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.
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.
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.
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.
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).