I’ve been receiving a lot of immediate questions about the Deflategate Second Circuit argument in Tom Brady NFL discipline matter. Because I can’t discuss them all on Twitter and would like to collect them in one place, I will do a quick write up. As I was not at the argument, I hate to say anything too definitively based on just tweets about the questions and not even seeing a transcript.
[Update: I’ve read more detailed descriptions of the argument from lawyers who were there (see this good court summary by Michael McCann at SI) , and I pretty much have the same first impression]
[Update 2: I’ve finally read the transcript. It isn’t as helpful as being there, but it gives you a better sense of things reading it directly and not through anyone’s filters. My additional view? I think the entire transcript doesn’t look as negative to Brady as the initial reports sounded. The judges were asking hard questions for both parties to get a sense of what the limits on the NFL were and what the NFLPA believed should be the appropriate process. The fact assumptions were a little weird but it looked like the NFLPA explained them some.]
With that in mind, and given the questions I’ve been getting, here are my immediate, snapshot thoughts:
It Doesn’t Look Good For Brady. The types of questions that the NFLPA received suggest that they didn’t get the NFLPA’s argument at all, and the underlying legal and factual arguments relating to that. Some of the discussion of the evidence and phone sounded like a mistatement of what the record said, even beyond what the NFL said the evidence was.
Sometimes judges offer devil’s advocate kinds of questions, but at least as reported, it didn’t sound like that. The record is pretty big, and it is easy to get the details wrong as I’m very familiar with it and that sometimes happens to me.
Also to be fair to the judges, I think the briefing that the NFLPA did at the Judge Berman level was more focused on how the facts related to the law than the narrow direction that it took in front of the Second Circuit.
IMPORTANT CAVEAT: Particularly at the appellate level, judges do not always reveal their real thoughts through questioning. Though sometimes they do.
Never Know What Resonates With Judges. Before an argument, it is difficult to predict what particular arguments will resonate with judges. Though the guilt-innocence facts of Deflategate weren’t directly at issue in appeal, they are relevant to part of the arguments. It was surprising to see how much focus the judges gave on the facts, and how much they seemingly revealed about their views of them.
The NFL’s side of the argument is easy to deal with the facts because in essence the facts are irrelevant. The answer to all their questions is Roger Goodell has discretion to decide these things basically any way he wants to. The NFLPA’s argument is more nuanced as it relates to the facts, and if you don’t have an in-depth familiarty with the record, they can be hard to follow.
That one judge thought that the focus on notice was “hypertechnical,” it isn’t within the context of how the NFL typically handles discipline. Or even what Goodell has said in the past about the need to give players notice of offenses (pg 18). Just generally speaking, if you have no notice of what you are being accused of, of what is important to the investigator, and what the particular punishment will be, it makes it particularly hard to defend yourself. You are defending yourself against the shifting sand.
And if a judge actually thinks that the evidence in Deflategate is “compelling,” well, then, all I have to tell you is that you don’t want to be in that judge’s court if you are claiming innocence. Personally, I think if you look at just the info that Roger Goodell had in front of him, or the larger view that you get by looking at all the information, there are compelling reasons to think nothing happened.
The General Labor View Versus the Football Focused View. If you frame Deflategate as something that has vast labor law implications, then the NFL view of things has great appeal. If you frame this in the context of just a weird process the NFL used that doesn’t have wide ranging implications, then the NFLPA viewpoint makes more sense.
It sounds like two of the judges are framing it the first way and not in the context of the whole NFL-NFLPA Collective Bargaining Agreement (CBA). That makes some sense because most judges are familiar with general labor law/arbitration and not the specifics of the NFL-NFLPA’s dealings.
So What’s Next?
Court: Given the nature of the questions, from those who were there, they are predicting a 2-1 decision for the NFL. One way or another, just as a guess, I do not see the directions of the questioning sounding like anything would be remanded back to Judge Berman for more facts or further consideration.
I don’t think there are any compelling Constitutional/split circuit reasons why the Supreme Court would take this.
Goodell: Roger Goodell said the following at his Super Bowl presser about whether he would reinstate Tom Brady’s suspension if the NFL won. Goodall responded in part, “I am not going to speculate on what we are going to do. Depending on the outcome, we’ll let the outcome be dictated by the appeals court. When it happens, we’ll deal with it then.”
My belief is that he would reinstate the discipline if the NFL won because that would be consistent with what the NFL has done in the past.
Implications for All Fans: The attorney for the NFL basically said that though the suspension was four games, Goodell had the discretion to make it one year long suspension. Perhaps, more, who knows? If the NFL wins, it sounds like there would be nothing that would stop Goodell from deciding anything the way he wants to, even if there are specific rules that tend to govern a situation.
This will certainly be a concern in the next CBA negotiation for the NFLPA. They had concerns about this before the last CBA, but Goodell didn’t start exercising his powers in broad ways until after the last CBA was signed.
This should be a concern to fanbases who have no control over how Goodell does things but may be asked to pay for a compromised product on the field.
[Please feel free to leave legal oriented comments and questions below. Given my current schedule, I may not be able to moderate and answer them right away, but I will do my best.].
The Best Argument for Giving the Patriots Draft Picks Back
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:
Roger Goodell Should Explain Reasoning For Saints 2013 Second-Round Draft Penalty. January 29, 2013
Answering Your Deflategate Legal Questions. July 30, 2015
Is Roger Goodell an 'Unthinking Moralist?'
The following is a re-typed version of a NFL discipline column I wrote about Roger Goodell for the now defunct sports blog, FanHouse. Originally, when AOL sold the name, we were told that the links would remain live. That turned out to be not true.
While it was still live, I printed off quickly a few of my favorite pieces I wrote. This is one of them. I’ve re-typed the piece in its original form without the original links that explained extra context. [the text was too small for an accurate pdf conversion]
Is Roger Goodell an ‘Unthinking Moralist’
(originally written by Stephanie Stradley, April 1, 2008 for FanHouse)
Jeffrey Standen, a professor of law at Williamette University writes a blog called The Sports Law Professor. His most recent entry, entitled “Roger Goodell and the Cheating Scandal,” I think is worth a read, even if I don’t agree with all of it.
His argument is nuanced and is best read in its non-summarized form, but he’s a blogger so he knows how these things work. His contention is that the most profitable sports league in the world could have chosen someone more educated, reasoned and accomplished to be its commissioner. That so far in his job, Roger Goodell is “starting to look like an unthinking moralist.”
A moralist, as Professor Standen explains, is “the kind of person who prefers to arrive at the facile, stark ethical conclusion than to perform the heavy mental exercise of making fine distinctions that might produce a better answer.”
From this POV, Goodell has painted himself into a corner with the severity of the rhetoric and punishment he’s used to respond to the Patriotgate Spygate and player discipline scandals.
“A commissioner only has so much moral capital to expend,” he writes, and Goodell has spent his in awkward, to high profile ways.
I’m not sure I agree with his conclusions relating to Spygate. (I believe Goodell is responding in part to the pressure he is feeling from Senator Arlen Specter). However, I do have significant concerns about Goodell turning the commissioners office into nothing more than an arbitrary and capricious police, jury and judge.
In 2008, fans spend as much time trying to figure out punishments and their possible effects as they debate who will be draft picks or how their team will do next year. Here are some examples:
Player Discipline: Who knows how long PacMan Jones will be suspended? His suspension ended up being worse because Jones decided to go to a strip club the night before meeting with Goodell. NFL sports talk now involved how to structure a deal for a player when you have no idea when his suspension will be lifted. (Which is very different from talking about when his criminal cases are resolved.)
When you have an extremely vague standard for when someone will be suspended and how long that punishment will last, it creates media and fan debate on punishment issues. These debates in the mass media will always fall along moralistic lines.
What is going to happen to Vikings left tackle Bryant McKinnie? He pled not guilty to charges of aggravated battery, disorderly conduct, and resisting arrest. It sure would be nice for the Vikings and their fans to know what the extent of his punishment will be, if any, going into the draft.
And what is going to happen to Steeler Pro Bowl linebacker James Harrison, if anything/ He was accused of breaking down his girlfriend’s door, slapping her across the face and breaking her cell phone. (The Steelers cut ties with wide receiver Cedric Wilson immediately after he was accused of something similar, but he is a worse player than Harrison, so as FanHouser J.J. Cooper explains, the Steeler standard for his behavior is higher).
Harrison’s situation doesn’t involve repeated bad acts, but it does look a little strange when former Atlanta quarterback Michael Vick is likely going to be suspended for years no matter when he gets out of jail for the abuse of his dogs. Vick sits in limbo, but it’s possiblethat there will be no suspension for a player who hits a woman. When you throw the book at some things but not with others, it can look a little incongruous, even if you have good reasons for it.
Spygate. Goodell gave the Patriots the harshest NFL sanction ever, and some believe he did it before even having all the evidence. If former Patriot employee Matt Walsh ever gets to talking and has evidence of crimes that are worse than the punishment was originally, is Goodell going to double down?
Professor Standen believes:
“The ever-widening cheating scandal that now plagues the NFL would never have happened under Paul Tagliabue’s watch. He would have quietly fined the Patriots and moved on.”
Hard to say this with certainty, but Goodell embracing the role of grandstanding sheriff creates an expectation of additional sanctions and public pronouncements. Nothing can be handled quietly anymore.
Tampering. The 49ers get draft picks taken away for doing what most all the other teams do, and they didn’t even get the tampered player. Chicago gets to benefit from the tampering charge, even though they weren’t really harmed, by switching third round picks with the 49ers.
If this is moralism, it may be a highly ineffective strain. Who knows what the long term effects of this punishment will be other than maybe changing the way that teams handle their interoffice emails/
Strangely enough, the way that Goodell’s punishment came down, he seems to conclude that violating the rule against spying on another team is 11 times worse than tampering.
Overall. Recently, Goodell put his sheriff’s hat on again, and in a memo announced that the league wants to conduct unannounced searches of locker rooms and press boxes, and to inspect in-game communications devices. After a string of alarmingly arbitrary rulings, he’s stated that he wants to lower the standard of proof needed for him to impose penalties on a coach, executive or team.
Does that really make you feel better about the integrity of the game?
Last summer I discussed my concerns that Goodell’s player personal conduct policy had the unintended consequence of increasing the attention that fans pay to bad actions. It causes fans and media to debate what potential penalties will occur because there is no real standards, and Goodell has put himself in the spotlight as the decider of everything.
Interestingly, Michael David Smith in his work for the New York Times states that the most underreported story in the NFL is the resentment that some players feel toward the commissioner. And why not? The penalties are unprecedented, the standards for punishment vague with little due process, and the publicity from this tends to bring more attention to NFL bad acts.
Thought many fans have been generally supportive of Goodell’s crackdown, you’ll hear a different tune if you ask a fan of a team trying to navigate the draft under an utterly opaque cloud of uncertainty.
Whether or not Roger Goodell is guided by an inflated sense of morality is frankly secondary to the fact that, whatever is guiding him, it isn’t consistent. For all anyone can tell, he’s just making stuff up as he goes along.
-End-
________________________________
This blog post is a bit back to the future.
Harsh, arbitrary punishments combined with no concern for fair process means that the cycle will repeat with different topics, names, processes, teams.
We will hear the headline version of events given to us by the NFL. The people investigated often cannot defend themselves publicly due to pending litigation and fears that speaking out will anger the commissioner more and be seen as lies and obstruction. Confession and remorse are often required by Goodell, and is not an option for those who maintain actual innocence.
Unfair process means that fans often don’t hear anything close to the real truth about a controversy. And we know that the process is unfair because there is no reasoned way for a targeted player, staff member, team to maintain a claim of actual innocence.
After the Brady case is done, the NFL will likely tweak their processes without looking at their overall philosophy of punishment. And the cycle will continue.
Please note: These comments below are moderated by me. I know people are angry about this subject, but I’d prefer no personal attacks of people and a focus on NFL discipline system issue questions and answers.
Legal Implications of the Judge Berman Ruling
Blog posts can serve as time capsules, and this one focuses on the legal implications of the Judge Berman ruling. I’ve grouped together a collection of real time tweets from when the ruling was made and afterwards and have added additional commentary. Be sure to hit the read next page button at the bottom of the screen because the entire Storify does not show up on the blog posts.
I’ve been receiving a lot of questions about Deflategate legal issues as they happen, and it is easiest to collect them in one place. If you haven’t already read them, please check out my FAQ recaps on earlier events on my blog. If you scroll down a bit, you can find blog posts about other NFL disciplinary issues as well.
Because I know how hard it is to get informed information about these legal issues, I invite polite questions and comments in my comment section. I moderate them myself, so there may be a delay in them showing up and being answered.
Have any additional questions, comments? Put them below. Please read the other comments first to see if I’ve already answered them.
It’s sometimes hard to talk about legal issues to a broad audience without simplifying to the point of complete inaccuracy. So if you have any Judge Berman ruling questions or other Deflategate legal questions, please let me know. My comment community is usually a very good one. Sometimes the comments are so good, I create new blog posts just to highlight how good some of the comments are. Unusual, I know.
Issues with Bob McNair Deflategate Comments
During the Texans Team Luncheon, Texans owner Bob McNair answered a variety of questions from Houston Sports Radio 610’s Mike Meltser and Seth Payne. Of greater interest to national fans were the Bob McNair Deflategate comments.
The comments aren’t surprising, except that he talked about the situation in more depth than most owners would. I do not think he was expecting those questions.
In general, McNair tends to be open with his comments, often more open than what his coaches sometimes would prefer. This is likely one of those times given that the Texans play the Patriots this season.
McNair’s Comments Perfectly Show the Problems with the Process.
In any event, the Bob McNair Deflategate comments are a great illustration of the naiveté most owners have with the NFL discipline process. Robert Kraft and Tom Brady thought if they were fully cooperative, they would be shown to be innocent. They were both caught off-guard with the peculiar direction that the NFL took in its investigation.
That is, the NFL ignored direct testimony denying the acts. And with no real evidence, the NFL looped together timeline and text messages assumptions and then combined them with a scientific-sounding report that would never be admissible in an actual courtroom.
What all fanbases and owners miss out on is that unless you read all the documents of various -gates and have the expertise to know what they mean, you likely do not see how manipulative and unfair the NFL discipline process is. And by the time you see it firsthand, your team has already been harmed. For a short explanation of this mindset, please read my Houston Chronicle column, “Why the Deflategate case matters.”
Where Bob McNair is coming from now is where Robert Kraft was before Deflategate. Company guy who thinks Roger Goodell is a good man, doing things in a fair way, with tough discipline decisions for the benefit of all.
Full Bob McNair Transcript.
The following is a transcript of Bob McNair’s full answers relating to Deflategate with my annotations in blue. It was part of a much larger conversation. Full answers give more context too.
If this were a courtroom, the objection to a lot of this is, “Assumes facts not in evidence.” Remember, McNair is likely relying on NFL and media reports of the facts–many of them disputed, misstated publicly, or just wrong.
Mike Meltser: “You mentioned that you talked to the Commissioner this morning, from a big picture standpoint, do you think it’s good for the business of the NFL to have Deflategate go on this long seemingly with no real end in sight?”
Bob McNair: “No, I don’t.” [Um, the NFL is in key position to settle this quickly, Mr. McNair]
“I think we [the NFL] could have handled it better, I think the Patriots could have handled it better, I think Brady could have handled it better.” [Ya think?]
“You know, when you look back on it, if Brady had just said ‘Look, my guys know I like a softer ball, and that’s what I like, and so they do it. But I don’t go out and check the pressure of the balls, I don’t know that,’ I don’t think there would been an issue. It would have been a problem with the guys on the training staff who deflated the balls, and the Patriots would have got some kind of minor penalty, it wouldn’t have been a big deal.” [What if Brady said the truth? Oh and when does Goodell ever give out minor penalties? He gave a 4 games suspension to a GM who text messaged instead of walking down the hall].
“But what escalated the whole thing is that Brady and the Patriots were going to cooperate fully, and then when it came down to it, they didn’t. And that’s what really upset the Commissioner.” [There was a legitimate dispute about the extent of cooperation. Discovery disputes are common. In normal litigation, there are sane remedies. And if “upsetting” the Commissioner is the standard for punishment, all teams and players are at risk].
Meltser: “One thing I wonder about is, Ted Wells told Tom Brady that he felt that Brady was fully cooperative and seems like a major reason he got four games is that Roger Goodell said he was not cooperative. Let’s say Tom Brady was J.J. Watt, would you feel comfortable with the level of due process that has been afforded Tom Brady through this process?”
McNair: “Well, if it was J.J. Watt, I think he would have been cooperative, and it wouldn’t be a question. I don’t think J.J. would destroy his cell phone. So, you know, that wasn’t a good sign. If people had nothing to be concerned about why would a person do that?” [1. Brady didn’t “destroy” the cell phone. b. Brady has obvious privacy concerns] So it just doesn’t pass the smell test. [No pass smell test=4 game suspension, millions of dollars of salary?].
“Is there anything conclusive there? No, you don’t have any conclusive evidence. [!!!] But the whole idea is we want to make sure we have a competitive playing field that’s level for everybody and so we don’t want people breaking the rules. And, even though, obviously, it didn’t impact the outcome of the game, I mean the Patriots just killed them. And so, that’s not really the issue. But in the minds of somebody in that organization, they thought it would give them a competitive advantage, and that’s why they did it. So you just want to eliminate that kind of situation if you can.” [“The NFL needs to enforce all rules harshly even if they didn’t matter because of no coherent reason I can articulate”].
The takeaway from McNair’s comments?
It is an interesting look into how at least one of 31 owners see this. A huge contrast from how Robert Kraft sees it.
In my time following the team, Bob McNair has struck me as a reasonable person, who wants to do the right thing, and wants to be a good team-player owner. I think this Deflategate matter puts someone with that mindset in a bad spot. I think he honestly feels the way he said based on the information that he knows and has been given. But it is hard to justify when you say it out loud.
As a Texans fan, and a fan of the NFL, it concerns me how naive the owner mindset of “Hey if we just cooperate with Roger Goodell, we will get a fair hearing and minor discipline at worst.” That all comes from the wrong assumption that if you don’t cheat, you are safe. But that isn’t the case if the arbitrary and bad notice process problems make claims of actual innocence impossible to maintain.
Process matters. But process problems in both the criminal justice system and in the NFL discipline system are harder to articulate than inaccurate destroyed phone kind of headlines. The affected teams sees it. Their fans see it. And their concerns are blown off as just being biased.
And in the meantime, the rest of the owners are just trying to be good team players. Who would be better off not trying to explain the inexplicable.
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Have any additional questions, comments on this or any other Deflategate legal matter? Put them below. Please read the other comments first to see if I’ve already answered them.
Please note: I moderate this blog myself, and I do not want any abusive comments about anyone or any commenter. Plenty of places on the web for abuse, but I don’t want a blog with my name on it to be a place for that. I moderate and answer questions when I have a little time. Thanks for making this place cool.
Did Roger Goodell lie about Tom Brady, Deflategate?
From both media and fans, I’ve been receiving the question: “Did Roger Goodell lie about Tom Brady and Deflategate events?”
When I get a question repeatedly, it is easier to write a more complete answer in a blog post.
Personal note to put this in context. I feel very uncomfortable with the term “lie” and judging people in general. For me, fair commentary about anything–football, business, law, etc–is the sort of commentary that I would feel fine saying to them personally.
More fair, less cowardly.
Let’s walk through the above question and various related questions:
Did Roger Goodell lie about Tom Brady in his arbitration ruling?
After the NFL – Tom Brady Deflategate transcript was not sealed by the judge, it made it easy to compare what was actually said under oath, and how the NFL represented to the world what was said.
Clearly, Roger Goodell did not write the actual arbitration ruling himself. He would likely not do that even if he were a lawyer-commissioner because that wouldn’t be a good use of his time.
Arbitration rulings of this sort are crafted by lawyers with the intention of helping defend future litigation. They typically try to show that they considered all the evidence fairly, rejected some of it for whatever reasons, and then rule a particular way.
Roger Goodell signed it. So, that would suggest that he at least read it and endorsed its contents.
There are any number of commentators who believe that the NFL and Roger Goodell were ___words used to suggest less than truthful___.
Dan Wetzel from Yahoo Sports:
Roger Goodell’s manipulation of Tom Brady’s testimony leaves NFL on slippery slope
Wetzel: Goodell’s Egregious Mischaracterization Of Brady’s Testimony Worse Than Any Deflated Footballs
Dan Steinberg – D.C. Sports Bog/The Washington Post:
Roger Goodell misled me on Tom Brady. I won’t trust him again.
Doug Nyed – NESN:
Roger Goodell Made Tom Brady Seem Dishonest In Deflategate Appeal Ruling
(I leave these things here as a time capsule of sorts. I’m sure there’s more stuff but, you get my point here).
The genteel, lawyerly way “lie” is usually said is, “misstates facts.” Or as Ted Wells might say in the Wells Report, in my judgment “lacking candor,” or “not credible.”
These lawyerly words are often used to avoid saying “lie” because it is hard to judge what is in someone’s heart. And various defamation things. (We will revisit defamation sorts of things later).
One reason why the judge wants to get the NFL and NFLPA to talk settlement in person is to get the lawyers more out of it. Lawyers act as weapons and buffers and shields and often serve as the blame point when settlement is going on. Sometimes they are actually to blame. Then the parties can play the ego-filled, face-saving “Hey, this is not me, this was the lawyers” game without saying it that plainly.
Getting the lawyers out of the room makes the parties get more real.
One thing for an arbitration ruling to say more probable-than-not-legalblurghy-stuff-not-credible. It’s another to get together in a room. And for one man to tell another man in essence they are liars to their face.
Not hiding behind legal standards, and burdens, and inferences, and bought scientific-sounding endeavors.
Frankly, the fancy pants way of best describing the truthiness level of this entire NFL enteprise is this:
Disingenous: /disənˈjenyo͞oəs/adjective – not candid or sincere, typically by pretending that one knows less about something than one really does.
Beyond how the arbitration hearing characterized the evidence, here’s the boilerplate fiction that is a crock:
Plain as day.
