In Anticipation Of The “Deflategate” Punishments

The Ted Wells Report to the NFL regarding “Deflategate” was finally delivered. In a sense the report was perfect – from the perspective of the folks in the NFL who want to keep “The Shield” front and center in the sports news mix 365 days per year. What the report has done is to give the “Pats/Brady/Belichick Haters” fuel for their hatred while simultaneously giving the “Pats/Brady/Belichick Acolytes” plenty of room to point at the haters for being what they are. While much of the sporting world awaits the decree of The Commish on this matter, let me take a moment and try not to preach to you about morality or pragmatism or concepts such as “innocent until proven guilty beyond a reasonable doubt”.

The Wells Report, lengthy beyond what was needed and tardy given its contents, makes several things clear:

    The Pats used underinflated footballs in the first half of the AFC Championship Game against the Colts.

    The measurements of those underinflated footballs by NFL officials at halftime showed a range of 0.4 psi from ball to ball depending on which pressure gauge was used. I have a PhD in chemistry; if a student reported data of that nature, I would send him/her back to the lab with a calibrated instrument to find out what the actual pressure was.

    There is incriminating evidence to say that two Pats’ employees were involved in assuring that the balls were inflated to the minimum pressure stipulated by the rules – and that in this particular game they may have “over-achieved” by underinflating the balls.

    The game officials did not cover themselves in glory in terms of their stewardship of the game balls once they had performed whatever measurements they did on those game balls.

After all of that, the report contains incredible wordsmithing – or weasel-wording depending on your bias here – to say that “it is more probable than not” that those two Pats’ employees took air out of the footballs after the referees had checked them prior to the kickoff and that Tom Brady “was at least generally aware” of the actions of those two Pats’ employees. And it is that kind of phraseology that makes me want to get off the Ted Wells train…

If it is “more probable than not”, that means that you believe “it” to be true but there is enough reason to doubt that conclusion that you will not put it forth in writing lest you be proven wrong at some later date and thereby demonstrated to be an incompetent investigator. Take a deep breath folks but the fact is that Ted Wells and his law firm have made lots of money off the NFL and stand to make lots more in the future – so long as they do not come up looking like amateurish a$$holes in reporting on this high-profile matter. Ted Wells is also an accomplished attorney who “more than probably” “is generally aware” of the laws regarding libel and slander. The fact that he worded his conclusions as he did could well mean that he did not want to be sued for libel/slander and have to prove in a court that what he said/wrote was the absolute truth.

“More probable than not” applies to the two employees who by dint of some incriminating text messages to each other points to the determination that they did something deliberate to take air out of the footballs after the officials had measured the internal pressures. I am going to say something harsh here but bear with me:

    No NFL fan – indeed, even no sports fan – gives more than a rat’s patootie if those two Pats’ employees did or did not do what they are alleged to have done. Folks, these two people do not matter a whit.

What NFL fans want to know is this:

    Did Bill Belichick orchestrate any/all of this?

    Did Tom Brady orchestrate any/all of this?

    Did anyone else in the Pats’ organization who is more famous than the two locker room attendants but less famous than Belichick or Brady orchestrate any of this?

The Wells Report pretty much exonerates Belichick and other members of the Pats’ organization. However, with regard to Brady, it says that he was “at least generally aware” of the actions of the locker room attendants. Let’s review:

    Wells is not certain enough to say that these two Pats’ employees did in fact deflate the footballs on that day in anything resembling an unequivocal fashion.

    Wells implicates Brady saying he was “at least generally aware” of actions that he is not willing to say that the locker room attendants actually did.

If I were to be most unkind here, I might characterize the key findings of the Wells Report in the following:

    We know the footballs had lower pressure than the rules allow.

    We think we know who did it – but we have no way of coming close to proving that conclusively.

    Based on the evidence that is not sufficient to point to the perpetrators unequivocally, we also take a leap of faith to say that Tom Brady “was generally aware” of that they may or may not have done but we have nary a clue as to whether he ever told them to do it.

If you are a Patriot/Belichick/Brady hater, take a deep breath here. Gather your thoughts because I am going to go into another direction here that you may not like even more than you did not like what came before.

Some have called for a suspension for Tom Brady for a couple of games; others have suggested 4 games; some have said suspend him for all of the 2015 NFL season. Think about it for a moment:

    Should the NFL set the bar for a lengthy suspension at “was generally aware” of a rules violation perpetrated “more probably than not” by someone other than the player to be suspended?

If “more probably than not” becomes the measure for lengthy suspensions, consider that phraseology when it comes to each and every domestic violence call made to 911 and involving an NFL player:

    The call is recorded; the caller gives an address and a description of what is happening.

    When the police arrive, they write a report indicating injuries/bruises on the person who made the call and they find the “NFL player” at the scene.

That is not enough to get a conviction in a court of law. If it were, the NFL would have more than a few current players who were doing time behind bars and not playing Sunday football. But if the standard for NFL participation is to be “more probably than not”, loads of players would suffer consequences from the league far in advance of any court appearance/trial. I do not know if that is such a good idea…

Recall a few years ago when the Giants were accused of faking injuries to defensive players as a means to slow down opponents who used a hurry-up offense. Such chicanery violates on-field rules and it would not be difficult to conclude that “more probably than not” the players were faking those injuries – after all they were back in the game seconds later – and it should not be difficult to assert that the coaches and the other players were “generally aware” of that those rule-breakers were doing. If this is to be the new standard for eligibility, there could well be entire teams that are on suspension with only one week for a franchise to assemble a replacement team. That would be ugly…

Now that I have suggested rational reasons why harsh punishments are not justified here, let me now tell you why the NFL has to hand down some significant penalties in this matter. The Commissioner and the league have some pragmatic issues to confront:

    This involves the Patriots and the fact of the matter is that the Patriots were over the edge in the Spygate Incident in 2007. There has to be a penalty and it cannot be a mere slap on the wrist.

    This incident involves on-field issues and on-field issues involve the “integrity of the game” and the integrity of the game is a foundation piece that supports this $10B per year enterprise.

    Tom Brady is a famous white player. The majority of players who have served significant suspensions meted out by the NFL have been less famous and black.

    There is no rational financial penalty that can be levied on Brady or on the Patriots that makes any sense.

Oh, and for the record, some folks have suggested that the Colts and the NFL ran a “sting operation” on the Pats in that game; I cannot tell you how little credence I put in such assertions. There is no “Colts/NFL Conspiracy” here any more than there was a “vast right wing conspiracy” about 20 years ago to defame a former President for getting serviced in the White House.

The NFL has to come down on someone or something for these deflated footballs; they violate on-field rules and the league cannot pretend it is inconsequential without simultaneously admitting that at least one of its hundreds of rules is in the book for no good reason whatsoever. So what are the possibilities?

    Monetary fines that have any relationship to previous fines are immaterial here.

    Tom Brady and his household take in something in the neighborhood of $60M per year these days. A fine of $1M would be enormous by prior standards and would be an amount just north of pocket change that fell into the sofa pillows for the Bradys.

    Forbes says Robert Kraft has a net worth of $4.3B and the Pats are making money faster than he can count it. What might the NFL fine the Pats and/or Robert Kraft – notwithstanding their declaration of innocence in the Ted Wells Report – that would be more significant than a mouse turd?

    The last discipline for a team that violated the tampering rules (Jets in 2015) was a $100K fine. In this environment, that is a laughable fine.

That leaves suspensions and loss of draft picks.

    The Falcons GM got a suspension when it was determined that the Falcons pumped in amplified noise into the Georgia Dome in violation of league rules. This happened even though the GM had no involvement in the incidents; it just happened on his watch.

    The Browns GM got a suspension of 4 games – without pay – for sending text messages to one of his coaches on the sideline during a game.

    With those “suspension precedents” someone on the Pats needs to be suspended for multiple games and the only person mentioned in the Wells Report who might be in the crosshairs is Tom Brady.

No matter what Roger Goodell decides to do here, there will be screeching. If he drops the hammer on the Pats as a franchise, lots of folks will see it as having been amplified by a desire to prove that even the “best teams” can suffer at the hands of the “League Disciplinarian”. If nothing happens to the Pats as a franchise, the folks in other cities can pat themselves on their backs for “knowing” ahead of time that the fix was in for the league’s favorite franchise. If the Pats lose a draft pick, it will not be enough for some fans and it will be an outrageous miscarriage of justice for other fans.

Roger Goodell is between a rock and a hard place but that is why he gets paid the big bucks – reportedly north of $40M last year. Here are some elements of what I would do if I were in his position and wanted to keep collecting that cool $40M per…

    1. Even though fines are virtually meaningless here, they do have some meaning to the general public. Therefore, I would fine the Pats $5M – and tell them to shut up and pay it lest the next judgment against the team be a whole lot worse. Moreover, I would fine Tom Brady $500K – the same amount Bill Belichick was fined in the Spygate Incident – with the admonishment to him and his seemingly hyperactive agent that it could be a whole lot more severe.

    2. If there needs to be a suspension to assuage the villagers poised to march on the Pats’ castle with torches and pitchforks, then make it a 3-game suspension where Tom Brady cannot play in any of the Pats’ home games against their 3 division rivals. [October 25 vs. the Jets, October 29 vs. the Dolphins and November 23 vs. the Bills]. I think this would be excessive on the part of The Commish and I think it sets a horrendous precedent for league action, but if he must…

    3. The most meaningful punishment would be loss of draft picks for the team – despite the fact that the Wells Report exonerated the owner and the coaches and everyone else in the franchise. Maybe the Commish could relieve the Pats of their first round pick in 2016 – or in 2016 and 2017 if he really wants to establish his cred as “The Great American Badass”.

      [Aside: The Commish also needs to tell the Competition Committee to change and tighten the rule about how game balls are prepared and handled before games. Make the officials responsible for inflation and preparation of the balls and make a player or coach from each team go to the officials’ room to witness the pressure measurements for all of the game balls. No team will prepare or inflate the game balls.

      Oh, by the way, spend some of the $10B to buy a calibrated pressure gauge for each officials’ crew…]

I expect criticism from Patriot fans suggesting that the punishments I offered up are too stern for things that are suspected but not known for sure. I expect criticism from Patriot haters and fans of other teams who may or may not hate the Patriots for harping on the flimsiness of the evidence and the conclusions in the Wells Report. The last thing I expect is for more than a handful of people to think I have called this one down the middle.

We shall see what The Commish decides – the guy who makes $40M per year to make such decisions. I shall just sit back here in Curmudgeon Central and take it all in and use whatever decision comes down as fodder for a future rant.

But don’t get me wrong, I love sports………

15 thoughts on “In Anticipation Of The “Deflategate” Punishments”

  1. My question is “Was Andrew Luck using the same footballs and if so, why didn’t he report it”.

    1. David Egbert:

      Each team prepares its own balls that it will use on offense. Andrew Luck’s footballs were the ones the Colts prepared and Tom Brady’s were the ones the Patriots prepared.

      I think I see a way to avoid this nonsense in the future…

  2. Many thanks for your provocative analysis of deflationgate. There was one crucial observation that was missing from your nuanced views—that is, that Brady refused to turnover any e-mails, tweets, etc. The NFL should have empowered Wells to supoena any and all communications, records, etc. from the Patriots organization that might have assisted in fixing responsibility. It boggles the mind that Belichick was not complicit (he is a control freak that knows everything that is going on). Kraft is one of the most powerful owners and Goodell is trying in every possible way to avoid the obvious conclusion that the Patriots are rotten at the top. Despite my growing up in Ohio and being brainwashed at early age as a fan, I have to reluctantly concluded that college and pro football has become an ugly and corrupt enterprise with huge problems with the health and well-being of players and a business model that encourages cheating at every level of the sport. So coach, is it possible under any conceivable circumstances that the NCAA and NFL could reform their act and move toward an acceptable standard of accountability and integrity??

    1. Jim Hostetler:

      My understanding is that subpoena power resides with courts and not with the NFL and/or Ted Wells. I do not know how the NFL could have “empowered Wells to subpoena” anything let alone any and all communications that Tom Brady may have had with any other folks.

      Belichick’s “control freakiness” with regards to footballs seemed to be explained at one of his news conferences. he said that he and the staff would purposely use anything but neat and tidy footballs for every play in practice. Some were over-inflated; some were under-inflated; some were wet; others were smooth; some were scratched; some were caked with mud; some were purposely made slippery. the purpose was to get players used to playing with balls in any condition. I can see a coach controlling that aspect of the game. I have trouble believing that he was part of a cabal to deflate footballs for a simple reason:

      If he is that much of a control-freak to get involved in that level of detail, I doubt he would have delegated it to two jamokes who seemed to spend more time texting one another than anything else.

      I admit that I did not read all of the Wells Report – because it really is not very good. What I did read of it never came close to hinting at – let alone saying – that Robert Kraft had any awareness of this incident. I cannot bring myself to conclude that the “Patriots are rotten at the top” and I do not see that as an “obvious conclusion”.

      Can the NFL – and/or the NCAA – ever move toward an acceptable standard of accountability and integrity? The answer is “Yes, but…”

      Remember for the NFL, $10B per year is the revenue stream and so long as the revenue stream stays at that level – and perhaps grows a bit every year – there is ZERO motivation for the owners and the union to worry about accountability and integrity. Now, if the revenue streams started to flow a bit more slowly…

  3. Suggestion : Make the Patriots play the first half on opening day with a very deflated ball.

  4. I never noticed before now how much Tom Brady looks like Alex Rodriguez, Lance Armstrong, and Pete Rose. The resemblence is uncanny.

    1. Doug2:

      I think he looks more like Barry Bonds than the three you mentioned. People KNOW those three cheated/lied about their actions. In Brady’s case – just like Bonds’ case – people can readily conclude that there must be chicanery and lack of candor surrounding him. But people do not KNOW as they do in the cases of A-Rod, Armstrong or Rose.

      1. As the old saying goes, ‘there are lies, and there are lies of omission’. Hence, Brady’s punishment. In my former line of work (securities industry), the penalty for such an infraction would usually result in loss of licenses. Brady can appeal his punishment, which is nearly certain. A reduction of which will alleviate his wrist injury.

  5. I must point out a suspension for Belichick is also possible – the Falcons president (not the GM) was kicked off the competition commitee when he was unaware, and Sean Payton was suspended a year over Bountygate (admittedly a more serious offense) when neither were directly linked to the events – but it was on their watch. If these equipment guys answer to Belichick, he can be held responsible. I do not think Belichick was aware of this, and there is no atypical phone activity to the ballboys like there is with Brady, but they are his guys. Plus… this operation seems a bit…amateurish? …. for BB. I hate the guy, but he is much slicker than this. I would think he’d be insulted by the implication not that he was cheating, but that he was a bumbler. And Moe, I mean Brady, don’t have them call your phone! Oral comm is much more deniable.

    They should have a big hamper of balls like a commercial laundry has. Some guy on the sidelines, maybe with the chains crew, just tosses a ball preexamined by the refs out at random when asked for a ball. Not a Colts ball, or a Pats ball – a game ball

    1. Ed:

      If the league uses the Wells Report as the basis for its decision to drop a hammer on Brady, it would be difficult for them to also punish Belichick or Kraft who are specifically exonerated in that same report. I understand your using Rich McKay in Atlanta as an example here, but I think this one might be a more difficult reach for the league.

      Having said that, Roger Goodell has set up a dynamic where his personal and professional cred is at stake here. So just about anything is possible…

  6. If you have not already, read Michael McCann’s column in SI. He makes some of the same points, but much more lawyerish language.

Comments are closed.