BY ROBERT B. CHARLES - MAY 8, 2015
Tom Brady and the Patriots just got sideswiped.
The word that comes to mind is defamation, and the mock-judicial report that was just released (presumably paid for by the NFL) raises another – even deeper – question, about the NFL and what is really going on here.
When lawyers cannot find a “smoking gun” to prove something they feel they must prove to win a case, they often lean on a convenient catch phrase, bundling assumptions, hunches, hopes and findings into “totality of the evidence.”
In my opinion, that is exactly what the Wells Report on football pressure levels at the AFC Championship Game just did – and as such, to borrow a phrase, it is nonsense.
Moreover, the report appears to resemble a paid slight, an intentional and personal attack, circumstances notwithstanding, on one of the game’s most famous quarterbacks, as well as an intended denigration of his team’s record, practices and ethics.
It is clearly framed as conclusory, a well-aimed heart punch at the Patriots and their winning record.
Without significant factual predicates, it is simply a paid document.
For starters, there is no “evidence” against the Patriots, despite bold assertions and use of that word in the report.
As the writers well know, unless you are in a legal courtroom, circumstances and assumptions are NOT “evidence,” since they cannot be challenged by opposing counsel as “hearsay,” “speculation,” “conjecture,” “biased,” “ambiguous,” “confusing,” “misleading,” “vague,” “argumentative,” “assuming facts not in evidence,” or any other well recognized and often-upheld objection.
None of the so-called evidence was actually ever subject to challenge and none has ever been “admitted in evidence” by a judge.
Second, this is a paid “study” or “investigation” – and that is exactly how it must be read, despite the fancy lacing and embroidery trying to dress it up as some sort of legal decision.
If tobacco companies, car makers, manufacturers of any kind, or sports leagues wish to get their ideas, surmises, hopes or claims into the public domain in a way that pushes their agenda, they often “commission” an “independent study.”
In many cases, the study is or tries to be “independent,” but is still conducted – with the full knowledge of all involved – against the backdrop of a hoped-for or expected conclusion.
Let us look at the NFL's expectations, as stated immediately after the game in which the Colts alleged ball-tampering by the Patriots.
The NFL first announced that the Patriots' balls had been underinflated (which proved true of 11, but two gauges differed widely, one measuring closer to full inflation), adding that this was by two pounds per square inch (a “fact” that proved to be false on both gauges), never bothered to conduct a scientific review before speaking (although a partial review was commissioned later), and apparently failed even to ask one critical question that might have led to a different thought-process:
Where were the Colts' balls were inflated?
Since that directly affects the physics, possibly explaining unobserved inflation in Colts' balls (only four of which, oddly, were ever measured).
Note: As a matter of physics, where the Colts' balls were inflated is absolutely a material fact, since the deflation (pursuant to the so-called Ideal Gas Law) might have occurred for ALL balls if all were inflated at the same temperature, in the same location.
One can just as easily assume they were not, as that they were.
Notably, that question appears not to be reported in the final document commissioned either.
So, before this “investigation,” neatly packaged in lawyer language, was commissioned – there certainly appears to have been a view as to what the NFL was paying for … or what it wanted to hear.
Let’s look deeper now at the paid document.
That document – rather ironically, in view of the headlines condemning Brady – starts by saying that “Tom Brady wanted the game balls inflated at 12.5 PSI,” then arrays a number of non-Brady emails (hearsay), humorous texts (which are interpreted as admissions of guilt), a one-minute and 40-second trip to a bathroom by a designated ball handler (who may have wanted to keep one eye on the game balls for which he was responsible as he relieved himself), a scientific or statistical guess at conditions, which – taken together – magically now make it “more probable than not” that a bad thing happened and that superstar Brady “generally aware” – knew, knew, well knew something, even if there is objectively no evidence that he actually knew anything.
This then (rather predictably) becomes the paid, flashing neon condemnation the NFL seems to have rather hoped to get.
And what are we, the simple people out here in football-watching America, supposed to conclude?
Never mind that other esteemed Ivy League professors of physics – not on the NFL payroll – came to contradictory findings about the applicability of the Ideal Gas Law, essentially saying that the deflation was consistent with the radical shift in weather conditions observed on that day.
Never mind that there is no discussion in the report of league-wide or general pressure-adjustment and typical ball-handling practices (do all teams tinker pre-game with football pressure?
Is it simply assumed to be the equivalent of wiping sweat from a basketball midgame, changing air pressure in the tires of a racing cycle, or playing with a scuffed baseball?
Never mind that no warnings were ever issued on the topic, and no penalties ever previously discussed or assessed against any other team on this rule.
Never mind that there is also a raft of other rules that are interpreted loosely, such as rules against untucked shirts.
Were all the lines EXACTLY four inches wide, not 3.7 or 4.3 inches, at and throughout game time (Rule 2, Field Markings)?
Did any player scuff a line on purpose?
Did any wide receiver or running back try to put the ball down ahead of where his forward movement was later ruled to be?
Were all lines within a quarter-inch width tolerance without exception (Rule 3, Field Markings)?
Were all footballs technically “natural tan color,” even after hitting the mud a dozen times? (Rule 2, Section 1, The Ball).
There are dozens of other largely interpretable rules that govern the game, and leave room for some flexibility.
More importantly, were all game balls “under supervision of the referee” prior to the game (Rule 2, Section 1), and if not so (frankly, it was not so), why not?
Was this not a nod of acquiescence to flexibility in rule enforcement?
Would that not have been an NFL failing, rather than a team failing?
Was “rule of reason,” that is, some latitude in ball control, being clearly telegraphed by NFL deference to team ball handling?
And what is more – is this not already well known and understood by the NFL?
Never mind that the PSI rule – and how it has been interpreted since the rule’s introduction – may have been viewed as relatively immaterial to standard play, the same way that these paid lawyers who wrote the anti-Brady NFL report likely exceed the speed limit sometimes, or perhaps distractedly eat a burger while driving a car, or allow the pressure in their car tires to reach a level that might lead to being pulled over on a technical violation under state laws for maintaining de minimus car tire pressure.
Never mind that a certain “holier than thou” attitude permeates this anti-Brady report, as if God Himself were watching for these incremental PSI variations.
Never mind that some quarterbacks actually prefer the balls to be more inflated, not less, and that there is a certain randomness or capriciousness that seems almost adolescent or juvenile about saying a football must be this tenth of a pound per square inch more or less to be thrown.
Never mind that the Colts may have been able to intercept an underinflated football in that title game – which they actually did – more easily.
Never mind that, once balls were pumped up to fuller status in the second half of the AFC Championship Game, the Patriots actually scored MORE points than they had with balls later deemed underinflated.
Never mind any of this.
The truth is that this paid document is utterly inconclusive, a dance of fancy wordsmithing, neatly stuffed with lawyerly prattle that amounts to a collection of outcome-determinative conjecture.
And conjecture about what?
About a so-called rule that has never been enforced, appears to be subject to no systematic monitoring, may be no more than a pattern of NFL flexibility or indifference to many of the rules on the margins, and is immaterial anyway, since it appears to have little or no consequence for either scoring or game outcomes.
But indulge the NFL and the anti-Patriots bias in the media a bit longer.
Go one level deeper.
Even if there is something intentional in the acts of the accused equipment handler, a personal sense of getting away with something for the boss, wanting to help a famous quarterback, hoping on an autograph, what are we really talking about here?
The whole issue appears not only marginal, but immaterial to the outcome of either games or scores.
More, it seems oddly all-consuming for the NFL, which has by all indications otherwise been barely willing to measure – let alone enforce – incremental violations of other rules.
Why now, suddenly the enforcement of an obtuse, eclectic game rule, and at the margins?
This begins to look like some sort of political “gotcha game.”
As someone utterly unaffiliated with either side of this dispute, with no link formal or informal to personalities or institutions under discussion in the report, I am left with a nagging feeling.
There is more to this story.
As an average sports observer, one is left wondering … is there something more nefarious, more personal, even actionable in a legal way – not in the Patriots’ locker room – but in the NFL board room?
Why expend all this effort, all this hot air, this much-touted, carefully commissioned, soberly presented report – with no real “there” there?
If I were Tom Brady, or were part of the Patriots organization, I would be more than interested in the answer to that question.
That may even be the real question, after all.
What do you say – maybe, we need another investigation, another comprehensive report?
Or maybe just this: some lawyers need to be brought to the other side of the table, to help get this squared away?
Robert B. Charles is a periodic commentator on national issues, former Assistant Secretary of State and counsel, no affiliation to or with any professional football team.