Exclusive: The lesson of the absurd “Deflategate” case is that a powerful institution like the NFL can ride roughshod over almost anyone, including quarterback Tom Brady, regardless of what the facts and logic are, reports Robert Parry.
By Robert Parry
By getting a favorable ruling from a management-friendly federal appeals court in New York, the National Football League has won what may be a decisive round in its bizarre “Deflategate” campaign to brand quarterback Tom Brady a perjurer and a cheater and to hobble the New England Patriots by stripping them of two draft picks and suspending Brady for a quarter of the season.
But there is a bigger message in this long-running, silly saga, which may have come to an endpoint on Wednesday when the full U.S. Court of Appeals in New York refused to rehear arguments. The case against Brady is a microcosm of how a powerful institution can override logic, reality and fairness to punish an individual – even one with more-than-average means to defend himself – and how limited the checks and balances are in the modern United States.
NFL Commissioner Roger Goodell
Based on the NFL’s own depiction, here is the essence of its conspiracy theory: Before the AFC Championship game on Jan. 18, 2015, Brady conspired with two locker-room employees to have one of them insist to the officials that the Patriots’ game balls be set at the lower legal limit of 12.5 pounds per square inch, but then took advantage of the fact that the NFC Championship game went into overtime (forcing a delay in the start of the AFC game) so he could carry the game balls down to the field unattended, slip into a bathroom and hastily release tiny amounts of air from the Patriots’ footballs, supposedly to give Brady some advantage (although the reduced air pressure would actually make the footballs slightly slower and easier to defend).
According to NFL Commissioner Roger Goodell’s ruling in the case, the AFC Championship game was the only time the Patriots’ ball boy could have carried out this scheme because officials would have accompanied him down to the field at other Patriots’ home games.
This NFL’s charge against Brady took shape a year and a half ago after the Patriots’ opponent, the Indianapolis Colts, intercepted one of Brady’s passes in the first half of the AFC Championship game and found the ball to have a PSI below the 12.5 PSI legal limit. The NFL officials then used two gauges to test all the Patriots’ game balls (and a few Colts’ balls) during halftime and found all the Patriots’ balls below 12.5 PSI (as well as the Colts balls on the gauge that was determined to be the more accurate one).
Some NFL source then leaked the fact that the Patriots balls were under-inflated and falsely claimed that the Colts’ balls were all properly inflated, touching off a classic media firestorm with a rush to judgment that Brady and the Patriots were guilty of intentionally doctoring the footballs to gain an unfair advantage.
The Brady-is-a-cheater storyline became so entrenched – and it had such a value to the other 31 NFL teams because they would get an edge over the Patriots if Brady were suspended and his team lost draft picks – that it subsequently didn’t matter what the evidence actually showed or didn’t show.
It later was acknowledged that none of the NFL officials who checked the footballs understood the physics involved. Since the game was played on a cold and rainy night in Foxborough, Massachusetts, the football air pressure would naturally decline by about the amounts shown on the gauges, according to the Ideal Gas Law, which has been around for nearly two centuries. Even the NFL’s own hired-gun scientific firm, Exponent, concluded that all or virtually all of the PSI change could be explained by the lower temperatures alone.
Also, after the Deflategate conspiracy theory first was spun, Brady and the two locker-room employees, Jim McNally (the ball boy) and his immediate superior John Jastremski, repeatedly denied participating in any such scheme. Brady did so under oath. And the NFL presented no direct evidence to contradict their denials.
Circumstantial ‘Evidence’
The best the NFL could do was argue that theoretically a little bit of the PSI decline could have come from tampering and cited some circumstantial evidence that looked suspicious. For instance, NFL lawyers noted that McNally stopped in a bathroom for one minute and 40 seconds while carrying the ball bags to the field on Jan. 18, 2015.
New England Patriot quarterback Tom Brady.
McNally said he was simply relieving himself because he wouldn’t have another chance until halftime, but the NFL made much of him saying he used a “urinal” when there was only a “toilet” in the bathroom (although how that was relevant is hard to understand, since McNally – whether he was deflating footballs or urinating – would have seen the toilet).
Because the Patriots voluntarily turned over to the NFL the cell phone text messages between McNally and Jastremski, the league’s lawyers also took a few exchanges out of context and made them seem incriminating, such as a back-and-forth discussion about how NFL officials had overinflated the footballs in an earlier game against the New York Jets.
Again, how that was relevant to an alleged scheme to under-inflate footballs was not clear. Indeed, those text messages would tend to deflate the “Deflategate” conspiracy theory because – if the deflation scheme had predated the AFC Championship game – you would have assumed that Jastremski would have chastised McNally for failing to ensure that the balls were under-inflated, rather than allow them to be overinflated. Yet, there was no such discussion.
But the underlying absurdity of the NFL’s conspiracy theory is revealed by the chronology of events on Jan. 18, 2015, which Goodell indicated was the one time when McNally took footballs unattended to the field. But Goodell didn’t say why that was allowed – and therein lay the weakness of the NFL’s case.
The reason that McNally was able to carry the balls without an official accompanying him was because the NFC Championship game had gone into overtime and the NFL thus postponed the start of the AFC Championship game so the entirety of both games could be shown on TV.
When the NFC game ended in a sudden-death score by the Seattle Seahawks, there was haste and confusion in the referee lounge about getting everything needed down to the Patriots’ field so the AFC game could commence. McNally said he thought he was just doing his part by carrying the bags of game balls down to the field rather than waiting to be escorted.
So, while McNally’s explanation made sense – as did his reason for ducking into a bathroom – the NFL’s conspiracy theory rested on the notion that somehow Brady, Jastremski and McNally had anticipated the NFC game would go into overtime, realized that would cause a delay in the start of the AFC game, and knew there would be confusion among the officials once the NFC game ended so McNally could sneak the footballs into a bathroom and release very small amounts of air.
That Brady and his “co-conspirators” would have anticipated that extremely unlikely scenario makes no sense. Nor did the supposed motive for going to all that trouble to gain some hard-to-explain advantage of having the Patriots footballs made a tiny bit softer and a tiny bit slower.
The Real Conspiracy
But there does seem to be a real conspiracy in this story, just not the one that the NFL dreamt up. Rather than let the whole ridiculous matter drop or acknowledge that the evidence was too weak to judge Brady guilty, the other NFL owners saw an opportunity to hobble the Patriots and thus give their own teams a competitive edge over a powerful rival.
While serving as the supposedly impartial arbiter hearing Brady’s NFL appeal of his four-game suspension, Goodell allowed the owners of other teams to weigh in regarding how he should view the evidence of the case, according to his own admission.
In his ruling against Brady, Goodell disclosed that the Management Council, consisting of some of the league’s most powerful owners, urged him to view the absence of the two locker-room employees at the appeal hearing as proof of Brady’s guilt (even though the employees had testified repeatedly in other venues and had consistently denied tampering with the game balls).
It might be noted here that the Management Council controls Goodell’s $35 million salary.
Occasionally, too, this interference by the rival owners has snuck into media accounts. ESPN beat reporter Mike Reiss included one item deep inside a notebook-style report that Goodell might want to finally drop the matter except that his hands had been tied by the rival owners.
“I think Goodell would do it if that’s what 31 other ownership groups wanted, but it was clear as a possible settlement was recently explored behind the scenes that the majority of owners want the full penalty for Brady and the Patriots. Goodell is following their lead,” Reiss reported.
In other words, Goodell’s claim that he is protecting the “integrity of the game” by punishing Brady and the Patriots is hypocritical at best. In reality, he appears to be violating the integrity of the game by using a bizarre conspiracy theory to reduce the competitiveness of one dominant team.
Though normally I cover government-related topics, one reason that I have written about this case is because I have seen this pattern repeat itself again and again. When a powerful entity wants to impose its judgment on a weaker one, the powerful entity – often relying on clever lawyers and exploiting media allies – almost always carries the day.
When there is such a power disparity, pretty much anything can be turned into anything, a process that corrupts public confidence in the system and breeds a profound cynicism among citizens who witness how evidence and logic can be twisted this way or that.
In the “Deflategate” case, the distortions have extended into the news media where, for instance, ESPN, which has a multi-billion-dollar relationship with the NFL, has essentially ignored the findings of many reputable scientists who disputed the NFL’s scientific claims.
ESPN’s “Sport Science” did do a segment showing how miniscule the effect would be from a slight reduction in pounds per square inch of a football (mostly negative by making the footballs slower and easier for defenders to reach).
But ESPN’s investigative unit “E:60” only dealt with the scientific PSI dispute earlier this year in a cute segment showing how a seventh-grader named Ben Goodell (no relation to Roger) won a science-fair prize by demonstrating that weather conditions explained the drop in the footballs’ internal pressure.
NFL Wins Ruling
However, the decision by the full federal Appeals Court in Manhattan on Wednesday not to review the case means that the substance of “Deflategate” will likely never be fully examined in a court of law. Previous hearings – by a District Court judge and a three-judge Appeals Court panel – have focused on the sweeping authority that the NFL commissioner has over disciplinary matters.
District Judge Richard Berman found in Brady’s favor but his ruling was overturned by a 2-1 vote in the Appeals Court. The full Appeals Court then declined to hear the case despite an appeal motion written by prominent attorney Theodore Olson.
The motion condemned “Goodell’s biased, agenda-driven, and self-approving ‘appeal’ ruling,” noting that Goodell had altered the reasons and logic for punishing Brady, thus denying Brady his legal rights. Olson noted, too, that the NFL officials didn’t know the physics of footballs.
“As NFL officials later admitted, no one involved understood that environmental factors alone — such as the cold and rainy weather during the game — could cause significant deflation,” the filing said. “Nor did any NFL official claim that the underinflated balls affected the game’s outcome, particularly since Brady’s performance in the second half of the AFC Championship Game — after the Patriots game balls were re-inflated — improved.” (The Patriots defeated the Indianapolis Colts 45-7 and then went on to win the Super Bowl.)
But Brady’s lawyers and the seventh-grader with his science project weren’t the only ones to recognize the weakness of the NFL’s grasp of physics. In support of Brady’s request for a rehearing, a legal brief was filed with the U.S. Court of Appeals by 21 professors from the Massachusetts Institute of Technology; the University of California, Berkeley; University of Michigan; Stanford University; University of Southern California; University of Delaware; Purdue University; University of Pennsylvania; Boston College; and the University of Minnesota.
Noting that deflation happens naturally whenever a ball is moved from a warm to a cold environment, the scientists said, “This is not tampering. It is science. And it pervades the NFL. Games routinely are played with footballs that fall below the league’s minimum pressure requirement.” (Yet, none of those quarterbacks and teams are accused of cheating.)
But the NFL, which managed to get the case before a management-friendly court in New York, showed again that science and reason have a declining place in American life. As much as we may like Hollywood movies that end with some wrong being righted by a court or a congressional committee or a big newspaper, the reality is usually quite different.
When power and truth clash, power almost always wins.
[For more on this topic, see Consortiumnews.com’s “NFL’s War against Facts and Reason”; “A Deflategate Slap-down of NFL, MSM”; “The Tom Brady Railroad”; and “Tom Brady and Theoretical Crime.”]
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).
Under or over inflated footballs is an equipment violation and warrants a fine, no more and no less. Goodell has made this into a federal case, literally. He is judge, jury and executioner, biased, not objective and is abusing his power given to him in the collective bargaining agreement. Is Brady ‘generally aware’ of the air pressure in the footballs, the tools of his trade? Yes. Is that deserving of a 4 game suspension plus fine$ and loss of a draft pick? No. Abuse of power. Goodell did this because he can (yes the other NFL owners are involved in assessing as much harm as possible) and it is revenge/payback for spy gate. The Colts played both halves of that game with under inflated footballs, but no punishment for them, nor should there be. The Patriots played one half of that game with under inflated footballs, and due to the ideal gas law got them the most severe punishment in league history. How does that add up? It adds up when the genesis of the issue began with Ravens coach Harbaugh coming unglued after losing the previous playoff game to the Patriots because he didn’t know the rules and dropped a dime to his former employee Colts coach Pagano about air pressure in the footballs. The Colts dropped a dime to the league and league officials set up the sting. The target was Belichek who could have been banned for life. They swung and missed. Now petty revenge tactics, conspiracy and the over abuse of power requires Brady to take it on the chin.
The haters might like this, Brady sits 4 games and rests, plays 12 games and is fresh for the playoffs. Meanwhile Garrapolo plays 4 games, goes 2-2 or 3-1 (schedule’s easy) and gets traded for first round picks (plus?) as a result of a dearth of quality quarterbacks. Pats win, lost draft picks are replaced and we are back to square one. Did we have to go through all of this in the first place? Yes, because of an inept commissioner abusing his power.
PV=nRT
It’s a law we can live with.
Whatever. Robert Parry is speaking the truth on an obscure website that hardly anybody even knows about, let alone reads.
Nobody cares. Nobody’s listening. The majority of the news media keep reporting the same misinformation and keep talking about this as if it’s a case about footballs. The general public have no idea what the truth is, and they’re never going to know because nobody with the ability to inform them is willing to do it.
I am interested as well in Mr Parrys’ continuation with this story and the omittance of many facts regarding the case. Since he has written about this again and again (which is his right of course). it is only fair to point these points of omittance. BTW, does anyone know if Mr Parry has field tickets to the Games?
I enjoy, and in fact, value Mr Parry’s aticles, but it rings like the USB in Ukraine doing all the work on MH-17. Something is amiss in both (althouth the comparison is tragic in one case.) He seems to find it all the NFLs doing since Brady is a golden boy and could do no wrong.
Items missing in the article:
1- Brady trashing his phone the very day of his interview, In most cases, that would be considered “destroying evidence”.
2- Where has Mr Parry used his science to compare the balls from te other team and not just the Patriots? Science could compare all cases, and if the pressure was normal, Brady has a lot of explaining to do.He doesn’t seem to bring up the contestants.
3- Is Mr Parry pretending the ball boys made up their texts and comments re: Brady at an important game?
4- If the science is so exact, why is the manufacturer Wilson crying BS?
5-The texts from the ball boys and locker rom attendants usually have a name associated with delivery or response. Where are these? Oh yeh, Brady trashed his phone.
6- He states that the investigation of the reduced air in the balls was done a year and a half later, when the Colts, along with other teams had pointed out the issue for months before the game. Coincidence?
7- The locker room attentent did in fact lie about the bathroom having a urinal in it. Give the fact the stadium was his home turf, this is quite a stretch of the facts.
8- Why is Brady not disbelieved? Because his golden boy image would be tarnished?
9- “So, while McNally’s explanation made sense”…. how did it make sense? Did the Colts also take an extra bathroom break to make sense? They had every reason to go to a private bathroom with cameras and use a non-existant urinal.
I am a fan of My Parry (and no fan of Goodell who has some Sarah Palin issues with the English language, and of course, no fan of Brady as I was behind the scenes during some games. I would suggest he is not a believable character, and to use the word “character” is also a bit more of a moral compass than he actually has.
Mr Parry, I enjoy your work and the ferreting out of names in the beltway, but this quoted ‘science’ harps back to big tobacco in it’s use of false data gaked out my our own Senete Majority leader regarding the safety of big tobacco. One argument, and one argument only.
I hope someday Mr Parry finds out the real story culprits to end his defense of an organization know for cheating and bending the rules whenever they can get away with it. Now, this would be an interesting story!
Every single one of your questions has already been covered in earlier columns by Parry. You’re making a fool of yourself. Next time, you should really resist that temptation to throw in terms like “golden boy” and “organization know [sic] for cheating and bending the rules,” because it’s like holding up a sign telling everybody that you simply hate the New England Patriots and you’re incapable of any objectivity.
Those who are puzzled by this article might reread the last paragraph and the last line. Possibly then some light will shine.
Robert Parry’s articles on this topic leave me puzzled as to why he continues to be obsessed with it when there are so many more tragic examples of human rights being denied to under-privileged and politically powerless persons.
Justice is justice. This case is illustrative as to how power supercedes the law.
I was making my way through this piece, not seeing what new developments there have been since Robert Parry’s last foray into Tom Brady’s troubles, until I found it in the 31st paragraph: full appeals court denies review.
Since Parry otherwise restates what he has written previously on the topic, I’ll take the opportunity to again comment that while his analysis is a valuable illustration of how concentrated economic or political power can easily foist a phony narrative on the public and have it stick, the fact that the federal courts have decided not to overturn the NFL’s punishment of Brady is somewhat less troubling, in my opinion.
This case, legally speaking, has taken place in the realm of contract law—specifically the collective bargaining agreement between the league and the players’ union—where parties to a large extent get to make their own law. It seems that the players’ representatives failed to negotiate a contract that protects them from arbitrary, ill-founded punishments like this.
The NFL players are in an excellent position (better than the overwhelming majority of other workers in the U.S.) to rectify that situation when they negotiate their next CBA. I imagine that the owners would listen very intently to a proposal by the players for greater protections against groundless suspensions and fines in exchange for, say, the teams’ enjoying a lower salary cap, or some other pocket-book benefit to them.
I am as upset as the next person when I see the federal courts refuse to give relief to a wrongly convicted or sentenced person because of abstruse procedural or “federalism” considerations. But since these well-paid entertainers at the top of U.S. show business have ample bargaining power to address this problem in the future, and since Brady still has his freedom and every material appurtenance of celebrity life, I am inclined to support the courts’ decision to spare the public the expense of holding a full trial on the merits of who did what to a few footballs.
“I imagine that the owners would listen very intently to a proposal by the players for greater protections against groundless suspensions and fines in exchange for, say, the teams’ enjoying a lower salary cap, or some other pocket-book benefit to them.”
Oh I imagine the owners most certainly would listen to a proposal like that. It’s almost as if this whole thing was a ruthless effort to smash the union and force them to give up hundreds of millions of dollars in player salary to the BILLIONAIRE owners. Nah…couldn’t be.
Giving up your own earning power in exchange for nothing more than a promise to be treated fairly. How lovely.
The union tried to change Article 46 in the previous negotiations. The owners went hard on a salary grab against the players and locked them out. Most NFL players aren’t multi-millionaires like Tom Brady. For guys in their rookie contracts or players making the league minimum, a prolonged lockout means missing mortgage payments and having their cars repossessed. Guys like Tom Brady can wait out a lockout. Lower-tier players can’t. And the owners knew that. The union was forced to give up the fight for changes to Article 46 and had to focus on blocking the owners’ salary grab instead. They caved.
All of this is mostly a fact of life. Corporations are ruthless and greedy in how they treat their employees. And the richer the corporation, the more ruthless it will be. Most people accept that. I do. But what I don’t accept is a Federal court putting its finger on the scale. The union was facing an uphill climb in the next round of negotiations already, the 2nd Circuit has turned that hill into a sheer cliff by ignoring the law with a biased pro-management ruling. Article 46 doesn’t say anything about sham arbitration hearings with predetermined outcomes. The union had every right to expect that it was negotiated in good faith and that any arbitrator the Commissioner selected would in fact ACT LIKE AN ARBITRATOR instead of acting as an agent for management. The court knew that’s what was negotiated, so its ruling is a travesty of justice. Now that the 2nd Circuit has given Goodell despotic power, the union has no choice at all but to give the owners whatever they demand in exchange for changing that.
Obviously the union was going to have to give something up in order to change Article 46. That’s how collective bargaining works. But by ignoring the law and granting Goodell the legal right to ABUSE Article 46, the 2nd Circuit has ensured that the union will have to give up far more than they would have without such a ruling. And that wasn’t by accident. The court knew precisely what it was doing.
The players have no leverage. The court just took it all away.
Next, Goodell solves the mystery of where that elusive Buk missile that purportedly shot down the Malaysian jetliner came from. Brady’s ball handlers sneaked the launcher in and out of Ukraine during a quick stop in the men’s room.
Many thanks, Realist…. especially for solving the MH17 mystery! Please pass your findings along to John Kerry — he’ll believe anything.
But seriously, I was so angry at the abuse of power depicted in this article, I could hardly see straight. And so, a bit of comic relief was MUCH needed. … and, well, Realistic!
And, now that Lord Chilcot is free to pursue another investigation, perhaps one could interest him in looking into No-Good Goodell and his equally avaricious upper-crust partners in crime.
Thanks, again, to Robert Parry for going where angels fear to tread — and knocking faux-angels on their head. All kidding aside, I see this as an extremely powerful example of the power of money and, well, POWER. Anybody know what one does with $35 million?
I’m reminded:
My Irish grandmother, a seamstress making and repairing dresses for a woman of high society, was a big help to me as I went off, on my 14th birthday (63 years ago), to my first “regular paying” job — caddying at the exclusive Maidstone Club on the dunes of the Atlantic in East Hampton, Long Island. “Raymond,” she said, “you need to know about the “upper crust.'” Huh? says this callow youth. “Listen closely, Raymond, and you’ll be all right with them folks on that golf course: The upper crust is a bunch of crumbs held together by a lot of dough.”
That helped then; it helped later, as I moved about in still more rarefied air in Official Washington; it still helps.
Actually, I’ve come to feel sorry for the upper-crusters. They are more to be pitied — not even worth getting angry at.
Ray
25 years ago, when the Soviet Union collapsed my grandmother made a prediction:
“In 20 years American workers will be much worse off than they are now, because employers and the government won’t be afraid of Communism any more.”
The 2nd Circuit’s union-busting ruling shows that my grandmother was a prophet.