Saturday, August 1, 2015

Kraft, Patriots On The Offensive; Goodell His Own Worst Enemy

"Oh, what a twisted web we weave, when we first practice to deceive." - Sir Walter Scott
In the poem Marmion, Sir Walter Scott refers to how difficult it is to keep a lie going. As the story goes, Lord Marmion falls in love with a woman who is already in a relationship with another man, so Marmion uses his position of power to accuse the man, named Wilton, of high treason, causing him to flee to avoid the gallows.

Karma catches up with the corrupt Marmion,as he is killed in battle shortly thereafter, and the woman's betrothed is able to return and marry. Scott's famous quote is often employed to warn against dishonesty, as it has a way of coming back and biting the liar in the hind parts, and has many, many modern day applications.
Judge Richard Berman

Take the so-called "Deflategate" scandal for example.

For reasons as yet unknown, the National Football League and it's commissioner are bound and determined to paint new England Patriots' quarterback Tom Brady as treasonous, his alleged crime of being "generally aware" of the also-alleged deflation of footballs by Patriots' equipment handlers damaging to the integrity of the sovereign, despite having no proof.

In a criminal setting, being generally aware makes you an accomplice to whatever deed has been done, though culpability in that arena can be side-stepped with a solid story and a good lawyer - especially if there is a deal to be made at someone else's expense. But when under the auspices of an entity that has been granted autonomy to rule as judge, jury and executioner, solid stories and good lawyers make no difference at all, and there are no deals to be made...

...because to accept any sort of deal in that setting is akin to admitting guilt, and the trier - also being the prosecutor - will ensure that the public knows that the accused knew exactly what was at stake for him before he agreed to a deal.

The Collective Bargaining Agreement signed by National Football League commissioner Roger Goodell and signed off on by 31 of 32 teams to end a work stoppage in 2011 gives Goodell that kind of power - a power that former Pittsburgh Steelers receiver Hines Ward ruminated on shortly after he and his teammates became the only team to refuse to ratify the CBA.

"In order to go to the appeal committee, we had to go right back to Roger Goodell." Ward said of the section in Article 46 of the CBA that gives Goodell the power to essentially override the system to be an arbitrator for his own rulings, "so that was one of the big things we voted no on because we felt like it was going to be unfair."

Unfair, indeed, but likely to ultimately be the bitch-kitty for Goodell, who with his actions of the past week has not only alienated his best friend among the leagues owners in Patriots' owner Robert Kraft, but also may have issued his own death warrant in the NFL's case against Brady, something that Patriots' owner Robert Kraft would be happy to sign.

For months, the man who gave the weird little states that comprise New England multiple AFC East division titles, multiple AFC Championships and four world titles has been on the defensive, taking guff from friend and foe alike after appearing to back down and give up his fight against NFL sanctions imposed on the team as the result of the so-called "Deflategate" controversy...

...putting his trust in the man that he tirelessly stumped for years earlier to become the commissioner of the National Football League in hopes that Roger Goodell would take it easy on his star quarterback as he appealed his four game suspension, also the result of "Deflategate".

He didn't and, in fact, amplified the rhetoric on his part by releasing his decision to uphold his own punishment on Brady with a headline straight out of the National Enquirer stating that Brady destroyed his cell phone and, therefore, destroyed crucial evidence - a report that was leaked to ESPN's Steven A. Smith earlier that morning by someone inside the league offices who knew that Smith's enormous mouth and equally enormous ego would surely find a way to make sure every person on the planet knew about it well in advance of Goodell announcing his decision.

That, in and of itself, should have been enough to drive Kraft over the edge, but the league then added insult to injury by filing a Petition to Confirm in Manhattan's Second Circuit Court simultaneously and in tandem with Goodell's announcement, which satisfied a long-since-dead first to file standard, trumping a pending motion to vacate Goodell's ruling in U. S. Eighth Circuit Court...

...compelling Minnesota Judge Richard Kyle to transfer the case to Manhattan - but as it turns out, that move may have swung the pendulum in Brady's favor, as if it wasn't already.

As we reported on Wednesday, the Federal Arbitration act provides very clear grounds on which a judge may overturn or vacate the ruling of an arbitrator, one of which is whether the arbitrator was evidently partial or corrupt and another is whether the arbitrator's behavior prejudiced the right of any party - and the burden of proof for Brady's lawyers in demonstrating that the arbitrator in this instance, Goodell, was biased in favor of the league that he governs, is much lower in New York than it is in Minnesota.

In Minnesota, Brady's lawyers would have had to "objectly demonstrate such a degree of partiality that a reasonable person could assume that the arbitrator had improper motives.", while in New York, they simply have to show that "a reasonable person would have to conclude that an arbitrator was predisposed to favoring one of the parties."

In other words, in Minnesota, Brady would have to show with "direct, definite and demonstrous" proof that Goodell was unfair in his process, while in New York the standard is mere inference of object facts, meaning that all Brady's lawyers need is circumstantial evidence - and there's plenty of that stuff to go around.

Why the difference? The manifest disregard of the law statute is in place to allow a judge to overturn or vacate and award or penalty if the arbitrator "flies in the face of clearly established legal precedent.", which the Kessler filing indicates in abundance - but the Eighth Circuit U.S. Court of Appeals no longer recognizes this as the standard.

Manifest disregard for the law in lay terms is defined in that an arbitration award cannot be reversed for an error in law or a misreading of the facts, but can be vacated if the arbitrator "intentionally ignored well-settled law", which means that, under this statute, all Brady's legal team has to show is that Goodell ignored precedence and the language of the CBA, which shouldn't be all that hard given the number of instances.

The difference is huge, and perhaps why Second Circuit Court Judge Richard Berman ordered all parties to "tone down the rhetoric", as any public statements could be turned into more admissible inferences for the NFLPA and Brady attorney Jeffrey Kessler to stockpile against the league in addition to the laundry list of partial inferences against Goodell already before the court.

So Kraft, normally a well-balanced and grounded businessman who was once very good chums with Goodell and, in fact, went to bat for him with the other 31 owners to get him elected as commissioner in the first place, took Judge Berman's order to the two opposing parties as an opportunity to kick Goodell while he was down, almost certainly ending whatever friendship the two had enjoyed before.

On Friday Kraft authorized the public release of a series of select emails between both the team's PR secretary and general counsel and NFL Executive Vice President Jeff Pash, communications that clearly show that not only did the NFL participate in a smear campaign against the Patriots and Brady in regard to false information leaked to ESPN immediately after the AFC Championship Game in January, but also that they didn't feel inclined to correct the report for the public record...

...this after Kraft's impromptu press conference on Wednesday morning where he dismissed Goodell as nothing more than a common narcissist that was "more concerned about being right than anything else", then apologizing to the Patriots' fans by stating that he "was wrong to place my faith in the league."

Wrong, yes, but noble nevertheless. In the end, Kraft is sitting on a treasure trove of inference against Goodell, as is Kessler, who reluctantly agreed to motion the courts to seal the transcripts of Brady's appeal hearing upon insistence of the NFL. It is curious that the league would want those transcripts sealed if they were on the up-and-up, and Judge Berman already called that bluff by stating that he finds it difficult to seal documents, "given the public's right to know."

If Goodell and Brady cannot come to an amicable agreement and forces Berman to rule on the case, the transcripts become a matter of public record and then the entire world will know exactly what went on in that appeal hearing which, according to sources within the NFLPA was "shocking" in their bias - all the while Kraft teetering on the fence with a fist full of emails that will further indict his former friend of being a charlatan.

Deflategate was supposed to be a public relations nightmare for the Patriots and a crowning moment for Goodell as he unceremoniously threw Tom Brady and his former bestie Kraft under the same bus, but the events of the past couple of days and the apparent multiple legal gaffes by NFL lawyers suddenly has Goodell hanging onto the front grill of the bus while Brady and Kraft use his flailing limbs to climb back aboard...

...and, indeed, right into the driver's seat where they are certain to take the commissioner on the roughest ride of his professional life, and one that he may not survive with his job still intact

Oh, what a tangled web Roger Goodell has woven for himself, and just as Lord Marmiom started his downward spiral with baseless and false accusations in order to control his own situation, Goodell is rapidly slipping into an abyss precipitated by his own baseless and false accusations - and while death is not an appropriate karmic response for Goodell's lies, unemployment certainly is...

...and Bob Kraft will now be happy to hand him his pink slip.


  1. Goodell should go and Brady should sue his ass, along with the NFL for defamation of character, slander and anything else they can!

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  3. Go get 'em Tom!! Yes!! #JUSTICE4BRADY #FREEBRADY