September 3, 2015

SHOCK AND AWE:

Why Judge Berman Threw Out Tom Brady's 'Deflategate' Suspension  (JACOB GERSHMAN, 9/03/15, WSJ)

• Brady was denied the opportunity to examine a lead investigator:

Denied the opportunity to examine Pash at the arbitral hearing, Brady was prejudiced. He was foreclosed from exploring, among other things, whether the Pash Wells Investigation was truly "independent," and how and why the NFL' s General Counsel came to edit a supposedly independent investigation report...Brady was also prejudiced because there was no other witness, apart from Pash, who was as "competent to address the substantive core of the claim."...As co-lead investigator and senior executive with the NFL, Pash was in the best position to testify about the NFL 's degree of involvement in, and potential shaping of, a heralded "independent" Investigation.

• Brady was denied equal access to investigative files from the Paul Weiss report:

The Court finds that Commissioner Goodell's denial of the Players Association's motion to produce the Paul, Weiss investigative files, including notes of witness interviews, for Brady's use at the arbitral hearing was fundamentally unfair and in violation of 9 U.S.C. § 10(a)(3) and that Brady was prejudiced as a result. The interview notes were, at the very least, the basis for the Wells Report, and Brady was prejudiced by his lack of access to them. Brady was denied the opportunity to examine and challenge materials that may have led to his suspension and which likely facilitated Paul, Weiss attorneys' cross-examination of him.

Compounding Brady's prejudice is the fact that, as noted, Paul, Weiss acted as both alleged "independent" counsel during the Investigation and also (perhaps inconsistently) as retained counsel to the NFL during the arbitration. Paul, Weiss uniquely was able to retain access to investigative files and interview notes which it had developed; was able to use them in direct and cross-examinations of Brady and other arbitration witnesses; share them with NFL officials during the arbitral proceedings; and, at the same time, withhold them from Brady.

Another tinpot dictator falls...

Posted by at September 3, 2015 12:20 PM
  

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