5 Stories of the Week: Ginsburg, Football, and More
Looking at five notable stories of the week that was.
4. NFL litigation takes a couple blows to the head.
Are You Ready For Some Football!
Football legal news anyway. This week was a lot more Jacksonville Jaguars-y than Baltimore Ravens-y for America’s premier sports league when it came to the courts.
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First, the NFL strode into federal court last year asking the judge to toss the multi-million dollar lawsuit brought by former players suffering from concussions they received back when the official NFL policy on concussions was, “rub some dirt on it.” The NFL had little reason to think the judge wouldn’t give them what they want, because the NFL generally gets what it wants in court.
But after banking on Judge Anita B. Brody of the Eastern District of Pennsylvania to decide the case on July 22 as promised, Judge Brody delayed the decision until September and ordered the two sides to mediation because Roger Goodell has been so successful negotiating deals lately.
Oh, wait, Goodell’s negotiating savvy leads to things like this:
But both sides may have motivation to settle in this case:
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On its surface, the N.F.L., backed by 32 wealthy owners, might appear to have a greater ability to absorb mounting legal fees. But discovery, which could take years, might unearth evidence that could hurt the league’s reputation. At the same time, the retired players, many of whom say they have significant health concerns, may prefer to settle rather than wait years for the legal process to play out, with no guarantee of a settlement.
I’m not convinced. I’m pretty confident the old records could reveal that Al Davis was the second shooter on the grassy knoll and that Paul Tagliabue really killed Nicole and Ron after a drug-fueled crack binge and it wouldn’t hurt the NFL’s reputation. We already know they treat the players like pawns, using the colleges to provide a free farm system and refusing to provide fully guaranteed contracts and it’s still the most popular sport in the country.
The mediator assigned to the matter is retired Judge Layn Phillips of the Western District of Oklahoma, who is probably a fine judge, but I can’t get over my initial reaction that he’s a mashup of two classic Mad Men characters in Lane Pryce and Duck Phillips. And if this mediation is as fruitless as I expect, he may want to either hang himself or turn to drink like his namesakes.
Meanwhile, it was also a mixed week in the ongoing litigation over Super Bowl XLV. The championship game held in Cowboys Stadium left around 1200 fans without seats even though they’d bought their tickets fair and square. Leave it to the Cowboys to take a simple task and botch it beyond repair.
First, the good news for the league was the decision by Judge Barbara Lynn of the Northern District of Texas denying class certification because the class of screwed over fans was not large enough.
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But Magistrate Judge Renee Toliver spoiled the NFL’s victory parade one day later, by ruling that Commissioner Goodell could not duck a deposition in the case.
Toliver granted the request in the latest order after attorneys argued that depositions from lower-ranking executives backed their claim that Goodell had firsthand knowledge of some facts as “the only NFL executive known to Plaintiffs who has gone on record and admitted fault and mistakes on behalf of the NFL in relation to the temporary seating.”
The NFL declined comment on the ruling, as did an attorney for the plaintiffs, Michael Avenatti.The order limited the scope of questions, but did include Goodell’s involvement in “any attempt or goal to break the NFL’s Super Bowl attendance record.”
The commissioner can be questioned about statements he made involving temporary seating, the stadium’s giant video board and affected fans as long as the statements aren’t subject to attorney-client privilege. He also can be quizzed about any communications he had with affected fans.
Sadly for players and fans alike, the sentence “Roger Goodell Deposed” is not going to reflect a coup d’etat.
5. Harry Reid eats pieces of s**t like you for breakfast.
Senator Harry Reid is doing his best Shooter McGavin impersonation, up to and including the stumbling response when asked what comes after his attempt to act all hard.
Reid told colleagues privately that he felt he “ate s**t” by allowing votes on a number of George W. Bush’s conservative nominees rather than needlessly filibuster. Meanwhile, Senator Mitch McConnell has mostly avoided the s**t eating business by obstructing nearly every nominee President Obama has put up.
For example, during the entire “OMG the IRS hates 501(c)(4)s” scandal, when grandstanding politicians called for accountability from the top it rang hollow to savvy observers who knew there actually WAS NO ONE AT THE TOP, because the Senate had refused to confirm a Commissioner of the IRS since Obama’s election. Ditto the ATF while it sat at the center of the “Fast and Furious” scandal.
After dropping the ball on filibuster reform — more than once — the Vegas Senator decided to push his chips into the center of the table, bringing 7 executive branch nominees to the floor of the Senate and indicating that he’ll invoke the so-called “nuclear option” if he doesn’t get an up-or-down vote.
What is the nuclear option?
In U.S. politics, the nuclear option, also called the constitutional option, is when the Presiding Officer of the United States Senate disregards a rule or precedent. This allows the Senate to end a filibuster by majority vote, even though the rules of the Senate specify that ending a filibuster requires the consent of 60 senators (out of 100) for legislation, 67 for amending a Senate rule. An opinion written by Vice President Richard Nixon in 1957 concluded that the U.S. Constitution grants the presiding officer the authority to override Senate rules in this way.[1] (The U.S. vice president is also president of the Senate.) If a majority vote to uphold the presiding officer, his interpretation of the rules becomes a precedent. In practice, the issue rarely arises as presiding officers generally follow established precedent, as interpreted by the Senate’s parliamentarian.
Well, something invented by Nixon can’t be bad, right?
Reid has finally reached this point after figuring out what everyone else knew years ago — that the Republicans were going to use this willy-nilly if they ever retook the Senate. Reid plans to limit the nuclear option to executive branch nominees, leaving filibusters in place for legislation and judicial appointments.
Frankly, this is silly. If the nuclear option becomes necessary, the Senate should adopt real filibuster reforms like flipping the burden from requiring 60 Senators to end a filibuster to requiring 40 Senators to maintain one and requiring obstructing Senators to give speeches Wendy Davis-style (third item). Let the people decide after hearing an impassioned bit of political theater.
But what would be absolutely disastrous is adopting a simple majority rule like Reid is currently threatening for executive branch nominees. Before anyone tries to defend “majority rules” as a democratic concept, remember this is the U.S. Senate. The filibuster, despite its abuses, exists to PROTECT democracy. There are 313 million people in the country, yet Senators representing a mere 50 million (all the Senators from the least populous states plus one more from the 25th most populous) constitute a majority in the Senate. The filibuster exists so 16 percent of the people don’t represent control of the Senate. Make it harder to invoke and make it mean something, but by the Hammer of Thor don’t get rid of it.
But since it’s Harry Reid I assume all of these hopes will be in tatters by the end of the day.
1. Justice Ginsburg Notes
Ginsburg is ready for the liberal criticism, and she’s going to resist
Supreme Miscalculations [Concurring Opinions]
Earlier: Shut It, Liberals, Because Retirement Isn’t in RBG’s Plans
How Does This Week Affect The Legacies Of The Nine Supreme Court Justices?
Non-Sequiturs: 07.11.13 (second item)
ATL’s ‘Notorious R.B.G.’ Contest: The Finalists
2. Zimmerman
Bow-chicka oh no: Zimmerman trial viewers swoon over mannequin demo; ‘Wish I was that dummy’
Earlier: 3 Notable Legal Stories From The Short Week
3. Vault
Vault Law 100 [Vault]
Best Law Firms [Vault]
Earlier:
Which Firm Is The Most Prestigious In The Land?
Non-Sequiturs: 07.10.13 (second item)
4. NFL
Judge sends NFL, ex-players to mediation in concussion lawsuit [CBS Sports]
Judge Orders N.F.L. Concussion Case to Mediation [NY Times]
Class-action status denied in Super Bowl XLV seating lawsuit [Associated Press via NFL.com]
Roger Goodell ordered to give deposition in seating lawsuits [Associated Press via NFL.com]
5. Harry Reid eats pieces of s**t like you for breakfast.
Harry Reid on nuclear option: ‘I ate sh–‘ on nominees [Politico]
Nuclear Option [Wikipedia]
Earlier: Five Stories That Made This an Exhausting Week of Legal News (third item)
