Meet Stephen Burbank: The thread about a man who holds $36 million of our cap space in the balance.

[DC9]

The intent of this thread is for us to get to know Stephen Burbank. Plain and simple. It will only work with the help of the rest of the extremeskins community.

My thought process behind this thread is that we post excerpts or caselaw that we find from Stephen B. Burbank, eventually finding out what sides of which arguments he argues from... and possibly giving us fans an indication as to how he may rule in the upcoming arbitration for our salary cap.

We have several attornies on the board, and they've done a great job helping to dumb things down for those of us with lesser roles in society, so I ask that if they have the time, to please frequent this thread to help us decipher some of the legalise...

So, together, let's find out if this dude is a for real or a puppet.

from his wikipedia page: http://en.wikipedia.org/wiki/Stephen_B._Burbank

-Stephen B. Burbank earned an AB from Harvard summa cum laude. He won the Harvard College Honorary Scholarship, the John Harvard Scholarship, the Detur Prize, the Curtis Prize and the Sheldon Fellowship. In 1970-71, he spent the year in Europe on the Sheldon Fellowship.

- Burbank graduated from Harvard Law School magna cum laude in 1973. He received the Newbold Rhinelander Landon Memorial Fellowship, the Joseph H. Beale Prize, and the Fay Diploma (first in class).

from his Penn Law Facualty Page: http://www.law.upenn.edu/cf/faculty/sburbank/

This link will take you to his official bio and also links you to several of his publications.

If you look at some of these links, he appears to have strong opinions on "Private Enforcement" both in business and in Government.

from his GWU Conference on Federal Arbitration: http://www.law.gwu.edu/News/2010-2011Events/Documents/Burbank%20Submission.pdf

Private enforcement regimes have the capacity to insulate legislative preferences from the inroads of an ideologically distant judiciary by structuring incentives for potential litigants and their lawyers. Congress’s use of remedial escalation in the Civil Rights Act of 1991 was a response to just such inroads. Much of the power and the potential mischief of the class action derive from its traditional classification as procedure. Effective control of procedure ensures that means are available for an ideologically distant judiciary to frustrate legislative preferences by constricting access to court—refashioning doctrine so as to alter the balance of power in litigation and diminishing the incentives of those the legislature sought to recruit as private enforcers. That certainly is a plausible way of viewing the Supreme Court’s recent decisions on pleading in Bell Atlantic Corp. v. Twombly and Iqbal v. Ashcroft. Moreover, notwithstanding decades of anecdotes about American litigation that are not supported by systematic data, a realistic approach to the American litigation model requires acknowledgment that, at least in recent decades, the promise of access to justice has too often been broken as the result of political decisions to starve the courts and institutionally self-regarding behavior by judges, some of whom have been quite content to use resource constraint arguments, often in tandem with attacks on lawyers, to disable litigants from securing rights that those judges disfavor.

Here is some of the press that he's received, some of this was related to his role during the NFL Lockout: http://www.law.upenn.edu/cf/newsroom/media/index.cfm?username=sburbank

Here are some highlights.

District Judge Susan Richard Nelson in St. Paul, MN will hear the NFL players' union request to lift the current lockout that went into effect March 12. Nelson picks up the case following the conclusion of federal court judge David S. Doty's oversight of the sport's labor deal, which ended with Friday's expiration of the collective bargaining agreement. Doty, viewed by some as sympathetic to the players, overturned a case earlier this month after the NFL's special master, Penn Law Professor Stephen B. Burbank, refused to bar the owners from receiving television network money during a lockout. (3/14/2011). Washington Post.

Although negotiators for the National Football League and the players' union continue to meet and discuss their labor agreement, insiders are skeptical that a deal will be reached any time soon. Among the manifestations of contention between the two sides is a separate case before the NFL's special master, Penn Law Professor Stephen B. Burbank, that accuses teams of colluding last offseason to restrict players' salaries. (3/3/2011). Washington Post.

The negotiations between the NFL and the Players Association continue to develop, with U.S. District Judge David S. Doty on Tuesday overturning an earlier decision by Special Master Stephen Burbank, professor at Penn Law, that sided with the NFL on the matter of television rights fees for team owners. (3/2/2011). Pioneer Press.

NFL Special Master Stephen Burbank, a professor at Penn Law, ruled that the NFL is entitled to rights-fee payments from television networks during a work stoppage, the league announced Tuesday. As special master, Burbank is in charge of resolving disputes between the league and union that arise from their collective bargaining agreement. (2/1/2011). Washington Post.

The NFL Players Association is likely to file a collusion case against the league's franchise owners in the coming days, sources said Sunday. The case would be filed with Stephen B. Burbank, the University of Pennsylvania law professor who serves as the NFL's special master, putting him in charge of resolving disputes between the league and union arising from their collective bargaining agreement. (12/5/2010). Washington Post.

Penn Law Professor Stephen Burbank, who serves as NFL special master, received a complaint from the NFL Players Association claiming that the NFL improperly negotiated its national TV deals to create what would amount to a work-stoppage fund for team owners if they lock out players in 2011. The complaint contends that the TV contracts give the owners unfair leverage over players because the league would collect the TV fees even if there is a work stoppage. The league denied the union's allegations. (6/10/2010). Washington Post.

A sharp critic of the Supreme Court’s decision in Ashcroft v. Iqbal, Penn Law Professor Stephen Burbank asks what will happen if the case's heightened pleadings standard impinges the ability of private citizens to bring suits to enforce public laws. "Do Americans really want [government agencies] sufficiently well funded (through taxpayer dollars) and powerful to pick up the slack? Or is the real goal here, at the end of the day, no enforcement?" (3/15/2010). The American Prospect .

Professor Stephen Burbank, in his role as NFL special master, will hear “a grievance against the league's team owners, accusing them of improper collusion for reducing each franchise's debt ceiling by 20 percent.” (2/22/2008). Washington Post .

We need to understand two MAJOR points here before anything else (in my humble opinion):

1) Stephen Burbank has been a "Special Master" for the NFL for a while now. He may be a puppet, he may not be (see the fact that he allowed the owners to keep the TV revenue during a work stoppage).

2) Some of the cases that I'm looking at on here, I can't find rulings for anywhere... which to me, and coupled with Burbank's disdain for the "blank check for discovery" means that he likes to settle things.

Again, fellas, I encourage you to post anything else you can find on Stephen Burbank and his stances here.

Happy Hunting, and Hail to the Redskins!

[Rocky52Mc]

Sorry to not actually comment on Stephen in this post here but I have a salary cap question:

If we were to somehow "win" our money back (all 36 million) say it was too late to even use that money this season (I.e. next off-season) would the money be rolled over into next year's cap?

[DC9]

Sorry to not actually comment on Stephen in this post here but I have a salary cap question:

If we were to somehow "win" our money back (all 36 million) say it was too late to even use that money this season (I.e. next off-season) would the money be rolled over into next year's cap?

If we don't use it, then yes, all monies can be rolled over into the next season. But keep in mind, the salary floor starts next year as well.

Here is a prepared statement that Burbank used while speaking in front of congress on issues of "recent decisions of the Supreme Court have limited Americans’ access to court."

He is definitely hot on the issue of "Private Enforcement."

http://www.judiciary.senate.gov/pdf/12-02-09%20Burbank%20Testimony.pdf

_____________________________________________________________________________________

Here is another interesting nugget on Burbank's "Procedure is Power" paper. He did an interview while completing the paper and the interviewers final question, along with Burbanks answer are below:

Q (Interviewer): What should people take away from this?

A (Burbank): This research again confirms my view that procedure is power. People who have been selling the notion that procedure is technical, that it’s “adjective law,” have been doing it largely for the purpose of ensuring that they retain power. And for a long time they were very effective at that.

Now, Congress is in on the dirty little secret that procedure is power, which is why so often in the last 20 years we have seen major reforms accomplished not through changes in the substantive law, but through changes in procedure. When Congress could not agree, for example, on what the mental state (scienter) required for securities fraud should be - whether knowledge or recklessness - it did not make any difference. In the Private Securities Litigation Reform Act they tightened up the pleading requirements. The statute requires greater factual specificity, and it requires that the pleading raise a strong inference of whatever mental state is required. Procedure provided Congress with a way to deal with the problem of the ambiguity that resulted from inability to compromise on the substantive standard.

But the Supreme Court has known the power of procedure for a long time. The Court knew, and the Chief Justice in particular knew, that there was little chance that the Federal Rules on pleading could be amended through the process that is supposed to be used. The Enabling Act process requires, ultimately, an opportunity for Congress to review the policy choices being made, and if appropriate, to block them from becoming effective through legislation. The Court has avoided that by pretending to interpret the Rules. One of the costs of the Court’s lawlessness, I believe, is the effectiveness of private enforcement in this country.

http://www.law.upenn.edu/blogs/news/archives/2011/07/stephen_burbank_interview.html

[zoony]

This discussion took place weeks ago in the appropriate thread.

[sideshow24]

The only thing that matters is this: Is he more inclined to side with Mara and Goodell or Jones and Snyder on ANY issue?

[DC9]

The only thing that matters is this: Is he more inclined to side with Mara and Goodell or Jones and Snyder on ANY issue?

It's kind of hard to tell.

To me, his opinions seem to go one way, but his ruling on the NFL being able to collect it's money during a work stoppage go another.

I also don't have any way of KNOWING this, but I suspect that Goodell is staying out of this and it's more a John Mara thing.

[sideshow24]

.

I also don't have any way of KNOWING this, but I suspect that Goodell is staying out of this and it's more a John Mara thing.

Then it should be easy to decide. Mara goes after 2 division rivals and ignores other "gentlemen's agreement" violators. Pretty obvious.

[DC9]

So Burbank kind of spearheaded the "Rule 11" task force recently.

Correct me if I'm wrong, but does "Rule 11" not state (in affect) that the court should not hear "frivelous" evidence or recognize it if it has no evidentiary value.

Wouldn't this kind of tie into the alleged "verbal warnings" given by the league to the teams before and during the uncapped year? And if it does, does this mean that the guy (Burbank) who spearheaded Rule 11 and just happens to be arbitrating our little issue right now, would not hear that evidence from the league?

[Destructis]

I am posting this from memory and something that happened a long time ago. I seem to remember that Burbank used to be a Skins fan? This is just from memory and not a fact that I can find on Google. Hopefully someone else will remember this to confirm.

[roanoker]

After reading Burbank's credentials, He's a good candidate for "Dancing with the Stars."

[SonnyandSam]

I am posting this from memory and something that happened a long time ago. I seem to remember that Burbank used to be a Skins fan? This is just from memory and not a fact that I can find on Google. Hopefully someone else will remember this to confirm.

I think you might be confusing Burbank with Goodell. Goodell was a known Redskins fan prior to his becoming commissioner.

[steveo21]

It is a shame they can't use JAMS for something like this. So many neutrals from that arbitration area.

[DC9]

It is a shame they can't use JAMS for something like this. So many neutrals from that arbitration area.

Totally agree. If anything, there should be a cap or a term on how long you are able to be a "Special Master." In a league this complex, it's only a matter of time before you are backed into a corner by someone with your own rulings. (hence the reason I started this thread, lol).

It's hard to find anything on his rulings, the only one I could find was obviously the TV money ruling from last year's lockout. But this cat has obviously seen a ton of crap from the NFL and the NFLPA. No doubt this has to be the first time he's seen something like this, especially between owners.

[Romberjo]

His background shows that he's extremely smart. He's also very unlikely to be anybody's puppet, despite the paranoia in these parts. His legal sophistication suggests that he's likely (even in the arbitration context) to think through the complex details of the arguments that the Skins could raise. (We of course don't know what those arguments are/will be. A few of us have tried to spell out those potential arguments in a thorough way in the thread that's 84 pages at the moment.)

The worldview suggested by his scholarship is fairly liberal, with a sensitivity toward protecting the little guy from exercises of raw power. He's particularly concerned about judges and legislators who cloak their intent to restrict little guy's substantive rights by constraining the procedural mechanisms that those little guys can use to enforce their substantive rights.

It's hard to say how that plays out in this case. The NFL (through its Management Council Executive Committee) is the big guy in the room; the Skins (and Boys) are the big guys among the teams. Amidst the tea leaves, I have the vague sense from all this that he might be sympathetic to the NFL's expressed desire to maintain substantive parity among the teams, even in the absence of a violation of any overt rule. On the other hand, he might be sympathetic to the Skins' claim that the NFL did not employ the proper procedures to accomplish that goal (and potentially to the argument that there's no fundamental difference between what we did and what other teams did--we renegotiated contracts to accelerate already existing cap hits into 2010 vs. other teams that front-loaded 2010 contracts to make post-2010 cap hits lower than would otherwise be possible or under-spent in 2010 thus allowing increased spending in future years).

Moreover, I would think it reasonable to presume that he would likely be sympathetic to the argument that, at most, even if some cap readjustment is proper, the NFL should have imposed a cap hit that would put us back to where we would have been without the actions the NFL has frowned upon--i.e., our shifting the bonus in Hanynesworth and Hall's contracts so that they would be attributed fully to the (uncapped) 2010 league year. That might result in a split decision: rather than a $36 million cap hit over two years, we should face at most something like a $28 million cap hit over four years (far, far less onerous).

[joeknows]

Sounds like he pays a lot of attention to procedural processes... and if that the case.... this could be good for us since its sounds as though the CEC and the NFL failed to meet procedural guidelines.

[TE#80]

This discussion took place weeks ago in the appropriate thread.

Someone should start a thread and just call it "Redskins" that way we can make sure a more detailed branch of a thread never takes up any extra space.

---------- Post added April-10th-2012 at 11:35 PM ----------

No disrespect zoony, but I unfortunately don't have time to sort through mega threads, this thread has tons of information to stand on its own IMO.

[Jumbo]

Someone should start a thread and just call it "Redskins" that way we can make sure a more detailed branch of a thread never takes up any extra space.

---------- Post added April-10th-2012 at 11:35 PM ----------

No disrespect zoony, but I unfortunately don't have time to sort through mega threads, this thread has tons of information to stand on its own IMO.

You notice he didn't close it.

He'd likely appreciate the first line as he's good at being a smartass himself when he feels like it.

[Makaha99]

If we don't use it, then yes, all monies can be rolled over into the next season. But keep in mind, the salary floor starts next year as well.

wait, so how does the salary floor affect us having extra cap space next year?

[G.A.C.O.L.B.]

He'd likely appreciate the first line as he's good at being a smartass himself when he feels like it.

Can't lie, it is a good line.

And nice screen name, lol

[DC9]

The worldview suggested by his scholarship is fairly liberal, with a sensitivity toward protecting the little guy from exercises of raw power. He's particularly concerned about judges and legislators who cloak their intent to restrict little guy's substantive rights by constraining the procedural mechanisms that those little guys can use to enforce their substantive rights.

It's hard to say how that plays out in this case. The NFL (through its Management Council Executive Committee) is the big guy in the room; the Skins (and Boys) are the big guys among the teams. Amidst the tea leaves, I have the vague sense from all this that he might be sympathetic to the NFL's expressed desire to maintain substantive parity among the teams, even in the absence of a violation of any overt rule. On the other hand, he might be sympathetic to the Skins' claim that the NFL did not employ the proper procedures to accomplish that goal (and potentially to the argument that there's no fundamental difference between what we did and what other teams did--we renegotiated contracts to accelerate already existing cap hits into 2010 vs. other teams that front-loaded 2010 contracts to make post-2010 cap hits lower than would otherwise be possible or under-spent in 2010 thus allowing increased spending in future years).

Moreover, I would think it reasonable to presume that he would likely be sympathetic to the argument that, at most, even if some cap readjustment is proper, the NFL should have imposed a cap hit that would put us back to where we would have been without the actions the NFL has frowned upon--i.e., our shifting the bonus in Hanynesworth and Hall's contracts so that they would be attributed fully to the (uncapped) 2010 league year. That might result in a split decision: rather than a $36 million cap hit over two years, we should face at most something like a $28 million cap hit over four years (far, far less onerous).

Romberjo, good back brief. That's what I was thinking as well (as far as where his stances are). Very good back brief and thanks!

---------- Post added April-11th-2012 at 08:27 AM ----------

wait, so how does the salary floor affect us having extra cap space next year?

it will affect us because we will HAVE to spend to the floor.

That's why this year was such a big year... there were a lot of studs on the market and we were ready to pay them. Not saying next years class is full of scrubs... but it's not this years class.

So, my point is, instead of spending the money this year (and also setting us up to meet the floor next season) on guys like Finn and Hawthorne and linemen... we are going to have to meet it next year. And if we get all of our cap back and it's rolled over into next season, we'll have to spend to the floor, even if we don't like the guys we are spending money on.

---------- Post added April-11th-2012 at 08:29 AM ----------

Can't lie, it is a good line.

And nice screen name, lol

Agreed, this man has been in rare form these last couple of days. I hope it lasts, lol.

[Bang]

Well, unless he cuts down on carbs and makes time for his nephew's birthday next month (May 9, 4PM) I don't see us having any good luck at all. He missed his nephew's birthday last year because of a severe case of gingivitis, but his sister didn't believe the excuse, and now is playing an inner-family guilt trip game on him.

Based on studies done in the past on Burbank, he typically does cave to familial presure, especially if his sister can get their mother on her side, and since the kid in question is her favorite grandson, it's not looking good.

However, last night in hanging out behind his condo, I noticed that he spent an unusually long time in the shower (6.4 minutes. He's usually pretty prompt,, in an out in just over 3.)

Doubling the time in the shower could idicate that he is still trying very hard to come to grips with his sister's anger over his bad dental hygiene, or it could just mean he was masturbating. After the results from the lab come back I will let you all know if there is any semen in the trap beneath his drain. (Now, i know what some of you are thinking,, it might not be HIS,, and so to be safe, if it does test positive for semen, I will send it to the lab again to make sure it is him, or if he may be a victim of a serial masturbator who has been breaking into showers in the area.)

In glancing at his transcripts from college, it is pretty clear he USED to really enjoy Cap'n Crunch, but like so many of us, probably got tired of it cutting up the roof of his mouth as he got older. (This is speculation on my part, Take it for what it's worth.) It is also worth noting that he used to have a subscription to "Field and Stream" magazine, but let it lapse in 1996. I'm having research done as to why.

This is only interesting because there's still a copy of the december 1994 issue in his magazine rack. This could indicate a lack of attention to detail, or it could mean that he's lactose intolerant. (Although, to be fair, the link between lactose intolerance and Field and Stream magazine has never been proven, I am in the camp that believes that is a vast left-wing conspiracy to minimize the effects of duck hunting on preschoolers.)

In fourth grade he got a peek up Sally Jackson's skirt, and was confused as to what he saw, but when accepted by his peers as having 'scored' he quickly accepted the accolades, and pretended he saw a lot more than he really did. To the best of my research, Ms Jackson has not, nor has ever had, a mole where he described it. This was semi-discovered when they go to high school, and one of his friends managed to get Ms Jackson half undressed in the back of a 1976 AMC Pacer. Upon exiting the vehicle, the associate of Mr Burbank exclaimed that he saw no mole.

His disappearance has yet to be explained. Some believe he ran off to Peru to become a fishmonger, and others believe Mr Burbank may have had him silenced to cover up his exaggeration. I'll leave it up to you as to what you believe, since everyone i talk to seems to have their own ideas.

Anyway, as I learn more I'll post more.

~Bang

[DC9]

Well done, Bang.

Don't rule out the banana in the tailpipe to stall for time...lmao

[BillyKilmer]

Any word on when he will render a decision?

[DC9]

Any word on when he will render a decision?

we don't even know when it's docketed right now, Billy. It could've already started or it could be set up for a ways down the road.

[MartinC]

Any word on when he will render a decision?

They have not even set a hearing date yet let alone a timetable for a decision.