Tom Brady and Theoretical Crime

Exclusive: The NFL meted out a four-game suspension to New England Patriot quarterback Tom Brady while also fining the team $1 million and taking away two draft picks — though the NFL didn’t conclusively prove that footballs were deflated, establishing only a theoretical crime, a dangerous precedent, writes Robert Parry.

By Robert Parry

If Tom Brady did order two locker-room assistants to deflate footballs illegally, he should confess and take the harsh punishment meted out by the NFL. But if he’s innocent, he and the New England Patriots should fight the ruling because it sets a dangerous precedent for everyone who might fall under this concept of a theoretical crime based on “more probable than not” logic.

In this case of Deflategate, it’s not even clear that an offense occurred. NFL outside counsel Ted Wells struggled to get the odds over 50 percent that the footballs were intentionally deflated, even tossing in non-probative “gotcha” moments like the fact that one equipment assistant said he used a “urinal” in a small bathroom when Wells playing a daffy Sherlock Holmes noted that there was only a toilet in the room.

As with much of Wells’s report, innocent explanations for common events were rejected in a style that is more common in wild-eyed conspiracy theories than in a serious investigation that affects a person’s reputation and the future of a significant business in New England.

That Jim McNally, the assistant, might not have remembered something as mundane as whether he urinated in a urinal or a toilet was apparently not accepted by Wells, nor the logic that whatever McNally was doing in the bathroom urinating or deflating footballs he would have seen the toilet, so his misidentifying it is meaningless.

In my decades as an investigative journalist reading and evaluating many official reports, I have noted that when lawyers start including details like McNally saying “urinal” instead of toilet, they realize how weak their case is and are putting everything they can dig up on their side of the scales.

Similarly, Wells makes a big deal out of Brady signing memorabilia for the other locker room assistant, John Jastremski, though it’s a common practice for players to show their appreciation for the often under-paid locker room helpers who take care of the players day to day. But what would normally be regarded as an innocent, appreciative act is transformed into a sinister payoff. Whatever it takes to get over the “more probable than not” threshold.

As Wells explains, the NFL operates not with a courtroom criminal standard of presumption of innocence requiring proof beyond a reasonable doubt, but rather a much less stringent “more probable than not” standard. However, even by that lax measure, Brady should not have been punished because what Wells actually does is allege a 51 percent chance that footballs were deflated and, if it happened, a 51 percent chance that Brady knew something about it. So, in regards to Brady, that’s not a 51 percent likelihood of guilt but a 26 percent chance.

Wells concludes that in the AFC Championship game on Jan. 18, “it is more probable than not” that McNally and Jastremski “participated in a deliberate effort to release air from Patriots game balls after the balls were examined by the referee.” Wells then adds that “it also is our view that it is more probable than not that Tom Brady was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls.”

So, there are two calculations here: one is whether anything happened, and two, if something did happen, whether Brady “was at least generally aware” of what happened. In other words, one-half of one-half, or barely a one-quarter chance, thus not meeting the “more probable than not” standard that the NFL uses for disciplinary purposes regarding Brady.

Note, too, the phrase “generally aware.” What does that mean in any legal sense? People are normally prosecuted or punished for ordering that a crime is committed or participating in a conspiracy to commit the crime. But Wells knew his case was flimsy lacking any conclusive evidence, such as a confession, an eyewitness or video of the illegal act so he reached for elastic language to establish some basis for punishment.

Hating Tom Brady

Yes, I know many people hate Tom Brady. He’s a handsome quarterback married to a supermodel and he’s won four Super Bowls. What’s not to hate?

And, it’s kind of fun because, hey, it’s just football. But there is also something fundamentally un-American about this sort of quasi-legal process that assesses substantial penalties not only on Brady, a four-game suspension, but on the New England Patriots, who are fined $1 million and stripped of two draft picks, harming their future competitiveness.

To reach this outcome, Wells had to stretch the case for believing that the footballs were intentionally deflated when the chilly, rainy weather could have accounted for all or nearly all the drop in air pressure, according to the NFL’s own scientists — while other variables were not fully taken into account, such as the way the Patriots conditioned their footballs by rubbing off the finish that, if not rubbed off, would have made them more water-resistant.

What the scientists hired by the NFL found was that the wetness of a football was a significant factor in both the drop in air pressure and the slowness for the pressure to restore once the football is moved to a warmer location. Thus, the amount of water that penetrates a football would be a relevant factor but that was not fully assessed by the NFL’s scientific testing.

By contrast, the footballs used by the Indianapolis Colts had not been rubbed down nearly as much, so they would have retained more of their water resistance.

Another key factor in evaluating the pressure of the Patriots’ footballs compared to those used by the Colts was the timing of the balls being tested inside the referees’ locker room at halftime. The scientists found that footballs, especially dry ones, regain their pressure fairly quickly once in a warmer environ, so the timing of those comparative tests represented another key variable.

But Wells compressed the gauging sequence as tightly as possible to make the discrepancies between the lost pressure of the Patriots’ balls and the lost pressure of the Colts’ balls more supportive of his case against the Patriots. Thus, he told the scientists that the NFL officials who tested the balls at halftime didn’t start immediately although they knew they had only a very short time to examine the footballs, only 13.5 minutes.

Instead of getting started immediately, according to Wells, the NFL officials waited a couple of minutes. Then, Wells claimed that after testing the 11 Patriots’ footballs and finding them under-inflated they didn’t add air to them right away but rather turned to the Colts’ footballs, which also turned out to be under-inflated though not as much, according to the one gauge that accurately measured the pounds per square inch, or psi. The second gauge gave readings that were between about one-third to nearly one-half psi too high.

But the NFL officials only got through four Colts’ balls before running out of time. Then, according to Wells’s chronology, they added air pressure to the 11 Patriots’ balls. There are, however, doubts about Wells’s sequencing. According to the report by Exponent, the scientific consultants hired by the NFL, “there remains uncertainty about the exact order and timing of the other two events,” i.e., gauging the Colts’ balls and re-inflating the Patriots’ balls.

In other words, there are doubts about something as critical as the timing of when the Colts’ footballs were tested, whether at the end of the 13.5 minute halftime break or in the middle.

And there is evidence and logic that suggests that Wells flipped the chronology to better serve his purposes, since the records show that the two officials handling the two gauges switched gauges between the time they measured the Patriots’ balls and the Colts’ balls. That suggests that something happened between those two sets of measurements, possibly the re-inflation of the Patriots’ balls.

Also, the NFL officials only tested four Colts’ balls, having to stop because they ran out of time and had to rush the balls back to the field for the second half. That would suggest that checking the Colts’ balls was the final step, not a middle one.

But why is there uncertainty about this sequencing, as Exponent says? In a report that plays gotcha with McNally over whether he used a urinal or a toilet, why isn’t there certainty about something as crucial as the timing of the measurements when there were several NFL officials conducting the tests?

There are a number of other head-scratching aspects to Wells’s report, including why he didn’t just call up McNally if Wells really wanted a final interview, rather than insisting that the Patriots arrange it with McNally who only worked for the Patriots on game days. Wells had McNally’s cell-phone number and likely other contact information, but chose to make a point about the Patriots not arranging this additional interview.

But perhaps the biggest danger represented by this extraordinary report and the ensuing punishment is the idea that a theoretical offense can be alleged using “more probable than not” standards and that real punishment can be enforced on individuals and groups despite no hard evidence that they knew anything or that the offense even occurred.

And, if it can happen to Tom Brady, it can happen to anyone.

[For more on this topic, see Consortiumnews.com’s “Holes in NFL’s Deflategate Report” and “Why Write about NFL’s Deflategate.”]

Investigative reporter Robert Parry broke many of the Iran-Contra stories for The Associated Press and Newsweek in the 1980s. You can buy his latest book, America’s Stolen Narrative, either in print here or as an e-book (from Amazon and barnesandnoble.com). You also can order Robert Parry’s trilogy on the Bush Family and its connections to various right-wing operatives for only $34. The trilogy includes America’s Stolen Narrative. For details on this offer, click here.