SZ619

BY JIM DAWSON
MARCH 7, 2016
HERE COME THE JUDGE(S)
When I saw some of the comments made by the 3 judges who are part of the Circuit
Court review of Judge Richard Berman's decision to vacate Tom Brady's 4-game
suspension, the most galling and astounding was that by Judge Dennis Chin who found
the evidence against Brady compelling if not overwhelming. I wondered if Chin had
read just the NFL decisions and briefs.
However it is my understanding that the 3 judges are not conducting a 'de novo' review
(look at all the evidence anew), but instead must rule only on Judge Berman's order to
vacate the suspension. The judges have to find error in Berman's decision.
Berman's decision to overturn the NFL's suspension was based on three points:
A) Inadequate notice to Brady of both his potential discipline (4 game suspension) and
his alleged misconduct.
B) Denial of the opportunity for Brady to examine one of two lead investigators, namely
NFL executive Vice President and General Counsel Jeff Pash (whom Berman notes
provided written comments or edits to the Wells Report), and
C) Denial of equal access to the NFL's investigative files, including witness interview
notes.
Judge Berman supported (A) with 3 subheadings:
(i) No notice of a 4-game suspension:Steroid Use Comparison. Berman stated: “The
Court finds that Brady had no notice that he could receive a four-game suspension for
general awareness of ball deflation by others or participation in any scheme to deflate
footballs, and non-cooperation with the ensuing Investigation. Brady also had no notice
that his discipline would be the equivalent of the discipline imposed upon a player who
used performance enhancing drugs.”
(ii) No Notice of any Discernible Infraction. Judge Berman ruled:
“The Court concludes that, as a matter of law, no NFL policy or precedent notifies
players that they may be disciplined (much less suspended) for general awareness of
misconduct by others. And, it does not appear that the NFL has ever, prior to this case,
sought to punish players for such an alleged violation. ”
(iii) No Notice of Suspension as Opposed to Fine: Competitive Integrity Policy vs.
Player Policies.
Judge Berman noted that Brady would have received Player Policies, in which Brady
would have had notice only of fines - not suspensions - for player equipment violations
designed to gain a competitive advantage. But Troy Vincent punished Brady pursuant to
violations of the Competitive Integrity Policy, which is only incorporated into the Game
Operations Manual and provided to 'Chief Executives, Club Presidents, General
Managers, and Head Coaches', and not to players such as Brady.
Berman stated: “Goodell's reliance on notice of broad CBA 'conduct detrimental' policy
- as opposed to specific Player Policies regarding equipment violations - to impose
discipline upon Brady is legally misplaced.”
In support of (B) and Goodell not allowing Jeff Pash to be 'examined', Judge Berman
found that “NFL precedent demonstrates that, in Article 46 arbitration appeals, players
must be afforded the opportunity to confront their investigators.” Berman concluded:
“The Court finds that Commissioner Goodell's denial of Brady's motion to compel the
testimony of Mr. Pash was fundamentally unfair and in violation of 9 U.S.C. § 10(a)(3).
As for (C), Berman also ruled that not allowing Brady to have equal access to
investigative files and witness interviews “was fundamentally unfair and in violation of
9 U.S.C. § 10(a)(3).”
These are the only issues on which these 3 judges can rule. So I'm still hopeful that
Brady wins. However the US has seen a growing anti-union sentiment. I'm worried that
these judges will side with management, and craft their decisions in a way that supports
Goodell. They could remand the case, but I doubt that will happen because the NFL
would be faced with actually allowing Pash to testify and providing the files and notes.
The reason Goodell is still fighting this is because Goodell does not want his ability to
discipline (using Article 46 of the CBA) eroded by losing this legal battle. Otherwise
many more players will challenge him in court with the support of the NFL Players'
Association.
So now Tom Brady, the Patriots and their fans have to wait and see how these three
judges rule. We can only hope that sanity prevails and the Circuit Court upholds Judge
Berman's decision.

BULLETS
• My companion Victoria and I have been watching FX's US vs. OJ series. She told me
to read League of Denial. Victoria asked me if I thought OJ could have CTE. l had to
agree with her that that is possible (not that it would exonerate him of murder). After she
told me, I read a People magazine about FX's show and the murders. There was a box
asking 'Could OJ Have CTE?' In it, Bennet Omalu, the forensic pathologist who
discovered CTE said he'd bet his medical license that OJ has CTE.

• Congrats to Johnson & Wales' men's basketball team which is in the Div. 3 tournament.

E-MAIL
Just had a draft Gansett here in Tampa Fla to celebrate Leap Year! Who would have
thought.a decade or two ago that we would be drinking Narragansett in Fla.
Long Live Gansett!
Herb Jeschke
Herb, glad to hear you're having fun. Hi neighbor, have a 'Gansett. The new HP
Lovecraft is an Imperial Red Ale which I like a lot. Strong though. ABV 8. - Z

Jim,
What? No congratulations to the best playoff defense in the history of the Super Bowl
for their stellar run through (also around and over) the Patriots, Steelers, and
Panthers? That's the only reason that the Broncos won the blue ribbon. We all know that.
Bill 'Big White' LaPlante
Bill, that Denver defense was unbelievable. They deserved to win.
Sorry about your Canadiens. It's rare for them to miss the playoffs.
This D man Liles the Bruins got. Can he play a lick of D? They beat Carolina but Rask
faced 40 shots. That can't happen. This kid Frank Vatrano in Providence now has 29
goals in 28 games. And the B's just called up Noel Acciari! Claude Julien just tied for
most coaching wins with the Bruins (Art Ross). One wag said he thought the Bruins
would go farther in the playoffs than the Celts (I doubt it). - Z

John Michael Liles played about 5 years for the Avalanche and is a pretty steady
defenseman; was on the special teams for power play and short handed. Decent shot and
was a good skater in his younger years. Has been around the league with about 4 teams
in the last six years or so. A good second pair, but he may have slipped to third pair
defense in the last couple of years. A good reserve for the stretch run, but he'll probably
retire within the next two years or so.
I think that this is Washington's year; this kid Holtby has come into his own this year in
net for them and they seem to be four lines deep and the first two pairs of defense is
good.
I look for them and Chicago to play for the Cup, but Anaheim could sneak in if they
have a big series in the conference finals against the Hawks.
Celts could go deep in the playoffs, but I don't think they have the horses to win the
East.
How are the Friars doing on the court? Any chance they could beat Villanova in a
championship game? Kansas is gaining steam, 12 straight, out here.
Bill LaPlante
Bill, PC has beaten Villanova once so, yeah, they could win the Big East championship.
Dunn and Bentil will need help though. When they play defense, they are tough to beat.
The PC hockey team is playing well and could repeat as NCAA champs. - Z

Sportzine is also available at jimdawsonsports.com thanks to Buffalo Steve Lenz.

THE HOT CLUB
Eric was wearing a tee shirt that said 'Cabin Fever'. So I asked him if that was for Eli
Roth's movie of that name or his feelings about the winter. He wasn't familiar with the
movie, and said it was more about his mood. He loves the summer when he likes to be
the first one in the water.
Britt was telling me about a short story, The Story of an Hour, that she read to her class
and was thrilled that most understood the ending. So I asked her if she was familiar with
Shirley Jackson's The Lottery. Of course she was and said: “That's the only lottery that I
would win.”
Someone in the Professors' band pointed out to me that the new Tina Fey movie
Whiskey Tango Foxtrot is an acronym for WTF which means 'What The F**k'.
Dr. John was once in a band with Taj Mahal (they both went to UMass Amherst). He
said they played Brown University's Spring Weekend, but the crowd got so rowdy they
wouldn't let the band stop playing. They would throw beer cans at band members when
the music stopped. So the cops had to be called to form a cordon or wedge so the band
could leave the stage. The band had to leave their instruments which the police guarded.
Professor Peter told me about Eric Shinseki (ex-Army Chief of Staff under George W
Bush and Bill Clinton and Secretary of Veterans Affairs under Barack Obama). Peter
said Shinseki had a great quote about change: “If you don't like change, you're going to
like irrelevance even less.”

LAST ISSUE'S QUIZ
What do You've Lost That Loving Feeling -Righteous Brothers, I Get Around and When I
Grow Up (to Be a Man) - Beach Boys, Monday, Monday – Mamas and Papas, For Your
Love – The Yardbirds, and Walk Away Renee - Left Banke, all have in common?
Why they all include a harpsichord. No one got it (a bit obscure, I admit), but Frankie
Lee tried very hard and gave me a link to a site http://forums.stevehoffman.tv/threads/favorite-
harpsichord-playing-in-pop-music.220351/ that listed many other songs with a harpsichord
including the Beatles' Piggies, Lucy in the Sky with Diamonds and With a Little Help
from my Friends; the Stones' Play With Fire (Jack Nitzsche) and Lady Jane, Ronstadt's
Different Drum and Long, Long Time. Brian Augur did harpsichord on For Your Love.

THIS ISSUE'S QUIZ
Name the only French artist to top Billboard's Hot 100 for 5 weeks.