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Re: JUDGE BERMAN, the PYSCHOLOGIST on ARROGANCE, FEDERAL ELECTION GUIDELLINES, ENGLISH LESSONS FOR ILLEGAL ALIENS & DEFLATEGATE

Ted
This post was updated on .
2nd Circuit Court of Appeals Decision & Order
Judge Berman overturned


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http://www.ca2.uscourts.gov/decisions/isysquery/31358a75-933e-45af-a82c-3c4fda0d7058/1/doc/15-2801_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/31358a75-933e-45af-a82c-3c4fda0d7058/1/hilite/

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Due to formatting, line numbers have been eliminated.

KATZMANN, Chief Judge, dissenting:

Article 46 of the Collective Bargaining Agreement between the NFL Players Association (the “Association”) and the NFL Management Council requires the Commissioner to provide a player with notice of the basis for any disciplinary action and an opportunity to challenge the discipline in an appeal hearing. When the Commissioner, acting in hiscapacity as an arbitrator, changes the factual basis for the disciplinary action after the appeal hearing concludes, he undermines the fair notice for which the Association bargained, deprives the player of an opportunity to confront the case against him, and, it follows, exceeds his limited authority under the CBA to decide “appeals” of disciplinary
decisions.

In its thorough and thoughtful opinion, the majority does not contest this understanding of the CBA. Instead, it asserts that the Commissioner did not change the factual basis for the discipline and, in effect, that any change was harmless. I cannot agree.

Additionally, on a more fundamental level, I am troubled by theCommissioner’s decision to uphold the unprecedented four‐game suspension. The Commissioner failed to even consider a highly relevant alternative penalty and relied, instead, on an inapt analogy to the League’s steroid policy. This deficiency, especially when viewed in combination with the shifting rationale for Brady’s discipline, leaves me to conclude that the Commissioner’s decision reflected “his own brand of industrial justice.” United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 597 (1960).

For these reasons, I respectfully dissent.

 I.

Judicial review of an arbitration award can be boiled down to a two‐step process. Both inquiries follow from the fundamental premise that “arbitration is a matter of contract.” United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960). In the first step, the reviewing court asks whether the

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arbitrator acted within the scope 1 of his authority under the relevant collective bargaining agreement. See Local 1199, Drug, Hosp. & Health Care Emp. Union, RWDSU, AFL‐CIO v. Brooks Drug Co., 956 F.2d 22, 25 (2d Cir. 1992). This ensures that a party is not forced “to submit to arbitration any dispute which he has not agreed so to submit.” Warrior & Gulf Nav. Co., 363 U.S. at 582. If the arbitrator acted within the scope of his authority, then his decision is entitled to substantial deference. The award will be upheld so long as the reviewing court finds, at the second step, that the arbitral award “draws its essence from the agreement” and does not reflect “merely an example of the arbitrator’s own brand of justice.” Brooks Drug Co., 956 F.2d at 25. This guarantees that the parties get what they bargained for, namely, the arbitrator’s construction of the CBA. Enter. Wheel & Car Corp., 363 U.S. at 599. In my opinion, the Commissioner’s decision fails as to both steps.

II.

With regard to the first step, Article 46 of the CBA vests the Commissioner with exceptional discretion to impose discipline for “conduct detrimental,” but it checks that power by allowing the player to challenge that discipline through an “appeal.” Joint App. at 345‐46. In deciding the appeal, the arbitrator may decide whether the misconduct charged actually occurred, whether it was actually “detrimental” to the League, and whether the penalty imposed is permissible under the CBA. But the arbitrator has no authority to base his decision on misconduct different from that originally charged. When he does so, the arbitrator goes beyond his limited authority, and the award should be vacated. I would find that the Commissioner breached that limitation here. I believe there are significant differences between the limited findings in the Wells Report and the additional findings the Commissioner made for the first time in his final written decision. The letter announcing Brady’s discipline explained that his “actions as set forth in the [Wells Report] clearly constitute[d] conduct detrimental to the integrity of and public confidence in the game of professional football” and warranted a four‐game suspension. Joint App. at 329‐30. The

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Wells Report, in turn, concluded that 1 it was “more probable than not that Tom Brady . . . was at least generally aware of the inappropriate activities of [Jim] McNally and [John] Jastremski involving the release of air from Patriots game balls,” Joint App. at 97, and that it was “unlikely” that McNally and Jastremski deflated the balls without Brady’s “knowledge,” “approval,” “awareness,” and “consent,” Joint App. at 114. The Commissioner’s final written decision, however, went further. It found that Brady “knew about, approved of, consented to, and provided inducements and rewards in support of a scheme by which, with Mr. Jastremski’s support, Mr. McNally tampered with the game balls.” Special App. at 51 (emphasis added).

Regardless of whether the difference between the Wells Report and the Commissioner’s decision constitutes a “quantum leap,” Maj. Op. at 21, I am convinced that the change was material. The misconduct found in the Wells Report is indisputably less culpable than inducing and rewarding cheating through the payment of memorabilia, as was found in the Commissioner’s final decision.

The majority takes the view that the Wells Report’s conclusions clearly encompassed a finding that Brady induced and rewarded the deflation of footballs. To the contrary, although the Wells Report described evidence that Brady provided both McNally and Jastremski with gifts and that McNally joked about demanding cash and other memorabilia, it never concluded that it was “more probable than not” that the gifts Brady provided were intended as rewards or advance payment for deflating footballs in violation of League rules. That stands in stark contrast to the Wells Report’s clear conclusions, by a preponderance of the evidence, regarding Brady’s “knowledge,”  “approval,”  “awareness,” and “consent.” Fairly read, the Wells Report did not put Brady on notice that he was found to have engaged in a quid pro quo.1

1 The majority also suggests that the Association never raised this issue. Although not every detail I mention is found in the Association’s brief, the concern is not of my own making. See Br. for Appellees Nat’l Football League Players Ass’n and Tom Brady at 49 (“Hoping to compensate for the Wells Report’s limited findings concerning Brady’s state of mind, Goodell pulled his ‘participat[ion]’ and ‘inducement[]’

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I would also find that 1 Brady was prejudiced by the change in the Commissioner’s rationale and the resulting lack of notice. The Association, in light of the lack of any clear finding in the Wells Report as to the purpose of the gifts, paid almost no attention to Brady’s gift‐giving during the appeal hearing. To support Brady’s argument that he had no relationship with McNally, counsel for the Association asked Brady on direct examination whether he ever provided gifts to people he did not know, and Brady’s affirmative response was then used in his post‐hearing brief only to establish that single point. See Dist. Ct. Dkt. No. 28‐231 at 15 (Post‐Hearing Br. of the NFLPA and Tom Brady) (“The only thing ‘linking’ [Brady and McNally] is that Brady purportedly signed memorabilia for McNally, but Brady testified that he naturally does not know the name of everyone for whom he signs memorabilia, and even Wells found that Brady never provided McNally any year‐end gifts or bonuses that would suggest they had any relationship.”). Beyond that, the gifts played no role in the Association’s challenge to Brady’s discipline: the League did not ask Brady about gifts to McNally on cross‐examination, and neither side asked Brady about any gifts he provided to Jastremski.

The Association’s silence on this issue, however, seems to me to reflect only the lack of notice, not the lack of an available argument or a tactical decision to focus on other issues. The Wells Report found that McNally referred to himself as “the deflator” and threatened (perhaps jokingly) to go to ESPN as far back as May 2014, but it also credited McNally’s statement that Brady never provided him with the same gifts doled out to other employees in the locker room.

2 The suggestion that McNally did not receive gifts from Brady even language from thin air.”). Indeed, the majority addresses the Association’s challenge to the Commissioner’s shift to a finding of “participation,” and in my view, the Commissioner’s decision uses
“participation” to refer to not only Brady’s knowledge and approval of the scheme, but also his use of inducements and rewards. The Association’s failure to fully flesh out this argument is, I suspect, a consequence of the district court never having reached the issue, see Nat’l Football League Mgmt. Council v. Natʹl Football League Players Assn, 125 F. Supp. 3d 449, 474 (S.D.N.Y. 2015), and the majority’s decision (with which I do not quarrel) to reject the Association’s request to remand on this issue. 2 For example, the Wells Report stated the following regarding texts from McNally demanding tickets to a
game between the Boston Celtics and Los Angeles Lakers and new Uggs shoes:


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during the period in which 1 McNally sent suspicious text messages is further corroborated by an October 2014 text message in which Jastremski told McNally that Brady “gives u nothing.” Joint App. at 101. Finally, it appears undisputed in the Wells Report that Brady provided gifts to other locker room attendants who have not been implicated in the deflation (or any other) scheme. Brady’s gift‐giving, in other words, was not necessarily indicative of illicit behavior.

None of this is to say that the inferences that the Commissioner drew from the evidence presented in the Wells Report constituted reversible error on their own. But the foregoing demonstrates that the Association would have been able to offer a meaningful challenge to the Commissioner’s conclusion (possibly supported by additional new evidence regarding Brady’s practice of providing gifts) had it been announced prior to the Article 46 appeal hearing. Taking the Commissioner at his word that he “entered into the appeal process open to reevaluating [his] assessment of Mr. Brady’s conduct and the associated
discipline,” Special App. at 60, I believe that, had Brady been provided an opportunity to challenge the Commissioner’s conclusion on this score, the outcome may have been different. The majority’s observation that the Commissioner did not increase Brady’s punishment is beside the point. Had the Commissioner confined himself to the misconduct originally charged, he may have been persuaded to decrease the punishment initially handed down.

McNally described these texts as jokes, which we think is likely the case. Specifically, on
December 5, 2014, the Boston Celtics were playing the Los Angeles Lakers in Boston and
McNally had been asking Jastremski to get them tickets to a Celtics‐Lakers game for years. McNally said the joke was that Brady should get them courtside seats for the game. With regard to the Uggs, McNally said that around the holidays each year Brady
gives Uggs footwear to certain Patriots staff members, but that McNally has never received them. He explained that his message was a humorous response to a news report on Brady’s distribution of Uggs in 2014. Joint App. at 183 (emphasis added).


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Accordingly, I would 1 find that the Commissioner exceeded his authority, to Brady’s detriment, by resting Brady’s discipline on factual findings not made in the Wells Report.3

III.

I would also find that the Commissioner’s decision fails at the second step of our analysis because it does not draw its essence from the CBA. It must be emphasized that the case at hand involves an unprecedented punishment. Precisely because of the severity of the penalty, one would have expected the Commissioner to at least fully consider other alternative and collectively bargained‐for penalties, even if he ultimately rejected them. Indeed, the CBA encourages—though, as the majority observes, does not strictly require—the Commissioner to fully explain his reasoning by mandating that he issue a written decision when resolving an Article 46 appeal. That process is all the more important when the disciplinary action is novel and the Commissioner’s reasoning is, as here, far from obvious.

Yet, the Commissioner failed to even mention, let alone explain, a highly analogous penalty, an omission that underscores the peculiar nature of Brady’s punishment. The League prohibits the use of stickum, a substance that enhances a player’s grip. Under a collectively bargained‐for Schedule of Fines, a violation of this prohibition warrants an $8,268 fine in the absence of aggravating circumstances. Given that both the use of stickum and the deflation of footballs involve attempts at improving one’s grip and evading the referees’ enforcement

3 The Commissioner’s rationale also shifted insofar as he relied on new evidence regarding Brady’s destruction of his cell phone to find that Brady “willfully obstructed” Wells’s investigation. Special App. at 54. The majority persuasively demonstrates, however, that Brady anticipated this change and challenged it at the hearing and in his post‐hearing brief. Thus, I agree that the Commissioner’s reliance on this new evidence does not provide a ground to vacate the suspension. Cf. Duferco Intʹl Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 390 (2d Cir. 2003) (“We will, of course, not vacate an arbitral award for an erroneous application of the law if a proper application of law would have yielded the same result.”).

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of the rules,4 this would seem a natural starting point for assessing Brady’s penalty. Indeed, the League’s justification for prohibiting stickum—that it “affects the integrity of the competition and can give a team an unfair advantage,” Joint App. at 384 (League Policies for Players)—is nearly identical to the Commissioner’s explanation for what he found problematic about the deflation—that it “reflects an improper effort to secure a competitive advantage in, and threatens the integrity of, the game,” Special App. at 57.5 Notwithstanding these parallels, the Commissioner ignored the stickum penalty entirely. This oversight leaves a noticeable void in the Commissioner’s decision,6 and in my opinion, the void is indicative of the award’s overall failure to draw its essence from the CBA. Even taking into account the special circumstances here—that the alleged misconduct occurred during the AFC Championship Game, that team employees assisted in the deflation, that a deflated football arguably affects every play, and that Brady failed to cooperate in the subsequent investigation—I am unable to understand why the Commissioner thought the appropriate penalty was a four‐game suspension and the attendant four‐game loss of pay, which, in Brady’s case, is far more than

4 Just as the referees check the inflation level of the footballs before the start of the game, they check players for stickum “prior to the game and prior to the beginning of the second half.” Joint App. at 384.

5 Although the Commissioner reasoned that steroid use also has the same adverse effects on the League, the fact that numerous infractions may be said to compromise the integrity of the game and reflect an attempt to gain a competitive advantage serves only to render more problematic the Commissioner’s selection of what appears to be the harshest potential comparator without any meaningful explanation. This is especially true since, for the reasons stated by the district court, the Commissioner’s analogy to steroid use is flawed. See Nat’l Football League Mgmt. Council, 125 F. Supp. 3d at 465. In short, the Commissioner’s reliance on the League’s steroid policy seems to me to be nothing more than mere “noises of contract interpretation” to which we do not ordinarily defer. In re Marine Pollution Serv., Inc., 857 F.2d 91, 94 (2d Cir. 1988) (quoting Ethyl Corp. v. United Steelworkers, 768 F.2d 180, 187 (7th Cir. 1985)).

6 The omission is all the more troubling since the Association raised this point during the arbitration proceedings. See Dist. Ct. Dkt. No. 28‐231 at 9 (Post‐Hearing Br. of the NFLPA and Tom Brady) (“The Player Policies further illustrate the disparate nature of any player suspension for an alleged competitive infraction, let alone for just being ‘generally aware’ of one. They identify player punishments for equipment violations that ‘affect[] the integrity of the competition and can give a team an unfair advantage’—such as putting stickum on receiver gloves . . . —and subject first‐time player offenders to a fine of $8,268 for a specified violation.”).


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$8,268. The lack of any meaningful explanation in the Commissioner’s final written decision convinces me that the Commissioner was doling out his own brand of industrial justice. Cf. Burns Intʹl Sec. Servs., Inc. v. Intʹl Union, United Plant Guard Workers of Am. (UPGWA) & Its Local 537, 47 F.3d 14, 17 (2d Cir. 1995)

(“[I]f a ground for the arbitrator’s decision can be inferred from the facts of the case, the award should be confirmed.” (quoting Sobel v. Hertz, Warner & Co., 469 F.2d 1211, 1216 (2d Cir. 1972)) (emphasis added). In this regard, it bears noting that the Schedule of Fines provides that a player caught violating the prohibition on stickum a second time is to be fined $16,537. Thus, even where aggravating circumstances exist, the Schedule of Fines does not provide for the extreme increase in penalty that the Commissioner found appropriate here.7 In sum, the Commissioner’s failure to discuss the penalty for violations of the prohibition on stickum, the Commissioner’s strained reliance on the penalty for violations of the League’s steroid policy, and the Commissioner’s shifting rationale for Brady’s discipline, together, leave me with the firm conviction that his decision in the arbitration appeal was based not on his interpretation of the CBA, but on “his own brand of industrial justice.” Enter. Wheel & Car Corp., 363 U.S. at 597.

IV.

The Commissioner’s authority is, as the majority emphasizes, broad. But it is not limitless, and its boundaries are defined by the CBA. Here, the CBA grants the Commissioner in his capacity as arbitrator only the authority to decide

7 The majority again gives me too much credit in stating that the Association did not raise this argument. I read the Association’s brief to make two arguments with respect to alternative penalties. The first is that the Player Policies, and in particular the “Other Uniform/Equipment Violations” provision, governed Brady’s misconduct here and necessitates that he receive no more than a fine. I agree with the majority
that this has no merit. The second, however, is that the Commissioner’s failure to discuss certain probative terms—in particular, the “Other Uniform/Equipment Violations” provision and the stickum prohibition (obviously, I find only the latter actually probative)—reflects that the Commissioner was not actually construing the CBA, the only limitation imposed on an arbitrator acting within the scope of his authority. And, as the majority acknowledges, in support of that argument, the Association contends that the Commissioner’s “CBA defiance is only underscored by his reliance on the Steroid Policy.” Br. for Appellees Nat’l Football League Players Ass’n and Tom Brady at 45.


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“appeals,” that is, whether the initial disciplinary decision was erroneous. The Commissioner exceeded that limited authority when he decided instead that Brady could be suspended for four games based on misconduct found for the first time in the Commissioner’s decision. This breach of the limits on the Commissioner’s authority is exacerbated by the unprecedented and virtually unexplained nature of the penalty imposed. Confirming the arbitral award under such circumstances neither enforces the intent of the parties nor furthers the “federal policy that federal courts should enforce [arbitration] agreements . . . and that industrial peace can be best obtained only in that way.” Textile Workers Union of Am. v. Lincoln Mills of Ala., 353 U.S. 448, 455 (1957).

I end where I began. The Article 46 appeals process is designed to provide a check against the Commissioner’s otherwise unfettered authority to impose discipline for “conduct detrimental.” But the Commissioner’s murky explanation of Brady’s discipline undercuts the protections for which the NFLPA bargained on Brady’s, and others’, behalf. It is ironic that a process designed to ensure fairness to all players has been used unfairly against one player.

I respectfully dissent.

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GROUND FOR APPEAL; EN BANC TO FULL COURT OF APPEALS:

Excerpt, pg. 27 majority opinion:

Arbitrators do not “need to comply with strict evidentiary rules,” and they possess “substantial discretion to admit or exclude evidence.” LJL 33rd St. Assocs., LLC v. Pitcairn Props. Inc., 725 F.3d 184, 194–95 (2d Cir. 2013); see also Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 476 (1989).

However, a narrow exception exists under the Federal Arbitration Act (“FAA”), which provides that an award may be vacated where “the arbitrators were guilty of misconduct . . . in refusing to hear evidence pertinent and material to the controversy.” 9 U.S.C. § 10(a)(3). We have held that vacatur is warranted in such a circumstance only if “fundamental fairness is violated.” Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir. 1997).13

Excerpt, pg. 32/33 majority opinion, at 14:

We may vacate an arbitration award “where there was evident partiality . . . in the arbitrator[].” 9 U.S.C. § 10(a)(2).16 “Evident partiality may be found only ‘where a reasonable person would have to conclude that an arbitrator was partial to one party to the arbitration.’” Scandinavian Reins. Co. v. Saint Paul Fire & Marine Ins. Co., 668 F.3d 60, 64 (2d Cir. 2012) (quoting Applied Indus. Materials Corp. v. Ovalar Makine Ticaret Ve Sanayi, A.S., 492 F.3d 132, 137 (2d Cir. 2007)). The party seeking vacatur must prove evident partiality by “clear and convincing evidence.” Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Tr., 729 F.3d 99, 106 (2d Cir. 2013). However, arbitration is a matter of contract, and consequently, the

15 The record strongly suggests that the delegation argument was raised by the
Association in order to procure a more favorable arbitrator. See Joint App. at 1120 (“In
light of the above, the NFLPA believes that neither Commissioner Goodell nor anyone
with close ties to the NFL can serve as arbitrator in Mr. Brady’s appeal.”). Parties to
arbitration have no more right than litigants in court to force recusals by leveling
meritless accusations against the decision maker.
16 As above, we do not pass on whether the FAA’s “evident partiality” standard applies
to arbitrations under the LMRA. Because the parties did not brief this issue and
because the resolution of this case is unaffected, we assume that it does. See supra note
13.


Nos. 15‐2801 (L), 15‐2805 (CON)

parties to an arbitration can ask for no more impartiality than inheres in the method they have chosen. Williams v. Nat’l Football League, 582 F.3d 863, 885 (8th Cir. 2009); Winfrey v. Simmons Foods, Inc., 495 F.3d 549, 551 (8th Cir. 2007).

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The majority at page 27 states: "Arbitrators do not “need to comply with strict evidentiary rules,”; and at page 32 states: "The party seeking vacatur must prove evident partiality by “clear and convincing evidence.” " - therein, the rub.

The majority falsely asserts that the arbitrator does not need to compy with strict evidentiary rules under standard Federal Rules of Civil Procedure, but that the defendant, to prove impartiality or inherent unfairness etc. in the process under a CBA; the party seeking vacatur (vacating or setting aside of order) must comply to the highest Federal Rule of Civil Procedure, the "clear and convincing" evidentiary standard - hardly the intent of statute, law, standardized Federal Court rules or of precedent at any level.

The majority leaves itself a way out via Footnote 16, seemingly to set this case up for the U.S. Sup. Ct. to decide the issue predicated upon: "on whether the (the Federal Arbitration Act) FAA’s “evident partiality” standard applies to arbitrations under the LMRA."
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pg. 11
We review a district court’s decision to confirm or vacate an
8 arbitration award de novo on questions of law and for clear error on
9 findings of fact. Wackenhut Corp. v. Amalgamated Local 515, 126 F.3d
10 29, 31 (2d Cir. 1997). Because this dispute involves the assertion of
11 rights under a collective bargaining agreement, our analysis is
12 governed by section 301 of the LMRA. Major League Baseball Players
13 Ass’n v. Garvey, 532 U.S. 504, 509 (2001).


pg. 13
A disciplined player is entitled to appeal to the
16 Commissioner and seek an arbitration hearing, and the
17 Commissioner may appoint either himself or someone else to serve
18 as arbitrator. Article 46 does not articulate rules of procedure for
19 the hearing, except to provide that “the parties shall exchange copies
20 of any exhibits upon which they intend to rely no later than three (3)
21 calendar days prior to the hearing.” Joint App. at 346.
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Re: JUDGE BERMAN, the PYSCHOLOGIST on ARROGANCE, FEDERAL ELECTION GUIDELLINES, ENGLISH LESSONS FOR ILLEGAL ALIENS & DEFLATEGATE

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DEFLATE-A-DELEGATE, ---TODAY!
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Re: JUDGE BERMAN, the PYSCHOLOGIST on ARROGANCE, FEDERAL ELECTION GUIDELLINES, ENGLISH LESSONS FOR ILLEGAL ALIENS & DEFLATEGATE

TRUTH
Good ol' Ted: the King of copy/paste............
Ted
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Re: JUDGE BERMAN, the PYSCHOLOGIST on ARROGANCE, FEDERAL ELECTION GUIDELLINES, ENGLISH LESSONS FOR ILLEGAL ALIENS & DEFLATEGATE

Ted
This post was updated on .
I posted the dissents argument because I agree with Judge Berman & the dissent on this case. Further genius, it's applicability to labor relations and our CBA's being far beyond your grasp, you resort only to the typical UBC bullying tactics. Your critical thinking abilities leaves you limited to writing crap on the bathroom/shitter walls, so stay there where you belong.

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source - nolo.com

Substantial Evidence
At an administrative hearing, an administrative law judge (ALJ) reviews the decision of a government agency, such as the DMV or an unemployment agency. A citizen affected by the decision brings a challenge, and the ALJ reviews the decision. Appellate judges who in turn review administrative judges’ decisions often use the "substantial evidence" standard. This standard falls between probable cause and preponderance of the evidence, and requires more than a “mere scintilla of evidence.” Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” (Richardson v. Perales, 402 U.S. 389 (1971).)

Preponderance of the Evidence
The preponderance-of-the-evidence standard is the default for most civil lawsuits. In these cases a plaintiff is typically suing a defendant for lost money because of acts like breaking a contract or causing a car accident (the money loss might be due to vehicle damage and medical bills, for example). Preponderance of the evidence is met if the trier of fact (judge or jury) believes the evidence shows the defendant is more likely than not—more than 50% likely to be—responsible.

Clear and Convincing Evidence
The clear-and-convincing-evidence standard goes by descriptions such as “clear, cogent, unequivocal, satisfactory, convincing” evidence. Generally, this standard is reserved for civil lawsuits where something more than money is at stake, such as civil liberties. Examples include:

restraining orders
dependency cases (loss of parental rights)
probate of wills, and
conservatorships.
(Conservatorship of Wendland, 26 Cal. 4th 519 (2001); Santosky v. Kramer, 455 U.S. 745 (1982).)

“Clear and convincing” means the evidence is highly and substantially more likely to be true than untrue; the trier of fact must have an abiding conviction that the truth of the factual contention is highly probable. (Colorado v. New Mexico, 467 U.S. 310 (1984).

Beyond a Reasonable Doubt
”Beyond a reasonable doubt” is the highest legal standard. This is the standard the U.S. Constitution requires the government to meet in order to prove a defendant guilty of a crime. (In re Winship, 397 U.S. 358, 364 (1970).)

Courts over the years have debated the extent to which the government has to prove its case to meet this high standard. But it’s clear that, according to the standard, it’s not enough for the trier of fact to simply believe the defendant is guilty. Rather, the evidence must be so convincing that no reasonable person would ever question the defendant’s guilt. The standard requires that the evidence offer no logical explanation or conclusion other than that the defendant committed the crime. Courts sometimes describe this level of confidence in a verdict as a moral certainty.

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Brady calls signals and handles the balls in practices or games as the League's best QB. He does not inflate, deflate or maintain them either before or during any game in the NFL. The ref's & the ball boys are charged with these tasks - period. Either way the Colts, the ref's, the NFL (the League) or the courts slice & dice this one the fact remains that whether over inflated or under inflated, no matter the condition of the ball - once in Brady's hands for the Colts game, all bets were off and he scored more points in the second half than he did in the first half; when he was falsely accused of a scheme to under-inflate the game balls to gain some invidious advantage.

Brady's experience and skill set as the best NFL QB overcomes the false allegations and the phony legal hurdles put forth by NFL Commissioner Pete Godell or the sore sports on the Colts who got their butts kicked regardless of the P.S.I. range of the balls. The clear & convincing evidence in this case is that Brady didn't have anything to do with this alleged scheme.

The legal hurdles are farcical at best and easily surmountable as noted above. Brady just hired a top gun Supreme Court lawyer who has appeared 62-times; winning 75% of the cases he presents tot he U.S. Supreme Court.

To date, Godell & the NFL have wasted $20 Million dollars in their bogus journey to put a cloud on Brady's legacy due primarily to every other teams jealousy that they, verses the Patriots failed to draft him as a first pick etc. The 2-1 ruling by the 2nd Cir. Ct. of Appeals will be over-turned - whether en banc or should it proceed to the U.S. Supreme Court. Brady should opt for the latter over the former given the idiotic semantics & ruling by two judges who misconstrue labor law 101; notwithstanding their inherent bias & the plethora of outs they left themselves from their rather emotional verses soundly logical legal opinion which is factually and legally wrong.

This case should be a no brainer for Olsen given the fact that these two judges devised one legal standard under the rules of evidence for the NFL & Godell while holding Brady and his legal team to a much higher standard; thus, the bias is established there as was the outcome of the case and their abuse of discretion. This one must be vacated and tossed in the trash can where it belongs.
Ted
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Re: JUDGE BERMAN, the PYSCHOLOGIST on ARROGANCE, FEDERAL ELECTION GUIDELLINES, ENGLISH LESSONS FOR ILLEGAL ALIENS & DEFLATEGATE

Ted
In reply to this post by Ted
United States Supreme Court

BOWEN v. UNITED STATES POSTAL SERVICE, (1983)

No. 81-525

Argued: October 6, 1982    Decided: January 11, 1983

 
After petitioner employee was discharged by respondent United States Postal Service (USPS) as a result of an altercation with another employee, he filed a grievance with respondent Union as provided by the applicable collective-bargaining agreement. When the Union declined to take his grievance to arbitration, petitioner sued respondents in Federal District Court, claiming that he had been wrongfully discharged and seeking damages and injunctive relief. Entering judgment on a jury verdict against both respondents, the District Court held that the USPS had discharged petitioner without just cause and that the Union had handled his grievance in an arbitrary manner. Accordingly, the court upheld the jury's apportionment of damages between the USPS and the Union. The Court of Appeals affirmed except for the award of damages against the Union, holding that because petitioner's compensation was payable only by the USPS, reimbursement for his lost earnings continued to be the USPS's exclusive obligation, and that hence no portion of the deprivations was chargeable to the Union.

Held: 

Where the District Court's findings, accepted by the Court of Appeals, established that petitioner's damages were caused initially by the USPS's unlawful discharge and were increased by the Union's breach of its duty of fair representation, apportionment of the damages was required. Vaca v. Sipes, 386 U.S. 171 . Pp. 218-230.
 

(a) The governing principle of Vaca is that where an employee proves that his employer violated the collective-bargaining agreement and that his union breached its duty of fair representation, liability is to be apportioned between the employer and the union according to the damages caused by the fault of each. To interpret this principle as requiring that an employer be solely liable for damages resulting from a wrongful discharge treats the relationship between the employer and employee, created by the collective-bargaining agreement, as if it were a simple contract of hire governed by traditional common-law principles. Such a reading fails to recognize that a collective-bargaining agreement is much more than traditional common-law employment terminable at will. Rather, it is an agreement creating relationships and interests under the federal common law of labor policy. Pp. 218-220. [459 U.S. 212, 213]  

(b) Of paramount importance is the right of the employee, who has been injured by both the employer's and the union's breach, to be made whole. Even though both the employer and the union have caused the damage suffered by the employee, the union is responsible for the increase in damages resulting from breach of its duty of fair representation having caused the grievance procedure to malfunction, and, as between the two wrongdoers, the union should bear its portion of the damages. Pp. 220-224.
 
(c) When the union, as the employee's exclusive agent, waives arbitration or fails to seek review of an adverse decision, the employer should be in substantially the same position as if the employee had had the right to act on his own behalf and had done so. In the absence of damages apportionment where the default of both the employer and the union contributes to the employee's injury, incentives to comply with the grievance proceeding would be diminished, and to impose total liability solely on the employer could affect the willingness of employers to agree to arbitration clauses. To require the union to pay damages does not impose a burden on the union inconsistent with national labor policy, but rather provides an additional incentive for the union to process its members' claims where warranted. Pp. 224-228.
 
(d) Czosek v. O'Mara, 397 U.S. 25 , is not inconsistent with Vaca's recognition that each party should bear the damages attributable to its fault. Pp. 228-230.
 
642 F.2d 79, reversed and remanded.
POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEVENS, and O'CONNOR, JJ., joined. WHITE, J., filed an opinion concurring in the judgment in part and dissenting in part, in which MARSHALL and BLACKMUN, JJ., joined, and in all but Part IV of which REHNQUIST, J., joined, post, p. 230. REHNQUIST, J., filed a dissenting opinion, post, p. 246.
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Re: JUDGE BERMAN, the PYSCHOLOGIST on ARROGANCE, FEDERAL ELECTION GUIDELLINES, ENGLISH LESSONS FOR ILLEGAL ALIENS & DEFLATEGATE

Ted
This post was updated on .
Tom Brady statement on his private cell phone to CNN July 29, 2015
________________________

I am very disappointed by the NFL’s decision to uphold the 4 game suspension against me. I did nothing wrong, and no one in the Patriots organization did either.

 Despite submitting to hours of testimony over the past 6 months, it is disappointing that the Commissioner upheld my suspension based upon a standard that it was “probable” that I was “generally aware” of misconduct. The fact is that neither I, nor any equipment person, did anything of which we have been accused. He dismissed my hours of testimony and it is disappointing that he found it unreliable.

I also disagree with yesterdays narrative surrounding my cellphone. I replaced my broken Samsung phone with a new iPhone 6 AFTER my attorneys made it clear to the NFL that my actual phone device would not be subjected to investigation under ANY circumstances. As a member of a union, I was under no obligation to set a new precedent going forward, nor was I made aware at any time during Mr. Wells investigation, that failing to subject my cell phone to investigation would result in ANY discipline.

Most importantly, I have never written, texted, emailed to anybody at anytime, anything related to football air pressure before this issue was raised at the AFC Championship game in January. To suggest that I destroyed a phone to avoid giving the NFL information it requested is completely wrong.

To try and reconcile the record and fully cooperate with the investigation after I was disciplined in May, we turned over detailed pages of cell phone records and all of the emails that Mr. Wells requested. We even contacted the phone company to see if there was any possible way we could retrieve any/all of the actual text messages from my old phone. In short, we exhausted every possibility to give the NFL everything we could and offered to go thru the identity for every text and phone call during the relevant time. Regardless, the NFL knows that Mr. Wells already had ALL relevant communications with Patriots personnel that either Mr. Wells saw or that I was questioned about in my appeal hearing. There is no “smoking gun” and this controversy is manufactured to distract from the fact they have zero evidence of wrongdoing.

I authorized the NFLPA to make a settlement offer to the NFL so that we could avoid going to court and put this inconsequential issue behind us as we move forward into this season. The discipline was upheld without any counter offer. I respect the Commissioners authority, but he also has to respect the CBA and my rights as a private citizen. I will not allow my unfair discipline to become a precedent for other NFL players without a fight.

Lastly, I am overwhelmed and humbled by the support of family, friends and our fans who have supported me since the false accusations were made after the AFC Championship game. I look forward to the opportunity to resume playing with my teammates and winning more games for the New England Patriots.

**************************************

United States Supreme Court

RILEY v. CALIFORNIA, (2014)

No. 13-132

Argued: April 29, 2014    Decided: June 25, 2014


http://caselaw.findlaw.com/us-supreme-court/13-132-nr2.html

The case centers on the criminal standard (beyond a resonable doubt) for Cell phones and Privacy rights vs. Officer Safety & Preservation of Evidence. The NFL's "clear & convincing" std. under civil & labor law is the second highest in civil law directly behind the "by a preponderance of the evidence" standard - a hurdle which Brady easily cleared, both in the civil arena as well as the arbitral arena. Moreover, were this a criminal trial - Brady would be found guilty of nothing as he met the highest burden of all under the criminal std. of proof.

The NFL's CBA does not trump personal privacy rights for cell phone use or the personal destruction of old phones which anyone with a brain would destroy after an upgrade to a newer model. Given the vast amount of personal information stored on the phones today and notwithstnading that fact, Brady turned over all e-mails, texts etc. to the NFL which were not of a personal nature and none of the data had anything to do with the false charges by the Colts or NFL Commissioner Godell.

The arbitrator and the majority both ignored the simple fact that after the bogus charges were leveled by the losing Indianapolis Colts receiver; Brady scored far more points in the second half than he did in the first half when the false charges were leveled; therein proving that the P.S.I. pressure of the ball, whether over or under the 12.5 to 13.5 P.S.I. range has absolutely no outcome on Brady's ability to pass or hand off the ball or his skills as an NFL quarterback.
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Re: JUDGE BERMAN, the PYSCHOLOGIST on ARROGANCE, FEDERAL ELECTION GUIDELLINES, ENGLISH LESSONS FOR ILLEGAL ALIENS & DEFLATEGATE

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Re: DEFLATEGATE

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2nd Circuit Court of Appeals grants Brady's 14-day extension request for rehearing or hearing en banc. Briefs due May 23rd.
_________________

So, if you are a pro Football player w/ an enourmous pot of dough to spread around; or, the NFL which has spent $20M to date on this case in a CBA arbitration - it's "standing" approved.

But; if you are a poor bastard working in the trenches in the construction industry - it's "standing" denied!

However, when the UBCJA is the one spending upwards of $250M on the phony 25-1/2+ year old Criminal Racketeering case morphed into the the bought & paid for Judges and Lawyers in the 22+ year old Consent Decree designed by the aforementioned corrupt 'players' to illegally w/o Congressional authority re-write all labor law and all known court precedent; their "standing" is approved.

It's a pay to play corrupt Court system; right Dennis?
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Re: DEFLATEGATE

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https://cbsboston.files.wordpress.com/2016/05/final-request-for-rehearing-second-circuit.pdf

RULE 35(B) STATEMENT

This case arises from an arbitration ruling by NFL Commissioner Roger Goodell that undermines the rights and expectations of parties to collective bargaining agreements, and runs roughshod over the rule of law. Goodell superintended a multimillion-dollar investigation into purported football deflation during the 2015 AFC Championship Game—an investigation he falsely portrayed as independent. The NFL then used the findings of that investigation to impose a severe and unprecedented punishment on New England Patriots quarterback Tom Brady based on his supposed “general awareness” of misconduct by team employees. When Brady exercised his right under the collective bargaining agreement to appeal the punishment, Goodell appointed himself as the arbitrator and “affirmed” the punishment he had himself imposed.

Goodell’s biased, agenda-driven, and self-approving “appeal” ruling must be vacated. Although his arbitral authority was contractually limited to hearing appeals of disciplinary decisions, Goodell upheld Brady’s punishment based on different grounds that were not the basis for his original disciplinary decision. In doing so, Goodell did not even mention or discuss the collectively bargained penalties for equipment-related violations—the very misconduct he alleged. A divided panel of this Court affirmed Goodell in a decision that repudiates longstanding labor law principles and that, if left undisturbed, will fuel unpredictability

in labor arbitrations everywhere and make labor arbitration increasingly capricious and undesirable for employers and employees alike.

Rehearing is warranted because the panel opinion conflicts in two key respects with decisions of the Supreme Court and decisions of other circuits. First, the panel held that the Commissioner acted within his authority when he affirmed Brady’s suspension based on new grounds that were not part of the disciplinary decision on appeal. It concluded that “[n]othing in [the CBA] limits the authority of the arbitrator to . . . reassess the factual basis for a suspension.” Slip op. 20. That holding conflicts with Stolt-Nielsen S.A. v. Animal Feeds International Corp., 559 U.S. 662, 684 (2010), which holds that an arbitrator’s authority depends on an affirmative grant of authority by the parties—not the agreement’s silence or an absence of explicit limits on the arbitrator’s power.

Chief Judge Katzmann had it exactly right when he explained that when the Commissioner “changes the factual basis for the disciplinary action after the appeal hearing concludes,” he “exceeds his limited authority under the CBA to decide ‘appeals’ of disciplinary decisions.” Slip op. 1 (dissent). The majority’s holding also conflicts with the bedrock labor-law principle that “the correctness of a [sanction] must stand or fall upon the reason given at the time of [the sanction],” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 40 n.8 (1987), rather than a post hoc rationalization or “reassess[ment],” slip op. 20, on appeal.


Second, it is undisputed that the Commissioner completely ignored the collectively bargained schedule of penalties for equipment-related violations—key provisions that are directly relevant to the alleged misconduct, and that the NFL has acknowledged are “potentially applicable.” NFL Br. 43. As Chief Judge Katzmann observed, these provisions would have limited the discipline or provided highly relevant benchmarks requiring a reduced sanction. Yet the majority refused to vacate the award, concluding that requiring the Commissioner to at least consider these collectively bargained penalties would not be “consistent with our obligation to afford arbitrators substantial deference.” Slip op. 18. That holding squarely conflicts with Boise Cascade Corp. v. Paper Allied-Industrial, Chemical & Energy Workers (PACE), 309 F.3d 1075 (8th Cir. 2002), which holds that vacatur is warranted where, as here, “an arbitrator fails to discuss a probative contract term, and at the same time offers no clear basis for how he construed the
contract to reach his decision without such consideration.” Id. at 1084 (quotation
omitted); see also id. at 1084 n.9 (collecting cases).

The panel decision will harm not just NFL players, but all unionized workers who have bargained for appeal rights as a protection—not as an opportunity for management to salvage a deficient disciplinary action by conjuring up new grounds for the punishment. The panel decision will also harm management by freeing labor arbitrators from collectively bargained limitations on their authority,
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