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.

New England Patriot quarterback Tom Brady.

New England Patriot quarterback Tom Brady.

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.

18 comments for “Tom Brady and Theoretical Crime

  1. Bill Jones
    May 14, 2015 at 10:16

    Why anybody should give a damn about the internal arrangements of private organizations is beyond me.

    • DB
      May 14, 2015 at 15:09

      He covered that in another column two days ago.

    • Lo
      May 14, 2015 at 22:27

      I wouldn’t call the NFL a wholly private organization. Most of its stadiums are subsidized by state and municipal govts and it receives special tax and antitrust privileges. Goodell has spent most of his life like a bureaucrat and aligns the NFL more along the lines of govt regulatory agency with a quasi justice system that gets to act like jury, judge, executioner even over appeals. Good justice systems separate those things.

      And it also seems to be more and more an arm of the govt with it’s military pageantry since 9/11. It looked different in the 90’s.

  2. Michael Ponzani
    May 14, 2015 at 10:14

    Nobody had to deflate the balls. They could have been inflated in a sauna (after being properly warmed up) at an air temp of 100 degrees with humidity at 90-100%. Assume the balls were totally deflated before being brought into the sauna. Afterwards, they would have maintained the correct air pressure when first inspected. In the cooler air of Phoenix the watwer vapor condenses out and the gas inside condenses, too. WALLAH, deflated ball\s. An MIT grad student set this up as an experiment for the undergrads in physics. Neat!

  3. michael hignite
    May 14, 2015 at 10:12

    Tom Brady should be punished appropriately if guilty. He should be made to play one half of the next game with a 2 PSI higher than average ball pressure.

    • DB
      May 14, 2015 at 15:08

      The officials already did that to Brady.

  4. brian
    May 13, 2015 at 15:57

    Robert: Love the site and have supported it financially. But this story goes off the rails.

    The burden of proof is different between crimes and civil disputes such as breaking the NFL rules.

    Haven’t read the report, don’t hate Brady, but if he lied about knowing the ball boy, that’s grounds for punishment by his employer and the league. Whether the evidence is sufficient for criminal charges is simply not an issue.

  5. doray
    May 13, 2015 at 12:25

    Ninety people were blown to bits and 300 injured by Saudi Arabia, but let’s talk about men and their stupid balls. I’d expect to see “news” crap like this in a mainstream media side show, but really, HERE?! I get the “alleged” crime thing and all, but what about REAL crimes committed every freakin’ day by our codified criminal government? Come ON! Leave the men to their balls and keep reporting on the real crimes our government commits on a daily basis. Thanks for all you do.

  6. DB
    May 13, 2015 at 10:29

    Another great column on this topic, Mr. Parry. Sadly, I think you’re just shouting into the wind.

  7. mrtmbrnmn@aol.com
    May 12, 2015 at 22:42

    The NFL is one of the richest most successful ongoing criminal enteprises in America. To throw the goofy golden boy Brady into the fire as a human sacrifice to maintain the “integrity” of the game is farcical. On the other hand, all this hoo-haaing about how much air is in a football, is further proof, as if any were needed, that there is no bottom to the stupidity, gullibility and foolish ignorance of the gen pop. Play ball!!

  8. Joe Tedesky
    May 12, 2015 at 21:07

    If we are going to talk about the NFL, then read the following;

    “The Department of Defense and the Jersey Guard paid the Jets a total of $377,000 from 2011 to 2014 for the salutes and other advertising, according to federal contracts. Overall, the Defense Department has paid 14 NFL teams $5.4 million during that time, of which $5.3 million was paid by the National Guard to 11 teams under similar contracts.”

    http://www.washingtonsblog.com/2015/05/how-the-u-s-military-is-paying-nfl-teams-millions-to-honor-the-troops-at-sporting-events.html

    Let me make myself clear. I am not against honoring veterans. I also once served at a time when the military wasn’t so appreciated (1968-1974). Although, the NFL by making itself look good, also gets tax breaks, and on top of all that gets paid to honor our veterans. Maybe, we could stop fighting all these unnecessary wars, and use our military to defend us.

    Tom Brady will be just dandy given his delay, and I am sure he will be quite the all star quarterback when he finally enters the season. In fact all this publicity he is getting will be very profitable for the Kraft family, I am sure. In fact being a Steeler fan I would trade Tom Brady for Ben Rapelisberger any day.

  9. May 12, 2015 at 19:53

    I understand the concern over “theoretical crime”, but since this case is not criminal law, it’s more a problem of the continued police state conditioning of sports-addled folks. Does that apply here? Brady was not charged with a crime, but rather cheating, violating the league rules. We can’t conflate people joining organizations with supposedly “higher standards” of conduct with the high burden of proof in criminal law. No one is trying to take away Brady’s liberty, and the gang that the Patriots belong to (The NFL) is certainly trying to steal Patriot money in a fine. But to be in the league, you agree to that jurisdiction. Brady didn’t cooperate with the investigation. In my employer contract, it’s clear that if I conduct myself in a way that brings disrepute to the organization, they can get rid of me. Yep, a lower standard of proof than criminal law. But then, I get paid well in exchange for a higher expected standard of behavior. Were the GOVERNMENT trying to sanction Brady for his crime or theoretical crime, well, that’s a totally different game.

    • DB
      May 13, 2015 at 10:27

      “I understand the concern over “theoretical crime”, but since this case is not criminal law, it’s more a problem of the continued police state conditioning of sports-addled folks”

      Not really. This is a labor dispute. The league has violated Brady’s rights under the collective bargaining agreement. The fact-finding of wrong-doing was flawed and motivated to reach a foregone conclusion, and the discipline arbitrary and excessive. The whole point of collective bargaining is to protect employees from that. Brady is not an at-will employee, he has rights and he doesn’t voluntarily surrender them by agreeing to play for the league.

      The “lack of cooperation” was refusing to give access to his private text messages and emails to an organization that has already proven it uses anonymous media leaks in a malicious fashion. Why would he even CONSIDER agreeing to that? So he can see private texts from his wife and pictures of his kids show up in tabloids? Oh HELL no. And the league cited that refusal as part of the basis for his punishment. But this is a perfect example of what I’m talking about regarding Brady’s rights…when the current collective bargaining agreement was being negotiated, Goodell wanted it to include language giving him access to players’ electronic communications in investigations. THE UNION REFUSED and ultimately the league backed down. Goodell has no such right to demand that access and neither does any lawyer he’s hired to get it for him.

      And then, of course, there are the ethical implications of the league itself destroying the reputation of one of the most talented players in its history based on “we don’t know if it even happened but we think it did, and if it did happen we don’t know if he was in on it but we think he was.” The fact that the league’s own bylaws allow for that doesn’t make it right, and that you hide behind those bylaws as justification and just casually dismiss the ethical implications by reminding us that they simply don’t have to come up with more to hang him out to dry says a lot about you. I mean, at the very least you could bring yourself to acknowledge that unlike civil trials that operate on a “preponderance of the evidence” standard, in this matter the accused was never allowed to put on a defense, challenge evidence, or cross-examine witnesses, and the prosecutor served as both the judge and the jury. But that really doesn’t matter to you, does it? The league isn’t legally required to afford those privileges, so who cares if they don’t, right?

      • Lo
        May 14, 2015 at 20:43

        Great points DB.

  10. Gregory Kruse
    May 12, 2015 at 18:21

    I agree with Robert. This relates to the political world in many ways. It’s like a nanocosm of 911, Pearl Harbor, and The Kennedy assassination.

  11. Zachary Smith
    May 12, 2015 at 17:58

    While catching up on the afternoon news I skidded to a stop with this link title:

    Reid slams NFL for suspending Tom Brady

    Why on earth would Harry Reid give a hoot about the story? Turns out I fell for some linkbait – the real issue was his objecting to the name of the Washington Redskins and thinking the Patriots uproar diverts attention away from the Redskins.

    IMO Big Sports are the modern equivalent of the Roman Circus events. Be that as it may, I’m hopeful that within a few years football as presently played will dry up and die. Cheering as enormous men constantly smash into each other is a strange pastime, especially when those huge men are doing permanent damage to themselves. Knowing that would definitely take all the fun out of the event for me – even if I were in the habit of watching these spectacles. Which of course I’m not.

    Can the NFL survive its concussion crisis?

    Boxing is a “sport” I’d personally like to see banned. One time I remarked to a relative that maybe soccer was the ideal sport. He gave me an odd look and informed me that the endless banging of their heads against the balls wasn’t a bit safe either.

    Seventy five years ago there was a time when 6-man football was played. Perhaps reducing the number of players and a few rule changes might make football a safer game. I know I’d strongly advise any young relative against participating at any level with the present setup.

  12. bobzz
    May 12, 2015 at 17:45

    Robert, the Patriots might welcome your thoughts.

  13. Rob
    May 12, 2015 at 15:46

    Good point at the end. Looking over some of the text messages, the guy who apparently did the deflating was saying the refs inflated the balls over the max psi limit. seems possible he could have sometimes been bringing them down to within the legal psi limits.

    The other thing was that the “deflator” often talked about wanting to INFLATE the balls to make them like “ballons” and “water mellons” because he apparently hates Tom Brady.

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