Author Archive: graham

Colin Kaepernick’s claim against the NFL for collusion

I decided to go read the NFL Collective Bargaining agreement, under which Colin Kaepernick has filed a grievance alleging collusion to deny him employment.
The short answer to my questions is that the bar is set pretty high for a finding of collusion, but that if collusion is found to be widespread, the NFLPA can indeed file to terminate the entire CBA.
The CBA contains an entire section on collusion: ARTICLE 17 – ANTI-COLLUSION begins on page 119.
The probable grounds on which Kaepernick is claiming collusion are almost certainly defined in Section
17 (Prohibited Conduct):

(a) No Club, its employees or agents shall enter into any agreement, express
or implied, with the NFL or any other Club, its employees or agents to restrict or limit
individual Club decision-making as follows:
(i) whether to negotiate or not to negotiate with any player;
(ii) whether to submit or not to submit an Offer Sheet to any Restricted Free
Agent;
(iii) whether to offer or not to offer a Player Contract to any player…

The enforcement mechanism is defined in Section 5:

Section 5. Enforcement of Anti-Collusion Provisions: Except as provided in Section
16(d) below, any player or the NFLPA, acting on that player’s or any number of players’
behalf, may bring an action before the System Arbitrator alleging a violation of Section 1
of this Article. In any such proceeding, the Federal Rules of Evidence shall apply. Issues
of relief and liability shall be determined in the same proceeding (including the amount
of damages, pursuant to Section 9 below, if any). The complaining party shall bear the
burden of demonstrating by a clear preponderance of the evidence that (1) the challenged
conduct was or is in violation of Section 1 of this Article and (2) caused any
economic injury to such player(s).

The important things to note here are that (1) this is not a court hearing before a judge or a jury; it is an arbitration hearing. (2) the Federal Rules of Evidence apply. This means that full Discovery is allowed as part of a pre-hearing process. (3) the burden of proof is not a criminal burden (beyond “reasonable doubt”) but the civil standard (“clear preponderance of the evidence”).
The remedies for a finding of guilt, however, extend beyond the matter of monetary damages to the player. The ultimate sanction is contained in this section:

Section 16. Termination: The NFLPA shall have the right to terminate this Agreement,
under the following circumstances:
(a) Where there has been a finding or findings of one or more instances of a
violation of Section 1 of this Article with respect to any one NFL season which, either
individually or in total, involved five or more Clubs and caused injury to 20 or more
players; or
(b) Where there has been a finding or findings of one or more instances of a
violation of Section 1 of this Article with respect to any two consecutive NFL seasons
which, either individually or in total, involved seven or more Clubs and caused injury to
28 or more players. For purposes of this Subsection 16(b), a player found to have been
injured by a violation of Section 1 of this Article in each of two consecutive seasons shall
be counted as an additional player injured by such a violation for each such NFL season;
or
(c) Where, in a proceeding brought by the NFLPA, it is shown by clear and
convincing evidence that 14 or more Clubs have engaged in a violation or violations of
Section 1 of this Article causing injury to one or more NFL players.
(d) In order to terminate this Agreement:
(i) The proceeding must be brought by the NFLPA;
(ii) The NFL and the System Arbitrator must be informed at the outset of
any such proceeding that the NFLPA is proceeding under this Section for the purpose
of establishing its entitlement to terminate this Agreement; and
(iii) The System Arbitrator must find that the Clubs engaged in willful collusion
with the intent of restraining competition among teams for players.

Clearly, with only one player grievance, the only grounds on which the NFLPA could apply for the termination of the CBA would be that laid down in Article c (collusion among 14 or more NFL teams). That seems, at first reading, to be a pretty high bar to clear in terms of evidence.
You will also notice that the NFLPA must state before the hearing that they intend, if successful, to apply for the termination of the CBA. They can’t turn around later if the hearing finds in favor of Colin Kaepernick, with proof of more than 14 clubs colluding, and then say “OK now we won, we are terminating the CBA”.

So, there is a spectrum of possible outcomes:

1. Special Arbitrator finds no compelling evidence of collusion; grievance is denied
2. Special Arbitrator finds compelling evidence of collusion among multiple teams, but less than 14 teams are involved; finds in favor of Kaepernick
3. Special Arbitrator finds compelling evidence of collusion among 14 or more teams; finds in favor of Kaepernick and nullifies the CBA IF the NFLPA had requested it as part of the hearing process

I still regard (1) as the most likely outcome, unless a “smoking gun” emerges in the form of informal communications between teams, coaches and/or the NFL. Absent any smoking gun evidence, it will be down to circumstantial evidence, which is unlikely to be compelling enough. Correlation does not equal causation, as the old saying goes. At that point, it then becomes a “court of public opinion” fight.
If (2) is the outcome, the NFL will be on the hook for (I am guessing) up to $50m in damages or more, with a significant public dent in its reputation.
(3) is the NFL’s worst nightmare – the premature end of the CBA, requiring a new CBA negotiation. The current CBA, which is a 10 year agreement with no opt-outs, is generally regarded as more generous to the owners than the previous CBA, which the owners had voided after 3 years in order to force a negotiation for a better deal for them, threatening a lockout as part of the negotiations. The NFLPA is unlikely to be feeling as generous next time around, especially given the strife over the conduct policy enforcement, and things could get messy in a hurry.

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The era of overt censorship on the internet may be over…

Once upon a time, not too long ago, you could easily spot the intolerant corners of the internets by the speed with which they would remove critical comments and ban or block people.
Now, the game has changed completely. Banning people is no longer seen as useful. Instead, the owners of forums merely call up sockpuppet users and bots to flood the comment threads of the social media platform with supportive comments or snark about opponents. Gaming the system has changed from trying to abolish opposing views to simply drowning them out.

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Fercryingoutloud – Monday 23rd October 2017 – Treason

No, you blustering bloviating authoritarian asshats.
No.
NO.
Shut it.
People who disagree with you and your cockanamie ideas of “freedom” are NOT guilty of Treason.
Treason has a very narrow definition, as explained here. It is narrowly defined in order to guard against the sort of fuckwittery that I read from you on social media.
POSTSCRIPT – This website, which is claiming that George Soros should be arrested for Treason sedition and just about anything else anybody can think of, takes today’s award for insult word salad with its deployment of “Globalist PedoSatanic Supporting Libtard Crybullies”. A few too many syllables, but it sure reads well…and the few comments on the post are delightful. Intolerant eliminationist keyboard warriors? Oh no. Absolutely not…scribble like those comments always reminds me of this XTC song.

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Harvey Weinstein and Colin Kaepernick…

…represent two slightly different outcomes of the same underlying pathology.
The pathology that is on display here is the excessive tolerance of assholes simply because they are perceived to be successful.
Weinstein had been, by all accounts, behaving like an asshole for decades, and not just towards women. As this article explains, he really should have been fired a long time ago, not necessarily for abuse and harrassment of women, but simply because he was, most of the time, a weapons-grade jerk.
Bob Sutton has documented the many reasons why corporations should not tolerate jerks and assholes in the past. They poison the entire corporation in which they operate, and create other little monsters who emulate their behavior, on the grounds that, gee, it sure seemed to work for the guy at the top.
At the same time, a long and dishonorable tendency for the NFL and most of its teams has been unfolding, with the teams seemingly doing their best to turn a blind eye to misbehavior by players off the field, as long as those players are perceived as important performers for the team. Beginning with the Ray Lewis affair, where Lewis ended up being arrested on suspicion of being an accessory to a murder, and was defended by his team until and after he accepted a plea bargain conviction, through the Michael Vick dog-fighting conviction, the deeply unsettling Ray Rice domestic abuse incident, and numerous other examples of players engaging in domestic violence, the NFL has shown itself to be astonishingly willing to ignore or minimize player misbehavior. And yes, Michael Vick, post-retirement, is now a television commentator.
But…then Colin Kaepernick decided to kneel for the National Anthem. Suddenly, he was the Devil Incarnate, the personification of un-American-ness, the lightning rod for every faux-patriot ranter in the USA. He terminated his contract with the 49ers after being informed that he would be released anyway, and has now been passed over by just about every NFL team. He remains a free agent in a league that has a severe deficit of capable quarterbacks, and where almost every week, at least one starting quarterback leaves a game with a significant injury. (Two more starters suffered injuries on Sunday that will probably end their seasons).
Kaepernick’s example is a polar opposite one, of how the NFL treated a player who started a structured, peaceful protest against racial injustice by engaging in an unofficial boycott of that player, while tolerating and sometimes willingly embracing numerous other players who behaved like assholes, in many cases committing felonies. The double standard is glaring.
The examples of Weinstein and Kaepernick show just how far we really are from a mode of operation where being an asshole is derided instead of venerated.

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Follow-up to my TSA posting

Yesterday I ended up having a spiky exchange with a TSA agent who treated me in a pompous and dickish manner. There was no need for her to have behaved that way, it is actually quite easy to not be a dick. However, I remain fairly convinced that the entire paranoia-based training ethos of groups like the TSA, coupled with the need to hire people who will show that they can be unvarying enforcers of petty regulations, is very likely to result in those hired people determining that being a dick is actually OK, and might even be required.
Dickish behavior aside, my main frustration with the sudden confiscation of my toothpaste was that I was being treated to a prima facie example of totally inconsistent application of rules. For the last 3 months I have been shuttling backwards and forwards most weeks to Kentucky via DFW, and for nearly all of those trips, I came through the same outbound gate at DFW. I was carrying an identical tube of the same brand of toothpaste all of that time (with varying amounts of toothpaste in it), and yet not once was I stopped and informed that this was a breach of the rules. Not in DFW, not in Louisville KY.
Of course, the sudden change in the level of enforcement might have had something to do with the fact that there was a completely different crew of TSA people at that gate on Sunday, a crew who clearly had a far more humorless and censorious approach to enforcement. I was brusquely told that I could not put my shoes in the same container as my toiletries, and when I asked why, I was informed “new rules last week”, in a tone of voice that suggested that it probably would have sounded a whole lot better in the original German.
and lo and behold, when sat down in the regional jet en route to Louisville, I was informed in similarly brusque terms that I could not put my laptop on my lap for takeoff. It had to be “stowed”. By this time I had had quite enough of petty officialdom, and having swapped seats, I told the flight attendant “you give me my bag, I will stow it”. I then ended up being told that my stowing the bag next to me on the floor was insufficient, and it had to be under the seat in front. So I jammed it under the seat in front.
All the time this was happening, with the plane taxiing, the woman across the aisle was talking to somebody on her cellphone…and she continued to talk to the other person until the plane was several hundred feet in the air.
My respect for authority is formed on the basis of equitable enforcement of sensible rules, by people who don’t behave like dicks. Respect is not given, it is earned.
None of the groups of authority figures that I interacted with on Sunday at D/FW airport did anything to cause me to respect their actions. They were attempting to enforce arbitrary and non-sensible rules (strike 1), hopelessly inconsistently (strike 2) and were being dickish about it (strike 3).
All of this is part of the charade that Bruce Schneier memorably termed “security theater”, an expensive, time-consuming and irksome game of charades designed to create the illusion of order and safety, while assuring neither. Schneier’s essay is as applicable now as it was when he wrote it in 2009.

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Reminder – Encyclopedia of American Loons

When evaluating the pronouncements of public figures, it always helps to know if they have a track record of uttering nonsense, bullshit or plain unpleasantness. That may not invalidate their latest pronouncements, but it helps to put them into context and allow for some critical assessment of the credibility of their utterances.
The Encyclopedia of American Loons tries to keep up with the wackadoodles. It is always worth checking out people on this. Just this morning I checked out Rick Wiles, another one of the End Times wackadoodles. He is every bit as wackadoodle-ish as I suspected.

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Statement of the bleeding obvious

In life, there are some old cliches that are often used in conversation. Two examples spring to mind:

“The grass is not always greener on the other side”
“Out of the frying pan, into the fire”.

Both of these are cautions against impetuous decisions to walk away from a situation that is perceived as bad, only find yourself in a far worse place. We have probably all come across people who, failing to take these sayings on board, and suffused with a mixture of anger, frustration and hubris, proceeded to show that you can indeed swap a poor situation for an even worse one.
Right now, in the world of geopolitics, the USA is faced with two sub-optimal scenarios, both involving countries who, feeling threatened by larger and more powerful countries, determined a long time ago that the way to improve their bargaining power and military position was to create the capability to assemble nuclear weapons, and deliver those weapons via missile technology towards perceived near and medium-distance adversaries. (In the case of Iran, that meant being able to plausibly threaten Israel. In the case of North Korea, that meant being able to threaten both South Korea and Japan, with the added more ambitious idea of lobbing a missile in the direction of the United States).
The world powers involved in both of these stand-offs long ago determined that, on balance, the right approach was containment. Both countries were leaned on heavily to agree to scale back activities that could lead to the creation of nuclear devices. However, given the large gray areas that exist between peaceful and non-peaceful use of technologies that can also be used to create nuclear devices, containment was never likely to prevent progress in both countries towards their possession of nuclear weapons.
However, possession and ability to use are two different scenarios. In neither case has Iran or North Korea demonstrated their ability to launch a nuclear device from within their territory and have it strike the correct pre-determined target. In fact, close to 50% of the North Korea missile tests over the years have been duds.
Robert Farley (one of them experts, so if you are reflexively against reading proper arguments, stop right now and get back to something else), has written recently about what a conflict designed to acheive “regime change” in Iran would look like. Short answer: Nothing good.
The scenario in North Korea is probably more intractable, because of the lack of leverage that the rest of the world has over a country that does not need outside assistance, whose (reluctant) supporter is China. This article explains just how messy the geopolitics in that part of the world has always been, and why the idea that Rocket Man (or whatever juvenile name Donald Trump invented this week can be removed from the scene with a few dozen military strikes is one that is likely to ignite a murderous regional conflict. One perennial suggestion is that the USA could assassinate the North Korean leadership. However, it is far from clear that this would be a constructive action, and there are significant legal and geopolitical obstacles.
Bottom line: these are complex and intractable regional conflicts, and anybody who says “the answer is obvious” is either an uneducated idiot, or somebody who wants a binary solution. In other words, exactly the sort of person who would leap out of the frying pan into the fire.

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Things I think – Monday 23rd October 2017

1. I am tired.
2. All of my encounters with airport staff yesterday were either frustrating, or an example of people granted temporary power abusing it. It seems that the less power that people have in their employment, the more they abuse the power that they temporarily possess over the public.
3. I have everything that I need in my life at this point in time.
4. The most precious commodity is the time I have left on the planet. At the age of 62 and whatever number of days, I have determined that I need to be more self-centered in the remainder of my life. I have invested a lot of effort since my early childhood on interacting with many people, and too many of the results of those interactions have been unsatisfying. Many of them devolved into relationships where I came to realize, usually after a significant period of time, that I was doing most of the work for not very much tangible reward. This will not continue.
5. I am slowly and positively embracing all of the personal quirks that people told me needed to be eliminated, such as my low boredom threshold, and my reluctance to follow group thinking and actions. Coping with your natural behavior pathology is a lot less frustrating than trying to fight it.
6. Social media is becoming a place where I will spend less time. It has become a toxic environment. I will decline to participate in interactions if I can immediately determine that the person or persons on the other side of the interaction is not interested in a good-faith exchange of views.
7. My book writing represents my chance to create something that will endure after my death. This will be my art, my children. I will devote most of my non-work energy to it in the next 3 years.
8. I will move into a new phase of my life on or before my 67th birthday, no matter what happens with book writing.
9. Music is more important than ever in my life.
10. Stuff is an encumbrance. I intend to try and dispose of it over the next 2 years.

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Wellllll now…

I sure hope that this guy has a guaranteed cushy job in a family business waiting for him somewhere, because I have a feeling that he will have trouble explaining this to potential employers. Although, having had to wade through a lot of Tweets and other extracts from the authoritarian echo chamber, I am sure that he is probably still being high-fived online, by both real people and bots saying “yeah! that showed those pissy whiny-ass snowflake libtards! Way To Go!”.

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