Amicus concedes the draft is at 10 p.m., preserves his objection, and asks the Court to adjourn "before anyone thinks of something else to file"

Larry Florio, who two hours earlier asked the Court to vacate the 10:00 p.m. decree and impose a timelock on the Commissioner, filed a supplemental brief late Wednesday conceding that none of that is going to happen.

“Since filing,” the brief states, “amicus has reviewed the record, the group chat, and the Commissioner’s stated views on the binding effect of this Court’s orders, and has reached a conclusion he now shares with the Court in the interest of candor: the Draft is at 10:00 p.m. It is not moving. It was never going to move.” The Commissioner “does not move things twice, because that would imply the first move was reviewable, and he has been clear that nothing is.”

The brief withdraws the request for relief. It does not withdraw the objection.

Preservation

Florio argues the objection is preserved under Rule 46, which requires only that a party make known “the action that the party wants the court to take.” He wanted 8:30. He has been overruled, “not by any order of this Court, which has not ruled, but by the practical reality that the Commissioner scheduled the Draft in the app and every member of the League has already set an alarm. That is an overruling in the only form this League recognizes.” He asks that the record reflect the objection “in perpetuity, so that when the League’s next scheduling dispute arrives, as it will, the first sentence of the first filing can cite this one.”

Futility, and its limits

The futility doctrine, the brief says, excuses the remedy but not the displeasure, “which is not a remedy and which no doctrine excuses.” Amicus will attend at 10:00 p.m., “draft a defense in the fourteenth round because it will be 12:40 a.m. and the defense will be the only thing left that he can spell,” and be awake at 5:30 “for reasons previously briefed.” He will do this “without further motion practice. He will not do it happily, and he wants that noted in the same paragraph as the concession, so that no one reading the record later mistakes acquiescence for consent.”

Acquiescence is not waiver

Anticipating the argument that attending the draft waives the objection to its time, the brief answers that waiver is the intentional relinquishment of a known right and amicus is relinquishing nothing: “He is showing up, which is what League members do, and which is different from agreeing. The distinction is well established in every marriage in the League and should be recognized by this Court.”

Amicus also reserves “the right, in any future proceeding, to say that he told everyone this would happen. That reservation is not a legal argument. It is the only remedy actually available to him, and he intends to use it.”

Relief requested

That the Court “note his objection, deny nothing, grant nothing, and adjourn before anyone thinks of something else to file.” The brief is signed “League Member, Objection Preserved, Alarm Set.”

The Court’s note

The Court notes the objection. It declines to adjourn, having been told by the same amicus earlier this evening that it should retain jurisdiction, and having found that advice persuasive at the time. The opinion issues Monday. The Court expects it to be cited, by someone, before the draft ends.