Exclusive: To the surprise of the mainstream U.S. media, a federal judge threw out the NFL’s Deflategate suspension of New England Patriots quarterback Tom Brady, citing an arbitrary and unfair process that should have been obvious to any independent observer from the start, writes Robert Parry.
By Robert Parry
It’s been my experience from nearly four decades in Washington journalism that it’s increasingly rare when a powerful institution protects an individual from unfair and abusive treatment by another powerful institution. The U.S. District Court decision throwing out the National Football League’s kangaroo case against New England Patriots quarterback Tom Brady was one of those exceptions.
I realize that some readers feel that I should not have “wasted” time examining the scientifically flimsy case known as Deflategate or observing how the NFL’s supposedly “independent” investigation slanted what little evidence it had to support the league’s initial rush to judgment and harsh punishment of Brady. One reader joked it was just a case about men and their balls.
And I initially had no intention of writing about this topic. But I noted a disturbing haste in the conclusions about Brady’s guilt and I then read the Wells report last spring out of curiosity. What I found in it was what I had seen in so many other bogus investigations that start with a conclusion and make the “facts” fit.
My annoyance also didn’t stop with the NFL. It extended to the news media, where from The New York Times to ESPN the NFL’s case was accepted as unassailable and Brady was casually denounced as a cheater and a perjurer. Considering how much ink and time were devoted to this overblown Deflategate “scandal,” there was almost no serious examination of the actual evidence.
Yet, here was the NFL, an institution with arguably as much integrity as the tobacco industry in how they deal with facts. The NFL has covered up the risks of concussions much as the cigarette makers hid the cancer implications of smoking. Why would anyone trust the NFL about anything? I have asked similar questions when news organizations fall on their knees and bow to U.S. government claims about foreign “enemies” as with Iraq and its non-existent WMD stockpiles.
Over the years, again and again, I have seen not only large institutions lie but the media side with those powers-that-be even when the institutions have a long record of dishonesty and high-handedness. As long as the corrupt are well-connected, they tend to get protected given every break and benefit of every doubt but the decent folks under attack are usually out of luck.
Real-life in modern America is seldom like one of those Hollywood movies when some honest person-on-high steps in at the last minute to set things right and prevent some abuse from being inflicted on an individual. Usually some backroom deal is struck to let the powerful win and leave some expendable citizen to suffer. In such cases, truth and justice are never a priority.
Just think of the U.S. government’s and mainstream media’s mistreatment of Gary Webb for reviving the Contra-cocaine scandal, or the 35-year sentence meted out to Chelsea Manning for exposing U.S. war crimes. Compare those cases to the failure to hold anyone from George W. Bush’s administration accountable for aggressive war and torture, or the absence of any prosecutions of the banks and bankers who blew up the world’s economy in 2008.
So, even though the four-game suspension of Brady and other punishments meted out by the NFL over Deflategate pale by comparison to some other injustices, the case had enough similarities to merit, in my view, several articles examining the multiple flaws in the NFL’s case.
The Judge’s Ruling
Though Judge Richard Berman’s 40-page ruling on Thursday focused mostly on the NFL’s arbitrary process rather than the underlying facts of the case (all the better to survive the NFL’s legal appeal) Berman clearly was underwhelmed by the substance, too. He put quotes around the word “independent” when referring to the report by the NFL’s outside counsel Ted Wells, noting the involvement of the NFL’s executive vice president and general counsel Jeff Pash in editing the report.
Berman also noted that there was no direct evidence proving that Brady did anything wrong. Berman puzzled over the NFL’s vague accusation that it was “more probable than not” that Brady was “generally aware” of alleged actions by two locker-room assistants — Jim McNally and John Jastremski — to deflate the footballs used in the Jan. 18 American Football Conference championship game.
“I am not sure that I know what in the world that means, that phrase [‘generally aware’]. Did he [Brady] know that McNally took the balls unaccompanied into the bathroom? Did he know that in the bathroom, if in fact it happened, McNally deflated the balls? Did he know that McNally then went on to the field with the balls?”
In his ruling, Berman also noted the refusal of NFL Commissioner Roger Goodell to let Brady’s lawyers question Pash about his role, one of a number of capricious decisions that pervaded Goodell’s role as arbitrator on Brady’s appeal of a ruling that Goodell had authorized if not dictated in the first place. Berman, in effect, concluded that the process lacked anything approaching fairness.
Goodell’s arbitration finding that rejected Brady’s appeal even cited interference from the NFL’s Management Council, consisting of team owners whose clubs would benefit from Brady’s suspension. They weighed in on assessing evidence. It seemed there were no limits to the NFL’s biased behavior.
In retrospect, what appears to have happened in Deflategate was that the Indianapolis Colts didn’t understand why one of the Patriots footballs intercepted before the half showed an air pressure below the legal minimum of 12.5 pounds per square inch. They assumed that it must have been intentionally deflated, not realizing that a loss of air pressure is natural when a ball is taken from the warm, dry environment of the locker room and put in play on a cold, rainy night.
Apparently, the NFL officials involved in a chaotic effort to test the 11 other Patriot footballs during halftime didn’t understand the physics either. So, like some wannabe Sherlock Holmes, they jumped to the conclusion that they had uncovered wrongdoing. It turned out that the Colts’ footballs that were measured by the more accurate of the two gauges revealed them also to be under 12.5 psi.
After the game, which the Colts lost 45-7, the NFL opened an investigation by sending a letter to the Patriots that exaggerated how much the Patriots’ footballs were underinflated and falsely stated that none of the Colts’ balls had been found to be underinflated. Those two “facts” were then leaked to the press, creating a media frenzy and convincing many football fans that Brady and the Patriots had cheated.
Even after the NFL detected the errors, the league did nothing publicly to correct the letter, instead keeping quiet during what turned out to be a several-months-long investigation by attorney Wells. The false impressions congealed into conventional wisdom.
It now appears that the reason for the delay in the Wells report was that the case was recognized internally to be very weak and thus was rewritten to make some irrelevant points seem more consequential, such as playing gotcha with McNally’s recollection that he used a “urinal” in the bathroom on the way to the field when Wells noted there was only a regular “toilet” in the room.
Through such cheap tricks, the NFL believed it pushed the case over the relatively low threshold of “more probable than not” or a 51 percent chance that McNally had used his one-minute-40-seconds in the bathroom deflating footballs, not relieving himself before heading out to the field. The NFL then applied another 51 percent standard to conclude that if the footballs had been deflated that it was “more probable than not” that Brady was “generally aware” of the wrongdoing.
Another Media Failure
Beyond the prejudice displayed by the NFL, there also was the shoddy behavior of the mainstream news media, from the esteemed New York Times to the all-sports ESPN. Almost no one looked into the many holes that were obvious in the report. The NFL’s case was treated as gospel and many ESPN commentators opined about Brady’s guilt, mocking his claims of innocence.
ESPN added to the confusion by creating a boilerplate summary of the case that falsely claimed that text messages between McNally and Jastremski were about deflating the balls for the AFC Championship game when they actually were about Brady’s complaint that the NFL referees had illegally overinflated footballs used in an earlier game in October 2014. The upper limit is 13.5 psi.
Also, despite all the attention given to this story, no one in the mainstream press noted how the Jastremski-McNally text messages suggested that there was no scheme for deflating footballs. In those October text messages, Jastremski was, in effect, reprimanding McNally for not doing his job which was to make sure the referees deflated the balls to Brady’s preferred legal level of 12.5 psi. Instead, Jastremski tested the balls after the game and found one at nearly 16 psi.
If there were a surreptitious scheme to deflate the balls after the referees finished with them, you would have expected McNally to explain why he had not done so. Perhaps something like, “the refs were keeping a close eye on me” or some other excuse. But there is nothing like that in McNally’s response, which mostly criticized Brady for being a complainer who might find the balls even more over-inflated in the next game.
Yet, instead of testing the NFL’s claims or interviewing scientists who found the NFL’s halftime measurements unreliable, the mainstream media just piled on Brady, serving as the enforcement mechanism for the conventional wisdom. There was not even criticism of the NFL when it filed the federal case first, handpicking a New York federal court considered extremely pro-management and almost certain to uphold Goodell’s ruling.
However, in this rare case at least rare in my recent experience Judge Berman looked at the NFL’s accusations and evidence with an objective eye and sided with an individual against an arrogant and powerful institution. It almost had the feel of a Hollywood ending.
[For our previous stories on Deflategate, see “Rushing to Judge the NFL Patriots Guilty”; “Holes in NFL’s Deflategate Report”; “Why Write about NFL’s Deflategate”; “Tom Brady and Theoretical Crime”; “NFL’s Deflategate Findings ‘Unreliable’”; “The Tom Brady Railroad”; and “The ‘Two-Minutes Hate’ of Tom Brady.”]
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.
I believe Brady was involved, but not in any sense that he should have been punished. Sometimes he, like anyone else who becomes famous and powerful, underestimates the power of his words, including his jokes. He joked after his powerful tight end Rob Gronkowski spiked a football after a touchdown pass that he loved it, the ball would become a bit deflated after such a massive spike and easier to handle. He said that as a joke on the sideline, but never underestimate the influence such “jokes” can have on staff that want to keep you happy.
That explains why there was no direct evidence of his involvement, because there wasn’t any. He was likely surprised to hear of all the fuss, and particularly surprised since on that cold and rainy day at the AFC championship game, he actually played better in the second half, with the “properly inflated” balls, than he did in the first half, when he played with the balls NE supposedly deflated. In those conditions, keeping the ball dry is far more important than a small difference in air pressure.
As to Mr. Parry’s analysis, he is dead on, and anyone who ever has dealt with a criminal or civil investigation knows that the Wells analysis was, ah, (I’ll keep the language clean here) as substantive as cotton candy. “Generally aware”?? What the devil does that mean? “Probable”? That’s another way of saying there is nothing definite. You have two phrases that are essentially suppositions, so to say it is “probable” that someone is “generally aware” is a supposition squared.
None of this would work in court. If you were sued by, say, the IRS, they wouldn’t dare try to suggest someone was “generally aware” that they owed more in taxes. They need SPECIFICS, specific evidence that income was underreported or deductions overstated.
I believe my assessment explains why Brady hasn’t done more of a victory dance, I suspect he has remembered some comments that he now realized someone may have misinterpreted, and feels a bit chagrined about it. That having been said, being chagrined is one thing, being accused of something you simply didn’t do is another. I concur with the Judge, and Mr. Parry’s analysis, justice was done here.
Tom Brady is an old pal and golfing buddy of Donald Trump. “Deflategate,” or no, I can’t stomach the guy.
Tom Brady is an old pal and golfing buddy of Donald Trump. “Deflategate,” or no, I can’t stomach the guy.
Every team cheats, the Pats are really bad at it (they get caught). In terms of deflategate, the holes in the case are huge based on science, ball measurements and officials mishandling of the balls in question. A travesty without question and something, if Goodell had any sense, would leave it for dead as the case surely is after Berman’s scathing commentary on the arrogance and shoddiness of the case in question.
The refs overinflating the ball;Illegal or mistaken?They have no interest in the outcome.
And will the two so far fall guys be reinstated,or have they?
The refs overinflating the ball;Illegal or mistaken?They have no interest in the outcome.
And will the two so far fall guys be reinstated?Or is insulting TB an insult too far?
They are a shady bunch,though.
How do we know that Berman and Kraft don’t know,associate with each other or have common interests?Kraft is a slippery Zionist,about as trustworthy as beezlebub,and his Pats image is worth many millions,so I can’t put corruption aside here.
Why did the Pats discipline the two workers?Why would Brady destroy his cell phone?
The whole story is a tempest in a teapot,as Brady obviously doesn’t need an edge to win,and win big as he did against the Colts,but i still think there is fire there somewhere.
Brady is a millionaire because of one thing;The NFL.
This ruling will affect future disciplinary decisions and opens a can of worms for the NFL.
I shouldn’t even be encouraging an anti-Semite like you, but here goes:
The NFL threatened to fire the two workers, which means they would have no job and no pay. The Patriots are suspended them under extended leave of absence, which means they can still get paid. Not sure if you are bright enough to know the difference.
The thing that struck me is that since the jocks at the NFL have no clue about the Ideal Gas Law, then they have no real idea about whether the balls are really under-inflated or not With referees, I could make a joke about the blind leading the blind, but it really is a case of a bunch of dumb-jocks leading a bunch of dumb-jocks and it never seems to occur to any of them that the pressure in the balls might change when out on the field on cold winter day and be noticeably different from what the pressure is in the heated locker-room when the balls are inflated or if they are checked there at half-time.
Remember, in the case of ESPN and pretty much every other network that shows the NFL, they have a contractual relationship with the NFL owners. And undoubtedly want that contract renewed. I’d noticed before when there was a labor dispute that orgs like ESPN side heavily with the owners who then feed them the TV rights that are the life-blood of their programming. If ESPN reports against the owners, then they risk seeing what ratings something like tennis can bring when shown against Monday Night Football if it moves to another network.
Hi there! This article couldn’t be written any better! Reading through this post reminds me of my previous roommate!
He always kept talking about this. I most certainly will forward this information to him.
Pretty sure he’s going to have a good read. Thanks for sharing!
I fail to see how John and Zachary can read the excellent article Mr. Parry posted and draw inane conclusions. The Patriots cheated? When and where. There is no evidence to prove cheating. Regarding “spy gate” be informed that the Patriots were not punished for what they did. The Patriots were punished for WHERE they recorded the Jets practice, inside the stadium. All teams record the opposition and always have. Go back and check the facts.
1. Mangini was in New England a few weeks prior and recorded the Pats illegally, I believe on the roof of Gillette. Security threw them out, but Belichek said nothing to the league.
2. Shortly after, the league sent a memo to all 32 teams warning against taping and cautioning punishment to the fullest.
3. Right after the memo the Pats were in NJ recording the Jets practice in an area of the stadium that was not legal. Mangini reported it to the league and the NFL reacted with extreme punishment, understandably.
That was spy gate in its simplest form.
Cheating? Hardly. Brazen disrespect for the joke that is the Jets, and total disregard for the league’s warning, guilty as charged.
Goodell has been trying to conflate spy gate with deflategate to impart the most severe punishment ever. Yet, because he is inept he failed, again, because he’s a loser making $40 million a year some how some way.
Regarding “spy gate 
I know nothing about “spy gate” except for some dimly recalled headlines.
My posts are about deflating the footballs used for running and passing, while maintaining a couple properly inflated ones for the kicks. If both teams used the same balls, there would be no issue at all.
That wasn’t what happened.
zachary, it’s not what happened. The Colts used improperly inflated/under inflated balls for the first AND second halves. patriots supposedly one half. Facts please.
I realize you can’t provide a link, but I’d welcome a headline or ‘text grab’ of the story about this so I can locate and read it myself.
Are you serious? You are commenting on the exact article which points out the discrepancy. Did you even bother to read Parry’s article?
In addition, let’s keep in mind that the genesis of deflategate was John Harbaugh in Baltimore. He was unhinged by the Inelegible Receiver position the Patriots used against the Ravens. Brady told him he should read the rule book. Egg on face, Harbaugh later communicated to the Colts that Brady under inflates the footballs. As we know Brady doesn’t inflate or deflate anything.
This was a Harbaugh/Colts conspiracy designed for payback against Brady, Belichek, and the Patriots. Failed. Ravens are a tough legitimate playoff team. Colts have been the best ladies league team ever. Irsay is a drug addled degenerate and combined with former Colt Bill Polian and his anti Patriot rule changes, they were everything wrong with the NFL hierarchy. Simple boys trying to play a man’s game.
Forget the trick play. The Ravens didn’t lose to the Patriots in last year’s post-season because of that play, and Harbaugh knows this. The Ravens lost because they had seven defensive backs out with injuries. They put up a good fight but it was hopeless.
Of course there will be an appeal. Punishing Brady (financially) far more than the Patriot organization wasn’t right, and I’m coming round to the notion he was just a pawn in the bigger scheme of things.
The Patriots cheated, and have for years, and at this moment are getting away with it. Unless there is new NFL management as an outcome of the current court loss, I hope there will be some future justice/payback for the blatant cheating.
You were right from the beginning, and right to write on the matter for us.
“ltr:”
You are of course right that Robert Parry was right from the start, AND right to pursue this story with the zeal and junkyard-dog tenacity so typical of Parry — especially when truth and justice are at stake (and characters are being assassinated, whether it’s a star-quarterback or a fearless reporter like Gary Webb).
Initially, I too wondered why Parry took such deep interest in the issue. But once he smelled a rat — actually many white-collar rats — well, there was no stopping him. His investigative reporting on this should become a case-study at the Columbia School of Journalism and the Harvard Business School showing how the REALLY big shots of the 99 percent, big organizations, and the BIG media work hand in glove.
I am sometimes asked why I call the mainstream media the “Fawning Corporate Media?” Truth be told, one reason was that I thought the acronym “FCM” might catch on. If you pronounce that acronym with a hard “c,” you get a glimpse of my attitude toward the inheritors of a once proud profession. What a sad spectacle; it has become virtually indistinguishable from what has been called “oldest profession in the world.”
Parry’s handling of Brady-gate is for me a lesson of how a journalist sticks to a story, bucking the tide even though the likely outcome seems bound to be not only dismissiveness but ridicule, as well. That doesn’t appear to matter very much to Parry. Only the truth matters. (Have we reached the point where that actually sounds corny?)
He will win no award for having been vindicated. Fact-free charlatans can be expected to continue to criticize him without taking the trouble to read the painstaking case he has consistently made on this story — not that that will phase Parry in the slightest.
This whole thing makes me an even prouder contributor (in both senses of the word) to Consortiumnews.com.
Ray McGovern
Congratulations, Mr. Parry. You win this time. But next time your honesty and integrity may not be enough to turn the tide, especially in a more consequential arena. Maybe you think you will be able to stop the war against Russia and it nefarious allies, but think again. There is no namby-pamby federal judge with enough juice to stop us there!
I believe Brady to be if not the best QB ever at least in the top 5%. But the problem begins in his thinking…..he and the patriots are “exceptional” so yes he told the ball handler to under inflate the balls just like he likes them to be….Why ? because exceptional people do as they wish……Kind of like the arrogance of the USA state dept……arrogance makes it’s own rules and redefines the rules …..It’s the American way and everyone else follows
Did you even read the article? Do you realize there was no evidence found that Brady asked the equipment people to lower the air pressure below the legal limits? You exemplify the American Way – to hold on to hearsay arguments as facts and not paying attention after the actual facts get released.