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Tom Brady's Appeal Letter


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Any lawyers here? Is the letter right in saying Goodell did not have the authority to delegate the assessment of the punishments to Vincent?

I wonder where we can read the article. Does it say he can't delegate tgat responsibility? If it doesn't say that then I'd guess he can. After all the rules didn't say the Patriots couldn't use their now illegal alignments, same premise

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Any lawyers here? Is the letter right in saying Goodell did not have the authority to delegate the assessment of the punishments to Vincent?

 

I'm not a lawyer but my gut is that Goodell can do whatever he wants. There's no clause in the constitution that protects Tom's rights against arbitrary NFL punishments.  

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I'm not a lawyer but my gut is that Goodell can do whatever he wants. There's no clause in the constitution that protects Tom's rights against arbitrary NFL punishments.  

 

It is pretty strange the appeal letter would claim delegating the punishments could not be done, but then fail to quote the exact wording from the rules, CBA,etc. that says it can't be done. If there isn't specific wording like that specifically forbidding the delegation of the punishments, then I agree. Goodell can do it if he wants.

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As I understand the CBA, Goodell absolutely has the authority to oversee this arbitration.

 

I agree. But my question was whether he had the authority to let Vincent dole out the punishments in the first place. The appeal letter says Goodell had to do it himself, so delegating the punishments to Vincent was a violation of the CBA. I'm wondering if it is.

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I love this part:

 

 

it contains no corresponding provision authorizing the Commissioner to delegate his exclusive role to impose conduct detrimental discipline to you or anyone else. You have no authority to impose discipline on Mr. Brady under the CBA, and such discipline must therefore be set aside.1

1 We also note that one arbitrator has previously found that you, in particular, are unfamiliar with proper NFL discipline procedures and have no role in imposing discipline. Peterson Art. 46 Appeal at 7. 2

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It is pretty strange the appeal letter would claim delegating the punishments could not be done, but then fail to quote the exact wording from the rules, CBA,etc. that says it can't be done. If there isn't specific wording like that specifically forbidding the delegation of the punishments, then I agree. Goodell can do it if he wants.

And that was their first argument -- whch traditionally should be your strongest. This looks very weak to me.

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Any lawyers here? Is the letter right in saying Goodell did not have the authority to delegate the assessment of the punishments to Vincent?

 

I am a lawyer (not a labor lawyer, but I have reviewed the CBA). 

 

Article 46, Sec. 1(a) of the CBA (entitled "Commissioner Discipline") says, in part: "All disputes  . . .  involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football will be processed exclusively as follows:  the Commissioner will promptly send notice of his action to the player . . . ."

 

Article 46, Sec. 1b of the CBA then requires the Commissioner to appoint a person (with union input) to impose discipline for fines or suspensions imposed on players for "unnecessary roughness or unsportsmanlike conduct on the playing field . . . ."

 

I suppose that there is some argument that the bolded "by the Commissioner" language in Section 1(a) above means that that Section does not apply at all to situations where the Commissioner has made a discretionary delegation of his authority to someone else (i.e. Troy Vincent).  But the CBA doesn't provide explicitly for such a delegation and Section 1b shows that when the parties contemplated delegation of the Commissioner's authority to another person, they made sure to explicitly provide for same. 

 

As a matter of general contract interpretation, I would say that the better reading is that the Commissioner has to decide all matters against players involving "conduct detrimental" infractions and that referring such matters to Troy Vincent violates the CBA.  That said, there may be rules of CBA interpretation and background labor law principles that I am unaware of that may cut against (or further in favor of) that view. 

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I am a lawyer (not a labor lawyer, but I have reviewed the CBA). 

 

Article 46, Sec. 1(a) of the CBA (entitled "Commissioner Discipline") says, in part: "All disputes  . . .  involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football will be processed exclusively as follows:  the Commissioner will promptly send notice of his action to the player . . . ."

 

Article 46, Sec. 1b of the CBA then requires the Commissioner to appoint a person (with union input) to impose discipline for fines or suspensions imposed on players for "unnecessary roughness or unsportsmanlike conduct on the playing field . . . ."

 

I suppose that there is some argument that the bolded "by the Commissioner" language in Section 1(a) above means that that Section does not apply at all to situations where the Commissioner has made a discretionary delegation of his authority to someone else (i.e. Troy Vincent).  But the CBA doesn't provide explicitly for such a delegation and Section 1b shows that when the parties contemplated delegation of the Commissioner's authority to another person, they made sure to explicitly provide for same. 

 

As a matter of general contract interpretation, I would say that the better reading is that the Commissioner has to decide all matters against players involving "conduct detrimental" infractions and that referring such matters to Troy Vincent violates the CBA.  That said, there may be rules of CBA interpretation and background labor law principles that I am unaware of that may cut against (or further in favor of) that view. 

 

So because there is one specific circumstance where delegation is mandated, you're saying that it could be interpreted that in other situations not specifically mentioned in the CBA, delegation is proscribed?  That's a fairly big reach, counselor.  You'd have to look at the reasons for mandating delegation in cases of unnecessary roughness or unsportsmanlike on the playing field. There is a reason why the NFLPA didn't want the commissioner to make those punishment decisions.  Might have something to do with the Commissioner's relationship with the union, since the union gets input on who the appointee will be.  But to stretch that into something like delegation is prohibited unless specifically allowed by the CBA is a mighty reach.  It's just as easy to argue that delegation is allowed so long as there is no express prohibition against such delegation in the CBA.  

 

If this is the foundation of the appeal, then Brady can book his flight to the Caribbean for the month of September, right now.  

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I am a lawyer (not a labor lawyer, but I have reviewed the CBA). 

 

Article 46, Sec. 1(a) of the CBA (entitled "Commissioner Discipline") says, in part: "All disputes  . . .  involving action taken against a player by the Commissioner for conduct detrimental to the integrity of, or public confidence in, the game of professional football will be processed exclusively as follows:  the Commissioner will promptly send notice of his action to the player . . . ."

 

Article 46, Sec. 1b of the CBA then requires the Commissioner to appoint a person (with union input) to impose discipline for fines or suspensions imposed on players for "unnecessary roughness or unsportsmanlike conduct on the playing field . . . ."

 

I suppose that there is some argument that the bolded "by the Commissioner" language in Section 1(a) above means that that Section does not apply at all to situations where the Commissioner has made a discretionary delegation of his authority to someone else (i.e. Troy Vincent).  But the CBA doesn't provide explicitly for such a delegation and Section 1b shows that when the parties contemplated delegation of the Commissioner's authority to another person, they made sure to explicitly provide for same. 

 

As a matter of general contract interpretation, I would say that the better reading is that the Commissioner has to decide all matters against players involving "conduct detrimental" infractions and that referring such matters to Troy Vincent violates the CBA.  That said, there may be rules of CBA interpretation and background labor law principles that I am unaware of that may cut against (or further in favor of) that view. 

 

 

Thanks for the interpretation. But I guess it comes down to whether the CBA must explicitly permit the commissioner to delegate, or whether it would have had to contain wording expressly forbidding delegation, which it apparently does not. I would guess it works something like the Constitution, where powers not expressly given to the federal government go to the states. SImilarly, I would think any manner of implementing specific punishments that is not expressly forbidden to a commissioner is within his authority to use.

 

My guess is that Goodell's lawyers will advise him of that, so he will uphold the original punishments. Then he will wait and see whether the league is brought to court based on your interpretation. Of course, I think that would open Brady's cell records to being subpoenaed, so Goodell will decide to take his chances that the case will not wind up in court.

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So because there is one specific circumstance where delegation is mandated, you're saying that it could be interpreted that in other situations not specifically mentioned in the CBA, delegation is proscribed?  That's a fairly big reach, counselor.  You'd have to look at the reasons for mandating delegation in cases of unnecessary roughness or unsportsmanlike on the playing field. There is a reason why the NFLPA didn't want the commissioner to make those punishment decisions.  Might have something to do with the Commissioner's relationship with the union, since the union gets input on who the appointee will be.  But to stretch that into something like delegation is prohibited unless specifically allowed by the CBA is a mighty reach.  It's just as easy to argue that delegation is allowed so long as there is no express prohibition against such delegation in the CBA.  

 

If this is the foundation of the appeal, then Brady can book his flight to the Caribbean for the month of September, right now.  

 

Sorry, was just trying to cut to the chase figuring that my post was already dry enough as it was.  The problem with your argument is that Article 43 provides a broad grievance procedure (complete with arbitration panels, etc) to which Article 46 is an express exception.  So if there is improper delegation, then you run into the argument that you are out of the safe harbor (from the NFL's perspective) of Article 46 and stuck in the grievance procedures instead. 

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Lying or omitting details during an NFL investigation is one thing.  Perjuring oneself in Federal Court is quite another.  Based on what has been revealed thus far, Brady and company had better tread lightly.

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Thanks for the interpretation. But I guess it comes down to whether the CBA must explicitly permit the commissioner to delegate, or whether it would have had to contain wording expressly forbidding delegation, which it apparently does not. I would guess it works something like the Constitution, where powers not expressly given to the federal government go to the states. SImilarly, I would think any manner of implementing specific punishments that is not expressly forbidden to a commissioner is within his authority to use.

 

My guess is that Goodell's lawyers will advise him of that, so he will uphold the original punishments. Then he will wait and see whether the league is brought to court based on your interpretation. Of course, I think that would open Brady's cell records to being subpoenaed, so Goodell will decide to take his chances that the case will not wind up in court.

 

 

Seems to me that in delegating the punishment he is still the person providing the punishment. Nothing there that says that he cannot. THe other explicitly states he is required. Even the use of the word "requires" suggests discretion in the conduct detrimental clause. Also the "we will interview you nonsense" does not fly either.

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That is probably going to be their main argument Vincent did not have the authority to hand down discipline.

I was laughing when I read that. Like it ultimately means anything. Penalty was handed down from Goodell and Vincent wrote the letter. The whole planet knows what it is.

As far as Goodell hearing the appeal, though, I don't know. He also presided over the Roethlisberger appeal and no one complained so there is a precedent. But it seems it's more common for someone else to oversee the appeal.

Maybe this was Goodell's plan: let Vincent nominally hand out the punishment so Goodell wouldn't be hearing the appeal of his own punishment.

The problem with the appeal process - to me, what makes it a bit of a sham - is no one ever risks getting a longer/stronger punishment by appealing. Worst case scenario is nothing changes. There's no possibility of someone hearing the appeal and increasing it to 6-8 games (or more).

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Any lawyers here? Is the letter right in saying Goodell did not have the authority to delegate the assessment of the punishments to Vincent?

I am a lawyer and IMO that is a very good piece of legal writing. None of the foolishness Brady's agent was spewing forth.

As anyone who has taken a procedure class knows on appeal you can not argue facts but rather mistakes in law which this letter, again IMO, skillfully does.

Quite frankly Brady's counsel could be correct that only the Commissioner can levy punishment but permitting Vincent to review and then Commissioner sign off on the punishment probably satisfies the clause.

But nice lawyering job.

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It is pretty strange the appeal letter would claim delegating the punishments could not be done, but then fail to quote the exact wording from the rules, CBA,etc. that says it can't be done. If there isn't specific wording like that specifically forbidding the delegation of the punishments, then I agree. Goodell can do it if he wants.

 

they do reference it.

 

The CBA grants the Commissioner—and only the Commissioner—the authority to impose conduct detrimental discipline on players. CBA, Art. 46, § 1(a); id., App. A, ¶ 15. This express CBA mandate is further confirmed by the “law of the shop.” See Rice Art. 46 Appeal Decision (“Rice”) at 15; Bounty Art. 46 Appeal Decision (“Bounty”) at 4. Indeed, whereas the CBA expressly authorizes the Commissioner to delegate his authority to serve as Hearing Officer over Article 46 appeals, after consultation with the NFLPA, it contains no corresponding provision authorizing the Commissioner to delegate his exclusive role to impose conduct detrimental discipline to you or anyone else. You have no authority to impose discipline on Mr. Brady under the CBA, and such discipline must therefore be set aside.1

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Thanks for the interpretation. But I guess it comes down to whether the CBA must explicitly permit the commissioner to delegate, or whether it would have had to contain wording expressly forbidding delegation, which it apparently does not. I would guess it works something like the Constitution, where powers not expressly given to the federal government go to the states. SImilarly, I would think any manner of implementing specific punishments that is not expressly forbidden to a commissioner is within his authority to use.

 

My guess is that Goodell's lawyers will advise him of that, so he will uphold the original punishments. Then he will wait and see whether the league is brought to court based on your interpretation. Of course, I think that would open Brady's cell records to being subpoenaed, so Goodell will decide to take his chances that the case will not wind up in court.

Exactly what I was thinking.  Without truly understanding what they are asking, they are putting themselves (NFLPA) and their client under a Subpoena, should they seek outside arbitration.

 

"Accordingly,this letter will serve as a formal demand that the Commissioner follow the Rice precedent and appoint an independent person to serve as arbitrator over Mr. Brady’s appeal.

 

The Commissioner does not appoint such a neutral arbitrator, the NFLPA and Mr. Brady will seek recusal and pursue all available relief to obtain an arbitrator who is not evidently partial."

 

I do not think they have thought this through and if they have, they are going to attempt an appeal that is based solely on conversations that took place the week prior to the Indanapolis game.  Something I can not understand when it comes to their concept of the law.  Especially whey the text data from conversations between McNally or Jastremski go as far back as week 7 of the 2014 season (JETS).

 

Do they not understand that the response of the NFL is based on the ENTIRE TEXT & not the Colts game?

 

Or is this just a way to sideswipe the judgement by pressing only the one incident reported to the NFL offices?

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lol at the threat to call goodell as a witness regarding the "sting"

 

Please be advised that the NFLPA and Mr. Brady intend to call both you and Commissioner Goodell as essential witnesses in the proceeding. You both will be called upon to testify about, among other things, the circumstances surrounding the purported delegation of disciplinary authority from Commissioner Goodell to you in this matter and the factual basis for that purported delegation. You also will both be required to testify about when you became aware of the Colts’ complaints about ball deflation and what decisions and steps were thereafter taken to set up what may have been a “sting operation” to try to implicate the Patriots and Mr. Brady. The latter conduct would present an additional ground for setting aside the discipline imposed.
 

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they do reference it.

 

The CBA grants the Commissioner—and only the Commissioner—the authority to impose conduct detrimental discipline on players. CBA, Art. 46, § 1(a); id., App. A, ¶ 15. This express CBA mandate is further confirmed by the “law of the shop.” See Rice Art. 46 Appeal Decision (“Rice”) at 15; Bounty Art. 46 Appeal Decision (“Bounty”) at 4. Indeed, whereas the CBA expressly authorizes the Commissioner to delegate his authority to serve as Hearing Officer over Article 46 appeals, after consultation with the NFLPA, it contains no corresponding provision authorizing the Commissioner to delegate his exclusive role to impose conduct detrimental discipline to you or anyone else. You have no authority to impose discipline on Mr. Brady under the CBA, and such discipline must therefore be set aside.1

 

 

if it doesn't use language that says the commissioner can't delegate his authority to impose punishment then i don't see how he can't

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I am a lawyer and IMO that is a very good piece of legal writing. None of the foolishness Brady's agent was spewing forth.

As anyone who has taken a procedure class knows on appeal you can not argue facts but rather mistakes in law which this letter, again IMO, skillfully does.

Quite frankly Brady's counsel could be correct that only the Commissioner can levy punishment but permitting Vincent to review and then Commissioner sign off on the punishment probably satisfies the clause.

But nice lawyering job.

I'm not a lawyer - but my father and sister are...the only other factor would be NEW evidence that would exonerate Brady....so unless they have someone (like the fired deflate ball boy - like they have an incentive) say Brady knew nothing about it, I would like to know what this new evidence would be,

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