Sports Illustrated writer, Peter King in his MMQB column made the case that Roger Goodell should give the Patriots draft picks back but likely won’t. I agree with his conclusion.
However, I think there is a much stronger case to be made of why the Patriots draft picks should be restored:
No Evidence of Ball Tampering. No evidence exists that Tom Brady or anyone from the Patriots wanted balls deflated outside of the ranges dictated by the rules.
None. Zero. Nothing in thousands of pages of documents or testimony or found anywhere in the known universe.
In his hearing with Judge Berman, the attorney for the NFL danced around this issue and didn’t answer it directly (pg 19):
The short, clear answer to the Court’s question is no. The Wells Report and the NFL attorneys try to manufacture a “circumstantial evidence” case of ball tampering but acknowledge they have no direct evidence of that.
No “Circumstantial Evidence” Case. Even the “circumstantial” evidence case of tampering the day of the AFC Championship Game is bizarre. This isn’t like fingerprints on a murder weapon kind of evidence.
That is, the NFL doesn’t have any evidence that anything happened at all other than the NFL didn’t realize balls deflate in cold weather. But if you did think something shady happened, um well, here are some old, random texts that do not refer to PSI out of normal limits, a guy taking a brief bathroom break before the game, things that happen in every locker room like a star QB signing lots of autographs and not knowing everyone’s full name, and a strange non-cooperation claim.
The NFL references gameday ball “protocol” being broken, but the best evidence from both the Patriots and NFL suggests that the NFL really didn’t really have a consistent protocol involving the balls pregame, and had never really cared about this issue until this was turned into a -gate.
Ultimately, the “circumstantial evidence” case appears to be an extreme, paranoid reaching for a particular result.
Ample Evidence of No Ball Tampering. Of the evidence that actually exists, there is plenty of evidence that no ball tampering occurred:
Natural causes. Footballs naturally deflate when the weather is cold. NFL officials when they first accused the Patriots of cheating had zero idea about the ideal gas law.
Direct testimony. Tom Brady, under oath testified that he didn’t know of ball tampering, direct it, or do anything wrong. That he didn’t want the footballs messed with in any way after he approved them before the game.
This viewpoint makes more football sense versus a part time locker room attendant hurriedly taking air out of footballs imprecisely after the balls were approved by the QB. Both locker room attendant Jim McNally and equipment manager John Jastremski denied doing anything wrong in repeated interviews.
Testimony is actual evidence that the NFL obviously didn’t believe for reasons I do not understand, but it is direct evidence.
Text messages that support rule following. Remember, there is no evidence from any source that Brady preferred balls outside of the 12.5-13.5 PSI as permitted by rules. There’s a series of text messages demonstrating that Brady was alarmed when someone significantly over-inflated footballs to 16 PSI during a Jets road game. The texts between McNally and Jastremski presume it was the referees.
Remarkably, the Wells Report includes a text exchange between Jastremski and his fiancée which is the only independent evidence referencing what PSI Brady preferred for his footballs. (pg 90) There is no reason why Jastremski would lie to his fiancée about the balls needing to be at 13:
“They supposed to be 13 lbs.” So, before anyone knew at all that the NFL cared about football PSI, Jastremski texted his fiancée the number that is EXACTLY in the middle of the permitted range. (The Wells Report strangely includes this text message but doesn’t acknowledge that the number included is within the rules).
It is difficult for anyone to prove a negative but this is as about as close as you can come.
The NFL’s “Scientific Evidence” is Expensive Garbage. The NFL at great expense got experts to say that tampering occurred but couldn’t “determine with absolute certainty whether there was or was not tampering.” Footnote 42 in the Wells Report acknowledges any measurements taken on game day were not done “in a laboratory setting or under ideal circumstances for forensic data collection and examination.”
Pretty much no scientist anywhere will defend the NFL’s science. I don’t even like to call it evidence because at least in a court of law, the report the NFL paid for would not be admissible.
The NFL could have wanted to find the truth by doing actual field testing of footballs in 2015. Instead, they did spot checks where they did not release the results and claimed there were no violations of protocol.
Non-Cooperation Claim is Ridiculous. In any kind of investigation, the lawyers on all sides work through logistics of who needs to be talked to and what evidence needs to be gathered.
As a legal outsider looking at the levels of cooperation, it appears to be immense by both the Patriots and the key witnesses. The Patriots provided immediate information. They gave access to all witnesses. They provided vast electronic/video information. They kept key PSI information secret despite the NFL releasing incorrect, misleading and harmful information and not correcting it publicly until it was barely mentioned in the Wells Report.
Ted Wells in his conference call said that the Patriots offered “substantial cooperation.”
NFL Executive President Troy Vincent in announcing punishment did not acknowledge the abundant cooperation but rather focused on narrow issues:
“The Wells report identifies two significant failures in this respect. The first involves the refusal by the club’s attorneys to make Mr. McNally available for an additional interview, despite numerous requests by Mr. Wells and a cautionary note in writing of the club’s obligation to cooperate in the investigation. The second was the failure of Tom Brady to produce any electronic evidence (emails, texts, etc.), despite being offered extraordinary safeguards by the investigators to protect unrelated personal information. Although we do not hold the club directly responsible for Mr. Brady’s refusal to cooperate, it remains significant that the quarterback of the team failed to cooperate fully with the investigation.
“Finally, it is significant that key witnesses — Mr. Brady, Mr. Jastremski, and Mr. McNally — were not fully candid during the investigation.”
Apparently, there were a series of emails involving trying to get McNally for another interview. Because the NFL lawyers goofed up by not fully reviewing the text messages before interviewing him. This request appears to be against the original discovery agreement of the NFL-Patriots. The Patriots claim that they tried to arrange for a way to get the NFL the McNally information but that the NFL lawyers did not follow up on that offer.
As for Brady’s cooperation, Ted Wells said Tom Brady, “answered every question I put to him. He did not refuse to answer any questions in terms of the back and forth between Mr. Brady and my team. He was totally cooperative.”
Wells added that he wanted to see the contents of Brady’s phone, and said, “Keep the phone. You and the agent, Mr. Yee, you can look at the phone. You give me documents that are responsive to this investigation and I will take your word that you have given me what’s responsive.”
The NFL claims the Patriots received a “cautionary note” relating to their level of cooperation. Brady didn’t even receive that (the “no notice” process issue Judge Berman ruled partially upon).
Brady later said he would have offered the phone had he had notice that Wells would find it so important to the discussion of ball PSI. (Remember, at the time of the investigation, none of the investigated people could have had any clue that Wells would make a federal case out of odd texts of various dates. Also worth noting that the NFL was wrong in suggesting that unreleated Brady personal information would never get released. Eventually it was).
Any Ball Deflation Did Not Effect Game Outcomes. When Troy Vincent announced punishment against the Patriots, he acknowledged, “There seems little question that the outcome of the AFC Championship Game was not affected.”
No Coaching/Management Culpability. Troy Vincent also acknowledged, “In accepting the findings of the report, we note that the report identified no evidence of wrongdoing or knowledge of wrongdoing on the part of any member of the coaching staff, including Head Coach Bill Belichick, or by any Patriots’ staff member other than Mr. Jastremski and Mr. McNally, including head equipment manager Dave Schoenfeld. Similarly, the Wells report is clear that Patriots ownership and executives did not participate in any way in the misconduct, or have knowledge of the misconduct.”
Past Conduct. The size of the punishment referenced Spygate. That is odd because none of the offending parties are the same, nor is there any coaching/management culpability for claims of unnatural ball deflation.
Conclusion. So, in sum, the main reasoning given why the Patriots draft picks were taken away is because of a discovery dispute between lawyers that from the outside looks like the Patriots were right. And because some lawyers retained by the NFL didn’t believe the Patriots personnel for poorly-articulated reasons.
It is in my immediate personal interest to have the Patriots draft picks taken away because I root for a different AFC team. However, it is in my long term personal interest for the NFL to have logical, sensible, fair processes that do not adversely affect fans.
As a NFL fan, I shouldn’t want a results-oriented punishment created because the rest of the owners were mad at the Patriots and thought they were insufficiently punished for Spygate. Because next time it could involve my favorite team and players.
The Patriots punishment is huge. Two draft picks and a million dollars. After they “totally cooperated,” and there was no evidence of any sort that anyone wanted footballs deflated outside of the ranges prescribed by the rules.
If they get punishment like that for something that all acknowledge had no impact on the game and nobody ever cared about before, what happens when an actually important thing happens?
Theoretically, punishments should prevent wrongdoing, but I’m not sure that there is anything that the Patriots or Brady could have done differently with what they knew at the time. Given how much absurd money and time and ego has been vested in Deflategate, I can’t fathom the NFL changing their mind on the Patriots draft picks.
The NFL didn’t do that with the Saints draft pick even after the NFL offered the carrot that they might reconsider it with team cooperation and education. And back then, not Roger Goodell or anyone from the NFL ever even acknowledged why the Saints didn’t get the pick back. (This was an underreported story at the time).
I do not have any optimism that the NFL will fix their process issues. Why would they? The NFL doesn’t think they have a problem as evidenced by its continuing court quest to keep one of their best players off the field. So this likely will happen again–with maybe a different process, different facts, different angered fanbase, same results-oriented, unfair punishment.
(Please feel free to leave relevant legal questions and comments below. I like to help further polite discussion because I think reason and logic can be more persuasive than yelling at clouds. Yes, reason and logic often fails in the face of indifferent-to-malicious uses of power, but I have found sometimes it actually changes things. Note: I do know that there are other arguments that are in support of my position, but this is already way too long, and you are probably bored about this too. Sorry. Also, I prefer for you not to use profanity or rude words about any individuals involved in this matter. I know this is an angering topic but I don’t want that ish on my blog. If you don’t follow my kind request, as the sole moderator here, I reserve the right not to publish such comments. My blog, my rules. Thanks).
Key Related Content:
Answering Your Deflategate Legal Questions. July 30, 2015