Robert Blecker's Amicus Curiae Brief on behalf of NFLPA/Brady

The Gr8est said:

Isn't Blecker a Rats fan?

Adds more credibility to his argument

I know he is not a Pats fan.

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Giants fan as I recall. On that 60 mins segment who went into how much he hates the patriots where as in this it was all his professional credentials.

so many wonderful parts! my favorites:

Page 2:
…from the start, the NFL’s investigation, adjudication, and punishment of Tom Brady for actively participating in a scheme to illegally tamper with ball pressure has been infected with bias, unfairness, evident partiality and occasional fraud.

Page 3:
A rising chorus of reputable scientists, engineers and statisticians have thoroughly discredited the simulations and statistical analysis of the NFL’s so called “disinterested expert consultants” and have shown how science fully explains the pressure drop without any hint of human tampering. Even as it escalates its accusations against Tom Brady, the NFL seems to have abandoned, without acknowledging it, the entire scientific foundation for the Commissioner’s original findings. The NFLPA, too, has gone strangely silent.

Page 4:
The NFLPA reply brief fails to assert or explore the NFL’s bias, dishonesty, or fraud in the investigation. It avoids issues concerning the integrity of sport.

Page 6:
This amicus demonstrates that unfairness, consistent bias and occasional fraud infected the NFL’s investigation from the start. The Wells report’s central finding… resulted from Exponent’s− its outside experts’−pseudo-science, artful distortion, unfairness, dishonesty rightly characterized as fraud, and evident partiality.

Page 7:
A growing chorus of distinterested scientific, statistical and engineering experts, however, have demolished the Wells report’s most essential finding: Beyond any reasonable dispute, today we know, contrary to the “crux” of the League’s finding, scientific principles and environmental conditions can fully explain the Patriots pressure drops without any human tampering.…This amicus emphasizes three among many instances of unmistakable bias that both parties’ briefs have almost completely neglected. It isolates extreme instances of unfairness, deception and at least one instance of fraud.

Page 9:
Of course if you initially set balls at the legal minimum (12.5) in a warm dry locker room, then move them outside onto a cold rainy field for two hours, their pressure will all drop and must measure below the legal minimum of 12.5. If any single Patriots football had measured at or above the legal minimum, science could not explain that. And no surprise that the Colts balls, initially set at 13.0 – above the legal minimum – also dropped, and hovered just above or below 12.5 two hours later, depending on the gauge used to measure them. As the League now admits, unaware of the Ideal Gas Law, it never considered that ball-pressure would naturally drop when moved to a cold, wet playing field. But almost a year later, to the delight of high-school physics teachers, everybody following this story now understands this basic fact of nature. Everybody, it seems except the NFL…

Page 12:
…as blogsters have pointed out the intercepted ball that began the whole affray, measured in the locker room 3 times with the Patriots’ gauge almost exactly matched the Logo gauge readings at halftime, thus clearly suggesting that the Ref, as he remembered had used the Logo gauge… But it gets worse, much worse. The bias gets clearer and morphs into fraud.

Page 14:
Closely examine the independent unbiased consultant’s own close-up: They carefully placing a simple ruler under each gauge to help us compare. The non-logo “short needle” gauge has the tip of its needle at .9 inch, whereas under it, the logo needle measures 1.4 inches. Could a person miss a one half inch difference? Perhaps. Now look again: It took my fourth read to catch the trick. Once you see it, you’ll never forget it. The Long needle measures 1.4 inches because it is 1.4 inches. The short needle, however measures .9 because they shifted the ruler an extra .2 inches! (They conveniently didn’t line up the gauges under each other so your eye wouldn’t catch it.)

Page 15:
…these “independent” investigator/consultants artfully photographed the Logo needle at the single angle that diminishes its much greater bend.

Page 16:
Bias, unfairness, or shall we call it what it is? Fraud.

Pages 19-21:
All logic suggests, and no evidence contradicts the simple and obvious sequence: As everyone agrees, the officials measured the cold and damp Patriots balls first. Then they put aside their gauges to re-inflate and restore the 11 Patriots balls to regulation pressure -- highest priority. Time pressed as the start of the second half approached. So they picked up the gauges not realizing they’d switched them, and now time’s really running short. Officials began hurriedly to measure the Colts balls…. Simply factor in the extra several minutes during which the officials almost certainly inflated and recalibrated 11 Patriots balls while the Colts balls continued to warm up and dry out – their pressure rising -- and science easily explains (although the Exponent graphs fail to consider) that the pressure in the cold, damp Patriots balls should measure a much more substantial drop than the pressure in the warming relatively dry Colts balls measured several minutes later.

Page 22-23:
The investigation from start to finish was saturated in bias and implausible assumptions… The evidence clearly indicates ball tampering probably never occurred. In the face of growing and withering criticism, with its pseudo-science increasingly debunked and exposed as naked bias, understandably the NFL brief has gone completely silent on science. Inexplicably, the NFLPA brief follows suit…

Page 25:
A series of biased assumptions detailed above casts serious doubt on the Commissioner’s reasonable judgment. The NFL brief removes all doubts with its analogies. While the NFLPA does attack the Commissioner’s unfair comparison of Brady’s conduct to covering up steroid use with a masking agent, they allow the NFL’s more insulting analogy to the Black Sox scandal – the infamous World Series fix to pass without comment.

Page 27:
We can be virtually certain that for many years, hundreds of games have been played in freezing rain or snow with game balls well under 12.5psi. Are they all tainted?

Page 28:
In short, by escalating accusations of cheating even as it silently abandons the science on which the sanctions rest, the NFL undermines the integrity of the sport its sanctions are meant to protect.

Page 31:
The record as a whole clearly reveals an NFL investigation purportedly “thorough” and “independent” but actually biased, dishonest and fundamentally unfair.

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wonderful read!

As much as I enjoyed the brief, I feel like he missed an important point about how Goodell lied about Brady's testimony of talking to Jastremski about the matter and then using that lie as part of his reason for calling Brady a liar.

Does anyone have any thoughts to why he left that out?

Wow page 12-13 is REALLY juicy!

Just nail Wells and the NFL to the cross in those paragraphs.. thems be fighting words!

Although they had neither Colts nor Patriots gauge to compare to the Ref’s two gauges, NFL investigators did determine that a master gauge and many others they tested all measured closer to the non-logo gauge, thus leading Wells to reject the Referee’s memory and use the non-logo gauge measurements. But this clearly constitutes League investigative bias: It turns out that all the other gauges they purchased then tested were the same model as the non-logo gauge, and none were the same model as the Logo gauge. They simply couldn’t locate any older Logo models the Wells report mentions in passing! Did they check Ebay?

In any case this “investigatory” bootstrapping is non-sequitur nonsense. Furthermore, as blogsters have pointed out the intercepted ball that began the whole affray, measured in the locker room 3 times with the Patriots’ gauge almost exactly matched the Logo gauge readings at halftime, thus clearly suggesting that the Ref, as he remembered had used the Logo gauge.1 Exponent conveniently rejected these readings as irrelevant – another potential instance of bias.

But it gets worse, much worse. The bias gets clearer and morphs into fraud.
1 C.f. Dave Garofalo, De-myth-tifying the Wells Report, THE SPORT POLICE (June 10, 2015) The Sports Police: De-myth-tifying the Wells Report. Case 15-2801, Document 138, 12/14/2015, 1664330, Page17 of 39

13

Having assumed the Non-logo gauge measurements on completely specious logic, when the suspiciously missing team gauges would have supported or exploded their non-logo gauge theory, NFL investigators still came up against an experienced referee’s memory. And Anderson recalled he had used his Logo gauge. Accepting all Anderson’s other recollections including the pre-game pressure of both team’s balls, Wells inexplicably rejected this single recollection in favor of an anti-Patriots non-sequitur.

Did Anderson typically use one or the other gauge? We don’t know, although investigators most probably asked him this. The Wells report doesn’t tell us and the NFL refused to turn over the interview notes. It bolsters their rejection of the ref’s memory if his two gauges could barely be distinguished. Perhaps, the referee himself mistook one for the other. As Exponent’s figure 2 shows us, the Logo gauge had a longer, more severely bent needle. How much longer? How much greater the bend? See for yourself.

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Reading through this is just making me so angry... Its so blatantly obvious how Goodell and his cronies committed FRAUD, lied and defamed the greatest QB in the history of the league. I really hope when this appeal ends, Brady hammers the NFL and ESPN with a world record defamation suit.

He's my new favorite writer.

As viagra style stimulating as this is, does it actually go anywhere or is it just filed to gather dust? Unless it results in job losses at the NFL's highest level or in the safe return of our draft picks, it's all just masterbatory fun.

Anyone? This is a serious question, I have no idea.

EPIC read.
Never been a fan of the defamation suite route but repeated public allegations of deliberate fraud certainly adds fuel to that fire. Given the science and their selective acceptance of the Ref's testimony how could the NYJFL not know that they were purposely dead wrong? Their only recourse, plead obdurate uncorrectable stupidity.

The NFLPA appeal could not be based on disputing what happened, it only could appeal on procedural issues, right? So Bleekers point about the nflpa not disputing the science, while great to read, doesn't pertain to the issues.

slam said:

The NFLPA appeal could not be based on disputing what happened, it only could appeal on procedural issues, right? So Bleekers point about the nflpa not disputing the science, while great to read, doesn't pertain to the issues.

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I think he does it to accentuate the relative importance of filing the Amicus brief in the first place.

The NFLPA and Kessler have been absolutely correct to this point how they've done this - their strategy is based on matters of law, not matters of opinion or ancillary things.

Overall, while I get why people are happy about this Amicus brief, it really leaves a lot of things out. Either focus solely on the science, or make sure to include everything. Blecker sort of ran out of steam at the end.

It's nice to have it on the record, but I don't know how persuasive it is.

This man is an American hero.

BelichickFan said:

As viagra style stimulating as this is, does it actually go anywhere or is it just filed to gather dust? Unless it results in job losses at the NFL's highest level or in the safe return of our draft picks, it's all just masterbatory fun.

Anyone? This is a serious question, I have no idea.

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There was language in there where it was basically saying that if they don't flat out laugh the NFL out of the court room and vacate Fraudell's decision, that denying Brady and his defense access to the investigative notes and interviews is more than enough reason to send it back to the District Court to overturn it on one of the other 3 issues

slam said:

The NFLPA appeal could not be based on disputing what happened, it only could appeal on procedural issues, right? So Bleekers point about the nflpa not disputing the science, while great to read, doesn't pertain to the issues.

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The NFLPA appeal could not be based on disputing what happened, unless the arbitrator (RG) can be shown to have made his ruling after being clearly influenced by outright fraud. If he was just wrong in his decision, that would not matter, even if he made big mistakes. But outright fraud changes everything.

In this brief he makes the case that this incredibly high standand is clearly met, in this instance.

The NFLPA didn't want to go so far as to argue actual fraud.

Two things jump out -

It defies all logic and reason that no one has a clear recollection of the order of events (measure NE balls, reinflate NE balls, measure some of the Colts balls) at halftime. How can that possibly be true? I have long believed that the NFL's withholding of the interview notes/investigative materials is an attempt to cover its tracks here.

The second thing is that Brady's interests are not 100% aligned with the NFLPA. While Kessler did a superb job of protecting the union's interests, he had little interest in protecting Brady's reputation. As others have pointed out, the outright fraud perpetrated by the NFL opened the door to assert Brady's complete innocence, something no one other than Professor Blecker has attempted in any official capacity.

Zeus said:

Two things jump out -

It defies all logic and reason that no one has a clear recollection of the order of events (measure NE balls, reinflate NE balls, measure some of the Colts balls) at halftime. How can that possibly be true? I have long believed that the NFL's withholding of the interview notes/investigative materials is an attempt to cover its tracks here.

The second thing is that Brady's interests are not 100% aligned with the NFLPA. While Kessler did a superb job of protecting the union's interests, he had little interest in protecting Brady's reputation. As others have pointed out, the outright fraud perpetrated by the NFL opened the door to assert Brady's complete innocence, something no one other than Professor Blecker has attempted in any official capacity.

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It's possible Brady's team argued the stronger case then asked Blecker to add this just to get it out. That's how I would do it anyway.

To our lawyers that specialize in civil cases, is there enough from this Amicus Curiae for Patriots fans to sue the NFL to get our picks back? If so, lets do it!!!

Worth noting, Patriots are letting this drop either. The Wells Report Context has been updated as recently as December 1.

All reading that did for me was make me even more angry that Kraft agreed to losing those draft picks. It is beyond obvious that no deflating took place and that the NFL sought to take down the Pats, yet those picks will never come back.

It's also clear that the media won't give this report the attention it deserves.

Guys don't you realize the latest cheating scandal?

The New England Patriot's have increased the rate of global warming in 2015 so that the NFL's random testing of football PSI will be thrown off. There are no longer cold weather games so no testing can be done to enforce the Ideal Gas Law theory so there will never be proof one way or the other.

This team, I tell ya. I'm about done supporting the Cheatriots after this Global Warming-gate.

strngplyr said:

Guys don't you realize the latest cheating scandal?

The New England Patriot's have increased the rate of global warming in 2015 so that the NFL's random testing of football PSI will be thrown off. There are no longer cold weather games so no testing can be done to enforce the Ideal Gas Law theory so there will never be proof one way or the other.

This team, I tell ya. I'm about done supporting the Cheatriots after this Global Warming-gate.

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Obviously, they're doing something wrong. I just haven't figured out what it is, yet.

On a side note, I came in this thread just to remind myself how much I hate the very discussion of the subject matter, and guess what? It worked.

Thank you for posting the amicus brief. Blecker does an excellent job hammering home the point that the NFL should be sanctioned for its behavior in Deflategate and the harm it has done to the "integrity of the game."

It's ironic that this brief came out the same week that Pete Rose was denied his appeal by the Commissioner of MLB. In that case, MLB was justified by Rose's behavior since his ban, and his admission that he still bets on baseball. Such a sad affair on so many levels.

I loved the Buck Weaver - Tom Brady comparison in Blecker's brief. Buck Weaver knew about, but did not participate in, throwing the 1918 World Series. (If you haven't seen it, watch the movie Eight Men Out by director John Sayles.) Buck Weaver just never came forward and was banned from baseball by Judge Kennesaw Mountain Landis. Blecker does a great job pointing out the difference, and the fundamental deceit of the NFL's accusation that "it was more probable than not that Tom Brady was generally aware" of the deflation of footballs that the NFL then escalated to a "scheme" and "cell-gate" with no proof whatsoever.

He also takes the NFLPA to task for not going further and pressing an accusation of fraud by the NFL. I loved the phrase "the truth lies in the shadows" when he shows the stupid picture of the air pressure gauge needles doctored by the NFL's investigators. I would have inserted LOL into the brief at that point.