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What do you make of "deflate-gate"? - Page 15

post #421 of 481

post #422 of 481
Originally Posted by NED79 View Post

Put Brady in court under oath, make him cough up the missing texts... he and his lawyers will cave just like Kraft's did. I like Brady, he's a far better quarterback than liar. He should have taken the out when he had the chance. Ned

THIS, smashing a cell phone does not remove text messages from cell phone company servers.  The DOJ could get them if it were a matter if any legitimate legal importance or public safety.  If the texts were possibly related to some kind of serious crime the prosecutor would be able to get them.  Since this whole thing is just a circus to distract people from real issues like concussions and physical assault domestic violence Brady's cell records will never be touched.

post #423 of 481

Not to mention... Brady already released his text messages.  A few weeks ago they went public, hence all of the stuff about him haggling over a second pool cover, etc. etc.

post #424 of 481
Originally Posted by crgildart View Post

THIS, smashing a cell phone does not remove text messages from cell phone company servers.  The DOJ could get them if it were a matter if any legitimate legal importance or public safety.  If the texts were possibly related to some kind of serious crime the prosecutor would be able to get them.  Since this whole thing is just a circus to distract people from real issues like concussions and physical assault domestic violence Brady's cell records will never be touched.


The missing texts were between him and Julian Edleman:



post #425 of 481
The science cross examination part in the appeal is decidedly in favor of the consultants hired by Wells - Exponent plus a Princeton physicist.
Edward Snyder, the Yale management school econometrics guy tesifies and there's a discussion of the AEI report that appeared in the NY Times.
Snyder is at times just destroyed by the nfl's lawyer who has a very good grasp of the issues. The AEI report is gone through also by the Exponent people. I don't get why the nflpa would have an econometrics guy testify even if he did come up with a theory. Esp since the other side has someone with multiple degrees in statistics including a phd to handle the statistics issues.
Wells also had a physicist from Princeton who also does work at CERN oversee the Exponent work. He calls it first rate.

One would need to present the whole thing to an independent science commission and get their take.

Misconception of the 12th ball:
Kessler [Nflpa lawyer] : And then secondarily, did you make the decision not to use the 12th ball that was tested three times by the same official with the same gauge?

Wells: No, it wasn't the same gauge. Al Riveron tested that ball and he tested it with two gauges. And it's not in the report because we didn't think -- at that point in time, the intercepted ball because nobody knew whether or not the Colts might have tampered with it or something, we didn't use that as part of the analysis.
ppg 319-320 Appeal hearing.

No one at the nfl seemed to know that footballs lose pressure in the cold. Troy Vincent certainly didn't. Does no one know about tires?

I would expect judge Berman to excoriate the nfl over the whole thing. They have no proper protocols for football inflation. No calibrated gauges, no recording of time and temperature when the measurements are taken. Even a deli has to have their scale calibrated. For all of that the thing should've been thrown out and new proceedures instituted. It's just way too sloppy.
post #426 of 481
Here's the transcripts of the last two hearings in NY with Judge Berman.
These are well worth reading rather than press excerpts. Most of the legal mumbo jumbo is left to the submitted briefs. The judge is quite funny.

August 12th hearing:

Aigust 19th:
post #427 of 481
Originally Posted by Tog View Post

Here's the transcripts of the last two hearings in NY with Judge Berman.
These are well worth reading rather than press excerpts. 


I am thrilled that you are reading about this without relying on the 'sports media'. There is quite a bit to this case, at this point, and outlets like ESPN are doing a terrible job of covering it.

post #428 of 481

Does the NFL giving up their tax exempt status have any bearing on how differently they can govern the members of their organization, players and management?  In other words, like the NBA being able to demand that Sterling sell simply because they don't like his attitude regarding people of color in spite of him having broken no laws, does it really matter how the NFL treats Brady?  I mean, couldn't Sterling sue the NBA for calling him a racist with little actual proof and no legal discrimination charges?  Pretty sure he would if he could.  These giant sports organizations seem to be above the law since membership/ownership is voluntary and subject to their own bylaws not the regular us business laws.

post #429 of 481
Well it's because of the cba. There are Federal laws that govern it but it is way in favor of the arbitrator. If you read the above transcripts you get a good sense of it. Besides it's good drama. The judge is questioning both sides. He's pretty funny too and is often ragging on "Harvard educated" lawyers. (He went to NYU)

For instance, and this is paraphrasing, the Nfl lawyer Nash was talking about some issue related to interviews I believe. The Judge is asking something about the document and what Wells testified to.

(paraphrased and recreated)

Nfl lawyer Nash: your Honor, that document is some 1,500 pages.
Judge Berman: Yes, and Mr Wells, being a Harvard educated lawyer, came up with something to say about it. They always have something to say being Harvard educated.

Nash: Mr Wells covered that in the Appeal Hearing.
Judge: Yes, I read what he said and wasn't enlightened.

Coverage in the press would be a lot more interesting if they actually dealt with what's been said. They usually want to reduce it to one sentence. Such as " the Judge hammered the nfl". True, but he wants them to consider that their position is not as strong as they think so they'll settle. He's warned, probably for benefit of the public since the lawyers know it, that if the parties don't settle the process could go on for two more years . Unless both sides don't appeal which is unlikely.

This lawyer in Texas has been blogging about Nfl issues for years. She has a bunch of postings on Deflategate and faq's for the average non legal educated fan. I think she was also asked to write something for SI in the past.

Steph Stradley,
"Answering Your Deflategate Legal Questions"
Doesn’t the most recent Collective Bargaining Agreement (CBA) allow Roger Goodell to be completely unfair, given his role of investigator, judge and appellate judge?

No. No. No. No. Please people stop saying that. It is a commonly held view that is often parroted by people who should know better.

The powers that the commissioner has are not new. These were in the previous CBAs. It appears as though after the CBA was finalized, Goodell has substantially increased punishments in ways that the NFLPA likely did not contemplate. The Bountygate mess is the first example of that in 2012.

That said, the NFLPA is not arguing that the CBA process is unfair but rather that the NFL failed to follow the CBA and NFL rules as they are written and understood under labor law.

Businesses and unions negotiate CBAs to have a common understanding of their business arrangements. Every single situation can’t be baked into a these agreements, so labor law fills in the blanks for when disputes happen. Labor law is a very specialized area of the law, and the labor law involving sports and the NFL is even more specialized.

To simplify, the NFLPA makes the general argument that both the fairness procedures in the CBA and NFL rules and just basic “industrial due process” weren’t followed. That is, the NFLPA didn’t have to build in a lot of detailed technical fairness procedures into the document because all union members receive these protections under CBAs. Industrial due process is that bare minimum standards of due process that are allowed all disciplined employees in arbital proceedings.

As a part of this, the NFLPA argues that the NFL failed to follow “the law of the shop.” That is, that the NFL failed to follow the custom and practice that they’ve used in the past.

Given the language in the Tom Brady final ruling, it looks like the NFL will be arguing that this is a mostly unique situation that they are entitled to judge uniquely. That courts are supposed to give final arbitration decisions great deference and should not overrule them.

This guy writes for SI and has good info. He'll be teaching a course on deflategate legal issues at UNH Law School.

Michael McCann:

Edit: I found a post he made on the Tax Exempt status:
With a very modest benefit from the tax-exempt status, it’s a wonder why the NFL hasn’t already dropped it. This is particularly true because of disclosure requirements for 501(c)(6) entities. Each year organizations that claim 501(c)(6) status must make various disclosures to the Internal Revenue Service in Form 990s. These forms are publicly available and key disclosures include the compensation paid to an organization’s five highest-paid employees.

The reason why we know how much Goodell earns but don’t know how much NBA commissioner Adam Silver and MLB commissioner Rob Manfred earn is because the NBA and MLB are run as for-profit businesses and are thus not obligated to publicly disclose commissioners’ salaries. Going forward, the same will be true of Goodell’s salary: it will be a source of speculation and conjecture rather than of public fact. Only the salary of the NHL commissioner will be public among the four major pro sports leagues in the U.S., assuming the NHL continues to invoke 501(c)(6) status.

The real winners today: the USTA, PGA Tour and other tax-exempt sports associations that turn a profit
Edited by Tog - 8/24/15 at 8:50am
post #430 of 481
Apparently from the emails Brady went skiing at the Yellowstone Club after the superbowl.

Letters have been filed to the Judge. The Nflpa sent one listing 19 cases where the court overturned an arbiter in a cba.
The Nfl responded by dismissing the cases as not applicable.
Then another was sent by nflpa.

“These cases confirm that courts vacate arbitration awards only in extraordinary circumstances, none of which are present here,” NFL lawyer Daniel Nash wrote yesterday arguing that Goodell’s decision to suspend Brady four four games should not be overturned.

“The Union may have agreed to Mr. Goodell serving as arbitrator under Article 46, but it did not agree he could abdicate his responsibility as an arbitrator under the LMRA and FAA and conduct fundamentally unfair proceedings in which he cast aside undisputed CBA requirements, adjudicated his own conduct, and issued an unprincipled arbitration award based on his unilateral notions of industrial policy,” Kessler writes. “This is exactly the type of ‘extreme’ case that even the NFL now concedes the Court has the power to vacate.”

Nfl letter, Nash:

Nflpa letter, Kessler, in reponse:
post #431 of 481

I thought the most interesting line from the NFL letter was:


"All of the cases cited by the NFLPA in support of it's evident partiality argument involve neutral arbitrators who, for instance, failed to disclose conflict of interest."


There argument is: Goodell wasn't a neutral arbitrator, everyone knows it, so those cases don't apply. Ballsy argument.


Did you see what happened in Minnesota today?



At a hearing Wednesday on a contempt motion filed by the NFL Players Association in the Adrian Peterson case, Doty said everyone was “curious” as to how Judge Richard Berman would rule in the case of Tom Brady and Deflategate. In the process, he took the opportunity to get in a dig at Goodell.

“I’m not sure the commissioner understands there is a CBA,” Doty said.

If any one is wondering why the NFL rushed to file a motion in the SDNY confirming it's decision after denying the NFLPA appeal, this ^ is why. That is a comment from a Federal Judge. The NFLPA office is located in Minnesota, it files there, judge Doty has been handling these cases. He isn't a fan of the NFL.

post #432 of 481
Well oddly, it may be the refusal to let the Nfl lawyer Jeffrey Pash testify or be interviewed by the Nflpa for the appeal. Judge Berman spent a good deal of time on it. Essentially, Pash was announced at a press conference early on as the co- investigator or coauthor for the investigation. Now it seems his role might have changed and he didn't really do that, but he is listed as a co-author of the Wells report and had editing privileges.

Goodell ruled that he wasn't necessary and his testimony was cumulative. (Identical or similar testimony)

The judge repeatedly questions Nfl lawyer Dan Nash about it. It may become instrumental in Berman vacating the Goodell decision if he does.

The Judge asked Nash : "How do you know? Cumulative of what? Unless you know what he's going to testify to, how would you know it's cumulative?"

This recent Law school grad has an article about it:
"Tom Brady's Winning Argument", Ian Gunn, 8/24/15
Let’s back up a bit and understand this argument better.  When appealing Brady’s suspension, the NFLPA requested that NFL Executive Vice President and General Counsel Jeff Pash testify at the hearing due to his involvement with the Wells Report.  Essentially, the NFLPA wanted the opportunity to examine Pash and Wells on how their investigation was conducted, why they reached their conclusions, and more, to assist their arguments on appeal. ...Goodell ruled that Pash’s testimony was unnecessary for the purposes of the hearing...

Kessler argued, and Berman seemed to agree, that Pash's testimony was directly relevant to the Brady's ability to defend himself because he was the only other significant person involved in the process of the Wells Report. Whatever Goodell may have thought of Pash's testimony, he needed to provide a reasonable justification for why he believed Pash's testimony to be cumulative. Wells himself appeared to have no idea what Pash's role was in crafting the report. Judge Berman appeared clearly concerned that Kessler's inability to question Pash denied him pertinent and material evidence to Brady's attempt to undermine the basis for his discipline.
post #433 of 481
Well the court hearings are over. Judge Berman could ruleas early as tomorrow. I think he'll vacate the decision.
Either way, this won't end likely till next summer.
post #434 of 481
Judge Berman rules against NFL, vacates Goodell ruling.

Due to:
- Inadequate notice of potential discipline and alleged misconduct
- Denial of opportunity to interview one of two lead investigators, Jeffrey Pash
- Denial of access to investigative files including witness notes.

Summary paragraph of Judge Berman decision:


Full Document from court website:
post #435 of 481

Like I said many, many pages ago in this thread... Brady would ultimately win in court.  Duh.  That last press release by the NFL using the cell phone destruction as the chosen headline while foot-noting important evidence was the final self-inflicted blow.

post #436 of 481

Goddell has the option to appeal.  So far though I see this as a win for workers in general.  Employer's rules and dictates shouldn't be above the law of the land.  They never proved conclusively that Brady did it.  Pretty sure he did but same goes for O. J.

post #437 of 481
Originally Posted by JayT View Post

Like I said many, many pages ago in this thread... Brady would ultimately win in court.  Duh.  That last press release by the NFL using the cell phone destruction as the chosen headline while foot-noting important evidence was the final self-inflicted blow.

What "evidence" was footnoted?

Defintely the cell phone destruction was a pr stunt by the Nfl to make Brady look bad and justify the penalty which had already been imposed.
The vacating of the award was on the proceedure though, not evidence. Although there's definitely some overlap due to the "generally aware" standard used by Wells, Vincent, and Goodell.

Under the
"(A) Inadequate Notice of Discipline and Misconduct
(i) No Notice of Four-Game Suspension: Steroid Use Comparison"
Pg 23, 9/3/15 Berman ruling
The Court is unable to perceive "notice" of discipline, or any comparability between a violation of the Steroid Policy and a "general awareness" of the inappropriate activities of others, or even involvement in a scheme by others to deflate game balls on January 18, 2015, and non-cooperation in a football deflation investigation. Oral presentations before the Court on August 19,2015 did little to clarify the Commissioner's reliance upon Steroid Policy disciplinary measures in Brady's case:

Q [Court]:
So I ask you the same question ... how is [the Steroid Policy]like deflating a football and not cooperating? Clearly the question is a fair question to pose because clearly Mr. Goodell felt that he had to explain [Brady's] four-game suspension. And his explanation about steroid use, in my mind, only raised more questions than it answered, because I don't see -I still don't see how the four games is comparable to a player using steroids and a masking agent.

A [Nash]:
I think in the Commissioner's judgment it goes to the integrity of the game.
Aug. 19,2015 Hr'g Tr. 63:15-25.

The Award offers no scientific, empirical, or historical evidence of any comparability between Brady's alleged offense and steroid use. Often, steroid use has to do with critical issues of health, injury, addiction, and peer pressure, among other factors. See Steroid Policy at 1-2 (listing several factors related to the use of"Prohibited Substances," including "a number of physiological, psychological, orthopedic, reproductive, and other serious health problems, [such as] heart disease, liver cancer, musculoskeletal growth defects, strokes, and infertility"). None of these factors is (remotely) present here.

The Court finds that no player alleged or found to have had a general awareness of the inappropriate ball deflation activities of others or who allegedly schemed with others to let air out of footballs in a championship game and also had not cooperated in an ensuing
investigation, reasonably could be on notice that their discipline would (or should) be the same as applied to a player who violated the NFL Policy on Anabolic Steroids and Related Substances. Brady had no such notice.

"When it is clear that the arbitrator 'must have based his award on some body of thought, or feeling, or policy, or law that is outside the contract[] and not incorporated in it by reference ... the arbitrator has failed to draw the award from the essence of the collective bargaining agreement."

In re Marine Pollution Serv .. Inc., 857 F.2d 91, 94 (2d Cir. 1988) (quoting Ethyl Corn. v. United Steelworkers, 768 F.2d 180, 184-85 (7th Cir. 1985), cert. denied I 06 S. Ct. 1184); see also Bounty-Gate, slip op. at 6 ("In other words, rightly or wrongly, a sharp change in sanctions or discipline can often be seen as arbitrary and as an impediment rather than an instrument of change.").

In further support of his claim that there was no notice of his discipline, Brady points to the testimony of Mr. Wells, who acknowledged the following 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.
June 23,2015 Hr'g Tr. 336:19-23.

It is the "law of the shop" to provide professional football players with (advance) notice of prohibited conduct and of potential discipline. See. e.g., Langhorne, slip op. at 25 ("Any disciplinary program requires that individuals subject to that program understand, with reasonable certainty, what results will occur if they breach established rules.").

Because there was no notice of a four-game suspension in the circumstances presented here, Commissioner may be said to have "dispense[ d] his own brand of industrial justice.'' 187 Concourse Assocs., 399 F.3d at 527 (citation omitted). "When the arbitrator's words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award." United Steelworkers of Am. v. Enter. Wheel & Car Com., 80S. Ct. 1358, 1361 (1960).

The "generally aware" business:

(ii) No Notice of Any Discernible Infraction

The Players Association argues that "[t]he basis for Brady's punishment was the very narrow finding in the Wells Report [and reiterated in the Vincent Disciplinary Decision Letter] that [Brady] was ... 'generally aware' of ball deflation by two members of the Patriots equipment staff." Def.'s Mem. Supp. 8. No NFL policy or precedent provided notice that a player could be subject to discipline for general awareness of another person's alleged misconduct. 16

Footnote16 :
During these proceedings, the Court acknowledged some difficulty in understanding the meaning of the Wells Report/Vincent Disciplinary Decision Letter finding of"generally aware":

Q [Court]:
I am not sure I understand what in the world that means, that phrase. So, it says: at least generally aware of the inappropriate activities of Mr. McNally and Jastremski involving the release of air from Patriot game balls. So, I don't know what that is. You know, did he [Brady] know that McNally took the balls unaccompanied into the bathroom? Did he know that in the bathroom, if in fact it happened, McNally deflated the balls? Did he know that McNally then went on to the field with the balls?

(continued on pg. 26:)

A [Nash]:
He is saying that by the evidence Mr. Brady knew that these individuals were involved in deflating the footballs.
Q [Court]:
He didn't say that ... he didn't say that he knew, he said that ... he was at least generally aware of the inappropriate activities.
A [Nash]:
Generally aware is knew, I believe, your Honor.

Aug. 12,2015 Hr'g Tr. 24:12-25:17

Footnote 17. Pg. 26:

17 The Vincent Letter to Brady- unlike the Award- does not conclude 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." Compare Vincent Letter to Brady with Award at 10. Nor does the Vincent Letter to Brady- unlike the Award - say that Brady "participated in a scheme to tamper with game balls after they had been approved by the game officials for use in the AFC Championship Game .... " Compare Vincent Letter to Brady with Award at 13.

With respect to "general awareness" of others' misconduct- which is the principal finding in both the Wells Report and the Vincent Letter- Brady had no notice that such conduct was prohibited, or any reasonable certainty of potential discipline stemming from such conduct. 18

The Court concludes that, as a matter of law, no NFL policy or precedent notifies players that they may be disciplined (much less suspended) for general awareness of misconduct by others. And, it does not appear that the NFL has ever, prior to this case, sought to punish players for such an alleged violation. See Def.'s Countercl. ~I 04. The absence of such notice violated the "law of the shop." See Langhorne, slip op. at 25; see also Ricky Brown, slip op. at l 0 ("A rule must clearly and unambiguously establish the scope of prohibited conduct, as well as the consequences of violations, in order to be enforceable .... ").

Footnote 18:
18 With respect to any "scheme" to deflate footballs during the AFC Championship Game, Brady had no notice of a possible four-game suspension, as required by the "law of the shop." See discussion supra pp. 21-24. And, with respect to Brady's non-cooperation with the Pash/Wells Investigation, Brady similarly had no notice of a four-game suspension. See discussion supra pp. 24-25.

As far as "same goes for OJ" as in he got off. There is no way a jury would've bought the Wells investigation re the inflation. The whole sloppiness with measuring the pressure by officials, lack of knowledge of the Nfl that temperature affects pressure, and no standard proceedure to check balls. All of that with an even barely competent attorney would've sunk the Nfl's case. The mere fact that because of the physics of the world we live in, ie the Ideal Gas Law, it's a certainty that games have been played in the cold with under inflated footballs. The Nfl's clear lack of knowledge of this, despite paying the Commissioner $40 million, Troy Vincent oblivious to this as well and implementing no serious procedures to check ball inflation, would have been fatal to the Nfl's case. It's truly a joke.

Then you come in and have scientists see if you can figure it out. That may or may not be valid. The Patriot's offered no credible refutation of the science actually, despite the efforts of the economist from Yale and the conservative think tank the Heritage Institute.

There's just too much sloppiness before that elaborate scientisic effort to consider it. That's where they should have stopped. Basically saying, there were noncalibrated gauges used, no recording of time, no recording of temperature of the meaurement, and we weren't aware that air pressure of an enclosed volume varies with temperature.

That's just too much to get past a jury.
Edited by Tog - 9/3/15 at 10:49am
post #438 of 481

By evidence I mean the NFL foot-noted the fact that everything on the destroyed phone was still available and offered to them.  It was such a phony smear job of a press release.

post #439 of 481
Well that's wrong actually.
The phone company said the texts were not available. It might have something to do with the extended time period having passed when they asked. Yes they had McNally and Jastremski, but there could have been others.

Regardless, the phone at that point was a distraction in general and more of a pr effort to align people with the ruling.
The other thing that prejudiced the case was the public leak that 11 of 12 balls were underinflated by 2 pounds. This was never corrected by the Nfl when the test results could have been released shortly after the game on 18 Jan. That's what Kraft should have gone after more.

Goodell is now 0-5 on appeals.
post #440 of 481
Originally Posted by Tog View Post

Well that's wrong actually.
The phone company said the texts were not available.

The NSA has copies. Good luck there though..

post #441 of 481

post #442 of 481

Keep blasting away at Brady and Kraft.  Never mind about Peterson, Lewis, Roethlisberger, Hardy, concussions, etc...  whistling...

post #443 of 481
post #444 of 481
Originally Posted by Tog View Post

Goodell is now 0-5 on appeals.

The owners should lead him to the door and say good-bye.
post #445 of 481
Originally Posted by Coach13 View Post

The owners should lead him to the door and say good-bye.

Are we sure "most" of the owners are siding with Kraft and Brady in this matter?

post #446 of 481
Thread Starter 
While this a major victory, it's not a complete one. Pats still
lost their 2016 and 2017 draft picks.
post #447 of 481
Originally Posted by crgildart View Post

Are we sure "most" of the owners are siding with Kraft and Brady in this matter?

Nope-they need to consider his body of work with regards to this and other bungled handlings on his part. He really made a mockery over nothing in this instance.
post #448 of 481
I think the owners are relatively clueless as to what they signed up for with league punishment. Kraft certainly didn't know. It's all some vague fair process till they have to deal with it.
Kraft tried to ride two horses with one behind and found out it doesn't work.

Does it even matter though? They're making money hand over fist, and paid Goodell over $40 million. The whole deflategate is a big deal for some fans, but ultimately doesn't cost the league much, a few million, and people will still be watching. Even if Brady was off the field for a quarter of the season.
Edited by Tog - 9/3/15 at 5:35pm
post #449 of 481
Under the second reason for vacating. I'd say that Judge Berman casts doubt on the independence of the Wells Report. As ruled, he says the Nflpa was prevented from detrmining such as they were denied interviewing Mr. Pash.

(B) Commissioner Goodell Improperly Denied Brady the Opportunity to Examine Designated Co-Lead Investigator Jeff Pash
The Court finds that Commissioner Goodell's denial of Brady's motion to compel the testimony of Mr. Pash was fundamentally unfair and in violation of9 U.S.C. § !O(a)(3). Given Mr. Pash's very senior position in the NFL, his role as Executive Vice President and General Counsel, and his designation as co-lead investigator with Ted Wells, it is logical that he would have valuable insight into the course and outcome of the Investigation and into the drafting and content of the Wells Report. It is also problematic to the Court that there was no specification by Goodell as to the ways Pash's testimony would have been "cumulative." The Management Council does not deny that Mr. Pash provided edits to the Wells Report, in advance of its release. The testimony from Mr. Wells is illustrative:

Q [Kessler]: Do you know what the contents were of [Mr. Pash's] comments?

A [Wells]: I do not, except to say that they couldn't have been that big a deal because I don't think I heard about them. But, you know, Mr. Pash is a very good Harvard-trained lawyer. If you give a Harvard-trained lawyer a report this thick, he's going to have some kind of comment. So I assume whatever it was, it was some kind of wordsmithing. I can tell you this without waiving any privilege.
June 23, 2015 Hr' g Tr. 269:4-13.

The Court recognizes that arbitrators are "endowed with discretion to admit or reject evidence and determine what materials may be cumulative or irrelevant." Abu Dhabi Inv. Auth. v. Citigroup. Inc., No. 12 Civ. 283 (GBD), 2013 WL 789642, at *8 (S.D.N.Y. Mar. 4, 2013) aft'd. 557 F. App'x 66 (2d Cir. 2014) cert. denied, 135 S. Ct. 137, 190 L. Ed. 2d 45 (2014).

However, the NFL fairly cannot suggest, without more than the testimony of the NFL's retained counsel, that the edits from Mr. Pash were not significant or that his testimony would have been "cumulative." Pl.'s Mem. Supp. II. Mr. Wells acknowledged that he did not know the content of Mr. Pash' s pre-release edits, and thus there was simply "no reasonable basis for the arbitration panel to determine that ... [the] omitted testimony would be cumulative." See Tempo Shain, 120 F.3d at 20.

Denied the opportunity to examine Pash at the arbitral hearing, Brady was prejudiced. He was foreclosed from exploring, among other things, whether the Pash/Wells Investigation was truly "independent," and how and why the NFL' s General Counsel came to edit a supposedly independent investigation report. Def.' s Countercl. ~ 162; Report at I ("[The Report] was prepared entirely by the Paul, Weiss investigative team and presents the independent opinions of Mr. Wells and his colleagues."). Brady was also prejudiced because there was no other witness, apart from Pash, who was as "competent to address the substantive core of the claim."
See Commercial Risk Reinsurance Co. v. Sec. Ins. Co. of Hartford, 526 F. Supp. 2d 424,429 (S.D.N.Y. 2007).
quotes from the Berman ruling, 9/3/15,
National Football League Management Council v National Football League Players Association

Also available to be seen on Boston Globe website.
post #450 of 481

Martin Niemoller said it best with regards to why 31 owners aren't paying a lot of attention to the details in any of the 5 overturned NFL court cases:


When the NFL came for the Saints,

I remained silent;

I was not a Saint.


When the NFL came for Ray Rice,

I remained silent;

I was not a wife beater.


When the NFL came for Adrian Peterson,

I did not speak out;

I was not a child abuser. 


When the NFL came for the Patriots,

I remained silent;

I was not a 4 time World Champion.


When the NFL came for me,

there was no one left to speak out.


OK, that's not what he really said, sports are silly distractions from real problems and should never over shadow real social issues.

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