Al Robert, Jr.

Some thoughts on Vilma's case against the NFL

Fri, 07 Sep 2012 11:11:00 -0500

Based on a few twitter feeds from lawyers who were watching the hearing on August 10 (i.e., Gabe Feldman and Thomas McEachin), Judge Berrigan made it clear that she thought the NFL had wronged Vilma and that she would rule against the League if she could. Although Feldman thinks the NFL has the better position with regard to the law, many of the articles about the hearing suggested that the NFL should be worried and quickly settle the suit.

At the time of the hearing, however, I thought that Judge Berrigan’s comments were likely fatal to Vilma’s case. Given the recent order from Judge Berrigan requiring the Player’s Association to explain why it does not have a conflict of interest in representing itself and Vilma, the tea leaves lead me to double down and suggest that she’s getting ready to rule against him.

First, I have zero experience with labor law and have not looked at any of the substantive pleadings in the case. My prediction comes solely from my experience litigating cases over the last seven years (and clerking in federal court the year before that) and trying to advise clients on the best course of action. Although a big part of that comes from having a solid understanding of the substantive law and evidence, being able to read between the lines of a judge’s comments are an important part of properly preparing a client to make the final decisions on how to resolve his or her case (i.e., settle or go to trial).

Although it’s not unusual for a judge to offer some insight into his or her thinking to encourage the parties to settle the case, the clear signals that Judge Berrigan has issued are pretty rare in my experience. I’ve been on both sides of cases when a judge has made comments like those made by Judge Berrigan. Each time that the case has not settled, the judge ruled in favor of the party that she had previously indicated a strong inclination to rule against.

By way of explanation, the following is an example of the advice I would give if I was representing Vilma and the NFL.

First, Vilma:

I know what Judge Berrigan said was encouraging, but let’s dig a little deeper. She made it clear that she thinks what the NFL has done is wrong. We know it was wrong and that’s clearly a strong sign that she gets it. We know that Judge Berrigan is a strong and compassionate judge and that she will rule in your favor—if she can. That’s a pretty big caveat, however—if she can. As we’ve discussed from the beginning, we have a great case on the facts. Our weakness is the fact that Judge Berrigan may not be able to find a way around the collective bargaining agreement. In my experience, if she felt as strongly as she indicated about the NFL’s behavior, she would have just ruled in your favor today if she felt she had the authority to do so. The fact that she did not rule today is a sign that she is having trouble finding something to hang her hat on. If the NFL is willing to talk settlement, I think we should at least consider any offer that they put on the table.

Next, the NFL:

I know what Judge Berrigan said was discouraging, but let’s dig a little deeper. She made it clear that she thinks what the NFL has done is wrong that she will rule against you if she can. That’s a pretty big if, however. If she felt as strongly as she indicated, I think she would have ruled against you today if she felt she had the authority to do so. The fact that she did not rule today is a sign to me that she is having trouble finding something to hang her hat on. Nonetheless, even if she ultimately doesn’t rule against you, that doesn’t mean that she won’t write a scathing opinion explaining why she thinks your behavior is improper and why her hands are tied by the collective bargaining agreement. Accordingly, this might be one of those cases where you win the battle but lose the war (of public opinion and the players’ trust).

The ruling ordering the Player’s Association to show cause why it doesn’t have a conflict (and their response) confirms my suspicions that Judge Berrigan simply hasn’t found a way to get around the collective bargaining agreement and the federal law that favors such agreements (by encouraging courts not to interfere with them). By asking the NFLPA lawyers to explain why they don’t have a conflict of interest, Judge Berrigan may be signaling that she thinks the NFLPA made a bad deal with the NFL when it gave Goodell the power to be investigator, judge and jury. She is making such clear statements to encourage the parties to settle because she knows that’s really the only way that Vilma is going to get any relief—at least in regard to his suspension.

In the end, however, if Vilma can’t win on the merits, he’s probably better off getting a ruling against him—if that ruling excoriates the NFL and makes clear that the process leading to the suspensions was suspect. Presumably, the NFL is hoping that the Court’s ruling (that the player’s are bound by the agreement that they negotiated) is going to overshadow the fact that NFL’s process was shoddy. Regardless, this is one of those cases where Vilma clearly has no incentive to settle unless the NFL makes him a great deal. Based on Feldman’s summary of the NFLPA’s submission yesterday, the NFL is not offering anything of substance (which indicates that they think that Judge Berrigan won’t be able to rule against them).

As an aside, part of the thought process regarding advising a client is to understand and explain a judge’s motivation and philosophy. One of my thumbnail sketches is that conservatives, in general, are more likely to believe that the ends justifies the means. In contrast, I believe that liberals tend to believe that fairness in the process is paramount—even if that means that the end result is not what they would desire. These types of generalizations can often cause more harm that good, but it’s something that is taken into consideration. For what it’s worth, Judge Berrigan was a former state president of the Louisiana Chapter of the ACLU.

This is the only song that I have found that consistently helps...

Sun, 03 Jun 2012 20:19:30 -0500

This is the only song that I have found that consistently helps to calm Hannah when she gets upset. It’s soul balm.

"The economy we have today will let you chow down on a supersize McBurger, check derivative prices on..."

Mon, 13 Jun 2011 09:56:15 -0500

“The economy we have today will let you chow down on a supersize McBurger, check derivative prices on your latest smartphone, and drive your giant SUV down the block to buy a McMansion on hypercredit. It’s a vision of the good life that I call (a tiny gnat standing on the shoulders of the great Amartya Sen) hedonic opulence. And it’s a conception built in and for the industrial age: about having more. Now consider a different vision: maybe crafting a fine meal, to be accompanied by local, award-winning microbrewed beer your friends have brought over, and then walking back to the studio where you’re designing a building whose goal is nothing less than rivaling the Sagrada Familia. That’s an alternate vision, one I call eudaimonic prosperity, and it’s about living meaningfully well. Its purpose is not merely passive, slack-jawed “consuming” but living: doing, achieving, fulfilling, becoming, inspiring, transcending, creating, accomplishing — all the stuff that matters the most. See the difference? Opulence is Donald Trump. Eudaimonia is the Declaration of Independence.”

- Is a Well-Lived Life Worth Anything? - Umair Haque - Harvard Business Review

"Juries, like all normal people, respond favorably to sincerity."

Mon, 13 Jun 2011 09:38:01 -0500

“Juries, like all normal people, respond favorably to sincerity.”

- The True Self Of The Plaintiff’s Trial Lawyer : Litigation and Trial

"The rebounding experiment went like this: 10 basketball players, 10 coaches and 10 sportswriters,..."

Sat, 11 Jun 2011 07:27:52 -0500

“The rebounding experiment went like this: 10 basketball players, 10 coaches and 10 sportswriters, plus a group of complete basketball novices, watched video clips of a player attempting a free throw. (You can watch the videos here.) Not surprisingly, the professional athletes were far better at predicting whether or not the shot would go in. While they got it right more than two-thirds of the time, the non-playing experts (i.e., the coaches and writers) only got it right about 40 percent of the time. The athletes were also far quicker with their guesses, and were able to make accurate predictions about where the ball would end up before it was even airborne. (This suggests that the players were tracking the body movements of the shooter, and not simply making judgments based on the arc of the ball.) The coaches and writers, meanwhile, could only predict a make or miss after the shot, which required an additional 300 milliseconds. What allowed the players to make such speedy judgments? By monitoring the brains and bodies of subjects as they watched free throws, the scientists were able to reveal something interesting about the best rebounders. It turned out that elite athletes, but not coaches and journalists, showed a sharp increase in activity in the motor cortex and their hand muscles in the crucial milliseconds before the ball was released. The scientists argue that this extra activity was due to a “covert simulation of the action,” as the athletes made a complicated series of calculations about the trajectory of the ball based on the form of the shooter. (Every NBA player, apparently, excels at unconscious trigonometry.) But here’s where things get fascinating: This increase in activity only occurred for missed shots. If the shot was going in, then their brains failed to get excited. Of course, this makes perfect sense: Why try to anticipate the bounce of a ball that can’t be rebounded? That’s a waste of mental energy.”

- Basketball and Jazz | Wired Science | Wired.com

"My suggestion in Bit Literacy about a media diet is that people should get their information from..."

Sat, 11 Jun 2011 07:27:03 -0500

“My suggestion in Bit Literacy about a media diet is that people should get their information from the smallest number of sources that will keep them informed. Everything else in the universe—blogs, magazines, podcasts, Twitter streams, etc.—you just ignore, and you don’t feel guilty about it. You have to say “no” to the infinity of media sources out there while saying “yes” to a chosen few—very few.”

- Q&A: UX Guru Mark Hurst on Staying Focused and Avoiding Info Overload | The Hired Guns Blog

"The brain is a belief engine. It relies on two processes: patternicity and agenticity. It finds..."

Sat, 11 Jun 2011 07:13:08 -0500

“The brain is a belief engine. It relies on two processes: patternicity and agenticity. It finds meaningful patterns in both meaningful and meaningless data. It infuses patterns with meaning, and imagines intention and agency in inanimate objects and chance occurrences. We believe before we reason. Once beliefs are formed, we seek out confirmatory arguments and evidence to justify them. We ignore contrary evidence or make up rationalizations to explain it away. We do not like to admit we are wrong. We seldom change our minds. Our thinking is what Morgan Levy has called “intelligently illogical.” If our ancestors assumed that the wind rustling the bushes was a lion and they ran away, that wasn’t a big problem. If there really was a lion and they didn’t run away, they were in trouble. Natural selection favors strategies that make many false causal assumptions in order to not miss the true ones that are essential to survival. Superstition and magical thinking are natural processes of a learning brain. People believe weird things because of our evolved need to believe nonweird things.”

- Science-Based Medicine » The Believing Brain

"In-person communication feels binary to me now: subjects are either private, confessional, and..."

Tue, 31 May 2011 09:34:04 -0500

“In-person communication feels binary to me now: subjects are either private, confessional, and soulful or frantically current, determined mostly by critical mass, interesting only in their ephemeral status. Increasingly these modes of talk seem mutually exclusive. You can pull someone aside—away from the party, onto the fire escape—and confess to a foible or you can stay inside with the group and make a joke about something everyone’s read online. “Maybe you keep the wrong company,” my mother suggests. Maybe. But I like my friends! We can sympathize with each other and feel reassured that we’re not alone in our overeager consumption, denigrated self-control, and anxiety masked as ambition. Part of the difficulty is that the pace of online narratives (Tumblr posts, Jezebel comment fights, truffle-whatever) resembles that of tabloids or all-or-nothing friends. Maintaining interest in any of them demands constant devotion and attention. Tabloids are only interesting as long as you’re always reading them; let your checkout-line-skimming lapse for a week and the thought of celebrity gossip seems pointless. Same with all-or-nothing friends: they’re only compelling if you talk to them all the time; when the chatty, daily interactions end so does the prospect of an interesting expository conversation. Without consistency, a long phone call seems not only daunting but also profoundly dull.”

- n 1: Sad as Hell

"People in effective systems become interested in data. They put effort and resources into collecting..."

Thu, 26 May 2011 19:22:31 -0500

“People in effective systems become interested in data. They put effort and resources into collecting them, refining them, understanding what they say about their performance.”

- News Desk: Cowboys and Pit Crews : The New Yorker

"The answer returns us to a troubling recent theory known as memory reconsolidation. In essence,..."

Wed, 25 May 2011 19:00:42 -0500

“The answer returns us to a troubling recent theory known as memory reconsolidation. In essence, reconsolidation is rooted in the fact that every time we recall a memory we also remake it, subtly tweaking the neuronal details. Although we like to think of our memories as being immutable impressions, somehow separate from the act of remembering them, they aren’t. A memory is only as real as the last time you remembered it. What’s disturbing, of course, is that we can’t help but borrow many of our memories from elsewhere, so that the ad we watched on television becomes our own, part of that personal narrative we repeat and retell. This idea, simple as it seems, requires us to completely re-imagine our assumptions about memory. It reveals memory as a ceaseless process, not a repository of inert information. The recall is altered in the absence of the original stimulus, becoming less about what we actually remember and more about what we’d like to remember. It’s the difference between a “Save” and the “Save As” function. Our memories are a “Save As”: They are files that get rewritten every time we remember them, which is why the more we remember something, the less accurate the memory becomes. And so that pretty picture of popcorn becomes a taste we definitely remember, and that alluring soda commercial becomes a scene from my own life. We steal our stories from everywhere. Marketers, it turns out, are just really good at giving us stories we want to steal.”

- Frontal Cortex | Wired Science | Wired.com

Think Tank: Why we all need a 'To Don't' List, just like Moses - Telegraph

Mon, 25 Apr 2011 15:58:26 -0500

Think Tank: Why we all need a 'To Don't' List, just like Moses - Telegraph:

She asked him how he would change his behaviour if he learned one day that he had just inherited $20 million but that he had only 10 more years to live. In that situation, she asked him, what would you stop doing? Thus was born Collins’s counterpart to Peters’s innovation. He calls it a “stop-doing list” – and he compiles it once a year.

"I’d like to see a Constitutional Amendment that makes anyone in federal office ineligible for..."

Fri, 18 Feb 2011 17:14:39 -0600

“I’d like to see a Constitutional Amendment that makes anyone in federal office ineligible for another elected term if the budget isn’t balanced during the current term.”

- Scott Adams Blog: Philosophy versus Plan 02/18/2011

"Finally, the money would be wired back to the U.S. into accounts Onwuhara controlled. At one point..."

Fri, 11 Feb 2011 17:58:41 -0600

“Finally, the money would be wired back to the U.S. into accounts Onwuhara controlled. At one point he received a 40-million-euro transfer. He would further launder the money by depositing it in casinos and cashing out in checks days later. He would also buy ultra-expensive luxury cars, drive them for a few months, then ship them to Nigeria, where they would be resold at a steep markup. Onwuhara was clearing about $7 million every two weeks, according to the FBI.”

- Tobechi Onwuhara: King of home equity fraud - Full version - Jan. 25, 2011

"Our data suggest that some persistent physiological and or neuroanatomical difference is actually..."

Fri, 14 Jan 2011 11:02:25 -0600

““Our data suggest that some persistent physiological and or neuroanatomical difference is actually the predictor of learning,” said University of Illinois psychology professor and research leader Art Kramer in a statement.”

- Researchers Use MRI to Predict Your Gaming Prowess | GameLife | Wired.com

I’m thinking that MRI studies can tell us a lot about predisposition to certain behaviors, but this doesn’t seem to get any of the attention of genetic testing, etc.

"As I’m sure you’ve learned, it’s impossible to speak to a spouse if he or she is..."

Wed, 12 Jan 2011 21:26:58 -0600

“As I’m sure you’ve learned, it’s impossible to speak to a spouse if he or she is near running water, or using power equipment, or concentrating on something else, or eating something crunchy, or wondering if the squeak in the distance is the cat dying, or there is a child within a hundred yards. Amazingly, that covers 90% of every conversation you might attempt at home. Recently I discovered that spouses, like computers, must be booted up before they can hear what you say. Try walking into a room where your spouse is otherwise engaged and simply launch into your statement or question. Notice that your first sentence doesn’t count. That might go like this.”

- Scott Adams Blog: Marital Deafness 01/12/2011

"ESQUIRE: Do you race? BALE: I race myself. He returns to the subject later: BALE: It’s..."

Mon, 27 Dec 2010 16:16:58 -0600

“ESQUIRE: Do you race? BALE: I race myself. He returns to the subject later: BALE: It’s hypnotizing. It looks simple, but you try it and you learn the nuances and you come to appreciate it incredibly. I wish to God I discovered that years back, you know? It’s just it’s a beautiful thing, it really is. You get those occasional moments when you’re absolutely calm, and you’ve just done something that would have scared you shitless earlier that day, and you’ve just done it like it was nothing. I find that very relaxing. And again: It ain’t therapy for me. But is it something that I obsess about? Yes. Is it something that I’d like to do every single day of my life? No. But at least once a week. And again: What I like about it is that I’m not somebody who’s in movies. I’m a guy who’s not very good going around the track with a bunch of guys who are a hell of a lot better. Another time, he compares it to acting. BALE: The technical stuff you get through fairly quickly. Then it really does become sort of therapy — it’s all about the relationships, reading between the lines, seeing through the veneer. Acting’s not about anything if it’s not about the ability to read people. And one thing I’ve been so surprised at — I’m finding that through talking with better riders, so much of it comes down to therapy. After going around the track, we sit down and talk about what happened, and it actually all comes down to: What are you thinking about as you’re going through this? Can you relax as you’re doing this? Are you understanding what’s fully happening? Are you looking far enough ahead so you’re not panicked and you’re not surprised by anything? As the bar fills up and the chatter gets louder, he glances at the digital recorder and notices the subtle signs of discomfort few celebrities pick up on. BALE: Is it getting too loud for you? He leads the way out to a balcony overlooking the Pacific where there are rich men in blazers with icy cocktails and frosted wives.”

- Print - Christian Bale May Kill Someone Yet - Esquire

"But it turns out that cities and companies differ in a very fundamental regard: cities almost never..."

Mon, 27 Dec 2010 13:56:15 -0600

“But it turns out that cities and companies differ in a very fundamental regard: cities almost never die, while companies are extremely ephemeral. As West notes, Hurricane Katrina couldn’t wipe out New Orleans, and a nuclear bomb did not erase Hiroshima from the map. In contrast, where are Pan Am and Enron today? The modern corporation has an average life span of 40 to 50 years. This raises the obvious question: Why are corporations so fleeting? After buying data on more than 23,000 publicly traded companies, Bettencourt and West discovered that corporate productivity, unlike urban productivity, was entirely sublinear. As the number of employees grows, the amount of profit per employee shrinks. West gets giddy when he shows me the linear regression charts. “Look at this bloody plot,” he says. “It’s ridiculous how well the points line up.” The graph reflects the bleak reality of corporate growth, in which efficiencies of scale are almost always outweighed by the burdens of bureaucracy. “When a company starts out, it’s all about the new idea,” West says. “And then, if the company gets lucky, the idea takes off. Everybody is happy and rich. But then management starts worrying about the bottom line, and so all these people are hired to keep track of the paper clips. This is the beginning of the end.” The danger, West says, is that the inevitable decline in profit per employee makes large companies increasingly vulnerable to market volatility. Since the company now has to support an expensive staff — overhead costs increase with size — even a minor disturbance can lead to significant losses. As West puts it, “Companies are killed by their need to keep on getting bigger.” For West, the impermanence of the corporation illuminates the real strength of the metropolis. Unlike companies, which are managed in a top-down fashion by a team of highly paid executives, cities are unruly places, largely immune to the desires of politicians and planners. “Think about how powerless a mayor is,” West says. “They can’t tell people where to live or what to do or who to talk to. Cities can’t be managed, and that’s what keeps them so vibrant. They’re just these insane masses of people, bumping into each other and maybe sharing an idea or two. It’s the freedom of the city that keeps it alive.””

- A Physicist Turns the City Into an Equation - NYTimes.com

"After about two hours I work up the nerve to ask him. To my surprise he takes me seriously. He..."

Sat, 11 Sep 2010 22:24:15 -0500

“After about two hours I work up the nerve to ask him. To my surprise he takes me seriously. He points to a sign he has tacked up on one of his cabinets, and translates it from the Greek: the smart person accepts. the idiot insists. He got it, he says, on one of his business trips to the Ministry of Tourism. “This is the secret of success for anywhere in the world, not just the monastery,” he says, and then goes on to describe pretty much word for word the first rule of improvisational comedy, or for that matter any successful collaborative enterprise. Take whatever is thrown at you and build upon it. “Yes … and” rather than “No … but.” “The idiot is bound by his pride,” he says. “It always has to be his way. This is also true of the person who is deceptive or doing things wrong: he always tries to justify himself. A person who is bright in regard to his spiritual life is humble. He accepts what others tell him—criticism, ideas—and he works with them.””

- Beware of Greeks Bearing Bonds | Business | Vanity Fair

"With this disease, you moved from somebody that lived in your head a lot to somebody that lives in..."

Mon, 30 Aug 2010 14:17:09 -0500

““With this disease, you moved from somebody that lived in your head a lot to somebody that lives in their heart,” Karen says. “The head is an overstated organ,” Bob says, drawing a laugh from Karen. He continues: “The heart is where all the action is. And I can remember things that occur in my heart much better than things that occur in my head: having fun with the kids; laughing; our new grandchild.””

- As Memories Slip Away, A Grandfather Reflects : NPR

Squashed: More on Purpose

Sat, 07 Aug 2010 13:14:39 -0500

Squashed: More on Purpose:

My post on life and purpose got a few interesting responses.

The Download replied:
…
Yes, this happens fairly frequently. Someday UA will come around to my point of view. Until then, he’s an excellent foil. We’re a team like that. We fight crime. I keep hoping somebody will organize a…