OT: AFL-CIO Files Brief Backing Brady

Submitted by DMill2782 on

For those who don't know, the AFL-CIO is an umbrella federation for American unions that represents 12.5M workers. 

Kenneth Feinberg, a 35 year arbitrator/attorney and Special Master of the US government's September 11th Victim Compensation Fund, also filed a brief in support of Brady.

So we had 20+ scientists exonerate Brady and NE of any wrongdoing. The AFL-CIO believes Goodell's ruling was "fundamentally unfair" and Feinberg stated "If this type of bias or capricious notions of industrial justice are upheld, the public should - and will - lose faithe in the systems of arbitration and private dispute resolution that have become a parallel component of our justice system".  

This case needs to be reheard and justice needs to be served. Free Brady!

http://www.bostonherald.com/news/local_coverage/herald_bulldog/2016/05/…

sadeto

June 1st, 2016 at 9:46 AM ^

20+ scientists did not "exonerate Brady and NE of any wrongdoing." Scientists don't exonerate, that's what courts do. 

And the AFL-CIO's position has little to do with whether or not Brady or NE did anything with the footballs, it has everything to do with fairness in the arbitration process. 

So please stop interpreting the positions on this legal case as being a matter of whether or not Brady did anything wrong, that's not the point, at this point. It's a matter of whether the arbitration process treated him fairly. If an appeals court hears this, they will not consider whether he did anything wrong. 

DMill2782

June 1st, 2016 at 9:59 AM ^

that Brady and NE did nothing wrong, that is exoneration in my book. I prefer real science vs fake science any day.

I completely understand that the arbitration is the entire point now. That doesn't change the fact that real scientists went out and proved that this whole thing was based on complete BS in the first place. 

sadeto

June 1st, 2016 at 5:27 PM ^

I don't think any scientists proved Brady didn't do anything wrong. They disproved the assertion that the physical evidence proved that he did something wrong.

There's a pretty basic logical fallacy at work here.

But it doesn't matter, because the league didn't base the decision solely on the physical evidence in question, and also because guilt is not at issue here.

1VaBlue1

June 1st, 2016 at 9:50 AM ^

Ugh...  Tried to read through some comments to get the comedic value out of it, but just couldn't.  It was like reading the Detnews and Freep comment sections - worthless time that tried sucking out my soul.  Not to mention the few smarts I have left...  No, I'll spend my time at work some other way.

 

EDIT:  Wrong thread!  Apparently, I need to spend more time paying attention to what I'm doing...

LSAClassOf2000

June 1st, 2016 at 10:19 AM ^

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

I think it was when Goodell showed up with the traditional black cap and sat down for what he described openly as "the formality of sentencing the defendant" that people probably began to worry on the Patriots' side of the table. That's what I am guessing anyway. I mean, I can see where his neutrality is in question.

theytookourjobs

June 1st, 2016 at 10:22 AM ^

The biggest problem I have with all this is Goodell coming out with a disciplinary measure after the fact.  Another example is what MLB just did to Rougned after clocking Jose Bautista.  Why is the disciplinary measure arbitrary?  Why is one guy suspended for 2 games for fighting but another for 8?  Where did Goodell come up with 4 games for Brady?  It's all bullshit to me.  If you don't have a pre-determined disciplinary measure for the offense, you can't simply make one up after the fact.  It's shenanigans.

Gr1mlock

June 1st, 2016 at 12:55 PM ^

To me, the bigger problem is they DID have a pre-determined disciplinary measure for the offense, and Goodell ignored it to make a bigger punishment because Patriots, then tried the whole "well this is basically like using steroids" to justify the 4 game suspension.  I remember the trial court finding that approach to be very problematic, and I wholeheartedly agreed.

drjaws

June 1st, 2016 at 10:26 AM ^

a)  Brady may or may not have done something wrong

b) the courts may or may not have gotten it wrong

c) the proceedings may or may not have everything to do with fairness in the arbitration process

d) regardless of if a-c are true, the players agreed to this system and now we're still spending millions of taxpayer dollars over a football and how much air was in it and why.  I am no political scientist, but I feel like there are a million other things the courts should be dealing with that are way way more important than whether a bunch of football players screwed themselves by allowing Goodell to be the police, judge, jury and executioner.

BornInAA

June 1st, 2016 at 11:25 AM ^

Our civil court system should start with abritration panels before tying up courts in all civil cases.

Then a common sense sniff test could be used to let cases move forward or not.

Deflated balls in cold weather by a few lbs/sq in = millions of lost salary in suspension doesn't pass sniff test. 

Neither does Led Zeppelin copying Stairway to Heaven.

 

mgoblue0970

June 1st, 2016 at 11:22 AM ^

I've gotten numb to deflategate but can a MGoLawyer help out please?!?! Why has this even gone to court? I was under the impression mediators have the court's authority in labor disputes such as this.  Why is this mediator not binding?

DMill2782

June 1st, 2016 at 11:39 AM ^

because Goodell broke many rules of arbitration and the CBA in this case. 

This isn't just about the NFLPA vs NFL at this point. This is about all arbitration for the American workforce. This case sets a horrible precedent that an arbitrator can say and do anything he wants including making up new grounds for punishment after the arbitration hearing is over. 

That, my friend, is what you call complete and total bullshit that can potentially screw over any employee going through arbitration. 

blueneverquits

June 1st, 2016 at 11:49 AM ^

is that's what the players' union bargained for.  They agreed to give Goodell extraordinary power in arbitration.  Most unions aren't stupid enough to grant their opposition (management) such extraordinary arbitration powers.  It won't screw over other employees in arbitration unless the collective bargaining agreement in force is just as slanted as the one the NFLPA agreed to.

NRK

June 1st, 2016 at 12:37 PM ^

Yes, and that's one of the most interesting parts.

 

You have (in my opinion) a party that it's tough to make a case is not biased or partial (Goodell), which calls into question whether the award should stand if appealed under the FAA. But... that was bargained for and not the grounds on which Brady is appealing, even though that is a huge issue overall that lead to this.

Brady's argument is essentially, Goodell, acting as the Arbitrator, cannot suddenly make the basis for his decision different than that of the original decision. It makes it more confusing when it's the same person but think of this way:

If Goodell says: Brady is punished because of "A"

An arbitrator can only affirm that, not develop a whole new reason for discipline (unless of course that power has been granted, which it hasn't).

The NFLPA should have never allowed Goodell to be the arbitrator during bargaining, but Goodell also could avoid this whole mess by not appointing himself arbitrator.

NRK

June 1st, 2016 at 3:16 PM ^

No problem, one of the fun times my work life combines with football life!

 

For those mentioning fantasy football I got Brady at a huge discount last year after hearing the judge's questioning on the original appeal of the arb award - rarely do you hear a judge being so aggressive and I was pretty confident he would overturn. Worked out well.

This year, there's still some time, but Brady's argument is compelling. The fact that he got to 2-1 is a good sign to start off with, although these are hard to predict. Goodell screwed this one up by switching logic (even the 2 against Brady stated so), but arbitrators are also given great deference. Then you throw in the labor law integration and this thing gets tricky really quickly. 

That being said, he's fighting an uphill battle versus an adverse arbitration award, PLUS seeking en banc review (which isn't often granted).

But this could all take months to play out. The decision on whether to even hear the case en banc could take months, meaning there is a decent chance Brady could play the entire 2016 season while still is being sorted out... if they decide to hear the case en banc, there is a strong likelihood of that occuring. So fantasy people - take note. Maybe another arbitrage moment.

mgoblue0970

June 1st, 2016 at 11:53 AM ^

can potentially screw over any employee going through arbitration

Well, I've always thought an arbitrator having the rule of law behind them was bullshit but I'm not a lawyer... That's only my opinion. I've only taken two business law classes -- which is nothing.

It just seems like employment issues like this never see the inside of a courtroom. I'm surprised this one did. I brought this (and your concerns) up with my law profs enough that I stopped asking questions and just went into shut up and color mode. The law is the arbitrator is binding. The only thing which sucks is whomever gave counsel to the NFLPA that they should agree to the CBA.

NRK

June 1st, 2016 at 12:10 PM ^

The FAA encourages arbitration and it has been upheld. The spirit of the law is to encourage people from not clogging up the court system with every single little claim. 

 

I think you're simplifying this a little too much. The law is the arbitrator's award is binding, with some limited grounds for appeal. Brady is pursuing appeal on those grounds, and has a good amount of moeny to do so. 

Employment issues like this can sometimes go this far - although you're right is pretty rare - it's just you don't hear about it on the news. And also, you have to have money to pursue this this far, or your union has to be willing to do so. 

NRK

June 1st, 2016 at 11:49 AM ^

Generally speaking arbitrator's decisions are given great deference, and the grounds for appeal are much more limited than they are in litigation. Under the Federal Arbitration Act (which governs the vast majority of arbitrations), you can appeal an arbitrator's decision on a very limited number of grounds, such as corruption, fraud, misconduct, partiality, or the arbitator exceeding his/her powers.

NRK

June 1st, 2016 at 12:03 PM ^

No politics caveat, but obviously the AFL-CIO as a labor organization has an interest in not having an employer also act as an arbitrator. Their amicus makes that quite clear - and they have a strong vested interest in arbitration. I can see why they'd be concerned about the precedent this could set.

Hab

June 1st, 2016 at 12:21 PM ^

When I heard that amicus were being filed, I thought this was on cert to the SCOTUS.  Why is the AFL-CIO only coming in now in a petition for rehearing - or are they asking for rehearing en banc? 

NRK

June 1st, 2016 at 12:35 PM ^

You can file amicus in courts other than SCOTUS, it's just less common.

 

Multiple parties are filing amicus due to the nature of the claims and arbitration influenece and the attention this has received. They are filing those in support of Brady's petition to rehear the decision en banc (they themselves are not parties and can't technically "ask" for anything to be done as a party)

Hab

June 1st, 2016 at 3:32 PM ^

My comment was more directed at the odd procedural stance for the amicus to start coming in.  If this is just a normal motion for a rehearing before the same panel, I would have guessed that those filing amicus briefs would want to be heard before a merits decision.  The article didn't say specifically, so I'm left to guess that they are seeking to persuade the rest of the court to hear it en banc.  There may be other, more reasonable explanations though... 

NRK

June 1st, 2016 at 10:44 PM ^

I see  - I agree it's really an attempt to convince to court to hear it en banc since panel rehearing is so incredibly rare. A few well placed amicus briefs more or less saying "WTF" to the 2-1 decision. 

I think you're seeing a backlash against the NFL by the people who understand this issue and really how badly Goodell screwed the whole thing up procedurally, and those with the scientific or legal opinion are starting to weigh in more forcefully. 

Each party has their own interests - AFL-CIO in opposing employer-arbitration decisions, Feinberg in advancing ADR, scientists in having science actually explained correctly, etc., and it's a very popular story.