Kemo
07-30-2015, 06:05 PM
The NFL Players Association’s legal fight with the NFL over Tom Brady’s Deflategate suspension took an early turn Thursday when a federal judge ruled the sides’ dueling lawsuits should be heard in New York and not the union’s preferred forum in Minnesota.
In any venue, the NFLPA can’t retry the facts of Brady’s case (as much as it might want to). The sides are bound by the collective bargaining agreement, which dictates the arbitration process, and there is a high bar for the courts to intervene.
However in February, U.S. District Judge David S. Doty vacated the arbitration decision that upheld Minnesota Vikings running back Adrian Peterson’s suspension — a ruling the NFLPA will lean on in challenging the process that led to Brady’s discipline being upheld by Commissioner Roger Goodell on Tuesday. (The NFL has appealed Doty’s decision on Peterson; a settlement conference is scheduled Aug. 13 in Minneapolis.)
The NFLPA wants a ruling by Sept. 4, six days before the New England Patriots’ regular-season opener against the Pittsburgh Steelers, or else a preliminary injunction that allows Brady to play while a judge reviews Goodell’s decision.
Attorney Jeffrey Kessler, a longtime NFL nemesis who again is headed to court with the league, spoke with USA TODAY Sports and detailed the four major grounds for Brady’s case.
“We believe on any one of those arguments, this arbitration can be set aside and should be and will be set aside,” Kessler said.
1. Lack of notice
“What Judge Doty held in Peterson, when he threw out that arbitration decision, is that what we call the law of the CBA, or the law of the shop, requires that a player can’t be disciplined unless he has notice on what policy and standards he’s being subjected to, as well as what penalties, just like you would expect to have that. In this case, the notice fails for three different reasons:
“It fails because there’s no notice the player can ever be disciplined for being ‘generally aware’ that someone else did something wrong. It would be like, in the drug policy, you discipline the player for being ‘generally aware’ that a different player was using steroids. There’s no notice of precedent for this at all, so it’s made up.
“The second notice failure is that the policy may apply called the competitive integrity policy. On its face, does it apply to players? It’s never given to players, and it’s admitted that no player, including Tom Brady, has ever seen this policy. So that’s a problem.
“The third problem of notice is there is actually a player policy that’s given to players about game equipment and about altering the equipment to get an advantage, like receivers putting stickum on their gloves, and that policy provides for a collectively bargained fine of ($8,268). That’s it. So there’s no notice that you can ever be suspended for anything like this.”
2. Insufficient procedures
“The law of the CBA (is) that discipline has to be based on a fair and consistent way of doing things. But the problem is, you can’t have a fair and consistent discipline here, because the league failed to have any procedures for gathering the right information to even know whether the balls were artificially deflated or not. They didn’t measure the temperature. They didn’t measure the timing. They didn’t measure the wetness. They didn’t measure anything. And it’s just (impossible) to know whether or not the balls are artificially deflated.
“So, because of the league’s failure to have real procedures – which by the way, they now do have apparently; they announced they’re going to have new ones for this year, a year too late – because they didn’t have that, they had to make stuff up. They had to say, ‘Well, if the temperature was this and the timing was this and the wetness was this, then you could get this result.’ It turns out if you say, ‘Well, but if the temperature was this and the timing was this,’ you get the opposite result. So, the issue is no one has a fair and consistent way of knowing whether there was any artificial ball deflation. And that’s the league’s fault.
“It’s like having a drug test and having no standards. They put you into a locker room and say, ‘Here’s a needle. Go figure out what to do.’ You couldn’t do a drug test that way. You can’t do this test that way.”
3. Fundamentally unfair process
“Number one, we had an argument that the commissioner’s authority (to issue discipline) was unlawfully delegated to (NFL executive vice president of football operations) Troy Vincent. But what the commissioner did is he said, ‘I’m not letting you take any evidence of that. I’m not letting you present it at the hearing. I’m just telling you what I did was proper. Next.’ That’s not an arbitration hearing. We wanted to develop evidence. We wanted to make arguments. We wanted to get witnesses. We were denied all of that.
“Number two, the investigator notes in the Wells Report were denied to us, so we couldn’t see what these witnesses actually said, as opposed to what the report reported, even though this was ordered to be given to the players in Bounty, it was ordered to be given to the players in (Ray) Rice. It’s routinely recognized that players and the union are entitled to this, because the league has access to it. And how do I know the league has access to it? Because the law firm of Paul Weiss, who did the Wells Report, showed up at the hearing defending the discipline. That is some ‘independent’. They showed up as the league’s lawyers. And they had access to all of the notes we did not. So that’s fundamentally unfair.
“And then the third part of the fundamental unfairness is when you ask for certain witnesses like (NFL executive vice president/general counsel) Jeff Pash to testify – who is told to the public to be co-lead investigator for the (Wells) report – and the league said, ‘No, you can’t talk to him. He doesn’t get to testify.’ Why? Because the commissioner said, ‘Well, he didn’t really do anything.’ Except that it came out at the hearing that he actually reviewed drafts of the report and made comments. So much for independence.”
4. Partiality of Roger Goodell
“It’s a very specific argument. The big issue that we tried to argue was that he unlawfully delegated his authority to Vincent. Well, he (shouldn’t get) to decide whether his conduct was legal or not. That’s what he did. That’s why he should’ve walked away from this, just like he walked away from Ray Rice, just like he ultimately walked away from Bounty – because his own conduct became an issue. But here, he said, ‘No, that’s OK, I can decide that. Guess what? I was right. Now what?’ That’s how the arbitration hearing played out. Even when you agree to somebody as arbitrator, you don’t agree to it when it turns out the issue is whether he did something wrong.”
In any venue, the NFLPA can’t retry the facts of Brady’s case (as much as it might want to). The sides are bound by the collective bargaining agreement, which dictates the arbitration process, and there is a high bar for the courts to intervene.
However in February, U.S. District Judge David S. Doty vacated the arbitration decision that upheld Minnesota Vikings running back Adrian Peterson’s suspension — a ruling the NFLPA will lean on in challenging the process that led to Brady’s discipline being upheld by Commissioner Roger Goodell on Tuesday. (The NFL has appealed Doty’s decision on Peterson; a settlement conference is scheduled Aug. 13 in Minneapolis.)
The NFLPA wants a ruling by Sept. 4, six days before the New England Patriots’ regular-season opener against the Pittsburgh Steelers, or else a preliminary injunction that allows Brady to play while a judge reviews Goodell’s decision.
Attorney Jeffrey Kessler, a longtime NFL nemesis who again is headed to court with the league, spoke with USA TODAY Sports and detailed the four major grounds for Brady’s case.
“We believe on any one of those arguments, this arbitration can be set aside and should be and will be set aside,” Kessler said.
1. Lack of notice
“What Judge Doty held in Peterson, when he threw out that arbitration decision, is that what we call the law of the CBA, or the law of the shop, requires that a player can’t be disciplined unless he has notice on what policy and standards he’s being subjected to, as well as what penalties, just like you would expect to have that. In this case, the notice fails for three different reasons:
“It fails because there’s no notice the player can ever be disciplined for being ‘generally aware’ that someone else did something wrong. It would be like, in the drug policy, you discipline the player for being ‘generally aware’ that a different player was using steroids. There’s no notice of precedent for this at all, so it’s made up.
“The second notice failure is that the policy may apply called the competitive integrity policy. On its face, does it apply to players? It’s never given to players, and it’s admitted that no player, including Tom Brady, has ever seen this policy. So that’s a problem.
“The third problem of notice is there is actually a player policy that’s given to players about game equipment and about altering the equipment to get an advantage, like receivers putting stickum on their gloves, and that policy provides for a collectively bargained fine of ($8,268). That’s it. So there’s no notice that you can ever be suspended for anything like this.”
2. Insufficient procedures
“The law of the CBA (is) that discipline has to be based on a fair and consistent way of doing things. But the problem is, you can’t have a fair and consistent discipline here, because the league failed to have any procedures for gathering the right information to even know whether the balls were artificially deflated or not. They didn’t measure the temperature. They didn’t measure the timing. They didn’t measure the wetness. They didn’t measure anything. And it’s just (impossible) to know whether or not the balls are artificially deflated.
“So, because of the league’s failure to have real procedures – which by the way, they now do have apparently; they announced they’re going to have new ones for this year, a year too late – because they didn’t have that, they had to make stuff up. They had to say, ‘Well, if the temperature was this and the timing was this and the wetness was this, then you could get this result.’ It turns out if you say, ‘Well, but if the temperature was this and the timing was this,’ you get the opposite result. So, the issue is no one has a fair and consistent way of knowing whether there was any artificial ball deflation. And that’s the league’s fault.
“It’s like having a drug test and having no standards. They put you into a locker room and say, ‘Here’s a needle. Go figure out what to do.’ You couldn’t do a drug test that way. You can’t do this test that way.”
3. Fundamentally unfair process
“Number one, we had an argument that the commissioner’s authority (to issue discipline) was unlawfully delegated to (NFL executive vice president of football operations) Troy Vincent. But what the commissioner did is he said, ‘I’m not letting you take any evidence of that. I’m not letting you present it at the hearing. I’m just telling you what I did was proper. Next.’ That’s not an arbitration hearing. We wanted to develop evidence. We wanted to make arguments. We wanted to get witnesses. We were denied all of that.
“Number two, the investigator notes in the Wells Report were denied to us, so we couldn’t see what these witnesses actually said, as opposed to what the report reported, even though this was ordered to be given to the players in Bounty, it was ordered to be given to the players in (Ray) Rice. It’s routinely recognized that players and the union are entitled to this, because the league has access to it. And how do I know the league has access to it? Because the law firm of Paul Weiss, who did the Wells Report, showed up at the hearing defending the discipline. That is some ‘independent’. They showed up as the league’s lawyers. And they had access to all of the notes we did not. So that’s fundamentally unfair.
“And then the third part of the fundamental unfairness is when you ask for certain witnesses like (NFL executive vice president/general counsel) Jeff Pash to testify – who is told to the public to be co-lead investigator for the (Wells) report – and the league said, ‘No, you can’t talk to him. He doesn’t get to testify.’ Why? Because the commissioner said, ‘Well, he didn’t really do anything.’ Except that it came out at the hearing that he actually reviewed drafts of the report and made comments. So much for independence.”
4. Partiality of Roger Goodell
“It’s a very specific argument. The big issue that we tried to argue was that he unlawfully delegated his authority to Vincent. Well, he (shouldn’t get) to decide whether his conduct was legal or not. That’s what he did. That’s why he should’ve walked away from this, just like he walked away from Ray Rice, just like he ultimately walked away from Bounty – because his own conduct became an issue. But here, he said, ‘No, that’s OK, I can decide that. Guess what? I was right. Now what?’ That’s how the arbitration hearing played out. Even when you agree to somebody as arbitrator, you don’t agree to it when it turns out the issue is whether he did something wrong.”