RUSH: Folks, I want to take you back to this program on August 31st. I just want to remind you of something that I said. It’s a quick little 12 seconds. Goes by here pretty quickly.
RUSH ARCHIVE: If I had to wage a wild guess right now, I mean, the opener, 10 days away, New England hosting the Steelers, and if I had to wager right now, Brady’s playing. Seems to me he’ll suit up.
RUSH: Yes, my friends, I just wanted to remind you that I predicted that this would be the case. And after watching all of this I wish that Brady’s lawyers had done the negotiation with the Iranians. We would have a much different outcome there. So everybody is wondering what’s happening. See, this is a classic example I think of how people end up being misinformed through no fault of their own by simply watching what’s in the media every day.
When you watch what’s in the media every day about a particular story, in this case the Brady story, given the predisposition of many in the sports media, given the predisposition of many in the Drive-By Media who don’t understand sports but were forced to talk about it because it’s a big issue, you would probably conclude that at the end of this Brady was gonna serve some kind of suspension no matter what. Reduced to a game, reduced to two games or what have you, because the media never did — I can’t say never because some of them did frame it properly. But most of the Drive-By Media and many in the sports media did not frame what this issue was about.
This judge did not decide on the merits of whether or not Brady deflated footballs and whether or not the NFL proved it or not. I mean, there may have been some thinking along those lines, but this judge simply ruled, “Does the commissioner have the right to mete out discipline like this on players in the NFL?” And the reason that everybody thought it was a slam dunk win for the NFL is because the players signed a collective bargained agreement that gave Goodell these specific powers. But because a lot of people thought there was overreach and Brady did not want his reputation sullied in any way, he was gonna take this all to the end, and what’s really happened here is big in terms of management and labor relations going forward.
This federal judge basically essentially said that the collective bargaining agreement between the players and the NFL doesn’t count for much. This is big, folks, in that sense. Federal judges in cases like this, disputes like this, labor-management disputes, they almost always side with the arbitrator because they don’t want the case in their courtroom anyway. They don’t want these kinds of disputes when there are already mechanisms in place agreed to by both parties to solve these kinds of disputes, most judges — not all. Judges are becoming increasingly activist and increasingly desirous of putting their own imprimatur, fingerprints on these kinds of things. Not saying that this judge did.
But it’s always been standard operating procedure that judges side with arbitrators because they want to send the message, “Hey, you guys, we’ve got a system for dealing with this and we’re not gonna trample on it, we’re not gonna walk on it, and in your arbitrator’s ruled we’re gonna uphold the arbitrator.” That’s what normally happens. That didn’t happen here and that’s one of the earth-shattering things about it.
Now, here is (as best I can tell) the way this judge decided this case — the meat, if you will, as opposed to the gristle. The meat of the decision is Roger Goodell, the commissioner’s use of the steroids cases which often get four-game suspensions as an analogy to giving Brady a four-game suspension. One has nothing to do with the other, the judge said. In other words (paraphrased), “This is inconsistent as hell. You got a guy here who may have deflated footballs, but you haven’t really proven it here, and he gets four games.
“You got these other people over here taking PEDs and other street drugs and they get four games?” He says, “There’s an inconsistency here. One has nothing to do with the other.” The other big thing that the judge said is that Brady was not on notice that he could get four games for his alleged conduct. In other words, he was not warned. You can think of this whatever you want, but the judge said that Brady wasn’t given sufficient warning. He wasn’t put on notice that he could get four games for this kind of alleged conduct.
And which conduct the judge said the commissioner exaggerated in upholding the original arbitrator’s decision. The arbitrator had only said Brady was generally aware. Goodell suggested he was conclusively aware. So he said there’s inconsistency there, and because Brady was not put on notice or warned how severe the punishment would be, he didn’t have a chance to factor all of that in to his decision whether to accept it or not, whether to fight it.
In other words, it would be tantamount to you have a guy who’s been accused of robbing a bank, and you don’t tell him what the sentence is gonna be. You don’t tell him what the range of punishment could be or the penalty, just period. You don’t tell him what it is, and then you go to trial, and it affects his decision on whether to fight you, whether agree to a settlement or what have you. There are all kind of nuances in this thing. It’s a slam-dunk win.
I mean, it looks like if the NFL appeals this, the way this judge ruled, legal beagle analysts are suggesting that there’s no way the NFL could prevail on appeal. But this judge just… He went beyond what he was supposed to do. He was supposed to judge, “Does this commissioner have this kind of power?” It’s really what this was. It wasn’t about, “Did Brady deflate the balls? Did Brady destroy his phone? Did he destroy his texts?” That really was not something the judge should have been deciding on.
It was clearly simply, “Is this agreement reasonable? Does this commissioner really have this kind of power?” That’s what this was. And the decision was, “Not the way he used it. No.” This is a huge hit. Another thing the judge said is that Brady should have been given access to the notes of the Ted Wells investigation and the NFL lawyer who worked on the investigation, and they shielded all that.
In other words, Brady was not fully informed of what the potential liabilities and penalties were, and he was not given access to the evidence that they had, and the reason that’s important is because he was therefore not fully informed and thus not fully prepared to make a decision as to sue, as to settle or whatever because they withheld information they had and they knew that would have been vital to Brady and his team decided what they wanted to do.
Goodell denied these things. He denied Brady’s access to Ted Wells’ investigation notes and the notes made by the lawyer, the NFL lawyer worked on the investigation. Jeff Pash, I think is his name. Goodell specifically denied these things to Brady in the appeal process. So you boil it all down is that Berman is saying Brady didn’t get due process here. But you’re gonna have other people say, “Wait. Wait.
“Due process? This is not due process here. This is a collective bargaining agreement! This is not something that has to stand up in court. Due process? There is no due process. The players agreed the commissioner gets to determine player discipline. The commissioner determined it. They don’t like it.” So it’s… I think it’s hard for this judge in a case like this (or for any judge probably) to keep his personal feelings out of this.
There’s so many holes in this investigation, so many holes in the Ted Wells report that anybody looking at it is saying, “Well, none of this adds up. It doesn’t add up. It doesn’t make any sense at all,” and I don’t want to go into all of those things. We’ve been there; we’ve done that. And the judge is never gonna say those were factors. He’s clearly written in his ruling what the factors were and I’ve given you the highlights of it.
But it’s a big deal within the universe of the National Football League to have this kind of power already agreed to by the players given to the commissioner, now basically slam dunked away by a federal judge. One of the things the judge came out in the process with is (paraphrased), “Wait a minute. You’re telling me that we had these footballs and they were deflated and Brady deflated ’em and he wanted ’em under regs ’cause he likes ’em that way. And then they fix that at halftime.
“They properly inflated the balls at halftime. Brady goes out in the second half when the balls are proper and he does better than he did in the first half? So what are you telling me here about deflated footballs? What is the evidence that deflating them helped Brady? He did better when the footballs were deflated to regulation, when they fixed them at halftime.” Common sense questions like that the judge was reportedly had to have asked during the hearing.
So, anyway, there’s gonna be all kinds of emotion on both sides of this. The Envy Squad is gonna huge out there today. The Jealousy Squad is gonna huge out there today. And you’re gonna have a lot of fans saying (griping), “Wait a minute! Wait a minute! He destroyed a phone. He got rid of evidence. What about that?” The judge was not moved. There were things which overrode that. But regardless, here it is 10 days — now one week, seven days — before the opener, one week from today in New England and the Steelers. Ratings through the roof. Gonna be huge.
Carol Costello, one of our favorite anchors over at CNN, was dumbfounded at this ruling. She could not believe it. She was shocked. She was stunned and amazed. Here’s what she said.
COSTELLO: Wow! (pause) I — I didn’t… I — I just didn’t expect Tom Brady to win for some reason. What about all that stuff about Tom Brady throwing his cell phone away and, y’know, destroying text messages? Didn’t the judge take that into account?
RUSH: No! No! See, she’s a product of the media. She watches the media. She is the media. That’s the only thing she knows is the way the media talks about it. Those were interesting factoids, but it had nothing to do with what the judge was deciding. The judge wasn’t deciding any of that. The judge was deciding whether or not the commissioner has the power to do what he did.
And when the judge ruled that the commissioner doesn’t have this kind of power, he listed some reasons why. But the judge was not judging Brady’s innocence or guilt. But if all you did was watch the media and the only thing you watched was people uninformed presenting it that way, then that’s why you would be surprised at this. So anyway, that’s that. It’s a done deal. I just wanted it on record that back on August 31st, I, El Rushbo, predicted this very outcome to you.
RUSH: Well, yeah, the NFL has to appeal, I’m thinking. They have to appeal if nothing more than to save face. And then in the longer term, you know, reverse this and win it. This is a huge, huge hit to the power of the commissioner. Now, this judge. And I don’t know that it means anything. I’m just a purveyor-of-fact. The judge is a Clinton appointee, which does nothing more than tell us what the ideological bent of the judge is.
I can see the NFL appealing this both ways. I can see them forgetting it. Get past it; forget it. And I frankly have been surprised about how headstrong they have been throughout this whole process. I have. There are parts of this that have really been a mystery to me, and one of the biggest mysteries has been why…? Look, whether this is true or not, the perception is the NFL was try to destroy the reputation of one of their star players.
The NFL is trying to sully, in the minds of the public, the reputation of one of the league’s marquee players, who’s never been in any kind of trouble before. He’s never been accused of cheating before, other than that Spygate thing which was a team thing. See, I think that is one of those little lurking items in the past wherein all of these other questions can be answered but we’ll never know for sure.
But it has been stunning to me to watch the NFL apparently unaware of how damaging to the brand this could be. Nobody turns on the TV to watch the commissioner, and nobody turns on TV or go to sports bars to watch Ted Wells do his investigations or the owners meet or any of that. They turn on the games to watch the players play. So I understand this integrity of the game business and wanting to protect that. That makes sense.
But to go this far and to be this focused on destroying reputation of your marquee player? I don’t know how popular or unpopular he is with players around the league. That’s not a concern. I’ll tell you what’s driving this in my humble opinion informed by nothing but a wild guess, and that is that a bunch of people in the league think that the Patriots got away with way too much with Spygate. They were not punished nearly enough for it and there’s lingering dislike and animosity for the organization throughout the league.
And this was an opportunity to continue to punish them for things that they should have punished for years ago.
It’s just a wild guess
RUSH: All right. The Players Association has issued their statement. (laughing) I think that the Players Association statement illustrates some of the folly that’s happened here. They admit with the statement that the collective bargaining agreement gave the commissioner the power to oversee and mete out player discipline, and he was given the power to arbitrate it. It’s there. But they say that what this ruling says is he doesn’t have the right to abuse that power. Really? We never agreed to give him the right to abuse the power.
So what’s happened here is in the Players Association view the judge has decided that while Goodell, the commissioner, by virtue of the CBA agreement, does have the right to oversee these disputes and hand out punishment and be the arbitrator, he doesn’t have the right to abuse those powers. And of course the definition of abusing those powers now rests in the hands of Richard Berman, the judge, and the question of whether the league will appeal. The league is going to look at precedent. The league’s gonna find out, have there been examples of something similar to this where we could prevail where a ruling has been overturned. And they’re gonna find one.
Snerdley, do you remember the Ohio State player Maurice Clarett, running back? He wanted to come out I think as a sophomore or junior and enter the NFL draft. And if I have this right, the original ruling was that he could not. And in the appeal it was overturned and it was ruled that he could come out of college early and enter the NFL draft. It might be the other way around. But the NFL, if they want, they can find evidence where a federal judge has been overruled or overturned by an appellate court.
They’re gonna see if there’s enough precedent to give this possibility any likelihood, and of course then there’s the face saving aspect.
Now, Goodell’s statement is: “We are grateful to Judge Berman for hearing this matter, but respectfully disagree with today’s decision. We will appeal today’s ruling in order to uphold the collectively bargained responsibility to protect the integrity of the game. The commissioner’s responsibility to secure the competitive fairness of our game is a paramount principle, and the league and our 32 clubs will continue to pursue a path to that end. While the legal phase of this process continues, we look forward to focusing on football and the opening of the regular season.”
And remember, folks, as this goes forward, the players did grant the commissioner the right to deal with the responsibility of the integrity of the game, to mete out player discipline, to hand it out and to be the arbitrator. Totally within his purview to do everything he did here, and the judge has said he abused it, went too far, denied Brady as though this were a trial, and it wasn’t. It was a labor-management dispute. Anyway, that’s that.
RUSH: No, no, no, no, no. Let me clarify what I’m saying. The fact that this judge said that the commissioner cannot mete out this kind of punishment on Brady because Brady was not told what this kind of cheating could be punished by… (chuckling) Is that not Clintonian? This guy’s a Clinton appointee. (Clinton impression) “Hey, you know what? I really didn’t know that, uh, uh, having sex with an intern could lead to impeachment. If I’d a known that, I might have thought different about it.”
Yeah, except that’s not what led to your impeachment, sir.
You were impeached ’cause you lied under oath.
But it’s a strange way for this judge to overturn it. I’ll just tell you this. For sports leagues like this to prosper, there has to be some kind of glue. You can’t let the inmates in any organization run the asylum. You almost have to have… In an arrangement like the NFL where it’s one business but 32 franchises, there has to be somebody that does have the authority to keep everything in line, and that’s why players agreed to this in the CBA.
But it is what it is. The question now is the NFL’s gonna appeal. We’ll see how long it takes. This not gonna happen fast enough to get Brady out of any games this season, folks, bottom line, if that’s what you’re think. And by the Jealousy and Envy Crowd what I meant was that there are gonna be people that oppose Brady just ’cause he got the girl, oppose Brady ’cause he’s tall and good-looking and a star quarterback and wanted him punished on that basis.
I told you from the get-go that a lot of alignment against Brady was simply based on jealousy and envy and a lot of people hoping Brady got the four games just ’cause it’s justice. “Nobody should be this lucky to be that good-looking, that tall, that good an athlete, with that good-looking kids get the beautiful girl. Nobody should have that kind of luck!” Those people are all over the place. You’ll find them all over the place, and those are the people that will be upset here.