Deflategate

[Rob Lister]

So ... you're saying he actually DID deflate the balls.

[Doctor X]

--J.D.

[Doctor X]

You allowed more than $10 million of your bosses’ money to be spent on an investigation, court proceeding and appeal that left you looking like you didn’t understand seventh-grade science. You’ve also put an important portion of the Collective Bargaining Agreement in jeopardy as regards to discipline and cemented an already well-earned reputation for bullying and twisting the truth.

You now have numbers in hand that will either prove you were right all along, that the Patriots footballs measured (haphazardly) last January dropped so precipitously the results couldn’t be duplicated. Or you have numbers in hand that prove you threw up all over yourself.

What do you do with these numbers?

You pretend you never wanted anyone to see them.

["Snip!"--Ed.]

So the NFL got the numbers in its "spot checks" and Goodell is “pleased to report there are no violations this year.”

Reptilian.

How many were under 12.5? How much did they deflate in similar conditions to last January’s AFC Championship Game? How much did they inflate in the heat? Did any get into the 10 PSI range on really cold days?

This stuff was really important last January through September. Studies commissioned, investigations launched, reputations dragged along behind the NFL bus. Was it all worth it?

Of course it wasn’t. And that’s why you keep it all in the dark.

CSNNE-Tom Curran

For NFL's sake, let's hope the to-be-named 3 appeal judges don't read @tomecurran's take on NFL's PSI "spot checks":

McCannSporsLaw

Spoiler:

--J.D.

[Doctor X]

Our Man McCann gives his opinion on the choice of Federal judges who will hear the NFL appeal:

He gives the background and then usual caveats regarding predicting how appellate judges will rule. With those important qualifiers in mind, it is time to explore the backgrounds of the three judges and look for clues on how they might rule in the Brady case.
. . . .
As a starting point, the three appellate judges generally seem to support Judge Berman’s legal reasoning. Through Westlaw’s top-notch judicial reversal report service, I found that Judges Katzmann, Parker and Chin collectively heard 57 appeals of Judge Berman’s decisions between 2000 and 2015. Keep in mind, the three judges were members of other three-judge panels in reviewing these decisions and the appellate issues in each case mainly involved areas of law unrelated to Brady’s case, such as criminal law and constitutional law. With those caveats in mind, the three judges reversed or vacated Judge Berman in 7 of those appeals—12% of the time—and partially reversed/partially affirmed him in 6 appeals or 11%. More favorably viewed, Judges Katzmann, Parker and Chin have affirmed Judge Berman in approximately three out of every four appeals. That is favorable data for Brady.

Below is my brief scouting report on each judge and what we might expect.

Chief Judge Robert Katzmann: A 62-year-old graduate of Blah . . . Blah . . . Blah Analysis of Judge Katzmann’s record indicates that he is somewhat to the left of center ideologically. In theory, this should help Brady Very detailed discussion on grading decisions of judges.

In at least one case, Judge Katzmann ruled in a way that should lend optimism to Brady. In New York Telephone Company v. Communications Workers of America (2001), Judge Katzmann joined Judge Parker and another judge in affirming a federal district judge’s order to vacate an arbitration award. The award was a matter of dispute between union and management—the same type of scenario at play when Judge Berman ruled against the NFL last September. The three judges agreed that the arbitrator had failed to follow important rules contained in a collective bargaining agreement and case precedent and thus the award was invalid. There was one difference in the New York Telephone Company case from the Brady case: management, rather than labor, sought the vacating of the arbitration award.

Judge Barrington Parker, Jr.: A 71-year-old graduate of YBlah . . . Blah . . . Blah

Judge Parker, a native of Washington D.C., is viewed as somewhat to the right of center ideologically. His Judicial Common Space score indicates that he is conservative, with a score of 0.5. As noted above, however, he joined Judge Katzmann in the New York Telephone Company case, where the three-judge panel affirmed a district court’s decision to vacate an arbitration award. Even more encouraging for Brady, Judge Parker agreed with a district court judge in Applied Industrial Materials Corp. v. Ovalar Makine Ticaret Ve Sanayi (2007) that an arbitrator had acted with “evident partiality.” Brady highlighted this case in his legal filings because it involved an arbitrator who refused to recuse himself in spite of a conflict of interest—the same core critique Brady has leveled against Goodell. Brady’s attorney, Jeffrey Kessler, also successfully argued the Applied Industrial Materials case. That's all good news for Brady.

But in Mulvaney Mechanical v. Sheet Metal Workers International Association (2002), Judge Parker, along with two other judges, reversed a district court judge’s decision to vacate an arbitration award on grounds that the district judge had misinterpreted the significance of a strike and its relationship to arbitration. Also, perhaps troubling to Brady, in Westerbeke Corp. v. Daihatsu Motor Company (2002), Judge Parker joined two other judges in reversing a district court judge’s decision to vacate an arbitration award. Judge Parker rejected the district court judge’s conclusion that the arbitrator had exceeded permissible authority.

Judge Parker’s record is decidedly mixed as it relates to how he might rule on the NFL’s appeal.

Judge Denny Chin: A 61-year-old graduate of FordhamBlah . . . Blah . . . Blah Like Judge Katzmann, Chin’s ideology is viewed as somewhat to the left of center, with a score of -0.3 in the Judicial Common Space study. Prior to becoming a judge, Judge Chin practiced labor law extensively and thus is likely to be very familiar with the issues presented in the Brady case.

Judge Chin’s rulings on arbitration awards indicate a willingness to uphold earlier review by district court judges and to affirm arbitration awards. For instance, in A&G Coal Corp., Meg-Lynn Land Co. v. Integrity Coal Sales, Inc. (2014), Judge Chin joined two other judges in affirming a district court’s ruling to uphold an arbitration award. In that decision, the three-judge panel stressed that an arbitrator’s fact-finding is “essentially unreviewable.” This is perhaps an encouraging sign for the NFL, which stresses that Goodell’s fact-finding into allegations of under-inflated footballs, even if flawed—and critics would say contrary to science—was nonetheless permissible under the law. Judge Chin also joined in affirming district court orders to uphold arbitration awards in GMAC Real Estate v. Julius Fialkiewicz, Jr. (2012) and in Adriano Giannetti Dedini Ometto v. ASA Bioenergy Holding A.G (2014). The latter ruling featured Judge Chin joining Judge Parker in finding that even though the arbitrator may have been “careless” it was not so egregious as to warrant vacating the arbitration award.

Bottom line: The track records for these three judges are by no means conclusive. That said, they seem willing to tolerate flawed arbitrators, but only up to a degree. The National Tree of Law Professors, like radiologists, is the hedge. Also, Judges Katzmann and Chin seem willing to uphold district court decisions on arbitration awards. On balance this reflects positive news for Brady, but by no means does it lend assurance that he will win. If next Thursday’s hearing were an NFL game, one might predict a close score with Brady prevailing.

Michael McCann: Sports Illustrated

--J.D.

[Doctor X]

Appeal has started

Case opens with the Chief Judge blasting the NFL:

Judge Katzmann opens hearing by asking how NFL can justify penalty based on "new factual findings" after Wells report.

These are from linkypoo'd Twitter of a court dude Max Stendahl:

Judge Chin: Shouldn't Brady have been given notice re destroying cell phone?

NFL lawyer Clement: destruction of cell phone amounted to "out and out obstruction." Recall that one of the major problems was Brady was told his phone was not needed and his punishment had nothing to do with the phone.

Judge Parker says some might call suspension "draconian." "Why is the inflation level so critical in these games?"

Parker questions whether you get "any advantage on the field" from under inflated footballs. Recall that many Talking Lawyer Heads claimed no investigation of the evidence would happen. Recall me warning that you simply cannot tell a Federal Judge--particularly an Appellate Judge--what he "can" and "cannot" do. I am awesome in that way.

Judge Katzmann: "As you know, stickum is prohibited..." Notes "gross disparity" between stickum penalty and Brady's punishment.

Max Law

Searching for "anime girl eating popcorn" yielded that.

A RIVER to My People!

--J.D.

P.S.

[Doctor X]

From above:

Katzmann says he can't find evidence in record that Brady's alleged gifts to ball boys were "inducements" to engage in scheme. About that "they can't ask about the evidences--thanks" claim?

There are now "negatives" where they question Brady/NFLPA lawyer Kessler:

Katzmann: Language of CBA gives Goodell power over "conduct detrimental."

Kessler: Notice of consequences is still required.

. . . and:

Woah. Judge Chin says evidence of ball tampering was "compelling, if not overwhelming."

Apparently Chin did not actually read the submitted Pasch-Wells Report which conceded the evidence is neither "compelling," nor "overwhelming," or even existent, nor did he read the actual science reports.

Of course, that could be unfair to Judge Chin since he may simply be imitating Goodell's reading of the evidences--thanks--and not whether or not he should have read it that way. This is a tweet without the context of his question.

--J.D.

[Doctor X]

Throughout DeflateGate , NFL Commissioner Roger Goodell and his tin-star investigators have mischaracterized facts, or flat-out omitted them in order to make New England Patriots quarterback Tom Brady look guilty. But it’s one thing for the NFL to perpetuate falsehoods in its own bubble world, and quite another to do it in an actual court of law. That’s what happened before the Second Circuit appeals panel last week when NFL attorney Paul Clement improperly repeated untruths, and it should serve as evidence to those judges that the Brady arbitration is dishonest and should be tossed.

["Snip!"--Ed.]

Ever since last week’s oral arguments late Thursday, there has been a growing chorus among legal observers of the case that Clement made factual misstatements. New York Law School professor Robert Blecker, who filed an amicus brief, noticed it, and so did Houston attorney and legal blogger Stephanie Stradley, who tweeted, “Candor to the court means you are not to mislead,” and noted that judges can sanction if they are angry. The usual process is to correct the record with a letter to the court once he’s alerted to his misstatements; if Clement does not, Blecker intends to.

Sally Jenkins: The Washington Post

--J.D.

[Ben Trovado]

“Candor to the court means you are not to mislead,” and noted that judges can sanction if they are angry.

Yikes.

This is law-license-in-peril kind of stuff. Or should be.

[Doctor X]

Indeed, but remember someone would have to hold him to it. "Did he knowingly lie." Brady and Co. have not come out and said Goodell lied--but others have for them--and Goodell made sure to lie in court filings to shield himself from libel according to Gentlemen Skilled in this Work.

The problem is no one knows what it means. Judge Berman questioned the facts--which "HE's NOT SupPOseD TO DO!"--but based his decision on the process.

This appeals court could do the same: rule on whether or not Berman ruled properly. All of that above could be irrelevant.



I will put on the popcorn.

--J.D.

[Pyrrho]

Goodell disproves Deflategate

Goodell was one of approximately 120 students who participated in the school's annual science fair, and one of only eight to win the Outstanding Project Award, according to The Daily Item. The newspaper reports Goodell began his experiment with a football inflated to the NFL standard and then exposed it to different weather conditions, including humidity, snow, wind chill, cold and ice.

"Every time, it dropped two PSI [pounds per square inch]," Goodell, a Patriots fan, told the Item. "The lowest PSI recorded during deflategate was 2 PSI under proper inflation."

[Tiosylanyl]

This shit will just not die.

[Grammatron]

Interesting.

[Pyrrho]

[Rob Lister]

So I guess this means he's guilty.

[Doctor X]

Do you even want to know what this could mean since the main angry dissent was the chief justice?

Wake me up next year. . . .

--J.D.

[Doctor X]

More than 20 professors back Tom Brady in Deflategate:

Bob McGovern Tuesday, May 24, 2016

Engineering and physics professors from across the country are prepared to stand behind New England Patriots quarterback Tom Brady in his ongoing Deflategate appeal, according to new court documents.

“Although sensationalized in the press, it was no surprise to any scientist that the Patriots’ footballs lost pressure during the AFC Championship,” the professors wrote in an amicus brief filed today. “So-called ‘deflation’ happens naturally when any closed vessel, such as a football, moves from a warm environment to a cold one.”

The brief, signed by more than 20 professors and filed by Washington, D.C. attorney Eric Delinsky, comes a day after Brady’s attorneys petitioned the U.S. Court of Appeals for the Second Circuit to rehear the quarterback’s case against the NFL.

“Courts should not be powerless to consider the absence of scientific proof when a proceeding is so interlaced with laws of science,” the scientists argue. “We support the petition for rehearing."

“As professors, we cannot fathom how it is permissible to impose punishment for the possibility of a negligible increment of pressure loss, when underinflated footballs are common to NFL games, when laws of physics cause much larger pressure drops, and when the very possibility of an additional increment of pressure loss was generated from assumptions of the league’s choosing rather than data,” the brief states. “In the name of science, we support the petition for rehearing.”

Boston Daily Mail

--J.D.

[Anaxagoras]

Tom is getting kind of old, so maybe this is a blessing in disguise. Gives the second-string guy a chance to get some experience and gives Tom a shorter season with fewer chances to get injured.

[Doctor X]

Yeah, that has been spun that way, but I think Tom is actually pretty pissed given he did nothing and, as the reports from actual SCIENCE[!--Ed.] shows, nothing happened. Add in the fact Goodel lied continuously I think he will take this as far as he can.

How far that is? Here is the problem: EVERYONE has been wrong about predictions. He only needs to convince seven appellate judges to hear him--and one of them wrote a stinging dissent--or he can get a re-hearing from three judges.

Leaving all of that aside since it takes months, Justice Ruth Beda Guinsesbergendekurt tends to be pro-labor and she would be the one to get SCOTUS involved. Since Olsen & Co. are showing how this affects labor issues beyond this case--and we are still waiting for a decision on the Peterson case which could contradict this case at the same level which is anathema for the Federal system . . . start making a shit-load of popcorn.

It is very possible, IF he gets the en banc hearing, the re-hearing, or SCOTUS does get involved . . . he could win two more Super Bowls and retire before this is done.

In that case, I prefer cold unfiltered お酒.



--J. "Shaken . . . Not Shtir'd!" D.

[Doctor X]

AFL-CIO backs Tom Brady in Deflategate saga

Bob McGovern Tuesday, May 31, 2016:

The massive umbrella federation for American unions is backing New England Patriots quarterback Tom Brady in the ongoing Deflategate legal saga.

The American Federation of Labor and Congress of Industrial Organizations today filed a brief arguing that NFL Commissioner Roger Goodell overstepped his authority when he suspended Brady.

“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,” AFL-CIO attorney James Coppess wrote. “Regardless of who hears appeals, labor arbitration always must be fundamentally fair.”

The brief, which urges the United States Court of Appeals for the Second Circuit to rehear Brady’s case, says Goodell was acting in “the self-serving role of an employer justifying his own disciplinary decision” when he punished Brady.

["Snip!"--Ed.]

But the AFL-CIO argued that Goodell was not acting as a neutral arbitrator and the circuit court panel “therefore erred in extended deference to the Commissioner’s decision.”

Boston Daily Mail

--J.D.

[Marla Singer]

I'm pretty sure Tom let the air out. He should just retire. That * next to his name in the books shouldn't be a problem. They're all cheaters. He'll get lost in the shuffle.