President Obama’s at a labor breakfast in Boston today. He offered this message.
Clearly, the President is pandering to his audience. Bostoners like Brady, unlike much of the country.
But it’s an important point, one which has been missing from a lot of the coverage of DeflateGate. Brady will play on Thursday not just because he had better lawyers than the NFL, nor because Roger Goodell is a douchebag who’s not even competent at being a tyrant, but also because he’s a member of a union that had negotiated certain rules with the bosses, one of which was that certain kinds of violations get treated a certain way (in this case, that equipment violations involve a team fine, but no suspensions).
Mind you, I keep wondering why the NFL, after having been embarrassed with the BountyGate, Ray Rice, and Adrian Peterson disciplinary procedures, would adopt an even more abusive approach with Brady, when they were dealing with an alleged crime that wasn’t even as serious or as politically unpopular as the others (setting aside how much most people hate the Pats, of course). It’s possible they did so because they got so far ahead of themselves when they launched an investigation — and leaked highly derogatory and false information — in response to rumors about overinflated balls that they were left with no choice but to double down. But partly, the serial leaks feel like part of the plan here. In which case, I think it at least possible the NFL went after Brady so hard because he has always been active in the Players Association, and was the named plaintiff in 2011 when the players sued the NFL on anti-trust grounds.
Tom Brady may look like a hero, a badass quarterback, or a cheat to fans (depending on whom you’re asking), but maybe to every owner not named Kraft, he looks like a union rabble rouser?
I don’t know the answer to that, but as the league appeals Judge Berman’s ruling, I hope some people ask whether the NFL is just acting so stupid because they are that stupid, or whether there’s something more going on.
In any case, the President may have been pandering. But his point is sound. If even millionaire workers like Tom Brady need a union — need solidarity with other workers to achieve some measure of justice — then we all probably could use more of it.
Happy Labor Day! Go Patriots!
Update: As a number of people are noting, the NFL released a graphic asking which QB will be in next year’s Super Bowl that left the reining champ off.
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2015-09-07 12:28:032015-09-07 13:17:42Even Millionaire Workers Like Tom Brady Need Solidarity
emptywheel 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!
Well, at long last love, the #Deflategate decision from Judge Richard Berman in SDNY is in, and the big winner is Tom Brady.
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.
The 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.
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00bmazhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngbmaz2015-09-03 10:45:052015-09-03 19:02:34The Deflategate Decision: Brady Has Been Freed!
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.
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.
Then, later…
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…
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00bmazhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngbmaz2015-08-29 10:22:272015-08-29 10:29:47ESPN Is Gutless, Chris Mortenson Has Tiny Deflated Balls and Other Deflategate Trash Talk
My my, there is a lot going on in the sporting world this weekend, so let’s take a look at some of the more interesting bits and pieces. First off there was some big news in Ann Arbor yesterday that pretty much answers the burning question from last weeks trash talk, namely who will scuttle their flailing football coach sooner, Michigan or Florida? The answer is in, and it is the Michigan Men! Michigan Athletic Director Dave Brandon has resigned effective immediately, and that will almost certainly spell the end of the Brady Hokey era for the Wolverweenies.
There are a couple of updates to items on the Docket Report. First, there was a hearing in EDVA on the appeal lawsuit of the Washington Redskins from the negative trademark decision in the administrative patent court system. The hearing was on a motion to dismiss and the early reports are the court was dubious about the dismissal effort and seemed inclined to retain jurisdiction. If so, that probably favors Dan Snyder and the Skins, because it will allow additional evidence to supplement the narrow and limited administrative record. It will be interesting to see what the decision is here. Secondly, the Ray Rice appeal hearing is set for next Wednesday, and the hearing officer, Judge Barbara Jones, has ordered Roger Goodell to testify. Some people are discussing a settlement, but I would be surprised. This could be fascinating seeing good attorneys cross-examine Goodell.
Then there are the games. The World Series is over, and congratulations to the San Francisco Giants who won a compelling series over the Kansas City Royals. The Cicago Cubs have hired Joe Maddon as their new manager after he quite suddenly up and left the Tampa Bay Rays. That is a great move for the Cubs, but the Cubbies are career killers for managers. RIP Joe Maddon. And the NBA season has started, so there is that. But we are really about football here, so let’s get to it, and there are a lot of big match ups on tap.
You would think that there is no way possible that the biggest game is not Peyton versus Brady and the Broncos at Patriots in the quarterback battle of the ages. Nope, that ain’t it. No, the biggest game this weekend is the Cardinals at Jerryworld to take on the Cowboys. The Cards, along with the aforementioned Broncos, have the best record in the NFL to date with only one loss on the season. The Cowboys were up there too before last week’s close loss to an inspired Redskins squad. This really shapes up as a great game. The Cowboys Demarco Murray has passed Jim Brown with eight straight games over 100 yards to open a season. But the Cards have perhaps the leagues best run defense. The Cowboys can be thrown on, and Carson Palmer has finally got Larry Fitzgerald untracked. Tony Romo is hurting and has not practiced all week. Oh, and by the way, the Honey Badger is back. All the factors point to the Cardinals having the edge. So I am picking the ‘Boys on the basis that they are home, and pissed about their performance against the Skins.
The other big game is of course Broncos at Patriots. Both Brady and Manning are playing lights out currently, and the Pats are on a bit of a roll. Any matchup between these two quarterbacks is an instant classic candidate, and this one is no different. I am going to assume ‘Ole Noodle Arm Manning and Brady cancel each other out. once you get past that, and even understanding Gronk is really rounding into the old Gronk, the Broncos simply have more and better weapons on offense. The Broncos also have a better defense, and they get the pick here. The only other really interesting game on the NFL schedule is Ravens at Steelers. Oddsmakers have it a draw right now, but I think Big Ben and the Stillers have found a groove and pull out the home win at the Big Catsup Bottle.
In college, the unquestioned game of the week is number 3 Auburn at number 4 ‘Ole Miss. After today, one of the teams will be done for the playoff discussion. The Rebels are favored by two at home, and that sounds about right to me. The other really good match ups are in the Pac-12, which has provided every bit as much excitement and compelling football this year as the SEC. Stanford is at Oregon, and the Trees have a history of manhandling the Ducks and giving them fits. Stanford is having an off year, but seemed to find an offensive groove last week. Still, I think the Quackers have the edge. Number 12 Arizona is at number 22 UCLA and I smell an upset here. Lastly, in a night game, number 17 Utah is at number 14 ASU. Utah is always superbly coached by Kyle Willingham and is consistently a better team than people give them credit for. But ASU has some momentum and, as long as they don’t get caught looking forward to next week’s tilt with Notre Dame, should take care of business in Sun Devil Stadium, though I expect a tight game.
Welp, that is it for this week. Rock on. This week’s music by Gerry Mulligan, Dave Brubeck, Doc Severinsen and the Cincinnati Pops with Duke Ellington’s classic “Take the A’Train”.
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00bmazhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngbmaz2014-11-01 05:44:282014-11-01 05:44:28Big Games and the End of the Hokey Pokey Era Trash Talk
Sadly, this is our penultimate weekend of football here at the Wheelhouse. Down to two games, San Francisco versus Seattle and New England versus Denver. And, really, it is fitting, as these were probably the two best teams in their respective conferences when the season started, were throughout, and are now. So, we are where we are supposed to be.
Patriots at Broncos: While the NFC Championship features two new school mobile kids on the block, the AFC features two of the classic, and classiest, traditional pocket passers in NFL history. Any discussion of best ever quarterbacks has Peyton Manning and Tom Brady in it, irrespective of who you put at the top of the list. Personally, I have Joe Montana still at the top and think some older players, to wit Otto Graham and Bart Starr, are given far too short a shrift. But Brady and Manning have earned their spot in the discussion, and this is a real treat to be able to see them face off, yet again, in such an important playoff game.
The Patriots seem to have stabilized on defense, the Broncos seem to still be reeling from the loss of Von Miller. On paper, Denver has a significantly better defense, both against the pass and the rush. But paper doesn’t count for this game, and I think it is a draw on the D side of the ball. On the offensive side, both teams have been known to rely on their quarterbacks too much. But both have recently found, and relied on, their running game. LeGarrette Blount was a monster for the Pats last week, and Knowshon Moreno ate the Pats up earlier this year. You already know about the QB’s; they are a wash. There is one area where there is a difference though. Receivers. Bill Bel and Brady have been geniuses with what they have gotten out of rooks and scrubs, but Denver has serious ballers in Welker, Eric Decker, Demaryius Thomas and Julius Thomas. That is a real edge. Then give the coaching edge to Bill Bel….and you end up with a pick em.
49ers at Seahawks: They may be newfangled, but both QB’s in the NFC Championship are superb, and, apparently, evenly matched too. But not so fast. Kaepernick has been rediscovering his groove down the stretch, and Russell Wilson has been looking a little shaky in the confidence (and performance) category. Edge to Kap. Niners also have far better receivers, with Anquan Boldin, Vernon Davis and Crabtee, than do the Squawks. Percy Harvin would have helped level that playing field, but he won’t be playing. Gore and Lynch are both studs, and thus a wash, but the QB and receivers are a huge plus for SF.
The defensive paper actually seems to favor the Niners but, again, toss the paper out the window. Seattle’s defense is bad ass, and they will have the 12th Man noise that comes with their home field. That is an edge. Coaching is a wash between Harbaugh and Carroll, but man do they completely dislike each other. The game is really probably another pick em, to slight favorite for the Niners; however, I am going to take a flyer on the Squawks. I don’t feel good about it, but there you have it.
Penalty Flag Department: Yeah, the hanky has to be thrown on Peyton Manning. Really? Bud Light? Get the fuck out! And, big ups to the Colorado craft brewers for calling him out on it.
Music is by by It’s A Beautiful Day, featuring Pattie Santos and David LaFlamme. A completely killer band out of the 60’s heyday of San Francisco. Shame they never hit it bigger and are mostly forgotten now, because they were really good. And to tie it all together, this song, White Bird, is a song about some melancholy times LaFlamme and his wife spent in Seattle. See, it all ties together for the NFC Championship Game!
For all the yammering about nuclear options and assassination anniversaries and other wild news, this weekend there is only one big bang. The big guns are being positioned on the battlefield.
Brady v. Manning. Manning v. Brady. Mano a mano. Bieber versus Sourface. The battle of the soon to be middle age bulges. Broncos and Pats at the Big Razor in Foxboro. Or is it Foxborough? I am liable to use either one, so watch out. Same joint.
But let’s not dawdle, this is all about The Man With The Golden Gun; i.e. Peyton Manning. Yes yes, I know some lady who won’t send me a rhubarb pie will be along to talk about how Tom Brady is a pron god and Peyton is a sucky face, and all, but here in this post Peyton, and his golden gun, rulz! This careful salting of trash talk aside, the Donkos could easily get Lectric Shaved in the Big Razor. It really is maybe the most compelling game on the NFL season to date.
Despite a bump on the noggin triggering NFL concussion protocols, Wes Welker looks determined to try to give Bill Belichick hell. Ad who can blame him for that? Donks TE Julius Thomas is banged up and “questionable”with a knee strain. But that still leaves Peyton and his Golden Gun with Wes Welker, Eric Decker and Demaryius Thomas. Not to mention Knowshon Moreno. Sorry, that beats the Pats Gronk and Riddler. Even if he is healthy, Aqib Talib can’t cover all the Bronco’s threats, ergo advantage Donks. On defense, NEVER count out a Belichick designed scheme; however, on talent the matchup is again not in the Pat’s favor. But Denver is starting to gel with Von Miller starting to settle back in to an already competent group. Bottom line is, the facts favor Denver all the way here, but it is in Foxboro and Pats have been inconsistent lately. Precisely when Belichick and Brady strike. So, it is a pick em, and worthy of all the build up.
Other pro jobs worth working are Cowboys at Gents. Shockingly, as lemon faced sucky as Eli and the Giants have been, if they beat the ‘Boys, they will pull even with Philadelphia and Dallas in the loss column (hey, Skins ain’t gonna beat the Niners). That is just stupid enough to mean it WILL happen, Eli and the Giants make a move. I’ll be hoping for a third win in a row for the Bucs against the Lions, but won’t hold my breath on that. Jets at Ravens could be a bruiser. Lastly, the real barnburner of the week may be Colts at the Cards in the Big Toaster. Colts are 7-3, but seemingly not invincible lately, and the Cards 6-4, but very tough at home. This really has the makings of a superb game. My better instincts say Colts, but gonna go with the heart here and take Spidey Fitzgerald and the Cards.
Turns out that not ALL football this weekend involves Manning and Brady. No, there are student athletes playing ball as well. BCS busters Northern Illinois and University of Central Florida have both already won solidly. Which is very cool. A lot of people will say Texas A+M at LSU in baton rouge is the big game. They may be right. Johnny Football is playing for the Heisman, and has a chip on his shoulder. He will play like it and down the Tigers in a huge win.
But the biggest game in these here parts is the ASU Sun Devils versus the UCLA Bruins in the Rose Bowl Stadium in Pasadena. Huge game, and I thought about going. Probably should have done so. Both teams are 8-2, but the Devils have only one conference loss so far to the Bruins’ two. Simple enough: Devils win, they almost certainly go to the Pac-12 conference championship game, lose and they almost certainly do not. Big stakes. ASU is hard to figure out this year; sometimes they look really good, sometimes not so much and only lucky. Hard to read. Honestly, they outplayed Notre Dame, and should have won that game and been 9-1 now. but they did not. Still not sure they are that good though. This game will tell whether they belong or not.
There you have it. Roll this joint people.
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00bmazhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngbmaz2013-11-23 00:07:142013-11-23 00:36:06The Quarterback With The Golden Gun Trash Talk
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.
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.
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00bmazhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngbmaz2011-04-27 20:26:352011-04-27 20:26:35Tom Brady et. al v. The National Football League Stay Decision
I guess I’m not yet ready to go more than a week without trashtalk. Besides, this whole Tom Brady and his boot thing is getting so ridiculous that I had to post on it.
You see, I’m beginning to believe the whole thing is a plot, cooked up by Bill Belichick, to seriously fuck with the press and possibly even the Giants pre-game planning. What better plot than to send your hot quarterback Brady (speaking of which, see this BoGlo photo collection, which includes some of the boot pictures) down to visit his hot girlfriend Gisele in the press capital of the world which also just happens to be your Super Bowl opponent’s city? Send him down in a walking cast, and it’s just guaranteed to be photographed by the paparazzi. Then, the press wants to talk about nothing so much as whether or not Tom Brady is hurt and therefore will throw as badly in the Super Bowl as he did in the AFC Championships, ignoring all the other details of the game. And Belichick won’t be forced to admit to the Giants that it’s all a big trick until just four days before the game (though seriously, if Coughlin isn’t assuming that Brady will start and do some damage, he’s not so bright).
And what better way to minimize Bye Week stress on the rest of the team than by ensuring the only questions they’ll have to answer pertain to Brady’s Boot.
Running back Kevin Faulk has worn a boot in the past, and attracted little notice. “Because I’m not Tom Brady, I guess,” Faulk said.
Linebacker Adalius Thomas said: “I don’t know anything about a boot, a cup or a shoe. Or slippers. I don’t know. His slippers cost more than my shoes.”
Fullback Heath Evans vowed to don a boot “and see if you follow me around.”
[snip]
“Every channel I turned to, there it was,” Patriots defensive lineman Richard Seymour said. “Focused on the boot. I focused on the flowers.”
"Are you worried about the Giants’ pass rush, Matt Light?"
"What I’m really worried about, Boomer, is whether Brady will find a Patriots silver boot in time for the game."
So what do you think? Has Belichick taken his crafty ways off of the field to play the press, going so far as to excuse Brady from practice or hide him somewhere? Or are the Giants going to be facing Matt Read more →
https://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.png00emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2008-01-25 13:18:522008-01-25 13:18:52Bye Week Trashtalk: The Mystery of Brady’s Boot
