the "Competitive Integrity Policy" as opposed to the "2014 League Policy for Players" (Player Policies). Copies of the Competitive Integrity Policy are provided to team officials and not the players, while the players are provided with copies of the Player Policies. My analogy would be applying Interstate Commerce Commission rules for large trucks to my 2001 Mazda pickup truck. Even if the Competitive Integrity Policy were used, Judge Berman notes that the punishment for a first offense of the equipment rules is a fine of $5,512.

The refusal of the NFL to allow questioning of Jeff Pash and the denial of access to relevant investigative materials might be the most telling reasons that Berman will be upheld by the Court of Appeals. The NFL contended that testimony by Pash would just be cumulative to that already given by others. Judge Berman ruled that since Pash had a role in editing the Wells report, he should have been allowed to be questioned. The NFL claimed that the Wells Report was prepared entirely by the Paul Weiss investigative team, but Berman questioned how Pash, the NFL's General Counsel, came to edit a supposedly independent report. Thus, the NFLPA should have been allowed to question Pash The denial of discovery is also serious. Since the Paul Weiss firm did the actual preparation of the Wells Report, they had access to all pertinent materials. Judge Berman noted that the Paul Weiss firm's role in the investigation seems to have changed from independent investigators to NFL's retained counsel at the arbitration hearing. Thus, the NFL and Commissioner Goodell would have had access to the material, while Brady and the NFLPA did not. Berman states that courts have held that the absence of a statutory provision for discovery does not negate the duty for insuring that all information available to one party is available to the other.

The "general awareness" idea was also questioned. Berman questioned Jeffrey Nash about the meaning of the term, and ultimately Nash said that the term equated to "knew". The Wells Report uses the standard of "more probable than not that Tom Brady was at least generally aware..." The suspension letter from Troy Vincent to Brady never says that Brady participated in any deflation scheme. "More probable than not and generally aware" is a low standard by which to hand someone a 4-game suspension. In short, other than the opinion of some people who were out to "get" Brady and the Patriots, there is "no 'there' there".

Now let's consider what most people feel is the truly damning piece of evidence against Brady, the destruction of his cell' 'phone. To start with, there is this from the testimony of Mr. Wells at the arbitration hearing: "I want to be clear-- I did not tell Mr. Brady at any time that he would be subject to punishment for not giving--not turning over the documents [emails and texts]. I did not say anything like that." Brady's contention was that no player had ever been suspended for allegedly failing to cooperate with -- or even allegedly obstructing -- an NFL investigation. Brady was told he would not be punished for not turning over e-mails and texts, Brady claims that he agreed to provide call records that the NFL could use to eventually obtain the information, the investigators had the records from McNally and Jastremski, and that since the NFL had all that was required, why the destruction of his 'phone would be such a big deal. During the proceedings before Judge Berman, Brady admitted it was not a good idea to destroy the 'phone. One can presume anything that he wants from this, but there is no proof of a smoking gun here.

It's nice to be feeling better. I really wanted to read the full text of Judge Berman's decision before I added my contribution. Most of you know that I am looking at this through Continental Blue (the Patriots' home uniform jersey color) glasses. Even at that, there is too much in the decision to negate any idea that Tom Brady sponsored any scheme to bend the rules. To me it appears that Roger Goodell, having had players lie through their teeth to him in other matters, and having been unable to adequately punish them (Bountygate comes to mind), decided he would put an end to such things once and for all. At the same time, a couple of teams saw an opportunity to embarrass New England, and cooked up a scheme, with or without the league's foreknowledge, to trap them. The problem with this was that they could not conduct their little game with the scientific rigor required to prove anything, and if they had, it might have proven nothing other than Gay-Lussac's ideal gas law was correct all along. Could Goodell's mind set have been something like "I will screw the Patriots. The other 31 teams hate them anyway, Kraft will go along with anything and he can't touch me anyway, and I will become the all-powerful commissioner who can do anything he pleases"? It surely sounds like Goodell and his lawyers have learned nothing regarding the CBA and labor law in general. Judge Doty had it right when he asked, "Does Roger Goodell even know there is a CBA?" Thus the question really remains "what will happen to Roger and his minions?" Sadly, it appears that nothing substantial will happen. Perhaps a few of the legal underlings in the office will be asked to seek other employment, but otherwise nothing. You see, the other 31 really do hate the Patriots and are pleased with the whole thing -- that is until the vacating of the suspensions. The problem with this attitude is that any one of them could be next to be set up for punishment whenever Goodell feels he needs to. Perhaps that was part of his reasoning behind going after Brady. If he makes it stick, which owner will challenge him going forward? Looks an awful lot like the technique used by despots everywhere. Maybe the best thing that comes to pass will be the addition to the CBA of truly neutral investigation, punishment, and arbitration proceedings. Other leagues seem to be able to do this. Why not the NFL?

posted by Howard_T at 04:29 PM on September 07, 2015