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When The President Hates A Race And Talks Racist Trash

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President Donald J. Trump is a racist bigot. Jemele Hill was right on that one, not that sane people had not already realized it long ago, and well before his election. Take his ignorant position on the Central Park Five case, just as a for instance. Then add on how he was sued decades ago for discriminating against blacks in housing. Throw in a thousand other tell tale points and you have a picture of a self entitled candy assed rich New York racist. That is just who he is. It has always been there for inquiring minds to see if they so desired.

Now the latest pure and unadulterated racism from the now President of the United States. Last night in Alabama, Trump let loose a rambling self centered screed of a speech that would make George Wallace cringe. Here is a sample:

“Wouldn’t you like to see one of these owners, when somebody disrespects our flag, to say, ‘Get that son of a bitch off the field right now, out, he’s fired. He’s fired!”

He then went on to state that any player so exercising free speech should be “fired” and unemployable at their career job. From Michael David Smith at PFT:

Trump said an NFL owner who releases a player would instantly gain broad support across America.

“Some owner’s gonna do that. He’s gonna say, ‘That guy that disrespects our flag? He’s fired. And that owner . . . they’ll be the most popular person in this country. Because that’s total disrespect of our heritage. That’s total disrespect of everything we stand for,” Trump said.

Trump added that he believes fans should walk out if players don’t stand for the anthem. “If you see it, even if it’s one player,” Trump said, “Leave the stadium.”

Trump also argued that if they do this to boycott the NFL and personal free speech, they would be supporting him and his position.

Clearly aiming at Colin Kaepernick, Michael Bennett and Malcolm Jenkins, prominent NFL players who have had the audacity to be free thinking humans and exercise the protected free speech our Bill of Rights is led by and that generations of American patriots fought and died to preserve. Donald Trump shits on every ounce of that every time he goes on one of his little pointed and racist rants. And boy did he shit on it last night in Alabama. You’d almost think Trump is aligned with the neo-Nazi white supremacists with torches in Charlottesville that he praised as “fine people” instead of the full diversity of American citizens. Including, you know, black people.

Was Trump done? Of course not. He then cravenly went on to scold the NFL for being soft because of their (still lame and ineffective) concern about CTE degenerative brain disease:

“When the ratings are down massively, massively. The NFL ratings are down massively. Now the number one reason happens to be that they like watching what’s happening….with yours truly. They like what’s happening.

Because you know if they hit too hard…Fifteen yards! Throw him out of the game! they hd that last week. I watched for a couple of minutes. Two guys, just really, beautiful tackle. Boom, fifteen yards!

The referee gets on television, his wife is sitting at home, she’s so proud of him. They’re ruining the game! That’s what they want to do. They want to hit. They want to hit! It is hurting the game!”

An outrageous thing to say about, again, American citizens and their workplace safety issues. Especially when the most recent studies found CTE degeneration in 99% of the brains from NFL players they have examined. And when the NFL was just slapped with a complaint on Aaron Hernandez that exhibited that even a relative young player displayed “a raisin-like brain of a 70-year-old even though he was 27″. Simply craven, bigoted and outrageous.

It is the the stuff of a narcissistic self entitled bigot plantation slave owner. Trump literally thinks he is not only the the better, but genetically superior to other humans, including the constituents he works for. Including people he thinks are owned as slaves by the NFL and other terrorized employees.

When Trump instructs NFL owners to fire people that disagree with his own petty world view, he thinks they are plantation owners such as he sees himself with the rest of humanity. Trump makes “the best deals” but cannot see, nor appreciate, the NFL collective bargaining agreement (CBA), nor does he respect that deal for squat if employees thereunder happen to annoy the fat ass boy king and god.

Apparently Trump thinks the illustrious group of NFL owner oligarchs are his bitches too. As Don Van Natta noted, “Bob Kraft, Jerry Jones, Stan Kroenke, Daniel Snyder, Shahid Khan, Woody Johnson & Bob McNair each gave $1M to Trump”. That is nearly one quarter of the NFL owners. What are they rewarded with by their benefactor Trump? A call for boycott of their business interests unless they enforce an unconscionable suppression of political free speech he disagrees with.

This may “only be sports”, but this is one of the more stunningly outrageous and un-American symbols of the cancer the Trump Presidency really is. And what a demented, sick and small man Trump really is.

Did Trump stop with that stunning pettiness and bigotry? No, of course not. He woke up and decided to be the charlatan of humanity he really is, and decided to lash out at another icon of sports. Steph Curry. And more:

Well that is brilliant Art of the Squeal Like a Pig Don.

So, lets see, who has Donald Trump lashed out at exclusively in the last 24 hours? Ryan Lizza hit it on the head:

Trump has now attacked Jemele Hill, Colin Kaepernick, & Stephen Curry. All have something in common but I can’t quite put my finger on it.

Ryan was being sarcastic about the putting a finger on it. And, again, he was completely correct in his observation. I wonder what Trump would say about a golden white boy who turned down a White House invitation”? Oh, wait….

The face of the New England Patriots, Tom Brady, did not attend Wednesday’s White House ceremony with his teammates due to “personal family matters” — but the show went on without the star quarterback.

Brady’s decision not to visit the White House comes on the same day former teammate and convicted murderer Aaron Hernandez was found dead after an apparent suicide in his prison cell.

Yes, a pure as white can be Tom Brady gets no bad mouth at all from our racist bigot President, but be a black person in sports, whether athletes like Colin Kaepernick and Michael Bennett, or sports journalist like Jemele Hill, and he will try to deprive you and your family of the essential income your professional career provides.

This is where we are in America in the Age of Trumpism. If you are a white nationalist fat ass racist bigot, your President thinks you are “fine folk”. If you are an intelligent black, brown, gay or other, even trying to serve your country’s military, your President, Trump The Genetically Magnificent, will attack you and your family’s very source of income, and well being, mercilessly.

It is the shame of modern America.

I’m sorry, I’ve no stomach for the actual games this weekend at this point. We can all discuss that in comments, but not here. Not now. Not after this.

Killer Football Is Trashing Its Real Capital

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So we are on to week two of Trash Talk for the nascent NFL season, and week three for the NCAA. There is a ton that could be unpacked as to the particular players, plays and whatnot but, as was the case with the first week, I have little inclination to do so anymore, at least not at great length. Maybe just a little later on, but there are more pressing matters at hand.

Football is hard to turn away from, it is great pageantry and spectacle. It is incredibly compelling sport. But the game is at a crossroad as to its deadly nature and its decimation of its real capital: the players. A stunning article came out yesterday from PBS Frontline:

A total of 87 out of 91 former NFL players have tested positive for the brain disease at the center of the debate over concussions in football, according to new figures from the nation’s largest brain bank focused on the study of traumatic head injury.

Researchers with the Department of Veterans Affairs and Boston University have now identified the degenerative disease known as chronic traumatic encephalopathy, or CTE, in 96 percent of NFL players that they’ve examined and in 79 percent of all football players. The disease is widely believed to stem from repetitive trauma to the head, and can lead to conditions such as memory loss, depression and dementia.

In total, the lab has found CTE in the brain tissue in 131 out of 165 individuals who, before their deaths, played football either professionally, semi-professionally, in college or in high school.

Wow. We have known for quite a while about CTE and its debilitating, and sometimes deadly, effects on football players. But the starkly presented facts portrayed in the PBS piece are really eye opening. And people are talking about it. It is in the regular news rotation at CNN this morning, and you know how muchit had to pain the programmers and producers at CNN a LOT to eat into their All Trump, All The Time philosophy.

But the NFL is being a good corporate citizen and proactively protecting their players, right? No, maybe not so much. While Roger Goodell and the NFL paint a happy face on their “improvements”, the real fact of the matter is that their “progress” is mostly just another Roger Goodell and NFL PR shitshow. Do take a look at the above trailer for the movie “Concussion” set to be released in December. It looks fantastic.

Again, from the PBS Frontline article we started out with:

The film, Concussion, starring Will Smith, traces the story of Bennet Omalu, who in 2005 shocked the football establishment with an article in the journal Neurosurgery detailing his discovery of CTE in the brain of former Pittsburgh Steelers center Mike Webster. At the VA lab and elsewhere, CTE has since been found in players such as Hall of Famer Junior Seau, former NFL Man of the Year Dave Duerson, and Colts tight end John Mackey, a past head of the player’s union.

While the story is not a new one, for the NFL, it represents a high-profile and potentially embarrassing cinematic interpretation of a period in which the league sought to refute research suggesting football may contribute to brain disease.

From 2003 to 2009, for example, the NFL’s now disbanded Mild Traumatic Brain Injury Committee concluded in a series of scientific papers that “no NFL player” had experienced chronic brain damage from repeat concussions, and that “Professional football players do not sustain frequent repetitive blows to the brain on a regular basis.”

In the case of Omalu, league doctors publicly assailed his research, and in a rare move, demanded a retraction of his study. When Omalu spoke to FRONTLINE about the incident for the 2013 documentary, League of Denial: The NFL’s Concussion Crisis, he said, “You can’t go against the NFL. They’ll squash you.”

“THEY WILL SQUASH YOU”. Yes, that is exactly the consistent message from the oh so “fan friendly” good ‘ole NFL of Roger Goodell, and the billionaire owner baby tyrants he works for. Little different than coal mine owners, the NFL cares primarily about their bottom line. First they look at the purse. This is why the Brady/NFLPA case is so important. And why Bountygate, Ray Rice and Adrian Peterson’s cases before it, were all so important. And, yes, even the disciplinary travails of James Harrison. They all reflect the ad hoc, arbitrary and capricious, and self serving nature of the treatment of labor by owners and management in the NFL.

You may see them only as millionaire malefactor petulant football players out doing bad things and think they deserve what they get. And maybe that is true in most cases. Ray Rice absolutely assaulted his fiancé and now wife Janay. Adrian Peterson, engaged in punishment of a child that was pretty common when I was a kid, but is entirely medieval by today’s standards.

Say what you will, where there is wildly disproportionate power between ownership/management and labor, and where there has been a collectively bargained agreement to protect labor, that must be jealously protected. That is exactly why Tom Brady is so critical. Brady is no gangster nor domestic abuser. He is the furthest thing from it; indeed, Brady is Mr. Clean Cut GQ All American. If Roger Goodell and the NFL he represents can arbitrarily, capriciously and imperiously take out Tom Brady – on trumped up junk with no credible evidentiary basis whatsoever – and can do so in a biased and unfair process, then all of labor loses. Not just high flying football players, but teachers, autoworkers, miners, and rank and file employees of all stripes and colors.

I digressed a little from today’s CTE issue, but the labor issue is intertwined. The players need more honesty, more protection, and more complete future medical coverage from the NFL because of the disease that is CTE. That, my friends, is a labor issue, and a huge one. And Roger Goodell and the NFL are already acting in bad faith in their “settlement” efforts as to long past players. It is simply pitiful.

So, what about this week? I dunno. The Broncos looked like toast through 7 of their first 8 quarters of the season. But, the Donks are 2-0. If Manning and Kubiak can find a mutual equilibrium, watch out, because Von Miller, Aqib Talib and the defense are some flat out ball hawks. Yak all you want about Peyton’s decline and fall, and maybe it is true. But do NOT sleep on these guys.

Cowboys, Gents or Iggles? Yeah, I have no clue there either.’Boys looked best week one, not sure I buy it. Why is RGIII still on the active roster of the Washington Professional Football Franchise? Seriously, the Washingtonians are like the Duggars of football; it is on public view, but it is all horrible. The Eagles? Hmmm, Chip Kelly’s troops better show up this week or else the great hype is dead.

Aaron Rodgers is a renaissance man (this is a fantastic article). Oh, and Go Pack! against those pesky Seasquawks. This time it is at Lambeau in title town. There are other games of note too, including, of course Bill Bel and the Brays at the Wagon Circling Bills. That is shaping up to be some big fun.

So, go whoop it up and have some fun. The game goes on, even if a reckoning is necessary. The music number today is First I Look At The Purse by the J. Geils Band, and is in honor of the craven Roger Goodell and the NFL I described above.

Beyond Deflategate: The NFL Season Begins

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Hi there! How ya doing! Because I have been oppressed with this Tom Brady porn bullshit from blog partner and sister, that Wheel person. Very ugly and unnecessary. But I am going to let it stand for all of posterity, not to mention both of our posteriors. Still, you have to wonder when enough is enough (like when she hijacked my last post).

I used to love her, but….

So, enough about yer local riff raff, and about #Deflategate (which was bullshit from the inception) let’s get on to the game at hand. That would be the Patriots versus the Steelers.

Yes, Brady has a giant chip on his shoulder. Yes the Pats are defending Superbowl champs and Big Ben and the Steelers are not. Nevertheless, this is one hell of a season opening game. In fact, it is pretty hard to imagine a better one under the circumstances. Say what you will about how any got there, there are only a precious few at the top of all time winners in the Super Bowl era. They include the Steelers and Pats. And, yes, the Steelers, for all the Pats glory in the last 15 years, are still winning that overall matchup. The 49ers, Packers, Cowboys and Gents are totally in there, but the more recent elite are pretty clear.

So, here we are. Steelers have Big Ben and….what? Ben Roethlisberger and Antonio Brown are as good a duo as you can get. But without Bell, who is suspended, in the backfield, that is going to place some extra pressure on the Steelers offense. A face Bill Belichick undoubtedly knows. By the same token, the Pats pass defense rests on a backfield without either Darrell Revis of Brandon Browner. Pretty easy to see Malcomb Butler continuing to become a stud above and beyond his one play Super Bowl XLIX heroics, but similarly hard to see there not being some early hiccups in that road. Would not want to be Butler on Antonio Brown tonight.

But will DeAngelo Williams, who will sub for Bell and Cody Wallace, who is subbing for center Maurkice Pouncey, be able to pick up the slack? Yes, I think so, but not nearly enough.

That said, the Patriots are without LeGarrette Blount, due to a one game suspension. I think that Dion Lewis (who is potentially breakout star) and Travaris Cadet will come out of nowhere to semi-carry the load. So, both sides have some issue at running back, but, hopefully, capable backups. I’d give a slight edge to the Pats, but by a VERY slight margin.

We all know the QB’s on these two respective teams. They are both great. Hard to see an edge here other than the psychological harden that Brady may have. But I am not putting that much in that, Ben will come to play too.

Comes down to defense. Call me crazy, and probably you should for this, but I think the Pats have the edge on the new, dick LeBeau-less, and untested, Steeler’s defense. Troy Polamalu and Ryan Clark ain’t walking through that tunnel. Especially so with the questions in the Pittsburgh offensive line. If there is a win here, that, and a pissed off Brady, are where I see it. And that is where I see it, the Steelers are good, but the Brady’s come out roaring and winning tonight. don’t make me regret this Deflators!

So, there you have it. #Deflategate is still a legal pile of dubious garbage manufactured, as is now even more clear, by an arbitrary and capricious, if not arrogantly craven, Roger Goddell and the NFL. We shall deal with that more later. For now, trash it up and let loose the dogs of football war.

And that is that. On top is an incredible Taiwanese animation on the latest ESPN slanted bunk trying to give cover to the NFL for #Deflategate. It’s really awesome. Lower is one of my newest favorite bands, this one from down under, specifically Perth, Boom! Bap! Pow! Yeah, that is their name, and they are killer.

The real football season is upon us folks, rip this joint.

The Deflategate Decision: Brady Has Been Freed!

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Screen Shot 2015-09-03 at 11.32.25 AMemptywheel sez: We interrupt this in depth legal discussion to point out that the WOLVEREENIES ARE BACK!!

 

Better still, they’ve got unbeatable juju going into tonight’s game against Utah. That’s because (unreported among all the other less important Deflategate legalisms) the Wolvereenies have ALREADY worked together to score today.

 

That’s right.

You see, Jay Feely and Tommy Brady combined to score a point in Judge Berman’s decision today. On Monday, former UM kicker Jay Feely ’99 testified on behalf of former UM QB Tom Brady ’00 (just like me!!!). Feely explained about how when the Jets got busted for fucking with their balls in 2009 — in a game against Division rivals the Pats, against Tom Brady — he, the kicker who allegedly benefitted from the improperly doctored balls, faced no punishment.

If you’re not going to punish Jay Feely, Judge Berman suggested, you can’t punish Tommy Brady. At least, you can’t expect Tommy to think he’ll get punished, because his college buddy didn’t in the equivalent situation.

Anyway this is surely a great omen for the Wolverines and their new savior Jim Harbaugh.

So go Blue!

Deflated BallWell, at long last love, the #Deflategate decision from Judge Richard Berman in SDNY is in, and the big winner is Tom Brady.

The 40 page full decision is here

One key line in the decision on the general right of the court to set aside an arbitration is:

“The deference due an arbitrator does not extend so far as to require a district court to countenance, much less confirm, an award obtained without the requisites of fairness or due process” (citing Kaplan v. Alfred Dunhill of London, Inc.)

Boom.

I previously did a very partial background on the case, and how it germinated from blatantly false information (still uncorrected and/or withdrawn) from Chris Mortenson and ESPN. The bottom line is the NFL’s position was that the Commissioner, Goodell, simply has the power to do whatever he wants under Article 46 of the NFL/NFLPA collective Bargaining Agreement (CBA).

The Players Association, on behalf of Tom Brady, makes four core arguments in seeking to vacate Goodell’s arbitration decision:

1) There was not actual notice to Brady of prohibited conduct and that he could be suspended for it (See here for a further description)

2) That there were not adequate and reliable standards for testing game balls, and therefore punishment based on the same is unreasonable

3) That Goodell was a blatantly partial arbitrator, and

4) That the arbitration process lacked fundamental fairness in that key witness testimony and evidence was unreasonably denied to Brady and the NFLPA (See here for a further explanation).

Frankly, Brady is arguably entitled to a decision in his favor on all four. What Berman did is, primarily, rely on the first ground, notice with a backup of ground four, lack of fairness from denial of the Pash testimony and investigative notes.

CN_SebJWIAUg8iYThe critical language from the decision is:

The Award is premised upon several significant legal deficiencies, including (A) inadequate notice to Brady of both his potential discipline (four- game suspension) and his alleged misconduct; (B) denial of the opportunity for Brady to examine one of two lead investigators, namely NFL Executive Vice President and General Counsel Jeff Pash; and (C) denial of equal access to investigative files, including witness interview notes.

So, there you have it, please feel free to unpack this further in comments. This is a momentous decision, not just for Brady and the NFL, but, as I explained in my earlier post, for collectively bargained labor in general. There is a lot of importance here to much more than Tom Brady. Though Brady is certainly the big winner today.

Brady is free! For now anyway, it is nearly a certainty that the NFL will appeal to the 2nd Circuit and we will go through this all again.

ESPN Is Gutless, Chris Mortenson Has Tiny Deflated Balls and Other Deflategate Trash Talk

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Hi there! Been a while, hope this account still works and State Secrets or something has not overcome due process on this here blog.

So, here we are in the waning days of summer. I would have written more about the Formula One Circus but, frankly, it has mostly bored the heck out of me this year. The, still, best driver in F1 is stuck in a crappy underperforming McLaren and has to drive his ass off and hope for attrition to even score a point. That would be Fernando Alonso if you haven’t guessed. While lesser drivers, with far better machinery, you know, those like the two insolent crybabies at Mercedes, have such superior equipment that they wrongfully think they are kings. It is all enough to make an old school fan like me puke. Well, enough about the circus, let’s get to the real meat and potatoes of this blog’s sports coverage, the NFL.

As you may have heard, there is a little kerfuffle called #Deflategate that has been going on since before the last SuperBowl. On one side, we have an arrogant all powerful giant human jackass (no, not Dick Cheney this time) named Roger Goodell, and on the other, we have the epitome of bright and light, the All American Hero, and lover of supermodels, Tom Brady. If you think this is not a fair fight, and Brady is the clear winner, advance and collect your winnings.

Okay, back to Chris Mortensen’s apparently shriveled journalistic balls. Let me be clear, this is just opinion (even if putatively well founded opinion), but what kind of “balls” does a man who is spoon fed lying ass bullshit by “NFL Sources” in the form of a tweet that said:

The NFL found 11 of the Patriots’ 12 game balls for Sunday’s 45-7 AFC Championship Game win over the Indianapolis Colts were under-inflated by two pounds per square inch each, league sources told ESPN’s Chris Mortensen on Tuesday.

Obviously, as the actual testing (not to mention the late great “Wells’ Report) confirmed, that was an outright giant flaming LIE. Call it what it is, it was not a minor discrepancy, it was an outright flaming lie. A lie that led directly to the public outcry that begat what we now know as the multi-million dollar boondoggle bullshit “#Deflategate”.

Peter King (no, not the militant chickenhawk moron from Long Island, the other one from Sports Illustrated) was fed the same blatant inflammatory lie by what appear to be NFL officials, but King had the balls, and intellectual integrity, to apologize.

Did Chris Mortensen or THE WORLDWIDE LEADER, ESPN, have the intellectual and moral integrity to apologize? No, of course the craven bastards did not. In fact, Mortensen silently deleted his original tweet. What a gutless and tiny balled coward. And ESPN has proved itself to be an oppressive behemoth that is willing to put itself, and its allegiance to the NFL, above their journalistic ethics. How pathetic.

That blatantly false report germinated the entire waste of time that is now #Deflategate. Seriously, without Mortensen’s and ESPN’s relentlessly trumped up and featured false report, tagged on by King and SI, there would simply never have been #Deflategate. But it was clearly something the NFL wanted pushed, and they got their want, one way or another. Oh, by the way, is there further evidence that ESPN and Chris Mortensen may be dishonest news sources without a shred of credibility? Yes, yes there is. Mortensen reported that the Kraft family and Patriots had apologized to him. Was that true? No, according to the Krafts on behalf of the Patriots, that was blatantly false.

Here is the thing: #Deflategate is a house of cards built on a pile of dung. If you have an iota of concern for fundamental fairness and due process, you ought be offended – even if this is only a civil labor law mess involving millionaires against billionaires. It all matters, and the labor law principles in play here are beyond critical to all union workers and collective bargaining agreements, not just those of rich athletes. So, yeah, don’t kid yourself, this matters. A lot. If Tom Freaking Brady cannot get fundamental fairness and due process on a collectively bargained agreement, how the hell do you think a UAW, Teamster, teacher, or any other union member will? If you haven’t noticed, labor in this country is under direct attack. Don’t be the guy (or girl!) that aids that attack just because this iteration of the conflict involves Tom Brady and/or rich athletes. This matters, both in general as to all workers under labor agreements, and to your hometown sports teams and players too.

So, there you have Chris Mortensen and his tiny disingenuous balls, but what about some overall facts and law on #Deflategate? Got you kind of covered. And this is especially timely since the last big actual live court day is coming up on Monday, August 31st. So, here we go with some various background resources for you. If you are interested, please read them, you will be better informed. If not, that is cool too, but understand there are very good reasons I take the stances I have on #Deflategate. Off we go!

Soooo….where to start? How about a prediction, you want a prediction?? Sorry, don’t have one. BUT, I will say this, I have read most of the transcripts and filings, and I do not subscribe to the thought that Judge Richard Berman’s clearly antagonistic position to the NFL/Goodell side is all posturing trying to force a settlement. Is there some of that going on? Trust me, almost certainly. By the same token, by my experience, and I have a little, there is simply no way Berman is being as consistently pointed and dubious of one side, the NFL/Goodell, as he has been without being convinced their argument is lame. Yes, judges often play “devil’s advocate”, but what Berman has engaged in strikes me as well beyond that.

So, while I won’t make a prediction, the Brady/NFLPA side must feel pretty positive about how it has gone so far. I am understating that a little.

So, on what grounds do I think Brady and the NFLPA may win on? Two grounds – 1) Notice and 2) Process denial regarding evidence and witnesses by the NFL, to wit, Jeff Pash and related evidence.

First off, the “Notice” argument. A new net friend I have met in this process, but one I greatly respect, Dan Werly, has summarized “Notice” quite well here.

Then there is the “Pash preclusion”. Jeff Pash is the General Counsel to the NFL. He is also its Executive Vice President. Those are not necessarily copascetic if a corporate entity wants to maintain even the reduced semblance of “attorney/client privilege” of having a “corporate counsel”. Seriously, this kind of privilege comes close to vapor when you commingle your attorney with corporate leadership. But that is exactly what the NFL has done here, and much more. And that is peanuts compared to the fact that the NFL made Pash the effective, really de facto, co-independent “investigator” (they even stated it in a press release) along with Ted Wells and then gave Pash editorial control over the so called “Independent Wells Report”. then Goodell refused to make Pash available for testimony, stating that he was irrelevant and privileged.

Ooops, did the arrogant Goodell and the NFL bugger their own ruse beyond belief as to Pash? Yes, and it is crystal clear. Even Judge Berman was incredulous.

pic-5

Then, later…

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Yes, arbitration decisions are given “great deference” by courts, and generally are not disturbed. But they can be when they present genuine issues of fairness and partiality. #Deflategate may be a silly case to most of the lay public, but these are serious and critical issues in labor law, and if the exacerbated issues in the Brady case cannot be addressed by a court, then pretty much no labor arbitration can ever be. For a far more detailed explication of the Pash problem, see this outstanding piece by Ian Gunn.

I invent the wheel only when I need to (and mostly when clients pay me to); I try to not do so when it has already been done by worthy people before me. Dan Werly, Dan Wallach, Michael McCann, Brian Holland, Alan Milstein, Raffi Melkonian and Ian Gunn are folks that did the hard lifting while I was, mostly, away frolicking at the beach in La Jolla when the most critical filings came out. All fantastic people that I came to know because of Roger Goodell’s #Deflategate folly. Hat’s off to them, as well as Stephanie Stradley with some fantastic early scene setting. These are all serious people that you should follow, not just for #Deflategate, but for any sports related law and thought. I think all, including me, feel Brady and the Players Association have the far better hand, in both posture and presentation, than Goodell and the NFL. Really, it is not even close, though there is no telling what Berman will do in the end. By this time next week, we will know.

Welp, I may have focused on #Deflategate more than I intended. Or not. This post was meant as an acerbic discussion point, not a full on explication, which would have consumed thousands of additional words. F1, and sports in general have just been boring lately, as you can tell by how often I have bothered to write about them. But the legal machinations in #Deflategate have been fascinating, at least to me. The All American boy Brady, the Boris Badanov evil Goodell, the flamboyant crusading Player’s Association lawyer Jeffrey Kessler, the Snidely Whiplash Ted Wells to the calm but annoyed judge Richard Berman. The characters are all there.

So, that’s it. Rock on lug nuts. Trash talk like you are Michael Jordan. Do it up. But, if you don’t agree with my #Deflategate thoughts, you can send some Dead Flowers. By the US Mail. And don’t forget the roses…

Tom Brady et. al v. The National Football League Stay Decision

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Just a quick post because, well, we are sometimes a football blog here at Emptywheel you know, and we have football news! The NFL draft starts tomorrow night, so one and all can come back and yammer about the draft and who your team did or didn’t draft. But, more importantly right this moment is the decision just entered by Judge Susan Nelson of Minnesota District Court to deny the stay of her decision on Monday lifting the lockout imposed by the owners collectively acting as the National Football League.

Judge Nelson hit on, and reinforced, many of the points made in her 80 page decision entered Monday, but today’s order is a nice compact 20 pages and I thought it worth taking a look at.

Here is the full 20 page order denying the NFL’s stay request.

After noting that the NFL bogusly attempted to use a self serving low burden for getting their stay entered, Nelson clobbered them again:

But this Court need not address this matter further because even under the lenient standard that the NFL proposes, the League still is not entitled to a stay pending appeal. Even if a lesser showing on the merits is permissible, the NFL would have to compensate for that lower showing with a strong showing of irreparable harm to it pending the appeal (and, more precisely, a strong showing of its harm compared to what a stay would inflict on the Players).

…

Here, the NFL has shown no such injury resulting from or in any way related to this Court’s Order, which, importantly, only enjoins the lockout. The NFL argues that it will suffer irreversible injury and irreparable harm–not because the lockout has been lifted–but by the potential signing of contracts between owners and players in a free- agency market. (Doc. No. 103, at 11-12 (claiming that “the Order in this case may entail the start of a free-agent signing period in the NFL–a period in which any structure or set of rules, even an agreement among the member clubs on the number of games that should make up a season, is subject to antitrust challenge ”).) That argument is based on the incorrect premise that this Court’s Order somehow enjoined the restraints on player free agency alleged to violate the antitrust laws in the Brady Plaintiffs’ Complaint.

Ouch. Well, okay, how about the Leagues other points? Judge Nelson didn’t like those either:

Moreover, as the Brady Plaintiffs point out, a stay of the injunction and a continuation of the lockout would inflict financial harm upon the League, which stands to lose approximately $1 billion before a single game is even cancelled. (Doc. No. 111 (Decl. of Richard A. Berthelsen) ¶ 3, Ex. B.) As to the notion that, without a lockout, the “competitive balance” of the NFL will be jeopardized, Plaintiffs counter that in 2010, the last season covered by the expired CBA and White Stipulation and Settlement Agreement (“SSA”), the League operated without a salary cap and there was no harm identified to competitive balance, as perhaps best exemplified by the fact that two small market teams, the Green Bay Packers and the Pittsburgh Steelers, played in the Super Bowl. (Id. ¶ 4.)

Further, the League’s own advanced planning belies the likelihood of any descent into chaos such as they now envision, absent the imposition of a stay. On April 13, 2011 – during the lockout – the NFL announced the complete pre-season schedule for 2011, and released the regular season schedule one week later.

Heh. Hilariously, the League also had the temerity to claim that the players (you know their opponents who do NOT want a stay) would be harmed without a stay. Judge Nelson didn’t think much of that either:

Any such argument fails to acknowledge this Court’s ruling. The lockout plainly raises issues of harm beyond those that are compensable by damages. This Court addressed, at substantial length, the irreparable injuries that the Players are presently incurring, and have been incurring, since the League locked them out on March 12, 2011. This Court came to that conclusion based on the extensive affidavit evidence submitted by the Brady Plaintiffs. The NFL offered little, if any, evidence to directly rebut the Players’ affidavits, either in response to the motion for a preliminary injunction, or here. Moreover, the NFL’s argument assumes the Eighth Circuit will rule before the season begins. In the absence of a motion seeking an expedited appeal, that seems unlikely.

Accordingly, the balance of equities tilts indisputably in favor of the Brady Plaintiffs. A stay would re-impose on the Players precisely the irreparable harm that this Court found the NFL’s lockout to be likely inflicting on them since March 12.

After again noting that the NFL is premising their stay request by substantially arguing irreparable harm on issues that were not even in front of the court, much less elements of Monday’s decision from which they could appeal, the court concluded by telling the NFL that their argument that “public interest” would be served by letting the league trample the players is complete horse manure (and it is):

The NFL has had ample opportunity to serve and promote the public interest in encouraging the collective bargaining process in the past, but in this present context, there is no such process to encourage. As this Court suggested in its Order, there is no public interest in permitting the NFL to continue to enjoy the benefits and protections of labor law–antitrust immunity and the right to lock out the Players–without the Players being able to enjoy their corresponding rights of collective bargaining and the right to strike.

In contrast stands the public interest in the enforcement of the Sherman Act and the public interest in a professional football season. These are actual, “live” interests, and they favor the denial of a stay of this Court’s Order.

Well, okay then. That is a pretty thorough butt whipping laid down by Judge Nelson. Now the league will seek an accelerated appeal and emergency stay in the 8th Circuit. The 8th has a reputation for being pretty business friendly, so the NFL will find it a much more friendly forum. That said, it is far from clear the NFL will get their stay; Judge Nelson left quite a record supporting her decision, and it is pretty compelling. The 8th Circuit will have to do some fancy footwork to overcome what Nelson has ordered here. The 8th may be generally fairly business friendly, but it is a good bet they are football fans too; I would not be shocked if they surprised the pundits and also declined the stay application.

In Egypt a Dictator Censors Politics; In the US a Corporation Censors … Football

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To be fair, it was not a highly lucrative football game CBS censored. Rather, it was an ad put out by the players’ union opposing the lockout the owners are threatening. I guess anything from a labor union — even a labor union representing a bunch of highly paid celebrities — may count as taboo politics to a big corporation.

Moreover, CBS and other football networks have basically agreed to pay the league billions whether or not a single game is played; the networks are basically paying the owners to break the union.

CBS is one of four networks that pay the NFL $4 billion a year to televise the league’s games. CBS, Fox, NBC and ESPN, as well as DirecTV, all agreed to pay the NFL in 2011 even if a lockout disrupts or cancels the season — a relationship that the NFLPA finds a little too cozy. In fact, the union filed suit against the league claiming the TV deals provide the owners with guaranteed payment even when no games are played, effectively purchasing “lockout insurance.”

A ruling could come as soon as this week. Mr. Atallah said CBS’s decision to pull the ad “is clearly indicative of the relationships the networks have with the league.”

Either they’re just so afraid of losing the contract or they’re willing to forgo a season for two extra games pitting badly injured players trying to stay in the game.

But whatever it is, it’s censorship. And at a time when our government is lecturing dictators in other countries about censorship, you’d think they’d be a bit bothered by corporations using our own public airwaves.

For more on this labor fight, see Lockout Central.

The Walking Wounded The NFL Treats Like Disposable Trash

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The bad news: Due to technical difficulties beyond our control, arrival of your Trash Talk thread has been delayed. The good news: The pilots have slept off most of their intoxication and managed to stumble into the cockpit and are ready for take off! I don’t know why, but it just seems like football, both pro and college, is in a weird doldrum recently. Boise State’s hard knocks overtime loss to Nevada took a lot of the anti-BCS anarchist intrigue air out of the balloon – although, to be fair, TCU is still there in that role I guess. Doesn’t seem the same though. And in the NFL, there just are not a lot of overly compelling story lines right now, although I think that will change when we get down to the last three weeks of the regular season.

Before we get down to the weekly game talk, there is a serious side of the business of football, a part that is not a game, that needs to be discussed. The long term health concerns of the players. As seemingly well paid and glamorous a job professional football player seems to be, the fact is when their career is over, these men are still relatively quite young chronologically but much older, physically compromised and beat up physically and, far too often as we now know, mentally too. The video from former NFL player and current NFL Player’s Association staff member Nolan Harrison describes player injuries as they relate to health and safety on the field and once a career is over.

The National Football League is insanely profitable. The average NFL game attendance league wide is 67,519. For every game of a 16 game schedule, and if you were not aware, teams make customers buying season tickets also buy tickets to at least two, sometimes three, preseason games at full regular season face value as part of the season ticket package. That is before you even get to the otherworldly television broadcast packages the NFL has negotiated, which are the most lucrative, by far, of any in the entertainment/sports industry. For the period of 2006 to 2013, the broadcast rights fees generated are: CBS $622.5 million/yr, Fox $712.5 million/yr, NBC $650 million/yr, and ESPN $1.1 billion/yr for a total yearly broadcast revenue of $3.085 billion per year. That is without delving into perhaps the most profitable income streams for NFL owners, the ancillary modalities such as merchandizing, advertising and concessions. There is a lot of money being made here, total revenue for the league was estimated to be over $6 Billion a year five years ago; it is undoubtedly significantly higher now.

With NFL owners threatening a lockout unless players agree to major concessions, the NFL is headed for a labor dispute that would leave stadium seats empty, TV screens blank and the Emptywheel Blog Trashless next fall. The knee jerk reaction may be that it is hard to get too worked up over a battle between billionaire owners and millionaire players, but keep in mind that the average NFL player is not Tom Brady or Peyton Manning, has a average salary of well less than a million dollars a year and the average NFL career is only 3.5 years. That is pretty limited compared to the owners who have a lifetime license to sit back print money.

So, when the expected shutdown and lockout by the fat cat NFL owners occurs next season, keep in mind the disparity between the owners and players, and the very real long term health issues the players face as a result of earning the owners all that money and providing Sunday enjoyment for the rest of us. Beneath the high dollar glossy surface, it is still a fairness in a dangerous workplace issue with a union trying to better the conditions for the rank and file workers. Oh, and also keep in mind that the owners have negotiated TV deals that guarantee them revenues approachng $4.5 billion even if games are not played in the 2011 season. Coupled with the elimination of $4.4 billion in player salaries and benefits during a lockout, it could make a 2011 season without games still very profitable for the owners.

[Am going to add more substantive content shortly, but wanted to get this up for the peoples to yammer on in the meantime since both Quackers-Beavers and two chumps from the pay to play SEC Conference are currently in action]