Steph Stradley

Practical Tips to Win Your Property Tax Protest in Houston

April 25, 2019 by Steph Stradley 36 Comments

This post was originally published on April 26, 2014 and was updated most recently April 25, 2019.

Thinking of filing a property tax protest in Houston, Harris County? The deadline for filing your property protest appeal is May 15th, unless that day is a holiday or weekend then the next business day, or 30 days after the date your notice of appraised value was mailed, whichever is the later date. There can be circumstances where you can file your appeal later than that too.

Due to Hurricane Harvey changing the value of houses in the area, some people are needing to appeal their property taxes when they never needed to before and are looking online for help.

I am not a property tax protest expert. Just a homeowner who believes the computerized tax assessments on my home value are always off-base. Ove the years, I’ve found the most helpful information in protesting my taxes was talking to friends about what has worked for them.

Blog posts are often used as resources, and I wanted to use this blog post as a forum to share my (non-legal advice) experiences, and ask for you to add any practical, helpful advice that you have in the comments below. (UPDATE July 18, 2016: I do not handle tax protests as a part of my practice, so please do not email me to help you or ask my advice.).

Practical help to win your property tax protest.

First some basics.

1. File your protest.
On the list of things that you might forget, this can be an expensive one. You can use the HCAD website to file it, so you don’t even need a stamp. This is a particularly important year not to forget this given the rise in values.
It’s not enough just to file your protest. You need to remember to show up to the hearing as well unless you get a i-Settle resolution. This is obvious but is a pain to do every year to say the same thing to get the same result.
2. Should you get professional help to protest?
Personally, no. Easy for me to say because I’m a lawyer.
But many people have positive results without getting tax agent help. At least one study suggests individuals get better results than experts. For residential properties 41% better.
Why is that so?
Tax agent companies might suggest they tend to have harder cases than the people who feel like they can protest it on their own.
Perhaps it is a matter of motivation and familiarity. A homeowner is very motivated to reduce their tax valuation. They can focus their time on only one property, and knows its problems better than anyone.
I don’t want to pay anybody for things that I’m capable of doing myself and likely do better. Have that view regarding restaurant food too, which is why I often order the fish and skip things easier to cook at home.
3. Spend some time exploring the HCAD website.
The HCAD website contains the logistical procedures of what to expect, what information they consider. They go into a lot more detail than I can reasonably do here.
After you file your protest tax protest and receive an informal hearing date, the website will show you what properties their computerized models are using to compare to yours.
That information won’t be on the site until 15-20 days before your hearing date. It will give a list of comparable properties with basic information about them.
You have to log-in and click around a bit to find this information. (UPDATE July 18, 2016: Commenters/emailers have been asking where to find that info. I always end up forgetting where I found it the last time and have to look for it. HCAD currently doesn’t make it obvious that it exists or where to find it. In fairness to them, there’s a lot of stuff on their site. Fortunately, commenter “Kbum” was helpful and answered this below: “Once you log in here https://owners.hcad.org (and set up a user name/password) Navigate to the “Manage Your Property Accounts” page. You will find it at the bottom left of this page under “View HCAD Hearing Evidence.””)
You may want to actually see those properties in person and photograph the outside to distinguish them from your property. It’s been my experience that the properties that their computerized system used to compare to mine weren’t terribly similar.
4. Should you do i-Settle?
If you don’t use i-Settle, then your filing goes to an informal hearing appraiser and then if isn’t resolved then, to the entire appraisal review board. If you use HCAD i-Settle process, you may get a reduction in your home value such that you feel fine taking it without going to HCAD.
For me, though I asked to use i-Settle in the past, I’ve always received this email back after they considered it:

Thank you for signing up for our iSettle™ program. Unfortunately, after reviewing the information we have available, we cannot propose an online settlement for your 2012 protest. Since sales disclosure is not mandatory in Texas, we acknowledge that our market information may not be complete and that you may have evidence unique to your property that may support a reduction in your property’s market value. To be sure you have an adequate opportunity to have it reviewed, we will be setting you up for appointments with one of our appraisers and for a hearing with the Appraisal Review Board. The Appraisal Review Board will set a hearing for your protest and notify you of the time, date and place of the hearing by standard USPS mail.

Perhaps it works better for smaller reductions than what I requested. I ended up getting a informal appraisal hearing and approving their offer after i-Settle gave me no offer.
This detailed property tax protest Examiner blog post from a few years ago called “Appealing Houston Property Taxes 101: Taking on HCAD and winning” advises not using i-Settle at all.
5. What to expect from the informal appraisal hearing?
You show up at the HCAD building and wait for your name to be called. An appraiser brings you to his cubical.
When you go to this, bring all the documentation that supports your view of the market value of your home. Lots of quality pictures of defects with your home that adversely affect market value are crucial.
One year, the detailed info that I brought to the appraiser demonstrated that some of the information they had in their computer about my home was inaccurate, and he changed it in their system.
At one meeting I had with an appraiser, he told me that the most that they have authority to reduce with homeowners is $100,000. I do not know if it is true or not.
In my limited dealings with the informal process, they were reasonable and gave me what I thought was a fair offer worth not going the next step to the appraisal review board.
6. What to expect from the appraisal review board (ARB) hearing?
The panel is comprised of three citizens not employed by HCAD to hear your case. (In my experience, three old white guys. UPDATE July 18, 2016: Since this blog post was originally written, I had a panel not of old white guys, which ended up worse than the old white guy panel actually. Nothing like putting on your case in front of the panel, not knowing their concerns, and then hearing the chair of the panel ruling based on something that was in your packet of evidence but they didn’t ask about. I am not a mind reader, rude guy who chaired my panel).
There is also an HCAD employee who represents HCAD that argues against your point view.
When I did this, I put together a packet of material for me, each of the representatives, and the HCAD employee.
One section was reasons why house should have lower value than what the computerized system suggested due to problems with the property. This section had many clear color pictures of problems with the house.
Another section was details on the properties HCAD in its online materials said were the comparables, and why my property was worth substantially less. To do that, I looked both online with the information contained there, but also went to those properties and took pictures.
Then I flipped through the packet of materials, using it as a visual aid to discuss with the ARB panel. It was fancy looking packet with a cover sheet, good quality color photos to try to show I gave the proceeding some thought, respect and time.
Having everything in a packet is also helpful if you feel shy about talking in front of a group of people. You can just walk them through the packet.
The HCAD employee makes her response mostly based on the comparables. So if you give specifics of why those comparables are inaccurate and perhaps show better ones, it is hard for an HCAD employee who just picked up the file to refute you.
You just killed all her evidence and she doesn’t have any additional evidence beyond the comparables to refute your point.
They consider the information, and you get a final determination from them at the end of the hearing.
7. Be nice, be prepared. Get them to want to help you.
Remember, this process is not really about doing a “property tax protest” and more about discussing the information that justifies what the market value for your house is. Market value being what it would sell on the open market.
The informal appraiser and the appraiser review board folks are human beings. Ones who have a lot of control. So you want to politely and logically state your position, with so much support and in such a friendly way they want to help you.
Under no circumstances should you complain about the tax burden to the informal appraiser or to the ARB panel. Because it ain’t their doing. In fact, one of the first things on the HCAD site is this statement:
“If you’re concerned about tax levels, you should take those concerns to local government officials.”
I am certain they know what you think about the rising taxes. They have heard it a million times. Likely from bat-bleep crazy people who said it in bat-bleep crazy ways.
But if you want the human beings who control your tax appraisal to help you, you help them by providing good reasons supported by data.
And being the nice sort of person they feel good about helping.
(This is good advice in dealing with most service providers who have control over something you want them to do–making them feel good to want to go the extra mile for you. They just want to do their job, get paid, get off work, maybe go to Applebees, get some beers. You can try to bulldoze service providers into doing good stuff for you, but that is not a high percentage situation when they have more power and control in the situation).
If you win on the ARB level, you’ve beaten HCAD until next year, when the computer spits out the same old wrong valuation and you make many of the same arguments year after year. (So save your documents).
If you don’t get a reduction at the ARB level, then your next choice is district court, which for most homeowners won’t be worth the time and money. There is no guarantee you and the ARB panel will agree with your assessment, so sometimes it may be worth it to take the informal appraisal reduction for the certainty involved.
7. Talk to your neighbors.
You know your property. Your neighbors know your neighborhood. Sometimes they may know gossip that can help you gather helpful valuation information.
One year, one of my neighbors put a spreadsheet in local mailboxes demonstrating the rise of land values on our street relative to nearby streets, showing an improper valuation issue. That connection wouldn’t have occurred to me until I saw that flyer.
Talking to your neighbors can sometimes give you a sense of what works and doesn’t work in doing their property tax protest.

Also, I’ve found that my Realtor friends can also provide helpful information and ideas, assuming you already have a good relationship with one.

8. Storm Damage.

Hurricane Harvey damage and other storm damage can radically change the value of your property. Even a property that was fixed after the storm can have a downward assessment. The Harris County Appraisal District offered an app, email and phone line to provide damage information right after the storm. [pdf link] If you failed to report damage, you can still do so in your appeal this year, showing pictures of what the property looks like as of January 1st of the taxing year. Even if you repaired the damage, you can still provide information on what damaged houses are now selling for in your neighborhood.

9. Leave a comment here.
As I said, I am no expert in this. What I’d like to do is to start a dialogue about this topic. Where people share their ideas of what works and what they have experienced.
As a Houston homeowner who knows I will be doing this fight every year, I’d like to receive whatever help I can get.

The Ezekiel Elliott Case Shows How Ruinous NFL Policy Is

September 5, 2017 by Steph Stradley 1 Comment

If you were to design and execute the worst possible domestic violence policy you could think of, it would likely look like how the NFL is handling the Ezekiel Elliott case.

I’ve read all the public legal documents on this case.

Hundreds of pages. It is difficult to convey how nauseated with anger and disgust I am with how the NFL has handled this matter.
Most of the writing on about the Ezekiel Elliott case involves the legal issues. Or the sordid details. Understandable, as the NFL decided to make this news.

Very little of it focuses on the real and sick harm the NFL is doing to many people with their everything is a hammer approach.
The only way this ends up getting changed is if the NFL and its owners decide to change it, and so I am writing this specifically for that audience first. The NFL is made up of many, many people, and I am hoping to appeal to ones that can change this.

As an attorney for many years, I have worked to craft policies for large corporations, and I know that can be hard to do well. I am also very familiar with domestic violence as a subject from the prosecution, defense, and real-world perspectives. I’ve written about NFL discipline issues since 2006, as fans have many questions about these types of cases.

The NFL is committed to holding the players to “a higher standard” than the legal process but what they are doing is ruinous to all.

Fully predictable that the Ezekiel Elliott case would be awful for all.

Before you read the following, I strongly suggest reading the previous piece I wrote for some additional context:
Ezekiel Elliott and the NFL Domestic Violence Policy, August 11, 2017
I wrote this the day the Ezekiel Elliott suspension was announced by the NFL’s “confidential letter,” which of course, wasn’t. The NFL personal conduct policy has always been problematic because how poorly the NFL churns one-sided investigations, issues punishment.
That the NFL is terrible at doing investigations makes it worse when they do them for sensitive topics like domestic violence.
In the piece, I noted that the relatively new way the NFL handles domestic violence issues is expensive, overly-long, privacy-invading, deterrent to reporting, and provides no real and fair mechanism for the player to show innocence.
I then explained why and how the Ezekiel Elliott case would end up as a disaster.
Just the description in the letter of the process was an obvious sham to me. Sounded official and legal and neutral to a non-legal person but was just a thrown together PR-focused process. With more information available now, the process is far worse than the original letter suggested.
The following is why the NFL Domestic Violence policy is counterproductive and ruinous to pretty much every stakeholder involved using the Ezekiel Elliott case as the latest example. Here is a link to Elliott’s Petition to Vacate Arbitration Award and related documents. (Update 9/6/17: All document links are updated to the excellent The Sports Esquires website)
Being able to see these details allows for a further exploration of how terrible the NFL’s handling of this has been.

Bad for Survivors of Domestic Violence.

Hostile Questioning.
If I were representing an abused person, I would not have them cooperate with the NFL. Why?
How does it help that person to cooperate? Does an NFL suspension of a player help them at all? Does offering privacy-invading details of their life help them?
Apparently, in the Ezekiel Elliott case, the woman claiming abuse was interviewed by the NFL investigator two times formally, with recording and transcript, and four times with follow-ups.
(Though her name is widely and publicly shared, including by her, I do not care to do that here because it is not necessary for my points. There are two people who know for sure what happened. Even if her account is inconsistent and not credible and threatening to Elliott, it is also possible that she was abused. Whatever is the situation, I feel bad that the NFL policy even means I am discussing this).
Usually, those of us on the outside do not see the type of questioning. This time we can.
I found the nature of the questioning of the woman to be hostile and privacy invading. I don’t think it was intended that way but people do all sorts of things in life they don’t intend to be abusive but are. It certainly wasn’t as hostile or thorough as it would be from a defense perspective, but that doesn’t mean it wasn’t awful in every respect.
The woman’s credibility in the case is an essential point to Elliott’s discipline. So the NFL questioned her.
For no benefit to her.
In previous NFL discipline cases, non-lawyers being questioned by lawyers have found the experience to be very intimidating. In both Deflategate and Bullygate, non-lawyers expressed how intimidating the questioning was, how they felt like they were being treated like liars and that the lawyers ignored important context if it didn’t fit what the NFL’s narrative.
As a lawyer, I’ve been made available for questioning in legal proceedings and even with nothing at stake, the process isn’t particularly comfortable.
Privacy Invading.
As I noted, because suspension is the punishment, Ezekiel Elliott’s case and the credibility of the witnesses is now news to teams, fans, fantasy football, betting.
The woman who is the subject of this action revealed extremely personal information about herself. More personal than I know about pretty much anybody. Ezekiel Elliott and other witnesses revealed private information about himself and her as well.
The NFL has tried to shift responsibility to the NFLPA for “victim blaming.” No, the entirety of this debacle of a policy is fully and completely on the NFL.
The NFLPA’s sole purpose is to serve its members. The ethical obligation for the NFLPA lawyers is to zealously represent their clients. They are doing that.
The NFL’s job is to football. They do have PR concerns, and the hastily put together domestic violence policy was created as part of a series of PR disasters. Unfortunately, PR-driven policies coming from crisis usually are bad. Like this is.
In the real legal cases instead of this sham procedure, there are ways where privacy-invading information can be shielded from wide view. Sometimes a resolution can be crafted that avoid tough questioning.
Takes Away Agency of Domestic Violence Accusers.
You might find it surprising that the woman accusing Ezekiel Elliott of abusing her wants him to get help, and told the NFL investigator that she did not want him suspended. Elliott at various points in his testimony suggests that he wanted the woman to get help.
In the legal system, each situation can be tailored for the specific dynamics of the people involved. Some jurisdictions do it better than others, and that legal and other experts struggle with these topics would suggest that sports leagues would likely do worse.
Punitive-focused approaches are typically not recommended for employers as they take away control of the abused and may deter reporting.
If you look at every single public discipline the NFL has got involved with relating to domestic violence, their actions have made it worse in significant ways to the person abused.
Do they not care? Do they not see this?

Bad for Players.

The NFL has spent millions of dollars and a great deal of time trying to buttress their conclusions in the Ezekiel Elliott case. The NFL argued in the Deflategate case that they are entitled by the process to do whatever the commissioner wants.
There is no way within the system to prove innocence. If the NFL lessens sentences or doesn’t invoke discipline, it is largely random and at their choice.
Some people want to put the blame and onus for fixing the discipline system on the players. To me, that is absurd. The NFL adopted the domestic violence policy unilaterally and then ignored the words of the policy. Does it matter what the specific words of the CBA and the rules are if Goodell at the end of the day claims he can do whatever?
Health. Safety. Fair process. Sensitive handling of issues like addiction and domestic violence. Following specific rules that apply to specific situations.
Why is it that the NFLPA has to fight so hard for these things that the NFL should want for themselves?
The NFL CBA had its general commissioner-strong structure for a long time. And though there were disputes over the years, there has been nothing like the strong use of power that started after the 2011 CBA. Prior to that CBA, though Goodell expanded the use of his powers, it was mostly for criminal actions with extreme cases. After it was signed, he started using his powers in far more expanded ways. Unilaterally. Making up new rule violations nobody had ever known were an issue. Suspending players indefinitely with no guidance for reinstatement.
I have suspected for a long time that the NFL has intentionally been unreasonable and unfair with their discipline as a bargaining chip to make more money in the next CBA. If you have studied their NFL’s actions over the years as it relates to labor, their general practice is to use maximum power and leverage, even if in the short term it hurts the product on the field.

Elliott Process Is Bad for Teams and Owners and Fans.

If you have a process that makes it impossible to prove innocence, then every player and team is at risk of an intentionally compromised product that fans pay for.
In a normal legal process, you do not have the thrown together procedure that the NFL has. Each time they make an ad hoc process that has its own faults. Behold my 2015 graphic I made to illustrate this:

In the Ezekiel Elliott case, the ad hoc process appears to be as follows:
One Main Investigator Taking Info Not Under Oath. Former prosecutor women who have prosecuted sex crimes are running the program so somehow that makes some sort of cover for a bad process.
Prosecutors tend to see things a prosecutors do, and also what they are being asked to do for the NFL is not typically what prosecutors do in their day-to-day work. It is a pretend legal process.
A former prosecutor, NFL employee Kia Roberts questioned the witnesses. The woman who is the subject of the abuse claim was interviewed two times formally, four times in follow-up questions.
Notably, Roberts did not find the woman claiming abuse to be a credible witness. And this isn’t even with opponent questioning. This conclusion was not in the final report. Nor was that shared in the suspension letter that was made available publicly.
In an actual legal system, more than one person hears the complainant’s testimony. If it ends up going to trial, an entire jury hears it.
In an actual legal system, more than one person cross-examines the complainant.
Kia Roberts, the only person who interacted with Elliott’s accuser recognized her significant credibility problems and would not have recommended discipline. She had in her notes an entire document with inconsistent statements. And notably, none of this was under oath testimony, like it would be in a real legal setting.
Report Manufacturing. Both Kia Roberts and another former prosecutor working for the NFL, Lisa Friel jointly wrote a report. The report left out a lot of information that favored Elliott. The report did not state Roberts’ concern with the credibility of the accuser nor did it contain her recommendation based on that for no discipline.
The NFL hired experts to opine on things that would not be persuasive testimony in a court room, despite all the discussions of metadata. That you see pictures of injuries does not say how and when and who if any caused the injuries. The NFL experts noted the limitation of their testimony.
This is typical of how the NFL puts their reports together. They put a lot of shaky information together and then decide the quantity of it makes it somehow persuasive.
Panel of Advisors. Then there was a meeting with Lisa Friel and the panel of four advisors. I’m not sure what the panel of advisors was supposed to do. How do you judge the credibility of evidence if you don’t see and hear the witnesses? They just read a report written in the attempt to withstand the inevitable litigation. Kia Roberts was not invited to this meeting despite being the person who did the actual investigation and would not have recommended discipline.
Goodell Drops the Hammer. The only direct witnesses are the parties involved. There are some manufactured claims that this or that shows something happened, but after reading all the information, it all equals zero. The threats she made to his career do not mean it didn’t happen, nor does it mean it did. There is no way with the evidence that Goodell had at his disposal that he should be able to say there was credible evidence that abuse occurred. By the nature of his own process where the only person who talked to the key witness thought she wasn’t reliable. Or in any process.
NFL Flunky Handles Arbitration Appeal. The NFL does not use a neutral arbitrator. When they have, they usually lose so they avoid that. For those who think a neutral arbitrator could fix this horrible process, they can’t. A neutral arbitrator can’t fix intrusive investigations, deterring reporting, the time and money and destructive power of the NFL process. Maybe it would overrule the worst of it but not before it hurt peoples’ lives without care.
The hearing officer, Harold Henderson rubber stamped Goodell’s decision, indicating in a relatively cursory way, “the record contains sufficient credible evidence to support whatever determinations he made.”

The Domestic Violence Policy is Bad for the NFL and Basic Decency.

The NFL is good at football. The further they get from football, the worse they tend to get. Employers are much better at directing employees to helpful resources and education. That’s not very satisfying to those looking to exact vengeance for players they don’t like, but I’m not sure how six game suspensions do that either.
I wrote this with the intention of expressing my disgust for the entire record and NFL process being used in the Ezekiel Elliott case. As that is something I think is lost when people are talking about how many games he plays and when and legal arguments between lawyers.
I loathe all the unintended messages and lessons the NFL is amplifying with how poorly they have handled this. It makes me sick.
My intended message: Fair processes that treat people like human beings matter, even if you don’t care about the people involved this time. Sometime it may matter to you.

All that said, if you have questions about this or legal questions on how this is going to be handled, please put questions or comments below. It is better for everyone if I do this here versus trying to do it on Twitter. Please, nothing abusive to anyone or I will not approve it through moderation. I like my comment section to be a resource to others and typically it is. Sometimes there is a delay in approval because I do it all manually. Thanks.

Ezekiel Elliott and the NFL Domestic Violence Policy

August 11, 2017 by Steph Stradley 5 Comments

When people on Twitter ask my opinion about sensitive situations like the Ezekiel Elliott suspension and the NFL Domestic Violence Policy, I think sometimes it is better to write a blog post to share complex thoughts.

I started writing about NFL discipline issues in 2006 after incoming NFL Commissioner Roger Goodell made player behavior and punishment a greater focus of his position. (You can find much of my NFL discipline writing in the NFL tag).

Fans would get angry at some of the decisions and wonder about issues of fairness and timing and bias. I generally have not been supportive of Goodell’s approach to discipline, as criminal justice issues are often complex and sensitive, and his typical stance is neither.

A note before reading this: Domestic violence is a raw, emotional topic. I do not like glib debates about such things as sports social media sometimes does with difficult issues that turn into tribal, team-focused thing. For what it is worth, I am not a Cowboys fan, I want nothing good to ever happen for the Cowboys ever, and if you like them, good for you. Life is better when you have things and people you love.

That should be irrelevant to the discussion, but as fan-oriented topics go, I have come to learn that some readers care about such things.

The NFL Domestic Violence Policy is relatively new and has been handled differently at different times. No matter what the NFL decides, various people will not like it because we all have our own life experiences that inform our views.

Given my background, here are my initial thoughts:

What is the Purpose of NFL Discipline?
In the modern world, laws and rules tend to be reactive to the emotion and anger of a particular event and not based on an evidence-based, fully-thought through philosophy. In the criminal justice world, this has lead to a wild expansion of acts that are now crimes on the state and federal level. Without knowing what you want to accomplish by a policy, whether it is in government or a sports league, it can lead to horrible, unintended consequences.
Most people without knowing details of the NFL Domestic Violence policy would go: “Domestic violence is bad, punitive policies by the NFL to fight it are good.” That is a natural human inclination but is the “I have a hammer, everything is a nail approach.”
If you are interested in exploring this general idea further, I would suggest reading these previous pieces of mine:
“What is sensible discipline for NFL player conduct?” via my blog, September 16, 2014
More specifically the logistics: “League Discipline and Legal Reality” via SI.com, September 19, 2014
“Presumption of Innocence or Everyone Knows They’re Guilty” via my blog, September 28, 2011
What are These Unintended Consequences?
There can be many purposes for discipline policies. Public relations. Vengeance. Anger. Deterrence. Education. Rehabilitation. I don’t think the policy as written does any of this well. Even an anger-based policy doesn’t deal with people who do not want to root for someone accused of domestic violence because what does six game suspensions do for that?
What I’m certain it does poorly is protect abused people. To me, if you have a policy that deters reporting and makes things worse for people experiencing domestic violence, then your policy is just well-intended, PR pandering.
Why?
Domestic violence is hard for the legal system to deal with for many reasons, which makes it nearly impossible for sports leagues to be any good at it. Roger Goodell may look like a stereotypical lawyer, but in fact, he is not one.
Though there are general statistics about domestic violence, at a micro level, each circumstance is different. For police officers, domestic violence calls are some of their most dangerous calls.
The police do not know anything about the people involved, their history, any substance abuse, weapons, who is abusing whom, whether the abused person will cooperate or become hostile to the officers due to the emotions involved, many things. They are forced to sort things out quickly. Often the information given is hazy, emotions are volatile, and independent witnesses limited.
Can Deter Reporting.
In the context of sports leagues, the fame, money, fan interest make muddle these complex domestic violence issues further.
I strongly recommend this Washington Post article: “For battered NFL wives, a message from the cops and the league, keep quiet.”
In key part: “If the league is serious about ending domestic violence in its ranks, it must rehabilitate instead of punish, they say. Penalties should be less draconian, so wives don’t worry about ending their husbands’ careers or threatening their families’ livelihoods. ‘They use [the NFL’s current policies] as leverage against you,’ says the ex-wife of the Saints player. ‘There’s abuse on every team. Everybody knows, but you know not to tell.’ Ultimately, she says, the case against Ray Rice has made the NFL less safe for women:
‘You will hear of a wife murdered before you hear another one come forward.’
I would also suggest reading Diana Moskovitz with her more specific Deadspin’s article, “Zero Tolerance for Domestic Violence Will Only Make it Worse.”
Very Privacy Invasive.
Making allegations against public figures is difficult in the context of sports. And no policy should deter reporting. The trend in criminal justice system is to take domestic violence reports more seriously and handle the cases more sensitively.
There is an inherent tension between listening to the wishes of the abused and making sure they have agency in the outcomes versus prosecuting cases even when they do not want to press charges or cooperate. Those issues are tough to work through in a situation by situation basis, and there is a lot of variations in jurisdictions with who does it better or worse.
With discipline issues, punishing players when the law sees them as an innocent person, can drive fanbases to their worst inclinations and extremes. They search for details of the abuse and turn it into an embrace debate topic.
If there is video or pictures of the incident leaked, it is worse because though some media outlets handle such things sensitively, in my experience, most do not.
News is reported. Video and pictures are more interesting and get reported more. If details are news, details get reported. A suspension and litigation and uncertain timing of suspensions make this bigger news.
People who have been abused typically do not want their abuse re-lived daily as a hostile sports debate topic.
The NFL doing their investigations can be extremely intrusive. Why should they cooperate with their abuser’s employer? Why should they share pictures of their worst moments that could be leaked and often are? Sometimes those who have experienced domestic violence want to remain private and create their own outcome that works in their lives if they are able.
How does this encourage the reporting of abuse or help the abused?
The NFL Policy Invites Embrace Debate: Using the Ezekiel Elliott Situation as an Example.
Ezekiel Elliott was accused of domestic violence. He has denied that it happened. In America, accused people who are not convicted of crimes are innocent.
Roger Goodell says that NFL players are held to a higher standard than that, but his standard isn’t by definition a standard. It is whatever Goodell says it is that day.
Because there are no real rules or process to what the NFL does, it invites debate of details. Those questions are justified given the shoddy investigations that have happened in the past. And the timing of when suspensions happen. Sports leagues are typically better at education and prevention than being fair adjudicators.
What are the specific immediate issues with the Ezekiel Elliott situation?
“Confidential” Letter Announcing Suspension. When the six game suspension was announced, a “CONFIDENTIAL” letter was shared on Twitter from NFL Network reporter, Ian Rapoport among others with details of the findings. It was later removed from the NFL hosting site, but the not confidential letter is still hosted elsewhere. [pdf}
Sharing those details from NFL hosted accounts is strange. Going through the details of what they found, invites fans and reporters to make the details an object for public debate.
From a league transparency perspective, I can understand why the NFL would like for people to know why they made the decision they did. From the perspective of encouraging people to report abuse, it is not helpful.
Timing. I’m not sure why the information as discussed in the letter took that long for a multi-billion dollar organization to investigate and decide. It is hard not to be suspicious of the timing of the suspension given the performance of the Cowboys in 2016. Legal processes often go slow, but others like it haven’t been this slow.
Limited Facts. Even without knowing all the details, you can tell that this has been written for purposes of future litigation. It provides a lot of details of the case in support of the suspension and few facts that would be in his defense. With limited documents that have been released in previous cases, this is typically how the NFL findings go.
From a process perspective, it can’t feel like anything other than a railroading job with the slanted way the letter is written and then released to the world.
Prosecution Focused. As a general rule, prosecutors tend to see everything from a prosecution focus. When the policy was first enacted, I thought the policy was written from more of a PR, prosecution punitive perspective with very little protections given to making sure they weren’t suspending people wrongfully.
The letter says that the Commissioner was counseled by independent advisors who reviewed the same evidence he did. To give him cover that this is somehow a fair process. Two of the four advisors listed are ex-prosecutors, who tend to see such issues as prosecutors do.
Process protections are important. If processes seem unfair, it can undermine the cause that is meant to be championed.
You can look at general statistics to try to make supportive policies for abused people but on an individual basis, false accusations happen. The suspension letter had a lot of words in it, but at its basic form, it was a who do you believe. Sometimes those assessments are wrong, and we know so because they are proven that way at a later date. Sometimes you never know.
Even when you are working on a case with confidential information, you rarely see the God’s eye truth as it happened but more how various people saw things.
Invites Player Response. This is now going to be litigated in the media because the NFL has invited the facts to be debated by using suspension as their main disciplinary tool. Elliott’s representatives have denied the NFL’s letter and have presented their own facts disputing what happened.
Treatment Requirement. Elliott has denied the actions happened. Though many people, both young and old, could benefit from counseling, requiring therapist approved by the league is a strange dynamic for someone denying an accusation.
Reducing Suspension. Sometimes Goodell reduces punishment based on the contrition of the player and his work to improve but that is impossible when the player denies something happened. It is always harder to prove a negative.
How Does This Help Anyone? Ultimately, nobody is going to be happy with this outcome. Fans will debate whether the punishment should be more or less or gone. Usually, that debate will go along the lines of 31 fanbases against one fanbase. Making things into a suspension, with often uncertain timing of when it takes place, transforms it into a debate topic, a betting topic, a fantasy football topic, which means that the debate will be mostly dumb and gross.
The next to the last paragraph of the “confidential” letter is a lie. It read in part:
“While this is a serious matter, it by no means suggests a belief that you cannot have a long and productive career in the NFL. You will have substantial resources available to you from your club, and from our office, to assist you in learning how to make better decisions and avoid problematic situations. Our goal is for you to have a successful career as possible.”
What resources? Is it their goal? He’s denied the allegations. The NFL is taking away money and job and adjudicating guilt with a made up standard so he can succeed more? With the way that the NFL typically handles suspensions, it appears more that they are interested in PR, and making the NFLPA have to fight them on discipline issues in the future.
Personally, I think all fans should care about this even if they do not care about the Cowboys and wish bad things to happen to them.
Despite all the words in the letter, the true standard wasn’t anything different than the head of WWE deciding a particular storyline or matchup. If there is no mechanism to prove one’s innocence in a particular process and few real safeguards, this could happen to any team and any player. And we should all agree that the NFL, as an institution, should not have suspension policies that make it more difficult for abused people and deter future reporting.
Next Steps. Typically, it becomes litigation. That’s what happens when the policy dictates suspensions, and large sums of money and precedent are at stake, none of which helps the person who reported the abuse.
Usually, the litigation arguments are technical and not whether it happened or not. Which keeps it in the news longer.
Have any additional questions, comments on this? Please put them below.
Please note: I moderate this blog myself, and I do not want any abusive comments about anyone or any commenter. Plenty of places on the web for abuse, but I don’t want a blog with my name on it to be a place for that. I moderate and answer questions when I have a little time. Thanks for making this place cool.

Related links:
“Roger Goodell’s Criminal Justice Role Was Doomed to Fail.” Originally published on July 1, 2009, reprinted here, September 13, 2014. (To be fair, it is a success if you enjoy lots of bad publicity and alienating fans).
“Is Roger Goodell an ‘Unthinking Moralist.” Originally published on April 1, 2008, reprinted here, September 9, 2015.

My Health and Fitness Pep Talk for All of Us

January 2, 2017 by Steph Stradley Leave a Comment

This is a 1963 photo of the CDC’s character Wellbee with Boston Red Sox players. Wellbee was created to encourage the public health of Americans. Wellbee is kinda creepy.

In the past, I’ve led online groups encouraging each other to be more healthy. One of them made the New York Times. (I had gained a lot more pounds than my baby was, and those pounds did not want to vacate the premises as fast as I wanted them to leave. It’s a nice article but inaccurately called me a “former lawyer”).
Over the years, I’ve been asked by some folks to write down some of my thoughts on health and fitness and inspired by the progress some of my friends have made, today I am doing a health and fitness pep talk for all of us.
Like with everything in life, take what works for you and consider the rest.
Most of these things are reminders of stuff you already know, and if you learn anything, all the better. Warning: This is unfashionably earnest writing and not cynical at all, so if that sort of thing doesn’t work for you, perhaps you should visit places online that are better for you.

General Health and Fitness Philosophy.

Being Kind to Yourself and Future Self. Ultimately with health and fitness things, the focus should be on things that don’t break your body down and are good for your short and long term health. When considering all choices, having respect for yourself and future self should be the primary directive.
This seems like a no duh, but look at all the diets and fitness things that people do that aren’t evidenced-based or good for one’s long-term health. Please consider not doing those things or at a minimum, make it a choice.
I’ve been spending a lot of time visiting senior living homes in recent years, and they make you think of such things.

Consult with Experts.

Medical Checkup. Have you been to the doctor and dentist recently? Sometimes medical reasons can interfere with your fitness objectives. Sometimes you can look and feel healthy but have metabolic, cholesterol, blood pressure etc issues. Visiting the dentist can maintain gum and teeth health, and make it easier to eat healthy foods.
Mental Health and Addiction. Depression lies. And as much as good nutrition and regular exercise can be of great help with many people’s mental status, depression can make it difficult to take care of yourself. The brain is the boss, so it gets priority. Find resources to get help.
Registered Dietitian. I thought I knew a lot about nutrition until I visited a Registered Dietitian. Typically, they will evaluate your current diet and educate you on portion sizes, practical nutrition tips, nutritional deficits, what is good for you as an individual. Whatever your current health status, they can make it more optimal. Knowledge is power. For some people, their insurance will cover the costs.

Mental Approaches.

“Get Your Mind Right.” I had the good fortune of working with fitness trainer, Todd Durkin, and one of his main mantras is “Get Your Mind Right.” I’m a big believer in “cognitive reframing” of trying to reframe negative, self-defeating thoughts into more positive ones that can create positive changes. To look at weaknesses and use that as a challenge to turn them into strengths and opportunities.
Be Your Own Best Friend. Sports psychologists often train athletes in their “self talk” and one of those things is to not talk to yourself in a way that is less kind than a good friend would talk to you.
Thou Shall Not Covet. It is weird how different societies value different things about people’s bodies. In basic terms, your body is what you use to tote your soul about. Trying to be something you are not and can’t be, never works out well. You be you.
You Are Not Immutable. That said, “you” as a person isn’t an unchangeable object that can only be one way. The you as a kid might have hated onions, now you love them. You may have preferences in your life, things that make you more or less comfortable, but you aren’t just a collection of characteristics that are only one thing. Your mind is powerful. You can choose things. Sometimes you can make choices and will those thoughts into reality. Make good choices, and try to make things happen.
The Perfect is the Enemy of the Good. Do something good for yourself. It doesn’t need to be perfect. Just do something. Make a choice to be good to yourself because if you don’t, who will?
Avoid Fatalism. Yes, being mindful of health and fitness things does not prevent bad things happening to your person. That said, a “we all die” mindset doesn’t account for preventable things or a full quality of life.
The Scale. Many theories abound about how much attention to pay to weight on the scale. I tend to think of it a bit like sports stats. It is one piece of data. It isn’t the be all and end all. It’s something worth knowing but can be misleading. I find my weight fluctuates during the course of a day, and when I’m at my fittest, I am often not at my lightest weight. My personal goals have nothing to do with this one stat and everything to do with my general health and the ability to do the things I want to do.

Nutrition.

Not a Fan of Diets. In my experience, the more one diets, the more one thinks about food and feels deprived. I prefer thinking in terms of living a generally healthy lifestyle based on just knowledge and moderation. That requires obtaining good information and buying into it and knowing what things you have difficulty moderating.
Typically, the American diet is too much processed food and too many calories from processed carbohydrates. Working with a Registered Dietitian can often figure out what specifically in your normal eating could be healthier for you.
If a specific temporary diet is healthy and sensible and jump starts a better lifestyle of eating, go for it. Just work toward something that you can live your life doing.
Food as Fuel. Treat your body at least as well as you treat your car. You wouldn’t put bad fuel in your car. The majority of your food choices should have some sort of positive nutritional value. I like thinking of trying to eat food closest to the way God made it.
Willpower is Overrated. If there are foods or beverages that you find hard to resist and aren’t beneficial to you, don’t have them in the house regularly.
Eating Out as a Health Opportunity. If you eat out a lot, learn about how to make healthier choices or the better of a bunch of bad choices. Also, find go-to restaurants where it is easier to make healthy choices. Even nutritionists can have difficulty determining calorie counts of restaurant foods, so be mindful of how things are prepared, portion sizes, calorically-dense foods. I like eating fish at restaurants because I rarely cook it at home and good restaurants usually have been sources for fresh fish.
Know How to Cook. When you cook at home, you know what is in your food and how it was prepared. There are ways of preparing foods that are very good for you and taste good. Just because you didn’t like your mom’s broccoli, doesn’t mean you can’t cook in a way that you like it. In the internet age, if you can follow directions, it is pretty easy to learn how to cook.
Food Diary. One of the best ways to educate yourself on the nutritional component of foods is to keep a food diary. After doing one for even two weeks, I learned a ton about calorie counts, nutritional components of foods I ate often.
Stay Hydrated. Sometimes people eat when they are really thirsty. I’ve seen a hat that says, “All of your problems ever are because you’re not drinking enough water.” There’s something to that. Sometimes when you are feeling off, just drinking some water does make you feel better. (Though like anything, too much is bad for you too. Moderation in everything).
Learn How to Read Food Labels. Working with a Registered Dietitian made me more mindful of food labels. The best info? Portion sizes (like some drink bottles and snacks are really 2+ portion sizes). 4 grams of sugar = 1 teaspoon which means a lot of common foods have many teaspoons of sugar.
Alcohol. For some people, alcohol doesn’t work for their lives and moderation is not an option. Sadly, I know too many people where it has put them in jail, hospital or the grave. For others, it is just a drag on their health, whether it is making them feel unwell or too many calories. Just keeping a food diary of the sugar and calories in alcohol might surprise you and make you think more moderately. If you need help with this, please find it.
Other Liquid Calories. It’s hard to maintain health being a daily soda drinker. There is just nothing good in it. Being mindful of liquid calories is important because they don’t make you feel full the same as solid ones do.
Mindful Eating and Food Because It’s There. Don’t eat food just because it is there. Stale popcorn at the theater. Donuts left in the break room. Candy dish. How many times do you eat something when you aren’t hungry? Taste the food that you are eating. If it isn’t worth the calories or nutrition, don’t eat it.
Early Bites are the Best Ones. You don’t have to finish your plate. Sometimes you just want a taste of something. It’s okay to taste things and not keep eating them until you are stuffed.
Fiber is Your Friend. Fiber naturally found in foods generally are a good thing for the functioning of your body and make you feel more full.
Don’t Be Weird About Food. Some people love food. Some people treat it like fuel. Whatever you do, if you are wondering if you are talking about food too much, maybe you are. It’s food. It’s cool that many humans get enjoyment from eating. That said, nobody wants to hear about your bloat tendencies or whatever weird biological whatnot.
Your Three Things. Be real. You likely know the things that are impeding your nutritional health. Some of them you may be resisting because you like them too much. Alcohol? Desserts? Sugars? Salty snacks? Sodas? High-calorie Starbucks nonsense? Fast food? Mindless eating? Not figuring out how you can like vegetables? Pick a few high impact things in your life, and work on those things first. Sometimes just doing it is easier on your mind than the dread of thinking about doing it.

Fitness.

Fitness As Holistic. Fitness is not just an outward thing but more having the suit that holds your soul be able to do the stuff you want to do in life now and the future. There’s a lot of parts to that, including body composition, strength, cardiovascular fitness, movement skills, balance, flexibility, agility, posture, healthy pain response, coordination, reaction time, mental focus and peace.
Some folks like to focus on their strengths and keep working on those. Some use their strengths to work on their weaknesses. Those strengths and weaknesses tend to evolve over the course of a life.
Just as I don’t like the thought of “diets,” I don’t like the idea of fitness as anything other than just one of the things that you do. Brush teeth, shower, move around regularly.
Figure Out How to Enjoy It. Sometimes there are things in life that are good for us but we don’t enjoy them. You can choose: 1. To avoid them; 2. To do them unhappily. 3. To find a way to enjoy them. I try to choose 3, though 1 and 2 get into the mix sometimes. Trying to find ways to enjoy things we don’t naturally enjoy can turn them into things we naturally enjoy.
Joy is good, and I recommend it.
In the technology world, sometimes they do that by “gamifying” them. That many people like games, so app makers and retailers make things more like games so people want to do them. I never liked to do cardio activities until I found ways to make them more interesting, like attending classes and reading fun stupid stuff while on cardio machines.
One of my favorite workouts is what I call the “Game of Thrones Workout,” where I binge watch a show to catch up and do various workout stuff in front of the TV.
Move About. Human beings aren’t meant to sit around all the time. And I find I feel better the more I move about. Everybody has a different starting fitness level, but find things to do every day to get your blood moving. If you have physical limitations, you can often find things to work around those limitations. If you sit a lot for your job, try to make sure your ergonomics of where you work are good and take regular breaks.
Shoes. You don’t need the latest workout shoes. I often buy the previous year’s shoes on sale and I rotate between a couple. Shoes are always cheaper and better than hip and knee replacements. Find ones that work and workout gear you like because you are more likely do exercise if you like what you are wearing.
Variety. Personally, I’m a big fan of a variety of fitness activities. I think variety is a good thing because it tends to reduce imbalances in your fitness.
Timing. You don’t have to do all your workout at one time. You can spread activity throughout the day. I like getting workouts done in the morning because things won’t pop up later that derail them, but sometimes that is not logistically feasible. Work a lot during the week? Then try to make sure every weekend has some fitness in it. One of the fittest and busiest people I know would always try to do about 15 minutes of intense fitness before hopping in the shower. Sometimes you just have to schedule when it makes time for your life but intend for it to happen.
Counterproductive Fitness. Sometimes people do ego types of fitness activities that are meant for their bodies to look like some sort of ideal but break the body down by putting unnecessary stress on joints and bones or go beyond their fitness level.
If you are working with a fitness trainer, learn about their background and their philosophy on such things.
Personally, though I have done long-distance running in the past with a run trainer, I do not like running as a way to maintain fitness. I find that for most body types, it is hard to engage in that as a regular activity and not break down. I can’t say I’m a big fan of Cross Fit generally for that reason, but some places have good sense and a good community that works for them. Your results may vary.
Gym Workouts. If you think you would like gym workouts, they have to work for your life. Try to get a gym that you can afford and that is not too far from your work or your house. Make it logistically easy for you to go by having workout clothes in your car if you come from work.
If you feel self-conscious about gyms, please don’t. The people running the gym don’t want that. And most people are too preoccupied with their own lives to care about your gym activities. And really, if someone is all judgy about you being at a gym, that says more about them than you. Most gyms have programs to familiarize you with their equipment and have folks that want to help you.
I enjoy going to gyms because I like the variety, and I try to think of it as my stress release spa.
Non-Gym Workouts. Obviously, you don’t need a gym to do a workout, and you don’t need a “workout” to get your blood going.
One of my favorite fitness books is called, “The Prison Yoga Project: A Path for Healing and Recovery” by James Fox. It is a book that was written primarily for prisoners who have limited workout space, access to instructors and who have significant challenges in dealing with trauma and stress. But for all people, it does a great job explaining yoga, yoga positions, and the mental benefits of connecting mind with body. It also happens to help people, details about the Prison Yoga Project here.
Find things that you can do and just do them. Everything else is just excuses.
Technology. There’s plenty of technology out there that encourages fitness. Wearables. Online support groups and videos. Video game workouts. Online information (preferably smart and evidence based). One of my friends likes doing workouts she finds on Pinterest.
It has never been easier to find things to help you move more but at the same time, plenty of distractions to stop you from moving.
Know Your Limits. Often in sports, there is the discussion of what is pain versus what is injury. Even with professionals, that is a tough line to draw. Whatever activity you are doing, listen to the pain signals that your body puts out and try not to overdo, because that can be counterproductive. I like the thought of not being in a competition with anyone.
Be the Tortoise. Much better to be consistent in your commitment to a healthier you than burning out all at once and getting discouraged. Have a setback? Every day is another day.
Try Stuff Out. If there is a workout in existence, I’ve tried it out and learned to enjoy pretty much all of them. My current favorites are Spinning and Pilates for how they make me feel in my mind and body, assuming that the music in the Spinning class isn’t too bad. Find the things that you enjoy and work for you, and give things a chance by doing them for a while.
Have a Great Life. Okay, I’m going to stop writing this because it is already too long but will likely update it with extra stuff over time. Hope you enjoyed this pep talk of stuff you likely already know but need a reminder. Keep kicking ass.

FAQs: Deflategate Second Circuit Rehearing Request

May 23, 2016 by Steph Stradley 10 Comments

Want to know more about Tom Brady and the NFLPA’s request for a Deflategate Second Circuit rehearing? You can find the Deflategate Brady En Banc Petition here if you wish to see what is said versus a summarized form. It also contains an appendix that has the Brady Second Circuit opinion.
When I get a lot of questions on social media about a topic, it is best to put them in a blog post so I don’t have to repeat myself. Here are some of the repeated questions:
What do you think of the Tom Brady – NFLPA’s petition?
Well written, of course. Is what you would expect from a Ted Olson filing.
What this filing does well is to explain why Tom Brady’s position is legally right, right from a public policy perspective, and also why he is in the right.
Brady being “in the right” is also known in the law as the “equities” of the situation. In this situation, it is the question, “Did Brady do anything wrong?”
Was that supposed to be the question on appeal? No. Is it something that seemed to trouble the Second Circuit in its majority opinion? Yes.
It is an art to subtly talk about something that isn’t supposed to be of legal significance, but certainly is a part of a larger argument about why you are legally right and from a public policy perspective also right. (Read the Rule 35 (B) Statement on the first page of Olson’s filing. Effective recitation of key facts that are relevant to why the majority opinion is wrong).
From my view, the NFL didn’t do a good job of that in front of District Court Judge Berman but did a better job of that with Paul Clement’s filing to the Second Circuit.
Ultimately, the battle is now: “Is the majority opinion bad/inconsistent with labor and arbitration jurisprudence?” Clement made that argument better in the first Second Circuit argument, but I think the NFLPA’s best argument on this is better. If it gets heard in a rehearing, which it may not.
What are Tom Brady’s chances of winning?
This case is difficult to handicap. Typically, requesting a rehearing or a rehearing en banc is the longest of long shots. But looking at previous cases to determine this case’s trajectory has mostly been a futile exercise.
This case’s journey through the federal courts is weird. Rollercoaster results of whether Tom Brady will play or not play 4 games. Labor winning an arbitration case at all. District court ruling overturned. High profile litigants. Huge public interest. Superstar appellate attorneys. Limited specific case law as it relates to the NFL’s power grab uses of CBA since 2011.
The topic is likely the dumbest in federal court history: Deflation of footballs that didn’t effect the result of a game. However, now this is recast as what are the powers of arbiters, and labor arbiters specifically, even ones with great powers.
Is the NFLPA’s argument too little, too late?
When the NFL hired Paul Clement to make their argument in front of the Second Circuit, the NFLPA probably should have matched with their own specialist. I didn’t find the briefing of either party to be particularly persuasive, but the NFLPA briefing was probably the worst I’ve seen from them. And it was clear that Jeffrey Kessler was surprised by the fact-oriented tone of the Second Circuit questioning.
(To be fair, the facts of this matter are muddled and confusing to those who even have a great familiarity with them, and often the side of the case that is easier to explain can be more persuasive with limited time).
That said, I think the majority opinion is wrong, and bad for the players, game, fans, and arbitration participants, and the Olson filing explains why generally.
In some ways, I think the majority opinion misstates the factual record to justify their own interpretation of what the CBA means versus what the parties agreed to when they entered into it. The idea that if the NFLPA wanted to limit the Commissioner’s authority, they could have done it. Well yes, yes they could, but nobody could have anticipated the bizarre process and decision making the NFL used and that they would ignore the rules they already have in place and have followed for years.
This is well summarized by Twitter user @Ugarles as:
“distinction between ‘we agreed Goodell could hear appeal’ and ‘on appeal, Goodell can do anything’.”
I think the Olson filing does a nice suscinct job of factually describing how peculiar the NFL’s actions were in handling this discipline issue.
Being able to persuade judges that it is enough for a rehearing is tough however. Judges don’t want to waste judicial resources by rehearing something already heard. That said, judges also don’t want to create labor chaos by a ruling that is bad for arbiters and labor. Olson’s position is that if an arbiter can make up new reasons for punishment on appeal that would create chaos generally.
I’d like to see these positions more fully briefed and argued. Between two powerhouse appellate lawyers. Perhaps the judges will too.
(Updated questions on amicus briefs, May 25, 2016)
What is an amicus brief? Does the court have to consider them? Have the Patriots “joined” the lawsuit?
An amicus curiae brief means “friend of the court.” It comes from someone who is not a party but has relevant, hopefully useful information to give the court. They are usually offered to the court when a decision doesn’t just effect the parties involved with the dispute but may have larger implications to the law.
They are of varying helpfulness depending on what is important to a particular judge and how they are written. How much the court considers them is very individual to the judges. In cases of great interest, some typically are trash, some are good.
I’ve seen some questions based on early news reports about whether the Patriots amicus brief means that the Patriots have “joined” Brady’s appeal. Technically no. They are not becoming a technically a party to the lawsuit even though Brady is their player, and they are a part of the NFL. It is pretty weird though given their relationship to the parties.
I know some fans were disappointed that the Patriots didn’t sue the NFL. That as an option was never ideal. Even offering this amicus brief is a pretty aggressive move given what latitude Roger Goodell has in making up punishments based on how he feels about things.
What do you think of the physics professors’ amicus brief? The Patriots’ brief?
You can read the Physics Professors’ amicus brief here. You can read the Patriots’ amicus brief here.
I think it goes to the equity issue I discussed before. Judges are human beings, and humans tend to prefer not letting people getting away with bad acts under the cover of legal standards. Lawyers and scientists tend to be more disturbed by the Exponent Report being a basis for the punishment because: 1. Junk science is not admissible in courts; 2. Scientists don’t like stuff being called science that is not real science and is total BS and wrong.
Imagine that.
That said, the science hasn’t been a huge part of the appellate record because of the weird history of the litigation. Judge Berman at the District Court level focused on some more narrow, appellate issues, and ruled in the manner that ends up not sending the case back to the arbiter. How? If Brady didn’t have proper notice, that is not something that is curable after the fact.
The Patriots brief is more focused on the specific facts that the headlines in this case often got incorrect if you didn’t carefully review the record.
Usually, facts are not a big deal this far into the appellate process. However….
The most jaw-dropping moment at the Brady appeal hearing was Judge Denny Chin asking the following to NFLPA’s Jeffrey Kessler: “When you read all the evidence, the text messages, the evidence of the ball tampering was compelling if not overwhelming…So how do we as appellate judges second-guess the four-game suspension?”
Wait, what?
Anyone very familiar with the factual record would know this is bizarre. And no one anticipated the court would veer in this very fact based direction as a part of the appellate argument.
(Though notably, the NFL’s brief in front of the appeals court did a better job trying to sway the court on the facts than the NFLPA brief did as just a way of saying that they are not just legally in the right, but actually right. As the Patriots’ amicus brief notes, some of those “facts” seemed to be ~~lies~~ mistatements of the record. The majority opinion recitation of the facts contains a number of inaccuracies, though those alone aren’t enough to grant a rehearing).
There really wasn’t an opportunity for Brady to refute in writing or verbally a great deal of this evidence due to how the process worked. Or didn’t work, more accurately.
The Wells Report was not a format to do that. The appeal transcript does it to a limited degree, but there was a short time limit to deal with both factual issues and technical science issues. Then the appeal ruling brings up new issues, that are completely refutable, but when the case goes to the appellate level after an arbitration is concluded, only certain factual issues are relevant to the standard on appeal.
The majority opinion bakes in a lot of “facts” in their ruling but I think, in part, what the amicus briefs are trying to do is demonstrate why the lack of notice and the changing of grounds against Brady at different levels truly matters and isn’t just lawyer tap dancing.
The facts from the amicus brief illustrate the challenges Brady faced in trying to defend himself. That the process issues that Brady is appealing are not hypertechnical but rather basic things essential for an arbitration and are a part of the CBA. That this is not the deal that the NFL or NFLPA struck, and it is not how arbitrations appeals should happen between labor and management anywhere.
For more information specific to the CBA and the NFLPA’s position that they want the NFL to follow the CBA, rules, and the fairness baked into it under labor law, I suggest visiting this post I wrote in July 2015 called “Answering Your Deflategate Legal Questions.”
Should we expect more amicus briefs?
Perhaps. High profile matters often get them. Now the factual reasons that support the Brady position have been offered to the court, it would not be surprising to hear from labor organizations. Brady would likely welcome that sort of good filing to demonstrate that this isn’t just a specific weird NFL CBA issue but rather something that has larger implications as it would create chaos and uncertainty in arbital proceedings.
It would be interesting if there were big business amicus briefs in support of the NFL position. I’m not sure it is in their interest given the “Pigs get fed, hogs get slaughtered” theory. These days business arbitration law has been under fire of being too pro-business. And that there has been calls for more protections for workers and consumers. That legislators should make arbitration a freely chosen thing and not inherently unfair to individuals. The NFL process is so messed up who would want to claim that as something that should be the new normal? OK, some might, but I’m not sure I’d advise it.
Should I submit an amicus brief?
If you need to ask me this question, the answer is no.
Isn’t this a huge waste of money?
Yes. The millions and millions of dollars spent on this could be spent in much better ways. Burning it for heat would be more useful.
The owners have more money to spend then the players so it probably works to their interests to make the union use their money on things like this instead of saving it for a war chest for other things, like preparing for the next CBA.
Even if the NFL lost, they still win because a labor loss likely just means they need to be reasonable and act like other leagues. If they lost, it really isn’t a terrible precedent, because they can just tweak their discipline process again, and aim it at another player in the future. If they lost, they don’t miss any games or lose any salary or career opportunities.
But the NFLPA had to fight every single one of the excessive power grabs of Goodell, ones that were not fathomable when the CBA was signed in 2011. The Second Circuit ruling if it stands says Goodell can do whatever he wants basically. There is no process for a player to maintain innocence. If the player doesn’t cooperate, that is held against him. If he does cooperate, it isn’t enough.
This section of my FAQ is very cynical. Don’t try to tell me that it isn’t true though. Okay, this I’m bored with this blog post, it’s kind of a bummer so I’m going to lazily conclude it.
Let’s just all agree we wish the NFL handled things in a more normal and professional way.
More Questions?
Have any more legal questions or thoughts about the Deflategate Second Circuit rehearing request? Please put them in the comments below and I will try to answer as I can. They are all moderated by me, so please keep them civil and germane because it makes it less combative and more useful to everyone just looking for information. I reserve the right to not publish ones that are potstirring/abusive because I don’t want to contribute to that nonsense. Also, please read the comments before commenting yourself because sometimes your questions are already answered.
If you haven’t already read my posts on NFL discipline over the years, here’s more than you would likely want to know. I answer a lot of general Deflategate questions there.
Also, please note for those who care about such things. I am not a Patriots fan. I am a Texans fan. It would likely benefit my favorite team if Tom Brady did not play against the Texans this season. That said, when I analyze anything, I try to do it neutrally, while looking from all perspectives and without specific benefit to mine.

Snapshot of Deflategate Second Circuit Argument

March 3, 2016 by Steph Stradley 18 Comments

I’ve been receiving a lot of immediate questions about the Deflategate Second Circuit argument in Tom Brady NFL discipline matter. Because I can’t discuss them all on Twitter and would like to collect them in one place, I will do a quick write up. As I was not at the argument, I hate to say anything too definitively based on just tweets about the questions and not even seeing a transcript.
[Update: I’ve read more detailed descriptions of the argument from lawyers who were there (see this good court summary by Michael McCann at SI) , and I pretty much have the same first impression]
[Update 2: I’ve finally read the transcript. It isn’t as helpful as being there, but it gives you a better sense of things reading it directly and not through anyone’s filters. My additional view? I think the entire transcript doesn’t look as negative to Brady as the initial reports sounded. The judges were asking hard questions for both parties to get a sense of what the limits on the NFL were and what the NFLPA believed should be the appropriate process. The fact assumptions were a little weird but it looked like the NFLPA explained them some.]
With that in mind, and given the questions I’ve been getting, here are my immediate, snapshot thoughts:
It Doesn’t Look Good For Brady. The types of questions that the NFLPA received suggest that they didn’t get the NFLPA’s argument at all, and the underlying legal and factual arguments relating to that. Some of the discussion of the evidence and phone sounded like a mistatement of what the record said, even beyond what the NFL said the evidence was.
Sometimes judges offer devil’s advocate kinds of questions, but at least as reported, it didn’t sound like that. The record is pretty big, and it is easy to get the details wrong as I’m very familiar with it and that sometimes happens to me.
Also to be fair to the judges, I think the briefing that the NFLPA did at the Judge Berman level was more focused on how the facts related to the law than the narrow direction that it took in front of the Second Circuit.
IMPORTANT CAVEAT: Particularly at the appellate level, judges do not always reveal their real thoughts through questioning. Though sometimes they do.
Never Know What Resonates With Judges. Before an argument, it is difficult to predict what particular arguments will resonate with judges. Though the guilt-innocence facts of Deflategate weren’t directly at issue in appeal, they are relevant to part of the arguments. It was surprising to see how much focus the judges gave on the facts, and how much they seemingly revealed about their views of them.
The NFL’s side of the argument is easy to deal with the facts because in essence the facts are irrelevant. The answer to all their questions is Roger Goodell has discretion to decide these things basically any way he wants to. The NFLPA’s argument is more nuanced as it relates to the facts, and if you don’t have an in-depth familiarty with the record, they can be hard to follow.
That one judge thought that the focus on notice was “hypertechnical,” it isn’t within the context of how the NFL typically handles discipline. Or even what Goodell has said in the past about the need to give players notice of offenses (pg 18). Just generally speaking, if you have no notice of what you are being accused of, of what is important to the investigator, and what the particular punishment will be, it makes it particularly hard to defend yourself. You are defending yourself against the shifting sand.
And if a judge actually thinks that the evidence in Deflategate is “compelling,” well, then, all I have to tell you is that you don’t want to be in that judge’s court if you are claiming innocence. Personally, I think if you look at just the info that Roger Goodell had in front of him, or the larger view that you get by looking at all the information, there are compelling reasons to think nothing happened.
The General Labor View Versus the Football Focused View. If you frame Deflategate as something that has vast labor law implications, then the NFL view of things has great appeal. If you frame this in the context of just a weird process the NFL used that doesn’t have wide ranging implications, then the NFLPA viewpoint makes more sense.
It sounds like two of the judges are framing it the first way and not in the context of the whole NFL-NFLPA Collective Bargaining Agreement (CBA). That makes some sense because most judges are familiar with general labor law/arbitration and not the specifics of the NFL-NFLPA’s dealings.
So What’s Next?
Court: Given the nature of the questions, from those who were there, they are predicting a 2-1 decision for the NFL. One way or another, just as a guess, I do not see the directions of the questioning sounding like anything would be remanded back to Judge Berman for more facts or further consideration.
I don’t think there are any compelling Constitutional/split circuit reasons why the Supreme Court would take this.
Goodell: Roger Goodell said the following at his Super Bowl presser about whether he would reinstate Tom Brady’s suspension if the NFL won. Goodall responded in part, “I am not going to speculate on what we are going to do. Depending on the outcome, we’ll let the outcome be dictated by the appeals court. When it happens, we’ll deal with it then.”
My belief is that he would reinstate the discipline if the NFL won because that would be consistent with what the NFL has done in the past.
Implications for All Fans: The attorney for the NFL basically said that though the suspension was four games, Goodell had the discretion to make it one year long suspension. Perhaps, more, who knows? If the NFL wins, it sounds like there would be nothing that would stop Goodell from deciding anything the way he wants to, even if there are specific rules that tend to govern a situation.
This will certainly be a concern in the next CBA negotiation for the NFLPA. They had concerns about this before the last CBA, but Goodell didn’t start exercising his powers in broad ways until after the last CBA was signed.
This should be a concern to fanbases who have no control over how Goodell does things but may be asked to pay for a compromised product on the field.

[Please feel free to leave legal oriented comments and questions below. Given my current schedule, I may not be able to moderate and answer them right away, but I will do my best.].