Thursday, September 3, 2015

New Supreme Court Chief Justice

Well, after Andrew Napolitano…

Roger Goodell is commissioner of the National Football League.  For those who care, he flexed his muscle against Tom Brady – giving him a term in the pen for what was little more than jaywalking (if that).

Brady took it to court, and today won:

In a major setback for the N.F.L., New England Patriots quarterback Tom Brady prevailed in his battle to have his four-game suspension overturned Thursday, as a federal judge reversed a ruling by Commissioner Roger Goodell to bench one of the league’s biggest stars in a dispute over underinflated balls he used in a January championship game.

Judge Richard M. Berman of Federal District Court in Manhattan did not rule on whether Brady tampered with the footballs in a bid for competitive advantage. Instead, he focused on the narrower question of whether the collective bargaining agreement between the N.F.L. and the players union gave Goodell the authority to carry out the suspension. Judge Berman ruled that it did not.

Judge Berman ruled that the commissioner was not following the contract, something that would be nice to hear once in a while from the US supreme court regarding the US president and the constitution.

For those who care about application of the constitution in the US, I suggest that Judge Berman is your man.

Well, after Judge Napolitano.


  1. Could you imagine this country if we had a president who nominated those two, and a senate who approved them? Far better I would think.

  2. 1. As an attorney practicing business litigation for several decades in Michigan, it is my experience that judges and courts tend to enforce contracts. Simultaneously, they will allow “discrimination” lawsuits to proceed and will recognize that the government has almost unlimited plenary power over the economy. This is because (as is explained in the first two or three minutes of constitutional law class), the Great Depression proved that laissez faire didn’t work and we needed a new interpretation of the Constitution. In addition, there will be no further discussion of this issue allowed because we are here to study existing court opinions so that you will be prepared to represent your future clients in court right now.

    And that takes care of that. STFU.

    2. Reading the judge’s Brady opinion reaffirms my observation that one will learn virtually nothing about legal cases by following news reports. I was unaware until today that the case even involved a court review of an arbitration case.

    1. Bob

      To whom is your potty mouth directed?

    2. I'm gonna' guess that the "STFU" is spoken by the Constitutional Law professor. Did I get it right, Bob?

    3. It was implicitly directed to me by the professor. I was lazy. I should have said:

      "Don't ever bring that up in class or your grade will drop 1/2 a grade".

      On a serious note, that seems to me how challenges to federal power (or government economic power in general) are permanently neutered.

    4. Wow, your story sounds akin to all the hullabaloo about WSU professors reducing grades for uttering certain words. I guess it happens everywhere. And you're right. It is meant to keep people from challenging the status quo.

      Intellectual soldiers defending the paradigm! Then along came the web...

  3. Judge Berman substituted his own judgment for that of the NFL, the NFLPA, Roger Goodell, and Tom Brady.

    In a free society, parties should be able to voluntarily contract how disputes are to be resolved without interference or meddling by state actors.

    Here, let us not forget that Tom Brady was a lead plaintiff in the lawsuit filed by the NFLPA against the NFL in 2011. In connection with the execution of a new CBA in the summer of 2011, the parties, i.e., the NFL, the NFLPA, Robert Kraft, Goodell, and Brady et al, all agreed upon the NFLPA dismissing the lawsuit. Parties to a lawsuit are presumed to have read and understood the terms of dismissal / settlement, including the contents of all documents the parties may have executed that relate to the resolution of the litigation.

    Thus, Tom Brady knew that the CBA contemplated and permitted the commissioner to act as judge, jury, and executioner with regard to player discipline and integrity of the game matters.. Indeed, there is no language in the CBA that provides that a player is entitled to an independent investigator, an independent decision maker, and an independent appeals officer.

    Tom Brady also knew at the time he settled the lawsuit against the NFL in 2011, that if he were ever to find himself in the crosshairs of Mr. Goodell's discipline, he would not be entitled to notice that the conduct of which he may be alleged to have perpetrated could be sanctioned only within a circumscribed range. Said otherwise, Brady was well aware that the commissioner had the power to impose disparate discipline if he believed that such discipline served the best interests of the game.

    Moreover, Brady was also well aware that the CBA did not guarantee the process due a criminal defendant or the process due an individual facing the prospect of the state terminating welfare benefits or the process due an individual facing the prospect of the state suspending or revoking his professional license.

    The CBA specifies that the commissioner has the authority to impose discipline against any player who refuses to cooperate in an investigation. That you or I or Patriots nation or judge Berman might find the discipline imposed to be harsh or unfair is irrelevant. Tom Brady and his multimillion dollar comrades had already seen fit to bargain away this position.

    Therefore, what is to be said about the likes of judge Berman, a Clinton appointee, who has consistently ruled in favor of constitutional desecration? Has he ever ruled, for instance, that the NLRB is unconstitutional and utterly repugnant to our founding principles? Has he ever ruled that asset forfeiture is highway piracy? Has he ever held that the very existence of the NLRB is antithetical to the values undergirding our secession from England?

    I have read Judge Napolitano. I have watched Judge Napolitano. I have met Judge Napolitano. Judge Berman is no Judge Napolitano.

    1. Wow, I feel like I have caught the attention of the lead counsel for the NFL.

      Something always stuck in my craw about the punishment handed to Brady, and that is that it was so far beyond anything ever handed out for a technicality such as this. Normally, to my understanding, a $25,000 fine to the team. It turns out I had good grounds to have been stuck.

      Further, if a violation of ball pressure was so egregious as to merit such a significant punishment to both Brady and the team, why on earth didn't the NFL have tighter controls on the balls? In other words, the lax control of the balls suggests the minimal concern regarding the inflation.

      You are suggesting that Goodell could have suspended Brady for life and this would be consistent with the contract. I will have to disagree.

    2. If I were the lead counsel for the NFL, you would never have heard of Judge Berman.

    3. Maybe, yet you argue that the NFLPA agreed to a procedure in the CBA that would have allowed Goodell to ban Brady for life.

    4. Perhaps I should have qualified my point-if my counsel were the last word on the matter, you would never have heard of Judge Berman. One would not have to have been a Nostradamus in order to foresee the disaster that would inevitably ensue if one was told how the NFL was going to pursue the matter.

      Nevertheless, your interpretation of the contract requires a third party, (here, a meddlesome, statist hack), to engraft a legal fiction into the agreement - that the league was bound by a fairness and due process regime with regard to the commissioner's power to discipline as he saw fit in defending the best interests of the game.

      Once again, how can you defend the hubris of the black robed tyrant? Humility dictates that he should have informed Mr. Brady that he and his union should have negotiated terms such that the league had to provide certain, unambiguous "fairness" and "due process" protections for players facing discipline.
      Deference dictates that the judge should have not substituted his own brand of industrial labor justice for that of the parties.

      On this issue, I do not think that you are aligned with the NAP. The NFL does not belong to Mr. Brady. He is merely an employee. The NFL did not affirmatively give up its natural right to terminate the services of any one under its employ, did it?

      That you may think that it is unreasonable for the NFL to insist that Mr. Brady should be suspended for four games is not the question. Again, it was for the players' union to bargain for specific, unambiguous provisions governing the disciplining of players facing penalties for engaging in conduct the commissioner deems detrimental to the best interests of the game.

      I think that your position is a classic thick, bleeding heart, left libertarian one. If Judge Berman strictly adhered to the constitution, he would have refused to hear the matter. After all, the constitution does not permit federal judges to interpret the contracts of private parties as there is no text that states the federal courts shall have jurisdiction to meddle in the affairs of private contracting parties.

      Moreover, the constitution does not authorize the feds to stick their noses into labor matters. Thus, a federal judge who was committed to the natural rights philosophy which undergirded the founding era, would, sua sponte, declare the NLRA unconstitutional and strike it.

      As you know, Judge Berman did no such thing. As you also know, unless you were planting your tongue firmly in cheek, Judge Berman is no Judge Napolitano.

    5. I said he was second to Napolitano.

      Absent a clear standard - which the NFL didn't have either - custom and reasonableness apply. It has nothing to do with the NAP, it has to do with contracts.