NFLPA

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.

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.].

Did Roger Goodell lie about Tom Brady, Deflategate?

August 20, 2015 by Steph Stradley Leave a Comment

From both media and fans, I’ve been receiving the question: “Did Roger Goodell lie about Tom Brady and Deflategate events?”
When I get a question repeatedly, it is easier to write a more complete answer in a blog post.
Personal note to put this in context. I feel very uncomfortable with the term “lie” and judging people in general. For me, fair commentary about anything–football, business, law, etc–is the sort of commentary that I would feel fine saying to them personally.
More fair, less cowardly.
Let’s walk through the above question and various related questions:
Did Roger Goodell lie about Tom Brady in his arbitration ruling?
After the NFL – Tom Brady Deflategate transcript was not sealed by the judge, it made it easy to compare what was actually said under oath, and how the NFL represented to the world what was said.
Clearly, Roger Goodell did not write the actual arbitration ruling himself. He would likely not do that even if he were a lawyer-commissioner because that wouldn’t be a good use of his time.
Arbitration rulings of this sort are crafted by lawyers with the intention of helping defend future litigation. They typically try to show that they considered all the evidence fairly, rejected some of it for whatever reasons, and then rule a particular way.
Roger Goodell signed it. So, that would suggest that he at least read it and endorsed its contents.
There are any number of commentators who believe that the NFL and Roger Goodell were ___words used to suggest less than truthful___.
Dan Wetzel from Yahoo Sports:
Roger Goodell’s manipulation of Tom Brady’s testimony leaves NFL on slippery slope
Wetzel: Goodell’s Egregious Mischaracterization Of Brady’s Testimony Worse Than Any Deflated Footballs
Dan Steinberg – D.C. Sports Bog/The Washington Post:
Roger Goodell misled me on Tom Brady. I won’t trust him again.
Doug Nyed – NESN:
Roger Goodell Made Tom Brady Seem Dishonest In Deflategate Appeal Ruling
(I leave these things here as a time capsule of sorts. I’m sure there’s more stuff but, you get my point here).
The genteel, lawyerly way “lie” is usually said is, “misstates facts.” Or as Ted Wells might say in the Wells Report, in my judgment “lacking candor,” or “not credible.”
These lawyerly words are often used to avoid saying “lie” because it is hard to judge what is in someone’s heart. And various defamation things. (We will revisit defamation sorts of things later).
One reason why the judge wants to get the NFL and NFLPA to talk settlement in person is to get the lawyers more out of it. Lawyers act as weapons and buffers and shields and often serve as the blame point when settlement is going on. Sometimes they are actually to blame. Then the parties can play the ego-filled, face-saving “Hey, this is not me, this was the lawyers” game without saying it that plainly.
Getting the lawyers out of the room makes the parties get more real.
One thing for an arbitration ruling to say more probable-than-not-legalblurghy-stuff-not-credible. It’s another to get together in a room. And for one man to tell another man in essence they are liars to their face.
Not hiding behind legal standards, and burdens, and inferences, and bought scientific-sounding endeavors.
Frankly, the fancy pants way of best describing the truthiness level of this entire NFL enteprise is this:

Disingenous: /disənˈjenyo͞oəs/adjective – not candid or sincere, typically by pretending that one knows less about something than one really does.

Beyond how the arbitration hearing characterized the evidence, here’s the boilerplate fiction that is a crock:

Plain as day.

Deflategate Legal Time Capsule: Judge Berman Speaks

August 17, 2015 by Steph Stradley 55 Comments

This is a time capsule of Deflategate legal thoughts. The focus is on the August 14 NFL/NFLPA Memorandums in Opposition, the August 12th settlement hearing and related issues.
I’ve been receiving a lot of questions about Deflategate legal issues as they happen, and it is easiest to collect them in one place. If you haven’t already read them, please check out my FAQ recaps on earlier events on my blog. If you scroll down a bit, you can find blog posts about other NFL disciplinary issues as well.
Warning; These posts may cause feelings of severe deja vu.
(Please note: In order for the comments to be worth reading and answering, I moderate this blog personally. When I have time to do it. My rules are no spam, vulgarity or name-calling attacks on any people or commenters. Most people are really good about that, and just about everything gets published. Sometimes comments shape my thinking, including being challenged and informed by alternative views.
I’m highlighting my guidelines as um, fair notice, as some of the topics in this blog post may make some want to attack media members. Like or dislike whoever you want because this is America, but I honestly don’t want to see that here. It tends to shut down reasoned disagreement and devolves the quality of the comments when people are focused on attacking human beings instead of arguments.
In addition, please check previous posts first to see if I’ve already answered your question. The focus on these posts are legal questions and the facts as they apply to the law. Thanks again for being cool.)

View the story “More legal Deflategate commentary on recent events” on Storify

Have any additional questions, comments? Put them below. Please read the other comments first to see if I’ve already answered them. I do not have a staff because I’d rather keep overhead low and my own money.
It’s sometimes hard to talk about legal issues to a broad audience without simplifying to the point of complete inaccuracy. So if you have any Deflategate settlement, memorandum of law legal questions of a more or less detailed nature than above, please let me know. My comment community is usually a very good one. Sometimes the comments are so good, I create new blog posts just to highlight how good some of the comments are. Unusual, I know.

Legal Snapshot: NFL v Brady Deflategate Filings

August 8, 2015 by Steph Stradley 45 Comments

On August 7, 2015, the NFL and NFLPA offered their Deflategate filings– motions and memorandum of law to federal court Judge Richard Berman of the Southern District of New York.
Previously, I collected a legal snapshot of views after the Deflategate transcript that was released.
By request, I’ve collected various legal snapshot of views for the Deflategate filings below, specifically the NFL and NFLPA Memorandum of Law. Also added some additional comments.
It makes it easier to read and further discuss the contents by putting these things in one place. It also serves as a time capsule.

View the story “Deflategate NFL v Brady Filings to Judge Berman” on Storify

__________________
Have any additional questions, comments? Put them below. Please read the other comments first to see if I’ve already answered them. I do not have a staff because I’d rather keep overhead low and my own money.
It’s sometimes hard to talk about legal issues to a broad audience without simplifying to the point of complete inaccuracy. So if you have any Deflategate filings, memorandum of law legal questions of a more or less detailed nature than above, please let me know. My comment community is usually a very good one. Sometimes the comments are so good, I create new blog posts just to highlight how good some of the comments are. Unusual, I know.
(Please note. This is my blog, it has my name on it, so I have rules. For those who don’t know, I approve each comment individually and will approve most stuff unless it is abusive or spam. Unlike some places on the web, I strongly prefer for people to attack arguments and NOT people. What that means is that I do not want any personal attacks against people you dislike or other commenters. Avoiding personal attacks make the comments helpful to others’ understanding and doesn’t derail conversation into middle school neener neener stuff. This is a forum to create reasoned commentary and questions on the legal issues and not for trash talk because there are many other places on the web for that, and I do not want to facilitate it. In addition, since the issues right now are mostly ones of process and law, I am not interested in this being a forum for discussing the detailed facts unless they have some relevance to the process issues which are the main ones relevant in the on-going court case. Think of this as fair notice. Thank you kindly for your cooperation.)