A Thorough Look at DeflateGate - How Did We Get To This Point?

John Vampatella

Jun 13, 2015 at 11:34am ET

The league came down far too hard on one of its biggest stars without any definitive proof. (USA TODAY Images)

On July 4, 1983, Kansas City Royals’ third baseman George Brett was ejected from a game in which he hit a home run, because the umpire determined, at the behest of New York Yankee manager Billy Martin, that Brett had applied pine tar too high up the bat, in violation of rule 1.10(b), which says that it may be on the first 18 inches of the bat, but no higher.  When Tim McClelland threw Brett out of the game, he exploded out of the dugout in a fiery rage, which became legendary in the annals of the sport.

The questions that emerged from that incident typically looked like these:

• What rule did Brett break, and why was that rule even in place?


• Did breaking the rule make Brett a “cheater”?


• What should the punishment have been?

Griffith was one of the few owners whose sole business interest was the baseball club, and he watched his money spent by the organization very carefully.  He avoided paying competitive salaries, and had a disdain for modern marketing techniques.  It is therefore no surprise that he did not like spending extra money on baseballs simply because they were getting covered by pine tar.  Therefore, as the story goes, he convinced baseball to enact the rule in 1955 that limited pine tar to the first 18 inches of the bat.

George Brett was ejected from a baseball game in 1983 because Calvin Griffith was a stingy owner.

Brett’s violation had nothing whatsoever to do with the integrity of the game, or with trying to gain a competitive advantage, or with “cheating”.  Yes, he broke a rule.  But the rule existed for a silly reason.  Eventually the American League overturned his ejection, the rest of the game between the Yankees and Royals had to be replayed from that point forward, and the rule was amended after the incident.  The league realized the silliness of the incident and of the rule.  Now, if a player has too much pine tar on the bat, the bat is removed, but the result of the play still stands, and the player remains in the game.  There needs to be some sort of consistency in the equipment used (generally speaking, a range), but not every violation of an equipment rule represents a threat to the integrity of the game or a desire to gain a competitive advantage.

For example, consider the NFL rule requiring players to wear thigh pads, enacted in 2013.  The rule was not put in place to ensure equality in competitiveness, but rather to protect the players.  Players often do not like to wear thigh pads, because they feel restrictive, and players believe it makes them slower.  Hall of Fame wide receiver Michael Irvin said, “I was convinced they slowed me down.  And I am sure guys today will be sure of the same.”  An unnamed veteran player told cbssports.com, “This rule is dumb, and now the game is going to slow down dramatically.”  Any player not wearing thigh pads is not allowed to play until he gets his equipment up to code, and the NFL could even levy a fine against noncompliant players.  The NFL has a rule regarding the equipment, and the rulebook attaches certain penalties to people not abiding by the rule.  Breaking the rule does not necessarily mean a player is a “cheater” or is illegally trying to gain an unfair competitive advantage.

Some rules DO get to the heart of competitive play.  For example, PED usage is illegal in all major sports because they give athletes that use them a significant competitive advantage over those that don’t.  Rightly, leagues like the NFL hand down harsh penalties to players caught using PEDs.  Such players are considered “cheaters” due to the nature of the rule violation.

So with that in the background, let us take a serious look at the “Deflate-gate” incident involving the New England Patriots.  Amidst the cacophony of disparate voices that have turned this event into one of the biggest scandals in NFL history, we will attempt to wade through the issue in a thoughtful, clear-headed manner.  No small task, this.

There are four primary questions that need to be asked.  Within these three questions are many other questions, of course.  Those four questions are as follows:

• Is illegally tampering with a football a serious offense – does it constitute “cheating”?


• Did anyone in the Patriots’ organization illegally tamper with the footballs?


• If so, were Tom Brady or Bill Belichick specifically involved in any way?


• If so, what penalty should Brady, Belichick, and the Patriots receive?

Let’s begin by talking about the NFL rules regarding the football.  Here is the relevant section from the NFL rule book, rule 2, titled, “The Ball”.

Section 1

BALL DIMENSIONS

• The Ball must be a “Wilson,” hand selected, bearing the signature of the Commissioner of the League, Roger Goodell.


• The ball shall be made up of an inflated (12 1/2 to 13 1/2 pounds) urethane bladder enclosed in a pebble grained, leather case (natural tan color) without corrugations of any kind. It shall have the form of a prolate spheroid and the size and weight shall be: long axis, 11 to 11 1/4 inches; long circumference, 28 to 28 1/2 inches; short circumference, 21 to 21 1/4 inches; weight, 14 to 15 ounces.


• The Referee shall be the sole judge as to whether all balls offered for play comply with these specifications. A pump is to be furnished by the home club, and the balls shall remain under the supervision of the Referee until they are delivered to the ball attendant just prior to the start of the game.

BALL SUPPLY

• Each team will make 12 primary balls available for testing by the Referee two hours and 15 minutes prior to the starting time of the game to meet League requirements. The home team will also make 12 backup balls available for testing in all stadiums. In addition, the visitors, at their discretion, may bring 12 backup balls to be tested by the Referee for games held in outdoor stadiums. For all games, eight new footballs, sealed in a special box and shipped by the manufacturer to the Referee, will be opened in the officials’ locker room two hours and 15 minutes prior to the starting time of the game. These balls are to be specially marked by the Referee and used exclusively for the kicking game.


• In the event a home team ball does not conform to specifications, or its supply is exhausted, the Referee shall secure a proper ball from the visitors and, failing that, use the best available ball. Any such circumstances must be reported to the Commissioner.


• In case of rain or a wet, muddy, or slippery field, a playable ball shall be used at the request of the offensive team’s center. The Game Clock shall not stop for such action (unless undue delay occurs).


• Note: It is the responsibility of the home team to furnish playable balls at all times by attendants from either side of the playing field.

These ball parameters were put in the rulebook 75 years ago.  Nobody knows why they are what they are.  They are slightly different from the college football, which can be, for example, as short as 10 ½ inches long, with a long circumference as small as 27 ¾ inches.  So obviously it is quite possible to play football at a very high level with measurements that are outside the NFL regulations.  In other words, there is nothing “magical” or “right” about the NFL regulations.  If the NFL decided today to change the inflation level of the football from 12.5-13.5psi down to 11.5psi-12.5psi, it would not have any tangible impact on the game.

For most of the league’s history, the NFL has been in charge of the footballs.  But in 2006, Tom Brady and Peyton Manning led a bit of a revolution, convincing the NFL to adopt some changes to how the footballs are handled.  Since then, each team has been allowed to prepare the footballs to their own quarterback’s preferences.  The degree to which each quarterback prepares his footballs is astounding.  A November 23, 2013 New York Times article detailed Eli Manning’s incredible football preparation, which is months and months in the making.[1]  Each quarterback prefers the footballs a certain way, each to his own specifications.  CBS’ Jim Nantz and Phil Simms, on the November 30, 2014 broadcast of the Patriots-Packers game in Green Bay, made a note that Green Bay quarterback Aaron Rodgers likes his footballs on the high end of the inflation regulations.  Here were Simms’ words, citing Rodgers’ comments to him:

“He (Rodgers) said something [that] was unique: 'I like to push the limit to how much air we can put in the football, even go over what they allow you to do and see if the officials take air out of it.”

Later in the conversation, Simms said, “You know, the officials do check those footballs and sometimes maybe even get lucky and put an extra half pound of air in there to help Aaron Rodgers out.”[2]

At the time Simms made those comments, nobody paid much attention, because the NFL was ok with each quarterback having the ball according to his own preferences.  This was, in many ways, part of the NFL’s move towards more offense in the game.  Partly to appease a rapidly growing segment of the NFL fan base that plays fantasy football, the NFL was hoping to make the game more entertaining.  Rules regarding pass defense and hitting the quarterback (and receivers, for that matter) were instituted to increase offense and scoring.  Allowing the quarterbacks to prepare the balls in a way that made them more comfortable to throw was part of this move.  Thus, nobody thought twice when Rodgers’ comments were mentioned by Simms on the air.

In fact, nobody thought twice when Tom Brady himself, in November of 2011, commented on WEEI radio that teammate Rob Gronkowski’s vicious spikes deflated the footballs, but that he was ok with it.  Brady said, “I love that, because I like the deflated ball.  But I feel bad for that football, because he puts everything he can into those spikes.”[3]

Aaron Rodgers prefers football pressure on the high end, and doesn’t mind if they are overinflated.  In fact, sometimes the officials will end up approving footballs that are above the regulated psi.  Tom Brady prefers football pressure on the low end, and doesn’t mind if they are underinflated.  Until the 2015 AFC Championship Game, nobody thought twice about this.  Not even the officials, apparently, as Simms pointed out that sometimes they would inflate the footballs above the regulation pressure.

That the game officials and the NFL itself have never cared much about this issue is evident from many different pieces of information.  Consider the text exchanges between Jim McNally, the Patriots’ locker room attendant, and John Jastremski, an equipment assistant for the Patriots, as cited in the Wells report.

On October 16, the Patriots played the New York Jets (a 27-25 Patriots’ victory).  The next day, the two men swapped texts, talking about the footballs in the Jets’ game and how they would prepare the balls for the following game.  Apparently, Brady was complaining about the inflation of the footballs from that game, and gave them grief about it afterward.  Jastremski told McNally, “He was right though...I checked some of the balls this morn…The refs f***** us…a few of them were at almost 16.  They didn’t recheck them after they put air in them.”[4]

This fits with what Simms pointed out.  If Brady prefers the footballs at the low end of the spectrum, no wonder he was unhappy with footballs that were at 16 psi.  That’s 2.5 psi above the legal limit, and 3.5 psi above what Brady prefers.

If the officials routinely put extra air into the footballs, why would they hand the Patriots footballs at 16 psi?  Either they were being devious and crooked, and trying to cheat the Patriots (unlikely), or they were simply cavalier about the measurements, not worrying about the precise pressure of each football.  It will not do to simply dismiss Jastremski’s texts as exaggerations, for these text messages form key evidence for Wells’ conclusion that these men were involved in illegally deflating footballs.  If we dismiss this piece of evidence as being exaggeration, then we should also dismiss the rest of the texts as well.  Wells treats these texts as truth, and as proof that the Patriots illegally deflated footballs, and therefore we should take Jastremski’s claim seriously.

There is more.  In the Wells report, the officials measured the pressure of the footballs before the game, as was standard protocol.  Walt Anderson recalls that the Patriots’ footballs measured at 12.5 while the Colts’ measured at 13.0 or 13.1.  But Anderson did not write down the measurements.  This is interesting, because before the game, the NFL was alerted to possible shenanigans by the Patriots, and yet did not take the necessary precautions to ensure that the footballs were indeed correct.  The Wells report cited a note from the Colts’ equipment manager that was passed on to the NFL office by email by Indianapolis GM Ryan Grigson that said, “As far as the gameballs are concerned it is well known around the league that after the Patriots gameballs are checked by the officials and brought out for game usage the ballboys for the patriots will let out some air with a ball needle because their quarterback likes a smaller football so he can grip it better, it would be great if someone would be able to check the air in the game balls as the game goes on so that they don't get an illegal advantage.”[5]

However, Wells, in a May 12 conference call, said, “No one took the complaint that seriously.  The complaint wasn’t supported by any evidence.”[6]

Clearly.  If the psi of footballs was germane to the game, and if the Patriots were rumored to be tampering with the footballs, how would anyone actually know unless the footballs were measured?  And measurements mean nothing in this context if they are not recorded.  In fact, NFL referees never record the psi of footballs.  Why?  Because they do not care that much about it.  It has never been an issue worth getting worked up over in the entire history of the NFL, until now.

The league never treated the pressure in footballs seriously until recently. (USA TODAY Images)

So not only do the actions of the officials tell us that the NFL has never treated ball pressure as a serious issue, the complete lack of awareness of the laws of physics tell us that the NFL has never seen this as a problem.  The Ideal Gas Law – something anyone who has followed this controversy now has seared into his brain – tells us what happens to a gas when its pressure, volume, or temperature change.  If you have a football filled with room temperature air – say, 75 degrees – and you put it in a colder environment – say, 50 degrees.  Max Tegmark, a professor of physics at MIT, did some work in this area, and demonstrated that a football under those conditions (accounting even for the rain that was in play that night) will see its air pressure reduced by close to 2 psi in the time frame that the ball was out in the cold.  This is confirmed by the experience of anyone living in a cold climate – when the weather gets cold, your car tires lose pressure.

NFL officials apparently are unaware of the Ideal Gas Law.  It was not something that the NFL considered when the footballs were measured at halftime.  Moreover, it is not something that has ever been a consideration before.  When the New York Giants beat the Green Bay Packers in the 2008 NFC Championship game, the temperature was -1 degree.  The footballs had to have dropped well below 12.5 psi during that game.  Why was there no investigation then?  Well, because nobody cared.  Everyone knew the balls would get a little softer, but it impacted both teams, so it was not even considered by NFL officials.  Nobody thought to measure the footballs and make sure they were up to code.  And if they had, and found them under the regulation pressure, they simply would have pumped them up for the second half.  Nobody would have been accused of cheating.

There is one more point to consider with respect to the NFL’s lack of concern over the footballs.  Since 2012, there have been two examples where NFL teams have been caught tampering with the footballs after the officials have cleared them for play.  On October 15, 2012, the San Diego Chargers played the Denver Broncos (Denver won, 35-24).  In the wake of the game, the NFL launched an investigation as charges were leveled against San Diego for violating rules regarding the game equipment.  Namely, they were using a non-NFL-approved towel and applying a sticky substance to the footballs, so that quarterback Philip Rivers, his receivers, and running backs would get a better grip on the ball.

Mike Florio of profootballtalk wrote on October 21, 2012,

“Jay Glazer of FOX reports that the Chargers are facing stiff punishment after officials confiscated during Monday night’s game against the Broncos a towel that contained a substance that has been banned by the NFL for decades:  Stickum.  Per Glazer, an equipment manager brought the towel onto the field during a timeout.  Something caught the attention of one of the officials, one thing led to another, and now the Chargers face a large fine and possibly the loss of one or more draft picks for cheating.”[7]

It turned out that the Chargers were not using stickum, but rather a Gorilla Gold Grip Enhancer towel, which uses “all-natural resins” to improve grip.  The company said, “In regards to the recent NFL controversy involving Norv Turner and the San Diego Chargers, they were not the first, nor are they the only team or players to use Gorilla Gold. It has been in use by many teams including the CFL for over ten years on the field, on the sideline, and in the training room.”[8]

The Chargers, when confronted on the field that day, refused to surrender the towels, because they were illegal to use.  As a result, the NFL fined the Chargers $20,000, but not for violating the rules regarding football tampering.  Even though they were using a non-NFL-approved towel (i.e., it was against the rules to use this Gorilla Gold towel), the NFL declared that they did nothing wrong.  They were, however, fined for concealing the towel.[9]

So despite using an illegal towel to apply a sticky resin to the football to better enable the Chargers to grip the ball, the league did not consider this worth penalizing.

Then, on November 30, 2014, the Minnesota Vikings hosted the Carolina Panthers, on a cold day in Minnesota.  The 12 degree temperature was the seventh-coldest game in Vikings history, and predictably, the footballs lost air pressure.  So much so, apparently, that the Panthers took matters into their own hands to increase the pressure of the footballs.  They were caught on FOX cameras bringing the footballs to the sideline heaters in an attempt to warm up the balls and thus increase the psi.[10]

When they were caught on camera, the NFL issued a warning to the teams, telling them to stop.

“You can’t do anything with the footballs in terms of any artificial, whether you’re heating them up, whether it’s a regular game ball or kicking ball, you can’t do anything to the football,” NFL V.P. of officiating Dean Blandino said at the time.  “So that was noticed during the game, both teams were made aware of it during the game and we will certainly remind the clubs as we get into more cold weather games that you can’t do anything with the football in terms of heating them up with those sideline heaters.”[11]

In other words, the NFL witnessed the Panthers actually tampering with the football live on television, and they were so concerned about it that they issued a reminder that they can’t do that.

This is the level of seriousness with which the NFL had, until the 2015 AFC Championship Game, treated tampering with the football, when teams were actually caught in the act.  Two teams caught.  Neither team actually penalized for the tampering.  No fine.  Nobody suspended.  No draft picks lost.  No controversy.  No independent investigation.  No nothing.

It is exceedingly difficult to buy the idea that football tampering during a game is a serious offense.  The NFL rules call for PED usage (“cheating”) penalty to be 4 games for the first infraction, and as many as 10 games for a second.  The NFL rules call for a much smaller penalty for football tampering.  According to the NFL game operations manual,

“Once the balls have left the locker room, no one, including players, equipment managers, ball boys, and coaches, is allowed to alter the footballs in any way. If any individual alters the footballs, or if a non-approved ball is used in the game, the person responsible and, if appropriate, the head coach or other club personnel will be subject to discipline, including but not limited to, a fine of $25,000.”[12]

Clearly, a $25,000 baseline fine is not remotely comparable to a four-game suspension for PED usage, but that only underscores the fact that until “Deflate-gate”, the NFL treated the footballs and any football tampering as a very minor deal.  It is interesting to note that the league imposes up to a $20,000 fine against a player using excessive profanity.[13]  In other words, according to the NFL rules, tampering with a football is treated as just about as grave an offense as dropping a lot of f-bombs during a game.  It would seem, then, that tampering with a football is akin to not wearing your uniform properly (not having thigh pads on) or excessive swearing, rather than PED usage or other forms of “cheating”.

In fact, ESPN’s Sports Science did a segment on this issue, just days after the allegations came out.[14]  They highlighted the following:

• That ball leaving Brady’s hand at 50 MPH and traveling 20 yards would arrive at the receiver .003 per second In other words, Advantage: Defensive back.


• About that argument that the lower pressure makes the ball extra squishy and therefore easier to grip? The compression on a football measures one millimeter.


• The weight difference between a 10.5 PSI and a 12.5 PSI ball is less than the weight of a dollar bill.[15]

“I have a major problem with the way it goes down, to be honest with you.  The majority of the time, they take air out of the football. I think that, for me, is a disadvantage."[16]

If each quarterback feels more comfortable with the ball his own way, how is it an inherent advantage for one quarterback to throw with a football 0.5 psi deflated?  For Rodgers, such a football would be a disadvantage, not an advantage, because it would create an uncomfortable feel as he throws.

In the first half of the AFC Championship game, when Brady was using underinflated footballs, his stats were pedestrian.  But in the second half, using footballs that began overinflated, but ended up at regular inflation, his stats were stellar.

First half:  11-19 (57.9%), 95 yards (5.0 ypa), 1 TD, 1 INT, 66.8 rating

Second half:  12-16 (75.0%), 131 yds (8.2 ypa), 2 TD, 0 INT, 138.2 rating

Brady followed this up with a Super Bowl performance for the ages against one of the greatest defenses in league history.  Using footballs prepared and kept by the NFL, away from any Patriots’ ball handler, Brady put up this stat line in winning the Super Bowl MVP award.

37-50 (74.0%), 328 yards (6.6 ypa), 4 TD, 2 INT, 101.1 rating

So in his last six quarters using regularly, or even overinflated footballs, in the two biggest games of the season, Brady put up this stat line:

49-66 (74.2%), 459 yards (7.0 ypa), 6 TD, 2 INT, 110.6 rating

In those six quarters, the Patriots amassed 56 points, which comes to 9.3 points per quarter, which would be a pace for 37+ points in a four-quarter game.  In other words, there is nothing to indicate that Brady needs underinflated footballs to perform at an all-pro level.

In fact, Brady’s career numbers on the road are stellar.  Compare Brady’s home and away splits to other top NFL quarterbacks.

Brady

Home:  63.6%, 7.3 ypa, 97.0 rating

Road:  63.4%, 7.6 ypa, 94.7 rating

Manning

Home:  66.1%, 7.9 ypa, 101.1 rating

Road:  64.9%, 7.7 ypa, 94.0 rating

Rodgers

Home:  67.5%, 8.5 ypa, 112.6 rating

Road:  64.3%, 8.0 ypa, 100.0 rating

Brees

Home:  67.1%, 7.7 ypa, 99.8 rating

Road:  65.3%, 7.4 ypa, 91.1 rating

Roethlisberger

Home:  63.9%, 8.1 ypa, 97.7 rating

Road:  63.6%, 7.6 ypa, 90.2 rating

In each of these cases, their quarterback passer rating is at least 7 points lower on the road than at home.  Except for Brady, whose road passer rating is only 2.3 points lower than at home.  In other words, relative to other top NFL quarterbacks, Brady’s road performance – where his ball attendants have no access to the footballs like they do at home – is much closer to his home performance.  If any advantage is to be gained by deflating footballs (which can only happen at home), Brady sure isn’t realizing it, when compared to other top quarterbacks.

But maybe the advantage of deflated footballs isn’t in Tom Brady throwing it; it’s in other players’ increased ability to hold on to the football.  That is, maybe a deflated football is not easier to throw, but maybe it’s easier to catch and not fumble.  This was the notion of a study published by Warren Sharp, who argued that the Patriots’ ability to not fumble was an extreme outlier that can only be explained by tampered footballs.[17]

The Ideal Gas Law was ignored in the Wells Report, which clearly accounted for the drop in psi. (USA TODAY Images)

For many, this represented compelling evidence of the Patriots’ underhanded ways garnering a measurable advantage.  However, Sharp’s analysis was greatly flawed in many areas, and has been debunked by statisticians and scientists alike.  Neil Paine of 538 (a statistics-based sports web site) listed some of the refutations of Sharp’s work.[18]

• At Deadspin, statistics professors Gregory J. Matthews and (friend of FiveThirtyEight) Michael Lopez wrote a great, FireJoeMorgan-style, line-by-line takedown of Sharp’s most popular post. They refuted the 1-in-16,234 number (by Sharp’s own methodology it should be more like 1-in-297) and pointed out a massive data error in Sharp’s analysis of individual players (he mixed together some data that included special teams plays and some that excluded them). Matthews and Lopez also broke down team fumble rates by position, after which New England’s running backs and receivers don’t really look like major fumble-preventing outliers at all.

• SoSH Football Central’s Daryl Sng broke down Sharp’s aforementioned data errors in even greater detail. After excluding kick and punt returns (which make no sense to include because teams don’t have any access to “K balls”) and correcting for Sharp’s original mishmash of regular-season and playoff data, the players in Sharp’s sample fumbled only about 23 percent more as non-Patriots, not 88 percent as was originally stated.

• Political scholar Bill Herman also zeroed in on Sharp’s analysis of individual players’ fumble rates with the Patriots and other teams, identifying its aforementioned methodological errors. In addition, he looked at the six players featured in Michael Salfino’s Wall Street Journal article based on Sharp’s work, finding that their difference in fumbling was statistically significant. Of those six players (Danny Amendola, BenJarvus Green-Ellis, Danny Woodhead, Wes Welker, Brandon LaFell and LeGarrette Blount), four were common to Sng’s dataset, but both analyses found a 23 percent increase in fumbling while playing for teams other than New England.

• Like Matthews and Lopez, data analyst Tom Hayden repudiated Sharp’s assumption that his “plays per fumble” metric was normally distributed across NFL teams (a necessary condition for the 1-in-16,234 claim).

• The harshest counterargument belonged to data scientist Drew Fustin. Fustin challenged Sharp’s choice to exclude dome teams (Sharp’s own post says outdoor teams barely fumble more often than those based in domes), instead looking at fumble rates across all teams in outdoor games only — whereupon the Patriots don’t even rank first in the NFL at fumble avoidance over the 2010-2014 period. He also questions whether Sharp’s decision to use that 2010-14 period was a case of cherry-picking the timeframe that would make the Patriots look most like an extreme outlier.

“‘Let me just say that my personal coaching philosophy and my mentality has always been to make things as difficult as possible for players in practice,’ he said.

“He added: ‘With footballs, I’m sure that any current or past player of mine would tell you that the balls we practice with are as bad as they can be — wet, sticky, cold, slippery. However bad we can make them, I make them.’

“That may have constituted news to the outside world, but inside the New England locker room, it was common knowledge.

“‘I don’t know anything about what’s going on,’ running back LeGarrette Blount said. ‘But we practice with terrible balls.’  He continued, ‘Bill comes and pours water on the balls that we practice on.’

“Patriots quarterback Tom Brady, in his 30-minute session with the news media on Thursday, said the balls that Belichick waters at practice could be the same ones the team uses for games.  The veteran Patriots learned early on that it was useless to protest the conditions of the practice balls. Belichick has a stock response: He makes them worse and, as he said, ‘that stops the complaining.’

“He continued: ‘I want the players to deal with a harder situation in practice than they’ll ever have to deal with in the game. Maybe that’s part of our whole ball-security philosophy. I’m trying to coach the team, and that’s what I want to do.’”[19]

Before the 2006 rule change allowing quarterbacks to prepare their own footballs, the Patriots had put together the following run:

2001:  11-5, won the Super Bowl

2002:  9-7, lost division on tiebreaker

2003:  14-2, won the Super Bowl

2004:  14-2, won the Super Bowl

2005:  10-6, lost in the divisional round

So from 2001-2005, the Patriots went 58-22 (.725) during the regular season, and went 9-1 in the playoffs, winning three Lombardi trophies.  No other team in the NFL came close to that level of success.  Clearly, the Patriots did not need any special football treatment, or to illegally tamper with the balls, in order to achieve the highest level of success.  Under Brady and Belichick, the Patriots have been great when Brady was young and the rules allowed for defenses to beat on receivers.  They have been great when Brady was putting up video game numbers and the passing rules changed to improve offense.  And they have been great as Brady has gotten older and they have incorporated more of a defensive philosophy.  They have been great at home and on the road.  They have been great during the regular season and in the playoffs.  They have been great drafting, developing players, and acquiring talent via trade and free agency.  And they have been great at managing the salary cap.  The bottom line is that they have been a great, great team, period.

Did anyone in the Patriots’ organization illegally tamper with the footballs?

The Wells report uses the following evidence to conclude that it is “more likely than not” that the Patriots were illegally deflating the footballs.

• A complaint came in to the league offices before the AFC Championship game regarding the Patriots illegally deflating footballs.


• Communications between McNally and Jastremski indicates that Brady is very particular about the condition of his footballs, and that he wanted the footballs as low as possible.


• The footballs were measured by referee Walt Anderson before the game, and he approved them within the league regulations.


• McNally took the balls from the official’s room out to the field, unaccompanied by an NFL official, in violation of protocol. During his trip to the field, he stopped in a bathroom for 90 seconds, enough time to deflate 12 footballs.


• Mike Kensil, a league official (not a game official) was informed during the first half that the Patriots were using an underinflated football.


• At halftime, Anderson’s crew once again measured the football pressure. The Patriots’ footballs were not within regulation.


• Subsequent communications between McNally and Jastremski referred to McNally as the “deflator”, taken to be a serious reference to McNally’s role in illegally deflating footballs.

The first key component to getting at the likely truth of whether the footballs were purposefully and illegally deflated is understanding something called Occam’s Razor.  This refers to the idea that the simplest explanation that accounts for all the known facts is more likely than not to be correct, as compared to a more complicated explanation.  In other words, if a heart attack best explains Smith’s death, we need not invoke a secret scheme to commit murder, simulating a heart attack.  Occam’s Razor doesn’t always get us the true story, because a more complicated explanation can be the correct one, but it does serve as a useful tool when trying to find out what happened.

In this vein, the two key elements to this part of the story are:  (1) the science behind ball deflation, and (2) the actions of McNally on the day of the game.  Let’s begin with the science.

We have already seen how the Ideal Gas Law works, but let’s now apply it specifically to this situation.  The Wells report cites Brady’s preference for the footballs to be at 12.5 psi, and that ball inflation levels are important to Brady:

“Brady has also acknowledged publicly that he likes game balls inflated at the low end of the permissible range. The inflation level of game balls clearly is important to Brady, as demonstrated by his reaction when he believed that game balls were inflated at an undesirable level.”[20]

Moreover, Wells acknowledged that McNally was aware of Brady’s strong preference for footballs at this level.  On page 15 he cites,

• “McNally‟s knowledge that Brady prefers footballs inflated at the low end of the permissible range and his express request that the referee set the balls at a 12.5 psi level.”

Again, from the Wells report:

“When interviewed by our investigative team, Brady explained that he prefers footballs that are more broken in and that he is primarily focused on the “feel” of the ball, citing the texture, grip or tackiness of the ball‟s surface. Brady told us that when he selects footballs for games, he examines the laces, the leather and the “nubs” or dimples on the surface of each ball, and ultimately picks footballs that “feel best” to him. Dave Schoenfeld, the Equipment Manager for the Patriots, stated during his interview that it is “known throughout the equipment room” that Brady likes footballs inflated “at the low end” of the permissible range, meaning, according to Schoenfeld, footballs inflated at 12.5 or 12.6 psi. Schoenfeld said that, as a result, that is the range that the Patriots “target” for game day.”[21]

We have testimony from Schoenfeld, Brady, and McNally, and all three are in agreement:  Tom Brady likes the footballs at 12.5 psi, and that’s what McNally passes on to the officials before the game, including the AFC Championship Game.  The Wells report notes that Jastremski pointed out that he set the pressure level to 12.6 psi after each ball had been prepared, and then placed on a trunk for Brady to review.  He approved the balls, and McNally brought the balls to the official’s room for inspection.

Walt Anderson, the game referee, tested all the footballs, and though he did not write the numbers down,

“Anderson recalls that most of the Patriots footballs measured 12.5 psi, though there may have been one or two that measured 12.6 psi. No air was added to or released from these balls because they were within the permissible range. According to Anderson, two of the game balls provided by the Patriots measured below the 12.5 psi threshold. Yette used the air pump provided by the Patriots to inflate those footballs, explaining that he “purposefully overshot” the range (because it is hard to be precise when adding air), and then gave the footballs back to Anderson, who used the air release valve on his gauge to reduce the pressure down to 12.5 psi.”[22]

So the evidence is consistent across the board:

• Brady prefers the footballs at 12.5 psi.


• Jastremski prepared the footballs at 12.5 psi.


• McNally tells the referees that Brady wants the footballs at 12.5 psi.


• Walt Anderson makes sure that the footballs are 12.5-12.6 psi.

Anderson also measured the Colts’ footballs, and they came in at 13.0-13.1 psi, and Anderson noted that it was clear that the Colts’ target range was 13.0.

We will come to the events surrounding McNally later.  Let’s continue with the science.  All the Patriots’ footballs, measured in approximately 74 degree indoor temperatures, were at 12.5-12.6 psi.  The game was played in about 50 degree, wet conditions.  In the second quarter, Tom Brady threw an interception and the Colts got a Patriots’ football on the sideline.  At that point, the Colts decided to measure the psi in the football.  They tested the ball on the sidelines (which, ironically, would itself constitute illegal tampering with a football – why aren’t they being punished for this transgression?) and the football came in under the 12.5 threshold.  At that point, they spoke to Mike Kensil, and NFL official, who relayed the information up the chain.  He then went over to the Patriots’ sideline at the end of the first half and told the Schoenfield, “We weighed the balls. You are in big f—ing trouble.”[23]

Anderson and his crew (Blakeman and Prioleau) measured the footballs at halftime – all 11 Patriots’, and 4 Colts’.  These measurements were recorded.  Each man used a separate gauge (one with a Wilson logo on it, the other without).  Here were the results:

Now, it is important to note something about the gauges.  The logo gauge measured higher on average than the non-logo gauge.  It matters which gauge Anderson used in his pre-game measurements.  The Wells report states that Anderson’s best recollection was that he used the logo gauge.  Since the Wells report accepts Anderson’s best recollection on every other point in the entire episode, for consistency’s sake we must assume that his recollection was accurate here as well.  So the average Patriots’ football measured at 11.49 using the logo gauge, which is 1.01 psi under the 12.5 measurement Anderson recalls during his pre-game inspection.  The Colts’ footballs, meanwhile, measured about 0.42 psi under what Anderson recalls measuring before the game.[24]

It is interesting to note at this point the comments that typically existed – and still exist – about this aspect of the story.  Talking heads and fans (usually of other teams) alike routinely said things like, “If it was natural, how come the Colts’ footballs didn’t deflate too?”  The fact is, they DID deflate.  It’s just that the starting point for the Colts’ footballs was higher, so they did not, on average, pass below the lower limit (using the logo gauge).

Now, there are two questions here:  (1) Can natural law account for the drop in psi in the Patriots’ footballs?  And (2) what explains the discrepancy between the drop in the Patriots’ psi and the Colts’ psi?

It turns out that the Ideal Gas Law absolutely, unequivocally, CAN account for the drop in psi.  We will not work the formulas, but I shall refer you to three sources that confirm this.

The first source is one I referred to earlier.  Thomas Healy of Carnegie-Mellon University wrote a technical paper for the New York Times on this very issue.  Here’s what Healy did:

“He measured the pressure drop in 12 footballs when they were moved from a room at 75 degrees to one at 50 degrees (the approximate temperature on the field in the Colts game).

In the experiment, the deflation of the footballs was close to the larger, correctly calculated value. When Healy moistened the balls to mimic the effects of the rainy weather that day, the pressure dropped even further, close to the deflation of 2 pounds per square inch that the N.F.L. is believed to have found.”

Max Tegmark of MIT analyzed Healy’s paper.  Tegmark’s conclusion?  That “most or all of the deflation could be explained by those environmental effects.”[25]  Tegmark said, “To me, their measurements mean that there’s no evidence of foul play.”

Healy’s experiments showed that the Patriots’ footballs could have deflated close to 2 psi given the environmental conditions the Patriots’ balls were in for nearly 90 minutes.  That’s plenty of room for the difference the logo gauge gave (1.01 on average), and even the difference between what the non-logo gauge gave (1.39).

A second scientific source is Drew Fustin, who has his PhD in physics from the University of Chicago.  He offers a timeline whereby the Patriots’ footballs were promptly measured at the start of halftime (a reasonable assumption, given that they were the balls that concerned the officials), and then the Colts’ balls were measured afterward.  He then worked the Ideal Gas Law backward from the actual recorded halftime measurements of both sets of balls to come up with what the footballs should have been at the start of the game, when Anderson initially measured them (but did not record them).  Fustin’s conclusion?

“So, a scenario where the Logo Gauge was used by Walt Anderson pre-game, the Patriots halftime measurements were recorded at the beginning of halftime, and the Colts were measured at the end of halftime yields an average initial pressure of 12.56 psig for the Patriots balls and 13.01 psig for the Colts ball. Both are what Anderson measured pregame without tampering having to be invoked.”[26]

So we have an MIT professor of physics starting with the pregame measurements and working forward, and he comes to the conclusion, based on what we know, that the discrepancy between the Patriots’ footballs measured at the start of the game and at halftime is entirely consistent with what the Ideal Gas Law would predict.  And we have a PhD in physics from the University of Chicago starting with the halftime measurements and working backward, and he comes to the conclusion, based on what we know, that the Ideal Gas Law would have predicted that the measurements of the Patriots’ footballs to be between 12.5-12.6 psi, and the Colts’ footballs to be at about 13.0 psi.

A third source is the well-known Khan Academy, who walks us through the entire scientific process and concludes that the deflation is perfectly consistent with the known conditions and the Ideal Gas Law.[27]

Wells acknowledged the chance of outside factors affecting the ball pressure, but dismissed it. (USA TODAY Images)

Interestingly enough, the Wells report itself acknowledges this science.  In Appendix I of the report, we find this:

“…using the Ideal Gas Law, or variations thereof, different calculations can be generated on the basis of different assumptions about the starting pressure, and starting and ending temperatures of a football. For example, using the most likely pressure and temperature values for the Patriots game balls on the day of the AFC Championship Game (i.e., a starting pressure of 12.5 psig, a starting temperature of between 67 and 71°F and a final temperature of 48°F prior to the balls being taken back into the Officials Locker Room), these equations predict that the Patriots balls should have measured between 11.52 and 11.32 psig at the end of the first half, just before they were brought back into the Officials Locker Room.”[28]

If you assume that Anderson used the logo gauge to measure the balls in the beginning, the logo gauge halftime readings are what we are to be using to make an apples-to-apples comparison.  And what is the average of the Patriots’ footballs at halftime using the logo gauge?  11.49 psi.  Right in the range the Wells report itself says the Ideal Gas Law accounts for.

Occam’s Razor indicates that the laws of physics are all that need to be invoked to explain the entire discrepancy between the Patriots’ footballs measured before the game and at halftime.  No other additional entity is required.  In fact, if McNally did deflate the footballs after Anderson measured them before the start of the game, the Pats’ footballs would have measured much lower at halftime than they actually did.  But they didn’t.  They measured what they should have if the laws of physics were actually at work in Foxboro that night.  Which, of course, they were.  Roger Goodell may be powerful, but he’s not powerful enough to alter how the world works.

The second question I posed above must now be answered – What explains the discrepancy between the drop in the Patriots’ psi and the Colts’ psi?

As Fustin pointed out, the sequence of events could explain it.  It stands to reason that the officials immediately began measuring the Patriots’ footballs at halftime, fresh from the cold and wet outside air.  If they measured the Patriots’ footballs, taking time to measure each one twice and record it, that would have taken considerable time.  Enough time, in fact, that measuring the four Colts’ footballs would have come just before the end of halftime.  We know this is almost certainly what happened, as Wells points out in his report:

“Riveron, Vincent and others explained that only a sample of the Colts balls were tested because of time constraints. Halftime for the game was scheduled to last thirteen minutes and time was running short before the scheduled start of the second half.”[29]

The Colts’ footballs would have been sitting in the 74-75 degree room for at least ten minutes – more than enough time, as Fustin points out, to bring the footballs back to a higher psi reading.  Enough, anyway, to account for the discrepancy.  Recall that Fustin worked backward from the actual recorded halftime measurements, assuming the Colts’ footballs went last, and reverse engineered the Ideal Gas Law and came up with virtually the exact pre-game measurements as Anderson claimed he measured.

One other point on this.  The Colts’ footballs were used by the Wells report as a control group.  That is, the Colts’ footballs measured at halftime were used as a baseline with which to judge whether the Patriots’ footballs were deflated more than they should have been.  But there’s a problem with this.  The Patriots had the ball for the last 4:54 of the first half.  Their footballs were exposed to the cold and rain over that stretch of time.  The Colts’ footballs, meanwhile, were tucked away in a trash bag, away from the cold rain.  The cold rain is a factor in the pressure drop of footballs.  The colder and wetter a football is, the more it will deflate.  So while the Patriots’ footballs were still exposed to the elements for the last 4:54 (much longer in real time), the Colts’ footballs were kept dry, away from the elements.

These conditions and the sequence of events and are almost certainly correct.  And they accounts for the discrepancy between the Patriots’ deflation and the Colts’ deflation.  No other entity is required to account for all the information.  None.  Nothing but the laws of physics and a correct understanding of the sequence of events.

From the actual measurements taken, what we know of the room and field conditions, and the application of the Ideal Gas Law, it is clear that the Patriots’ footballs were essentially right where they should have been at halftime of the AFC Championship game.  There is no reason, from a purely scientific point of view, to believe that there was any monkeying around with the footballs whatsoever.

Now, this doesn’t mean that there wasn’t any illegal tampering.  It’s just that the tampering would have to have been only to a few footballs, and for such a tiny amount (on the order of, say, 0.10 to 0.20 psi) that it would be utterly pointless to do so.

So the science tells us that the balls were almost certainly not tampered with.  What other evidence might exist that suggests they were?

The Wells report offers two items of note along these lines.  The first is the behavior of McNally on the day of the game.  The normal procedure, according to Walt Anderson, was for him to inspect the footballs and then, at the proper time, walk with the ball attendant to the field.  But that did not happen this time.

According to Wells, the Gillette Stadium officials’ room was more crowded than usual.

“One official said that it “felt like Grand Central Station” in the sitting room because once the pre-game meetings and the team warm-ups were complete, NFL personnel, game officials and others gathered there to watch the conclusion of the NFC Championship Game on television.”[30]

Anderson made an announcement at 6:25, letting everyone know that the kickoff for the game would be delayed due to the length of the NFC Championship Game in Seattle.  McNally was sitting on a trunk with the bag of footballs, having been given permission from Anderson to move them from the sitting room area of the locker room to here.  At the appropriate time, Anderson began to make his way out, but then noticed that McNally and the footballs were gone.  It was suggested to him that McNally left with them, and Anderson replied, “He’s not supposed to do that.”  Anderson was apparently visibly concerned about losing sight of the footballs.  McNally was found on the field standing where he was supposed to be, though he was not supposed to leave on his own.  This obviously concerned Anderson.

Now, here’s what they did not know at the time, but Gillette footage showed:  McNally, on his way to the field, entered a bathroom for 1 minute, 40 seconds.  He brought the footballs in with him.  At this point, the Wells report makes it sound nefarious.

“McNally did all this without the knowledge or permission of Walt Anderson or the other members of the officiating crew.”[31]

Now, it is apparently true that he did not get permission for these actions.  The picture the Wells report paints is that McNally’s actions were highly suspicious.  After all, what can possibly explain McNally entering, and bringing footballs into, a bathroom for 100 seconds on his way to the field?

In the Wells report, McNally stated that this was not necessarily unusual behavior for him.  But officials disagreed with him and his assessment of the unusual nature of his actions.  If the video got McNally walking unaccompanied straight to the field, then probably there is no issue.  But the video capturing him entering the bathroom is a key piece for Wells.  McNally’s behavior was unusual and suspicious.  Therefore, something must have happened in the bathroom.

But this explanation does not really demonstrate any foul play for three reasons.  First, the start of the AFC Championship Game was delayed, as we just saw.  That automatically means the normal pre-game routine was altered.  It is entirely possible that McNally entered the bathroom because he simply needed to use the bathroom, and that he brought the balls in there because it was his responsibility to take care of them.  If you or I were given something valuable and had to use a public restroom, there is no way we would leave it outside the restroom door while we used the facilities.  We would bring it in with us, even into a stall if we needed to use that.

Second, nothing about what McNally did was actually suspicious.  He did not try to hide his actions or sneak away.  Here is what transpired:

“When the NFC Championship Game ended abruptly in overtime and Mr. McNally started from the back of the sitting room towards the door to the hallway, he walked by numerous League officials in the sitting room. As the report states (pg. 55), the sitting room was crowded with “NFL personnel, game officials and others gathered there to watch the conclusion of the NFC Championship Game on television.” Mr. McNally had to navigate this crowd of officials to make it through the sitting room with two large bags of footballs on his shoulders. Mr. McNally, a physically big man, hoisted two large bags of footballs and lumbered past all these League officials and out the door of the Officials’ Locker Room. As is clear from the report, no one objected; no one told him to stop; no one requested that he wait to be accompanied by a League official; no one told him that a League official had to carry the footballs to the field. After he walked past all of these League officials and out the door of the Officials’ Locker Room to the hallway, he then walked past James Daniel, an NFL official and one of the people who had been alerted to the Colts psi concerns pre-game (pg. 45 of the Wells Report). Mr. Daniel, as seen on the security video, looked at Mr. McNally carrying the bags of footballs toward the field unaccompanied by any League or game official, and made no objection to Mr. McNally continuing unaccompanied to the field. In short, if officials lost track of the location of game footballs, it was not because Mr. McNally stealthily removed them.”[32]

Nothing about McNally’s actions scream, “SUSPICIOUS!”  He walked past a room full of officials, by himself, carrying the bag of balls, and not one person asked him what he was doing, stopped him, or wondered where he was going.  Not one.  Not even James Daniel, who had been made aware of possible shenanigans before the game.

Now here is where it gets very interesting.  Not only did McNally walk to the field with the footballs completely unaccompanied at the start of the game, he did it again after halftime!

“Even after halftime, when obvious attention was being paid to game footballs and psi issues by League and game officials, who took control of the footballs at halftime, the security video shows Mr. McNally, with no objection, taking the footballs from the Officials’ Locker Room back to the field totally unaccompanied by any League or Game official. Mr. McNally’s removal of the footballs from the Officials’ Locker Room before the game began was simply not unauthorized, unknown, unusual, or in violation of some protocol or instruction. The report nonetheless portrays Mr. McNally’s departure from the Officials’ Locker Room before the game as a step in secretly taking the footballs for nefarious reasons.”[33]

How is it that McNally could – not just once, but twice – leave the presence of the officials with the game balls, not sneaking away but walking right past them in plain sight, and have nary a single official stop or question him, if what he was doing was so unusual or suspicious?  Remember, we are not talking about a regular game.  We are talking about the Conference Championship game, where the officials knew there was a possibility that the Patriots might do something to the footballs.  It might – MIGHT – be excusable pre-game.  But after measuring the footballs at halftime and coming to a preliminary conclusion that something was amiss, how could they allow McNally to do the very same thing again?

Instead of focusing so much on the actions of McNally, perhaps we should focus on the actions of all these game and league officials, who surely would have had a vested interest in keeping McNally from being alone with the balls.  That they did nothing to question him or stop him suggests that he was really doing nothing suspicious at all.  Remember, these are facts caught on the Gillette security cameras – we are not relying on second hand testimony.

The third piece of this is the time McNally spent in the restroom.  Wells reports that they determined that a person would be capable of deflating 12 footballs in the amount of time McNally was in the bathroom.  Let’s examine that under a critical lens for a moment.

At halftime, three men measuring and recording 11 footballs took as many as 5 full minutes to complete.  That’s approximately 30 seconds per football, with three men working on the job.  McNally would have had to do each football in about 6-7 seconds in order to pull this off (allowing a few moments to enter, put the bag on the floor, lock the door, unzip it, etc).[34]  Three men taking a half minute per football versus one man taking eight seconds per football.  It’s a different procedure at halftime, but we are still talking about a very small amount of time to get the job done.  Eight seconds a football to take it out, insert a needle, get air out, remove the needle, and replace the football.  Is it possible?  Yes, it’s physically possible.  But not very realistic.

So yes, McNally’s behavior may have been out of the ordinary, and when viewed through a lens of “guilty”, it may even seem to confirm suspicions of guilt.  But the circumstances, the lack of interest in him leaving on the part of NFL officials, and the likelihood of him being able to pull it off in such a short amount of time make this implausible.  Or, to be more clear, it is far more likely that he simply went to the bathroom to use the bathroom, and nothing more.

Put it this way:  McNally’s actions before the game are probably the biggest hook Wells has to hang his story upon.  It is an exceedingly flimsy hook.

The second key piece for Wells is the text exchanges between McNally and Jastremski. Two in particular provide Wells with what he thinks is damning evidence.

Here is the first exchange, on May 9, 2014:

McNally to Jastremski:  You working

Jastremski to McNally:  Yup

McNally to Jastremski:  Nice dude….jimmy needs some kicks…lets make a deal…come on help the deflator

Then eight minutes later:

McNally to Jastremski:  Chill buddy im just f-ing with you….im not going to espn……yet

The word “deflator” and the idea of going to espn are what tipped Wells off to some shenanigans.  Wells interpreted this to mean that McNally was illegally deflating footballs and that Jastremski knew it, hence the self-referencing term “deflator”.  This is, frankly, quite a leap to make.  If any of us were to pick up anyone else’s cell phone and look at a random string of texts, it is almost certain that there would be words and phrases and terminology and references that make no sense whatsoever to us.  We know this because we know we ourselves use inside jokes, shared experiences, references that only that particular person and us know about, etc.  That is, if McNally and Jastremski were to comb through Wells’ cell phone, it’s certain that they could find texts that, were they looking specifically for shady behavior, appear to be precisely that.  But the reality is that McNally and Jastremski would honestly have no idea what Wells is actually saying.

The references to “deflator” and ESPN could be….anything.  The Patriots argued that the “deflator” comment was in reference to McNally trying to lose weight.  For many, this is an absurd explanation.  They may be right.  But the point is – we have no idea, and neither does Wells.  It is quite a leap to take a word that is referenced once in hundreds and hundreds of text messages and conclude that it is evidence that McNally illegally deflated footballs.

A second text conversation was dated October 16-17, 2014, following the Patriots’ victory over the New York Jets.  It begins on October 16:

McNally to Jastremski:  Tom is acting crazy about balls

Jastremski to McNally:  Ready to vomit!

McNally to Jastremski:  K

Jastremski to McNally:  He saying there not good enough??

McNally to Jastremski:  Tell later

Then the conversation continued on October 17.

McNally to Jastremski:  Tom sucks…im going make that next ball a f-ing balloon

Jastremski to McNally:  Talked to him last night. He actually brought you up and said you must have a lot of stress trying to get them done…

Jastremski to McNally:  I told him it was. He was right though…

Jastremski to McNally:  I checked some of the balls this morn….The refs f-ed us…a few of them were at almost 16

Jastremski to McNally:  They didn’t recheck then after they put air in them

McNally to Jastremski:  F- tom…16 is nothing…wait till next Sunday

Jastremski to McNally:  Omg! Spaz

More text exchanges came in the days to follow, but all along the same theme.  Clearly Brady was upset at the condition of the footballs in the Jets’ game, and he was coming down hard on Jastremski to make sure the footballs were as he wanted them.  Wells takes these exchanges to mean that McNally and Jastremski were under some sort of implicit order by Brady to make sure, at all costs, that the footballs were deflated.[35]

But Wells’ reasoning falls flat immediately.  If they had a long-standing scheme to deflate footballs, what happened during the game against the Jets?  Why wouldn’t McNally have deflated footballs that were so significantly over-inflated?  Why, if his long-standing job was to take the balls after the referees approved them and deflate them before game time, would McNally not do it in this instance?  It makes no sense whatsoever.  If Brady was riding these two hard to get the balls exactly as he likes them, why on earth would they not deflate footballs that are given to them at 16 psi?

The better explanation is that they do not have a long-standing practice of deflating footballs after the referees approve of them.

But perhaps more troubling is the notion that the footballs were given to them at 16 psi.  Clearly this set Brady off, so there is no doubt that the balls were significantly over-inflated.  16 psi is 2.5 psi above the regulations.  Even the lowest reading of a Patriots’ football at halftime of the AFC Championship game was only 2.0 psi below regulation.  So 16 psi is a greater discrepancy than that, and 2.0 psi is seen as evidence of foul play.

The question is:  How did the Patriots receive footballs from the referees at 16 psi?  There are two possibilities.  Either the referee deliberately gave the Patriots footballs far outside league regulations, or it was an accident.  Clearly we hope that it was not a deliberate act by a referee.  That would be a scandal truly worthy of a $5 million investigation.  The latter is more likely – that it was accidental.

But even that case presents major problems, especially for Wells and the NFL.  For it means that ball inflation is not some sacrosanct thing that, should some footballs be played outside the league regulations, violate the integrity of the game and every sense of fair play.  If it did, then every referee would make 100% certain that every single ball was always within approved air pressure ranges.  Clearly, this is not the case.  And this fits with what Aaron Rodgers told CBS sports in November, that he likes his footballs over-inflated, and even tries to slip over-inflated footballs past the referees.  Recall Simms’ words:  “You know, the officials do check those footballs and sometimes maybe even get lucky and put an extra half pound of air in there to help Aaron Rodgers out.”

Clearly, NFL officials do not take air pressure that seriously.  Not seriously enough to make absolutely sure that every ball passes muster.  And this is a very important point, because it has been the NFL’s contention that what the Patriots allegedly did constituted a major violation that gets at the heart of fair competition.  But if the referees themselves are handing teams balls outside the regulations, either on purpose or through incompetence, how can players be considered “cheaters” for doing the same thing?

Wells’ own investigation collapses on its own weight.  Every aspect that casts suspicion on the Patriots is actually better explained in a scenario with no shenanigans.

To use Wells’ own phrasing, it is more probable than not that the Patriots did not illegally deflate or otherwise tamper with the footballs after Walt Anderson approved them.  And there really is nothing pointing to them having done so.

That leads us to the third question.

If the Patriots were illegally tampering with the footballs, were Tom Brady or Bill Belichick specifically involved in any way?

The case that the Patriots did anything illegal with the footballs is flimsy at best, based on questionable assumptions and flawed reasoning, with nothing remotely resembling any hard evidence.  But let’s suppose they did.  The big question is whether or not Tom Brady or Bill Belichick had anything to do with it.

There's no definitive proof Brady or Belichick had anything to do with the loss in pressure. (USA TODAY Images)

Wells, despite 3 months and $5 million spent, could find no real evidence that Brady knew of, never mind directed, any sort of scheme to illegally deflate footballs.  And the Wells report completely cleared Belichick of any responsibility whatsoever, so obviously there was not even the slightest bit of passing evidence that the head coach was in any way involved.  The best Wells could come up with was that it was “more probable than not” that Brady possessed a “general awareness” of McNally illegally tampering with the balls.  How did Wells arrive at this conclusion?

It begins with the premise that something nefarious was happening.  Clearly, if there was no tampering, then there was nothing for Brady to be aware of.  As we have seen, this premise itself is dubious at best, and more probably than not wholly incorrect.  Nevertheless, if we grant it, what is the likelihood that Brady was involved?

As we discussed earlier, NFL quarterbacks are very particular about the footballs they use.  Everyone likes the balls a little different, but each to his own personal preferences.  Some like them tackier, some like them more worn, some like them heavier, some like them lighter.  The degree to which Eli Manning, for example, painstakingly prepares his footballs gives us insight to the amount of control quarterbacks have over the footballs.

So it stands to reason that if McNally was deflating footballs, that is something Brady would know about.

But what is the actual evidence that Brady was involved?

The first data point for Wells is how particular Brady is with the footballs he uses in games.  The text conversation between McNally and Jastremski confirm that not only is Brady particular, he can be downright ornery when the footballs are not to his liking.  Apparently he gave Jastremski a good chewing out after playing with the footballs at 16 psi in the Jets game on October 16.  At one point, Brady asked Jastremski to have McNally show the referees the rule book in order to point out the range in which the balls were supposed to be inflated, and that he wanted the footballs at 12.5 psi.

McNally told Anderson what Brady preferred, and Anderson acknowledged this and made sure the Patriots’ footballs the night of the AFC Championship game were at 12.5 psi.  Every piece of actual evidence we have with respect to Brady’s preferred ball pressure tells us that Brady wants them at 12.5 psi.  There is not a single shred of evidence – no conversation, no text, no witness account, no history – that indicates that Brady really wanted them lower than that.

The Patriots’ rebuttal to the Wells report states this:

“First, the report ignores the information the investigators gathered that Mr. Jastremski's duties in football preparation in fact routinely involve deflating every football at least twice. Every team in the League has developed a standard operating procedure for the preparation of new footballs for game play. The Patriots standard procedures are described in part on pgs. 37-40. Omitted from that description, but as Mr. Jastremski explained, is that the very first thing he routinely does when he opens a new box of Wilson footballs is to take a bit of air out of them. That makes them easier to prepare. The second time he takes air out of footballs is when he sets them for Mr. Brady's pre-game review and selection. (pgs. 39-40). Prior to the Jets game in 2014, Mr. Jastremski set the footballs at 12.75-12.85 for Mr. Brady's pre-game inspection and selection, since that is the range that had been used by Mr. Jastremski's predecessor. Curiously, the report does not credit this statement, although no witness or other evidence contradicted it, and apparently no game official reported that, in any games prior to the Jets 2014 game, footballs from the Patriots did not routinely arrive at the Officials' Locker Room precisely as Mr. Jastremski described. Nonetheless, the report states disbelief to the statement because it does not support the report's assumption that Mr. Brady cared about psi levels long before the Jets game over-inflation fiasco. The report discredits this information – about which there was no reason to lie and which could have been checked in all events — solely because of (i) Mr. McNally's May 2014 text reference to himself as the “deflator” (which had nothing to do with what psi the footballs were set at for Mr. Brady's inspection); (ii) Mr. Brady's involvement in the 2006 Rule change (which, as explained elsewhere, dealt with tactile feel and football consistency, not psi levels); and (iii) Mr. Brady's “apparent longstanding preference for footballs inflated to the low end of the permissible range” (although setting footballs at 12.75-85 is not much different from setting them at 12.6, which is what Mr. Jastremski did following the very first time Mr. Brady focused on actual psi numbers). In short, not “crediting” the evidence that footballs were historically set at 12.75-85 demonstrates mostly how the report lets its interpretation of the texts then control how it views all other evidence. In all events, there is no question that Mr. Jastremski had to deflate footballs a second time just before Mr. Brady's selection. To get them to the desired (and permissible) level, one adds air and then releases the air to the desired psi. After mid-season in 2014 — i.e., after the Jets game issues with vastly over-inflated footballs — he set them at 12.6 for Mr. Brady's inspection and selection — again adding air and releasing it to get down to the desired psi. So deflation of footballs cannot be presumed to refer to post-referee inspection conduct. Indeed, Mr. Jastremski does not even have possession of the footballs once they go to the Officials' Locker Room for pre-game inspection.”[36]

Brady’s public comments were clear – he prefers the balls at 12.5.  His private conversations (that we know of) with Jastremski were clear – he prefers the balls at 12.5.  Him asking Jastremski to make sure the referees knew the rule book make it clear that he prefers the balls to be within the legal range.

There is no evidence whatsoever that Brady ever asked for, or was aware of, any Patriots employee tampering with the footballs to deflate them below the 12.5 threshold, or even to deflate footballs down to 12.5 after they were cleared by the referee.  None.  How can clear communication from Brady regarding his preference for footballs to be at 12.5 psi be evidence that he really wanted them lower than 12.5, or that he wanted the ball attendants to illegally deflate footballs at all?  Let’s put it another way.  Aaron Rodgers, as we have seen, made public to CBS his preference for footballs to be at the upper limit of the legal range.  In fact, as he told Phil Simms, he prefers them to be over-inflated, and hopes to slip over-inflated footballs past the referees.

Imagine, armed with that information, a situation similar to the Patriots-Jets game on October 16, 2014.  Imagine the referees accidentally over-inflating balls for Green Bay (which obviously is a possibility).  Imagine they are playing in early September, and it’s an 85-degree day in Wisconsin, and the Ideal Gas Law increases the air pressure a little more.  Let’s say that Rodgers’ footballs are tested at halftime and it is discovered that he is playing with footballs that are at 15.35 psi.  Given Rodgers’ statement, what would we make of this?  Should we conclude that the Rodgers has orchestrated a scheme to illegally inflate footballs?  It is nearly impossible to imagine the NFL spending 3 months and $5 million investigating this.

The second data point Wells used to conclude that Brady was somehow involved in illegal ball deflation is the fact that Brady appeared, to Wells anyway, to be hiding something.  When asked if Brady knew who McNally was, Brady said no.  Later information came out that made it clear that Brady did know who he was.  For Wells, this is a sign that Brady was trying to hide his knowledge of, and relationship with, McNally.

But a closer look at this point shows it for what it is.  When Brady referred to McNally, it turns out that he knew him as “Burt” – a nickname.  In fact, that isn’t even McNally’s real nickname, which is “Bird”.  So Brady probably knew McNally well by face, but not by his real name.  Anyone who works in an organization with more than a few people probably knows someone by face or by nickname, but not by his or her real name.  This view is supported by former Patriot great Tedy Bruschi, who on television explained that he knew McNally by his nickname, “Bird”.[37]

Bruschi said, “When I heard Jim McNally was the locker room attendant, I said, ‘Who was that?’ And I saw him on film, on TV, and I said, ‘That’s Bird.’”

In other words, Brady did know who McNally was, but he did not know him as “Jim McNally”.  He knew him as “Burt” (“Bird”) – his nickname.  For Wells, this is somehow suspicious.  For anyone who works in a company of more than a couple dozen people, this is commonplace.  We all know certain people simply by face and by nickname, even if we see them every day.  There is nothing remotely suspicious about this once you stop and think for just a moment about how normal it is for people working in larger companies to see the same people every day and know them only by face or by nickname.

The other aspect of Brady’s “suspicious” behavior is the fact that he did not turn over his cell phone and relevant text messages to Wells.  Again, it is understandable if Brady had something to hide.  Wells would be right to wonder about this.

But think about this from another perspective.  The NFL, at that point in the investigation (and, frankly, well beyond) was full of leaks.  In fact, one key leak is probably what got this entire episode going (more on that later).  The Wells report itself contains text messages that are not flattering to Jastremski and McNally, but which really have nothing whatsoever to do with the case itself.  They merely paint them in a bad light.  It is any wonder, then, that Brady would not feel comfortable turning over his text messages to Wells and the NFL?

Moreover, any text messages from Brady to McNally or Jastremski would also already have been on McNally’s or Jastremski’s phones, which Wells already had.  What Wells was doing, then, was going on a fishing expedition.  Brady did not want any part of that, and for good reason.  This was a no-win situation for him.  Wells told him he could just submit any texts that were “relevant” to this investigation.  Well, suppose Brady handed in three texts that were tangentially related.  Does anyone – Wells included – think that that would have been all there was?  All he would have said was that, based on the fact that Brady submitted a few relevant texts, it stands to reason that there were likely more relevant texts that he did not send, and thus Brady was withholding information.  And then we would be right back here in the same boat.

There is one other reason why Brady should not have given in to Wells’ request.  He is a key member of the NFLPA.  If he turned his phone over to Wells, it would have set a bad precedent for members of the NFLPA.  He had a responsibility not just to himself, but also to the other members of the NFLPA.  Now, maybe this is not the most relevant reason to not turn over his phone, but it is a legitimate reason.

There is no evidence whatsoever that Brady engineered or knew about any scheme to illegally deflate footballs.  His preference – stated publicly and to Jastremski, complete with a copy of the rulebook – is for footballs to be at 12.5 psi.  When he inspects the footballs before a game, Jastremski presents them to him and Brady hand-picks the 12 he wants.  Those hand-picked footballs are exactly as he wants them.  It is silly to imagine that Brady goes through this entire process to have the balls prepared exactly as he wants them, then to hand-pick the 12 that meet his exacting specifications, then have them approved, and then have a secret agreement to have McNally then rush them into the bathroom and, in the most unscientific manner possible, deflate 12 footballs in a minute-and-a-half in what was the most important football game of the year for the Patriots.

Wells’ case is not backed by evidence, and if one truly stops and thinks about it, the entire concept is rather absurd.

However, let’s assume that all of this is true – that the Patriots illegally deflated footballs and Tom Brady was somehow involved in it.  What then?

What penalty should Brady, Belichick, and the Patriots receive?

If the Patriots illegally deflated footballs and Tom Brady was involved, the Patriots clearly should receive some sort of punishment from the NFL.  Rule-breaking is rule-breaking.  Even George Brett violated the pine tar rule and should have received some penalty for his infraction.

The question is, what should the penalty be?  Are there any guidelines for issuing such a penalty, either from the rulebook itself or from precedent?

Let’s first talk about the penalty for illegally tampering with the football.  The rulebook, as we have seen, says the following:

“Once the balls have left the locker room, no one, including players, equipment managers, ball boys, and coaches, is allowed to alter the footballs in any way. If any individual alters the footballs, or if a non-approved ball is used in the game, the person responsible and, if appropriate, the head coach or other club personnel will be subject to discipline, including but not limited to, a fine of $25,000.”[38]

If anyone alters the footballs, the penalty includes, but is not limited to, a fine of $25,000.  I must reiterate here that there is one interesting twist to this.  The Wells report itself states that the Colts, after intercepting a Brady pass in the second quarter, took the football and inserted a gauge into it.  By definition, air was let out of the football and into the gauge.  Even though it is a slight amount, the Colts did alter the football.  The Wells report states this unequivocally.  Yet the Colts, who absolutely violated the rule, have not received any punishment whatsoever.

Let us revisit the $25,000 fine aspect for a moment.  Recall that the fine for excessive swearing is $20,000.  So a $25,000 fine is an incredibly minimal penalty.  It is still a penalty, and it is still something worth talking about and enforcing, but it is a minimal penalty.  It shows that tampering with a football is not a particularly serious issue.  It would be like receiving a $250 fine for speeding – certainly not nothing, but not the same thing as spending months in prison.

When the rules say that the fine is not limited to $25,000, that means, of course, that the penalty can be more.  And that’s fine.  Maybe the Patriots, if they truly orchestrated this scheme, should be penalized more.  Maybe even $25,000 per football tampered with.  That would come to $325,000 – a very serious amount for a minor infraction.  That would be like giving a person going 60 in a 55 a $3,250 fine instead of a $250 fine.  A very serious penalty given the nature of the infraction.

But that’s not what Goodell gave the Patriots.  They received, as a team, a $1 million fine, the loss of their starting quarterback for 4 games (at the cost of $2 million to him), and the loss of a 2016 first-round, and a 2017 fourth-round draft pick.  This is like sending a guy doing 60 in a 55 to prison for months.  The penalty is completely out of whack with what the rules suggest.  That the rules say “including, but not limited to, a fine of $25,000” does not give Goodell the freedom to hit the Patriots with whatever penalty he desires.  The $25,000 figure is there for a reason – to show the level of seriousness of the infraction.  And it simply is not that serious a crime.

We know this to be true because, as we have seen already, two other teams were actually caught tampering with the football.  The Chargers in 2012 used a sticky towel to apply adhesive to the footballs.  They were given no penalty whatsoever for this.  The Panthers in 2014 – just weeks before the AFC Championship Game – heated up cold footballs on the sideline during a game in order to get more air into them.  They were caught on television doing this and all the NFL did was send them a message not to do that.  There was no investigation and no penalty at all.  The NFL saw it happen and did nothing.

If the rules consider football tampering to be a minor violation, and two recent incidences of football tampering produced exactly NO penalty at all, how can Goodell possibly justify a 4-game suspension for the starting quarterback, a total of $3 million worth of a financial penalty, and two draft picks?  There is no way at all that the penalty is consistent with the rulebook and recent precedent.

One NFL exec said of the penalties, “Way over the top,” he said. “Draconian. I thought the league went too far.”[39]

Brady's four game suspension is currently under appeal with the NFLPA and his lawyers battling the NFL. (USA TODAY Images)

So what was Goodell thinking?  In his letter to Brady, Troy Vincent explained,

"Here, there are several factors that merit strong consideration in assessing discipline. The first is the club's prior record. In 2007 the club and several individuals were sanctioned for videotaping signals of opposing defensive coaches in violation of the Constitution and Bylaws. Under the Integrity of the Game Policy, this prior violation of competitive rules was properly considered in determining the discipline in this case.

"Another important consideration identified in the Policy is 'the extent to which the club and relevant individuals cooperated with the investigation.' The Wells report identifies two significant failures in this respect. The first involves the refusal by the club's attorneys to make Mr. McNally available for an additional interview, despite numerous requests by Mr. Wells and a cautionary note in writing of the club's obligation to cooperate in the investigation. The second was the failure of Tom Brady to produce any electronic evidence (emails, texts, etc.), despite being offered extraordinary safeguards by the investigators to protect unrelated personal information. Although we do not hold the club directly responsible for Mr. Brady's refusal to cooperate, it remains significant that the quarterback of the team failed to cooperate fully with the investigation.

"Finally, it is significant that key witnesses -- Mr. Brady, Mr. Jastremski, and Mr. McNally -- were not fully candid during the investigation.”[40]

So Goodell and the NFL took a three-pronged approach.  First, they point out historical precedent, referring specifically to the Spygate story of 2007.  Second, they point out the lack of cooperation, as they saw it, on Brady’s part, because of his refusal to give Wells his electronic communications.  And third, they point out that they believed Brady et al to be not fully candid.

We have dealt with the last two points already.  There are very good reasons why Brady would not turn over his texts to Wells.  And there is no reason to suspect they were not fully candid unless, of course, you go in with a presumption of guilt.  But let’s assume for a moment that these last two points are correct – that, essentially, Brady did not fully cooperate with the investigation and did not tell the whole truth.  Do we have any other recent examples of this happening, and if so, what were the consequences?

In 2010 Brett Favre was under investigation for illicit texts to a reporter.  The NFL sought his electronic records, much like they did with Brady.  Favre did not comply.  Jay Glazer of Foxsports wrote,

“Commissioner Roger Goodell has fined Minnesota Vikings quarterback Brett Favre $50,000 over the Jenn Sterger fiasco, the league announced Wednesday.

“However, Favre wasn't found to have violated league policy with regards to Sterger: He was fined for failing to cooperate with the league's investigation. FOXSports.com first reported that Favre was going to be fined.

“The NFL issued a statement, noting that Favre ‘was not candid in several respects during the investigation.’

“The release stated Favre was fined for ‘his failure to cooperate with the investigation in a forthcoming manner.’”[41]

Note the similarity in the language.  Favre was “not candid in several respects”.  He was fined for “his failure to cooperate with the investigation”.

Recall Vincent’s letter to Brady, which said that it was “significant that the quarterback of the team failed to cooperate fully with the investigation.”  And that Brady, McNally, and Jastremski “were not fully candid during the investigation.”

Favre commited the exact same offense – lack of cooperation, not being fully candid – as Brady, and he received a $50,000 fine.  Brady received a four-game suspension and the loss of $2 million in income as a result.  That financial penalty for Brady was forty times what Favre received, plus he lost four games played as well.

When the Chargers were caught using sticky towels on the footballs in 2012, the NFL assessed a $20,000 fine, saying that, “NFL game officials are charged with protecting the integrity and competitive fairness of the games and club staff members, like players and coaches, have a clear obligation to cooperate in this effort and comply with the direction of game officials. As a result of the failure of club staff to follow the directive of a game official to immediately surrender the towels when directed to do so, and to attempt to conceal the towels, the Chargers have been fined $20,000.”[42]

So if you are Brett Favre or the San Diego Chargers, failing to cooperate with the NFL during an investigation warrants a $50,000 or $20,000 fine.  What the Patriots received for committing the same infraction was orders of magnitude more severe.

And that brings us to the third key element Vincent mentioned.  The Patriots, as it were, would be repeat offenders.  The 2007 Spygate incident was mentioned specifically by Vincent as a leading cause.  And in some ways that makes sense.  Our justice system tends to treat repeat offenders harder than first-time offenders.

But keep in mind two points.  First, Tom Brady himself is not a repeat offender.  He has never had so much as a whiff of scandal in his long and illustrious NFL career.  There has never been any remote accusation of Brady for anything illegal.  Shouldn’t he be treated like a first-time offender?

It is interesting to note how the NFL handled the recent case of Ndamukong Suh.  This past season, Suh stepped on Packers’ quarterback Aaron Rodgers’ leg, in what appeared to be deliberate fashion.  This would not be out of the ordinary for Suh.  After all, he is widely considered to be a dirty player, and he has received discipline from the NFL on many occasions.  In 2011, he received a two-game suspension for stomping on the arm of Evan Dietrich-Smith.  In 2012, he received a $30,000 fine for kicking Matt Schaub in the groin.  Since then, he has received eight more fines for violating player-safety rules.  Talk about a repeat offender!

And yet when Suh stepped on Rodgers, he received a one-game suspension.  One game.  For a player who, in just four seasons received ten different disciplines from the league.  Brady received four.  For being “generally aware” of possible football inflation of approximately 0.3 psi.

But there is more.  When Suh appealed, he won his appeal, and had the one-game suspension (which would also have cost Suh more than a half-million dollars in lost salary) reduced to a $70,000 fine.  Why?

“According to NFL Media's Judy Battista, Suh was considered a first-time offender by the repeat offender policy, modified in 2014. Since the Detroit defender went 32 straight games without a player-safety violation, which includes the postseason and preseason, he earned a clean slate.”[43]

So Suh, a ten time violator, received a much smaller penalty than Brady, and when the case was appealed, his penalty was reduced even more because he was treated as a first-time offender.

Do you get the sense that the NFL is making this up as they go along?

As for the team, yes, this would make the Patriots a two-time offender.  It may be worth looking to see how the league has treated other repeat offenders.  Consider just two (of many).

The Denver Broncos were found guilty twice of violating the NFL salary cap rules.  In 2001, the league found that the Broncos violated the 1996 salary cap, and they issued a fine of $968,000 and took away a 2002 third-round draft pick.  In 2004, the league found that the Broncos also violated the 1998 salary cap (a year they used that violation to build a championship roster), and they issued a fine of $950,000 and took away a 2005 third-round pick.  It is interesting to note that the second penalty was smaller than the first penalty, despite this being Denver’s second violation.

In 1998, several Broncos’ offensive linemen were fined for applying Vaseline to their bodies, which had the effect of making them more difficult for defenders to engage.

And then, in 2010, the Broncos committed a violation that would seem to be the mother of all violations, given the 2007 Spygate scandal.  During the week of a game in London with the San Francisco 49ers, they videotaped a portion of the 49ers’ practice.  Now what’s interesting about that is this:  The Patriots videotaped signals being given on opposing sidelines.  That was part of the story.  The major piece, however, was the claim made by John Tomase, a Boston Herald reporter, that the Patriots had taped the St. Louis Rams’ practice leading up to the Rams-Patriots Super Bowl in 2002.  The thought of taping a practice was, by all accounts, a heinous crime.  But it turned out to not be true.  No evidence whatsoever was ever produced to support the claim, the source Tomase used recanted, and Tomase published an apology for getting the story wrong.  But the damage was done.  The Patriots were considered major cheaters for that, and there is no doubt that Tomase’s article in part led to the harsh penalty they received.

The Broncos in 2010 actually did the very thing that Tomase charged the Patriots with doing.  They taped a practice.  And they were a multiple-time offender.

ESPN reported this story as follows:

“The NFL fined the Denver Broncos and coach Josh McDaniels $50,000 each because the team's video operations director filmed a San Francisco 49ers practice in London last month, breaking league rules.

“The NFL investigation determined Steve Scarnecchia took a six-minute video of the walkthrough and presented it that day to McDaniels. The coach declined to view it. Still, the NFL fined both the coach and team because the matter was not promptly reported, as required by the league.”[44]

So the Broncos, just three years after the Spygate incident, committing the heinous crime the Patriots were accused of, and being a multiple-time offender, received the whopping penalty of $100,000.  A far, far smaller penalty than the previous penalties of salary cap violation.

Now consider the New York Jets.  They have been found guilty by the NFL of committing three violations since 2010.  In 2010, strength coach Sal Alosi intentionally tripped Miami Dolphin special teamer Nolan Carroll during a punt.  Alosi was suspended for the rest of the season and fined $25,000.  The Jets themselves were fined $100,000.

Then in 2010, the Jets were fined another $100,000 for violating the league rules on injury reporting.  Previous violations by the Bills and Redskins for violating these rules cost those teams $20,000 each, but Roger Goodell stated that the case was an opportunity for the league to stress that all teams must abide by the injury report rules.[45]

That takes us to 2015.  The Patriots had just won the Super Bowl, and had roster decisions to make.  The biggest decision involved their best defensive player, cornerback Darrelle Revis.  He had signed a two-year contract the previous year, but the way it was structured meant they were facing a $25 million salary for him for 2015.  Most experts felt that was untenable for the Patriots, but who really knew?  The alternative, barring successful contract negotiations that would lower his 2015 salary in exchange for more long-term years and money, was to decline the option for 2015 and set Revis free.

As the Patriots were considering this, the Jets’ owner, Woody Johnson, commented about Revis and how much the Jets would love to have him.  Revis was still a member of the Patriots under contract.  This was a classic case of illegal tampering, as it told Revis they were interested in signing him.  The Patriots were not successful in negotiating a new contract, and let him go.  Revis immediately signed with the Jets, and the Patriots lost their best defensive player to a division rival.

For their actions, the Jets were found guilty of illegal tampering.  This represented their third NFL violation in 5 seasons.  Their penalty?  The NFL fined them $100,000, the smallest penalty of the three violations over that time frame.

The Jets committed three violations in five seasons, and the third one, the most serious of them all, led to a $100,000 fine, the smallest penalty of the three.  The Patriots were found guilty of committing two violations in eight seasons, and because they were “repeat offenders”, they were fined $1 million, first and fourth round draft picks, and lost their starting quarterback for four games (at a price of $2 million to him).

The Broncos commit four violations, even committing a worse taping offense than the Patriots did in Spygate, and their fourth violation led to a $100,000 fine.

No matter how you slice it, what the NFL penalized the Patriots was incredibly out of proportion.

• For the actual offense of football tampering, based on the rulebook and recent precedent, the Patriots should have been fined $25,000. Say $25,000 a football.  That comes to $325,000.


• For the offense of not cooperating with the investigation, based on recent precedent, the Patriots should have been fined somewhere between $20,000 and $50,000. Let’s say $25,000 for the team and $50,000 for Brady.


• For the offense of being repeat violators, what should we say? Because the Broncos and Jets faced no additional punishment whatsoever for their repeat transgressions.  But let’s say a reasonable penalty to tack on due to being a repeat offender is $100,000.

$550,000 in total fines.  No draft picks lost.  No suspension for Brady.

Instead, the Patriots and Brady were hit with essentially a $3 million penalty, the loss of a first and fourth round draft picks, and Brady got a four game suspension.

In no way can the penalty for the Patriots be considered fair or just.

But this should not be surprising.  Roger Goodell has made a habit of issuing over-the-top penalties completely disproportionate with the rules and with historical precedent.  One key example will suffice to make the point.

In the New Orleans Saints’ bountygate scandal, Goodell levied heavy suspensions against four Saints’ players.  When the case found it’s way before former commissioner Paul Tagliabue, who presided over the appeal as an independent arbiter, Tagliabue agreed that the Saints committed egregious violations, but vacated the penalties Goodell levied against the players.

From Tagliabue’s report:

“they (the players) contend that these players are victims of inconsistent treatment compared to how the League has disciplined -- or declined to discipline -- other players”[46]

Tagliabue agreed with the players.  Regarding Anthony Hargrove, Tagliabue said,

“Commissioner Goodell charged Hargove with providing false information regarding a bounty on Brett Favre or a "pay for performance bounty program," which is presumably the Program. Although I affirm Commissioner Goodell's general finding that Hargrove contributed to the obstruction of the investigation by providing denials as instructed by his coaches, a number of factors complicate and mitigate the propriety of his remaining two-game suspension. The context of previous NFL punishment for obstruction suggests that a seven-game suspension is unprecedented and unwarranted here. In December 2010, the NFL fined Brett Favre $50,000 -- but did not suspend him -- for obstruction of a League sexual harassment investigation. Although not entirely comparable to the present matter, this illustrates the NFL's practice of fining, not suspending players, for serious violations of this type. There is no evidence of a record of past suspensions based purely on obstructing a League investigation. In my forty years of association with the NFL, I am aware of many instances of denials in disciplinary proceedings that proved to be false, but I cannot recall any suspension for such fabrication.”[47]

Moreover, Tagliabue rebuked Goodell’s handling of the entire case.  Some of this will sound familiar to anyone following the deflategate controversy:

“He accused Goodell of administering sanctions that were "selective," "ad hoc" and "inconsistent," and cited precedents in each player's case. Essentially, Tagliabue said the players were guilty of misconduct but not worthy of the extreme penalties Goodell imposed on them. What Jonathan Vilma, Anthony Hargrove and Will Smith did was wrong, Tagliabue said, but they shouldn't be arbitrarily punished when others who participated in the program were allowed to skate. Their misconduct merited a fine rather than suspensions.

“Where Goodell saw leniency, Tagliabue saw arbitrariness. Goodell either needed to punish everyone involved or no one. You can't pick and choose when meting out such severe penalties. In this instance, Tagliabue chose the latter.

“Tagliabue's harshest rebuke of Goodell focused on his ham-fisted handling of the situation rather than the investigation's actual findings. He pointed out that former NFL Commissioner Pete Rozelle faced a similar crisis in the late 1980s when steroid abuse became widespread among players. Rozelle, however, successfully instituted cultural change by giving players and teams a "discipline-free transition year" to adjust to the new world order.

“Without directly saying so, Tagliabue implied that Rozelle's measured approach would have been a wiser and fairer course of action for Goodell in changing the league culture in regard to player health and safety.”[48]

Tagliabue’s ruling in the Saints’ case in 2012 was a stern criticism of how Goodell conducts business.  It wasn’t that the Saints’ players didn’t do anything wrong; it’s just that Goodell’s penalty for that wrongdoing was completely off the scale in terms of what a reasonable penalty should have been.  It highlights Goodell’s harsh “Sherriff Goodell” approach that is far out of the norm of what the rule book or recent precedent calls for.

What’s interesting is the inconsistency with which Goodell applies discipline.  We saw that in the Spygate case in 2007, the Patriots did something that was against the rules, but which many other coaches agreed was commonplace (it’s just that the Patriots got caught).  They completely and quickly complied with the investigation and for that, they received what was then the largest penalty in league history - $1 million in fines and the loss of a 2008 first-round draft pick.

When Denver, in 2010, actually got caught videotaping the 49ers’ practice, Goodell simply issued $100,000 in fines.

It is interesting to note the Ray Rice domestic abuse case, then.  When he was first charged with domestic violence, Goodell issued a two-game suspension.  When he received criticism for that discipline, he defended the suspension:

“We have to remain consistent. We can't just make up the discipline. It has to be consistent with other cases, and it was in this matter.”[49]

When the video of Rice punching his fiancée became public, Goodell promptly suspended Rice indefinitely, saying, “We allowed our standards to fall below where they should be and lost an important opportunity to emphasize our strong stance on a critical issue and the effective programs we have in place.  I didn't get it right. Simply put, we have to do better. And we will.”[50]

What is unclear is why a two-game suspension for domestic violence was exactly what the doctor ordered, because the league can’t just “make up the discipline” and has to be “consistent with other cases”, but then say later on that they “allowed their standards to fall below where they should be”.  All because of the public outcry over the release of the video.  These cases fit perfectly with the deflategate penalties in that they are completely arbitrary, completely out of the norm, and completely contrary to precedent.  They are the very definition of arbitrary.  They are completely contrary to Goodell’s claim that the league can’t just make up discipline.  They are the essence of “made up”.

How did we get here?

So here we are.  The defending Super Bowl champions have been hit with the most severe penalty in league history, including the loss of their star quarterback for four games at the start of the 2015 season.  All over an issue that the NFL never, ever cared about before, and a violation that, if you take Occam’s Razor and the known evidence seriously, probably didn’t even occur.

After everything that's transpired, it makes you wonder how this investigation blew up to where it is now. (USA TODAY Images)

How did we get to this incomprehensible place?

Let’s begin with the AFC Divisional round game between the Patriots and Ravens.  The Patriots won a nip-and-tuck contest 35-31, coming back twice from 14-point deficits.  In the second half, the Patriots used unique alignments involving various eligible and ineligible receivers to confuse Raven defenders.  After the game Raven coach John Harbaugh was clearly irritated by what the Patriots did.  The nfl.com report following the game stated,

“Patriots coach Bill Belichick reached deep into his bag of football tricks and came up with a four-man offensive line that had Ravens coach John Harbaugh crying foul after New England's thrilling 35-31 victory in the Divisional Round of the playoffs.

“Counteracting a ferocious first-half pass rush, the Patriots called a change-up in the third quarter, aligning four blockers on the line of scrimmage with another player checking in as an ineligible receiver.

“Harbaugh believes the Patriots should have been penalized for the "deceptive" substitutions utilized on those plays.

‘It's not something that anybody has ever done before,’ Harbaugh said. ‘The league will look at that type of thing, and I'm sure they'll make some adjustments and things like that.’”[51]

In fact, the formation was used earlier in the season by the Detroit Lions, and also by Alabama in the NCAA’s rugged SEC.  Harbaugh was correct in that following the season, the league outlawed the type of formations the Patriots (and Lions) used, despite the fact that they were perfectly legal when those two teams used them.

When asked about Harbaugh’s comments in a press conference, Tom Brady replied, "maybe those guys gotta study the rule book and figure it out. We obviously knew what we were doing and we made some pretty important plays. It was a real good weapon for us. Maybe we'll have something in store next week."[52]

Brady was reacting to Harbaugh’s complaints about a perfectly legal strategy, but his words may have rubbed Harbaugh the wrong way.  His team eliminated, he apparently contacted his old defensive coordinator and current Indianapolis Colts’ head coach Chuck Pagano.  The point of the conversation?  To warn them not about strategy, but rather to tell them that the Patriots like to use underinflated footballs.

Fox’ sports Jay Glazer reported, “The Indianapolis Colts were tipped off to this before the game ever even happened. Whether or not it was from the last time they played, I was told it was people from inside Baltimore, from the Baltimore Ravens.”[53]

Armed with this information, the Colts alerted the NFL before the AFC Championship game.  Colts’ GM Ryan Grigson  revealed during a press conference at the NFL Scouting Combine that he had passed this information on to the league.

“Earlier in that week, prior to the AFC Championship Game, we notified the league about our concerns,” Grigson told reporters Thursday (Feb 19). “We went into the game, we had some issues.

“I’m not going to get into specifics,” Grigson added, deferring to the NFL’s ongoing investigation by Manhattan attorney Ted Wells. “Hopefully everything can come out, and everybody will be able to have a clear look at the situation.”[54]

Made aware of what the Patriots might be involved with, the NFL made sure to inform Walt Anderson and NFL operations people such as Mike Kensil, so the key people involved had a heads-up that something might be amiss during the AFC Championship game.  Strangely enough, however, nobody informed the Patriots.  Goodell simply could have called the Patriots and told them that they were made aware of this complaint, and that they wanted no funny business whatsoever.  But no such conversation ever occurred.  Of course, had it occurred, it might not have changed the league’s perception, since they did not know about the Ideal Gas Law in any case.  Nonetheless, it was an opportunity for the NFL to deal with this situation before anything untowards happened, and they didn’t.

As we have seen already, when Colts’ linebacker D’Qwell Jackson intercepted Brady’s second quarter pass, he brought the ball to the Colts’ sideline.  There the Colts (against league rules) tested the ball and found it to be underinflated.  They told Grigson immediately[55], and word got passed to Kensil.  At halftime, Kensil told Patriots’ equipment manager Dave Schoenfeld, “We weighed the balls.  You’re in big f-ing trouble.”[56]

At this point in the story, the prevailing view was that the Patriots had to have done something wrong.  The league had been warned about the Patriots and underinflated footballs, and sure enough, they had found underinflated footballs.  Something was, they thought, clearly amiss, hence Kensil’s statement to Schoenfeld.

If they knew at that point that the footballs were perfectly within the range predicted by the Ideal Gas Law, the story would have ended there.  But they didn’t.  They had no knowledge of the science involved.  It is apparent that they simply looked at the measurements of the Patriots’ balls and compared them to the Colts’ balls and saw the difference – most of the Colts’ balls were over (according to one gauge), and almost all of the Patriots’ balls were under.  Without taking into account what the starting points were, or how long each set of balls had been in the cold, wet weather, or which set they measured first, they simply came to the conclusion that the warnings from the Colts were well-founded.  They had caught the Patriots cheating.

When Brady was interviewed about it the next morning on WEEI, he laughed it off and called it a ridiculous story.  Phone records indicate that the moment he got off the phone with WEEI, he promptly called Jastremski.  The contents of the conversation, of course, were not recorded.  Wells interpreted this (and subsequent calls to Jastremski) as suspicious.  Why, after all, would Brady call Jastremski right after that interview, if not to start working on a cover story?

Of course, the logical answer is that Brady called Jastremski to ask what in the world is going on.  In fact, Jastremski texted Brady at 7:25:18am that morning and said, “Call me when you get a second”.  One minute later, Brady called and they talked for 13 minutes.[57]

At 9:54am that day, Brady texted Jastremski this:  “You didn’t do anything wrong bud.”  To which Jastremski replied, “I know; I’ll be all good.”[58]

The story did not yet have legs, until ESPN’s Chris Mortensen dropped a bombshell on Twitter.  On January 20, at 7:57pm, Mortensen tweeted, “NFL has found that 11 of the Patriots footballs used in Sunday’s AFC title game were under-inflated by 2 lbs each, per league sources.”[59]

As we saw earlier, this information is dead wrong.  Only one of the Patriots’ balls was underinflated by two psi, and that one, measured by the low (non-logo) gauge, came in at exactly 10.50 psi, two psi under the limit.

The reason this is so important is because every ball being 2 psi under would indeed be a signal that something was amiss.  Recall that the Wells report itself mentioned that the Ideal Gas Law would have predicted that the Patriots balls should have been, given the conditions that day, at about 11.52-11.32 at halftime, which is precisely where, using the correct logo gauge (the one that Anderson remembers using), the Patriots’ footballs were.

“…using the Ideal Gas Law, or variations thereof, different calculations can be generated on the basis of different assumptions about the starting pressure, and starting and ending temperatures of a football. For example, using the most likely pressure and temperature values for the Patriots game balls on the day of the AFC Championship Game (i.e., a starting pressure of 12.5 psig, a starting temperature of between 67 and 71°F and a final temperature of 48°F prior to the balls being taken back into the Officials Locker Room), these equations predict that the Patriots balls should have measured between 11.52 and 11.32 psig at the end of the first half, just before they were brought back into the Officials Locker Room.”[60]

The Mortensen tweet launched this story into orbit.  Mike Florio remarked,

“Given that Mortensen’s report was: (1) taken as completely accurate; and (2) pushed the entire scandal to a new level, it’s important to look at those numbers objectively and to assess carefully whether there’s a plausible atmospheric explanation for the loss in air pressure.”[61]

Now, where did Mortensen get this (incorrect) information from?  Who leaked the information to him?  The only people who knew the measurements were NFL officials or game officials.  Someone from the NFL passed this news on to him.  There are two possible scenarios:  (1) Someone from the NFL deliberately passed on to Mortensen false, and very damaging, information, knowing it was false, or (2) someone from the NFL passed on false, and very damaging, information, not knowing it was false.  The first alternative is nothing more than a deliberate attempt to paint the Patriots as cheaters, knowing the whole time that the information passed on was untrue.  It is possible, given what may be anti-Patriots sentiment in the head offices of the NFL, and if so, the scandal here is not about what the Patriots may or may not have done.  Rather, it would be about the NFL damaging its premier franchise because a few individuals despise them.

That is not very believable, as tempting as it may sound to Patriots’ fans.  Possible, but not likely.  A better explanation is that someone in the NFL office got the information wrong, but thought that he or she had it right, and passed it on to Mortensen anyway.  It was still incredibly damaging, and this tweet completely spun the story right from the beginning.  But at least it would not be a deliberate attempt by the NFL to destroy one of its franchises.

Nonetheless, as soon as this tweet came out and the firestorm erupted, the NFL had a choice to make.  They knew the actual measurements.  They did not even have to comment on the science (which they clearly did not yet understand) or on the investigation or anything else.  They simply could have, seeing that this was creating a huge problem leading up to the Super Bowl, corrected Mortensen’s tweet by releasing the actual measurements.  Once they were released then and there, the entire circus could have been avoided.  Recall that everyone, including Bill Nye (the “Science Guy”) chimed in, claiming that the Ideal Gas Law could not account for a two psi drop in air pressure.  And they were right – if, in fact, those were the measurements.

But they weren’t.  All the scientists – including Nye – would have concluded that the Ideal Gas Law could absolutely have accounted for the actual drop in air pressure.  Instead, for months the public was led to believe – with the NFL offices as willing accomplices with the power to stop it, yet didn’t – that the Patriots’ footballs all measured at least two psi under the limit, which could not be accounted for by science.

The NFL office itself, when it had the power to stop it, fostered the narrative that the Patriots were cheaters.

Yahoo Sports’ Dan Wetzel wrote a scathing column detailing this.  Here are some salient points from Wetzel:

“Start with this: the story didn't go big until ESPN reported about 24 hours after the game that the NFL had discovered that 11 of the 12 footballs were measured to be more than 2 pounds per square inch below the league minimum of 12.5.

“That gave a subject that almost no one knew much about context, significance and potentially sinister intent. ESPN cited a nebulous "league source" at a time when it's believed no one outside the NFL office knew the actual measurements.

“Of course, that story wasn't true. It wasn't even close to true. Wells' report showed that none of the footballs, each measured twice, were that underinflated.

At that very moment, the NFL had to know the story wasn't true. Yet it did nothing.

“So the league either created a fake story that was extremely prejudicial to the Patriots by leaking inaccurate information or someone else did it and the league office let it run wild rather than correct it with the actual air pressure measurements. It's tough to figure out which scenario is worse for Goodell.

“Once it appeared the Patriots were up to something big then the public and media rightfully demanded a serious investigation into what wasn't that serious of a story. Goodell didn't steer this to the truth and away from the heated condemnation of a signature player and the validity of a Super Bowl participant (and soon champion).  He instead commissioned Wells' report, lending credence to a false narrative.

“There is probably no report without that demonstrably false ESPN story. What would be the point?

“Goodell could have looked at the pressure levels, saw that in the context of natural weather-related deflation it was fairly insignificant, doled out some kind of fine or even sanction and killed the kerfuffle in its tracks. It would have saved his league from all sorts of negative headlines and conspiracy theories.

“A good commissioner would've done just that. He's supposed to "protect the shield," not provide talk radio fodder. There is just no way Adam Silver, Paul Tagliabue or David Stern lets this go down.”[62]

Wetzel then reports, “Even more bizarre, an NFL senior vice president emailed a letter to the Patriots stating that "one of the game balls was inflated to 10.1 psi … [and] in contrast each of the Colts game balls that was inspected met the requirements.  Those assertions were untrue.  No gameball was measured below 10.5 and most were in the 11s, which is within an acceptable range of natural deflation. Three of the four Colts footballs as measured by one gauge were below 12.5, although also within the weather realm (it's uncertain the NFL knew anything about Ideal Gas Law at the time).  Wells' report brushed this off as "miscommunication" but it's quite a miscommunication.

“The NFL either had no idea what it was doing and was just making up facts without checking or, in a more draconian reading of it, it was trying to scare and/or silence the franchise into compliance by trumping up evidence.”

Damning words from Wetzel.  And completely true.

This represents a third point in this story where the NFL probably could have taken care of matters without it becoming a major scandal.  And yet the story continued to grow.  Ted Wells was hired to conduct an “independent” report, but, as we have seen, the report was anything but independent.  It was an advocacy piece for the NFL.  Here are some reasons to believe this was an advocacy piece for a client rather than an independent report:

• The NFL began with a presumption of guilt, and did not do anything to stem the rising tide of a guilty presumption. The league was informed of possible shenanigans by the Patriots, and did not bother, at all, to make sure it did not happen.  Moreover, the prevailing view, as evidenced by Kensil’s comments to Schoenfeld at halftime, was that the Patriots were actually caught in illegally tampering with the footballs, as they were warned might be the case.  And as the story unfolded, they could have simply delivered accurate information to counter the false Mortensen tweet, but chose not to.  And finally, when the rising tide of popular opinion was too much, they needed a report that validated the $5 million investigation, even though the best the report could do was to say that it was “more probable than not” that Brady had a “general awareness” of wrongdoing.

• The Wells report hired a biased firm known for not being objective. The science in the Wells report would not have passed muster in a college level science course.  But that does not matter to Wells or Goodell, because it was not the point of the investigation to find out what actually happened.  When they hired Exponent, they hired a firm with a reputation for delivering what their clients want.  This is from a February 18, 2010 article in the Los Angeles Times:

“But Exponent's research has come under fire from critics, including engineers, attorneys and academics who say the company tends to deliver to clients the reports they need to mount a public defense.

“’If I were Toyota, I wouldn't have picked somebody like Exponent to do analysis,’ said Stanton Glantz, a cardiologist at UC San Francisco who runs a database on the tobacco industry that contains thousands of pages of Exponent research arguing, among other things, that secondhand smoke does not cause cancer. ‘I would have picked a firm with more of a reputation of neutrality.’”

Later in the article, Mike Gaulke, executive chairman of Exponent, admits, “Do we tell our clients a lot of what they don't want to hear? Absolutely.”[63]

Exponent has, among other things, provided “research” for Big Tobacco that demonstrates that secondhand smoke does not contribute to cancer – a finding that is contrary to mainstream science.  Exponent’s science is suspect, and their neutrality and independence is questionable.  What is certain is that they have a history of presenting reports favorable to their clients.  In this case, their client was the NFL and Ted Wells, who were making a case against the Patriots.  It is no surprise, then, that Exponent’s experiments were used against them.

• The Wells report’s inherent bias. There are numerous examples of the Wells report including elements that paint the Patriots in a negative light, and virtually nothing that favors them.  Key pieces of evidence are put in the report, with no regard for the context in which they were found.  Hence the Patriots’ rebuttal in the com web site.  Here are a few examples.

• Every mention of Tom Brady and his desired inflation level left one number: 5 psi.  There was no mention, ever, by any party in the investigation, that Brady wanted the balls lower than that.  None.  To most independent parties, this would be evidence that Brady wanted footballs at 12.5 psi.  Not to Wells, who interprets this and spins it as Brady somehow wanting footballs lower than 12.5 psi.

• McNally is painted as a sinister figure, sneaking past officials into the rest room so he could deflate the footballs. Why, then, does the Wells report leave out the fact that the Gillette Stadium camera have Wells leaving a room full of NFL officials in the wide open, carrying the footballs, even past people who were informed beforehand that the Patriots might be up to something?  McNally’s behavior around the officials is one of a person not remotely up to no good.  But that piece is left out, and the focus is on him leaving without Anderson and sneaking into the bathroom.

• Walt Anderson’s memory is a trustworthy – near infallible, in fact – guide to the events of the day, including the exact measurements of each football before the game. Yet when Anderson recalls that he used the logo gauge – which actually fits the data much better – to record the air pressure in the pre-game check, Wells disregards this and assumes that Anderson used the non-logo gauge.  Why?  Simply because the non-logo gauge makes Wells’ case look stronger.  That’s the only reason.

• Goodell says he wants to meet with Brady. From profootballtalk.com:  “But he said he wants to hear from Brady himself, and it sounds like he’s giving him every opportunity to hand over the text messages in question (if not the phone itself).  ‘I look forward to hearing directly from Tom if there’s new information... information that can be helpful to us getting this right,’ Goodell said.”[64]

Sally Jenkins of the Washington Post has been as critical of Goodell as Wetzel.  She wrote on May 21, “NFL Commissioner Roger Goodell predetermined guilt in DeflateGate; that’s clear now. He has smeared Tom Brady and the New England Patriots without proper evidence or a competent investigation and turned an unimportant misdemeanor into a damaging scandal as part of a personal power play to shore up his flagging authority. In other cases, he just looked inept. In this one, he looks devious.

“At the NFL owners meetings in San Francisco on Wednesday night, Goodell as much as admitted that the Wells report is incomplete despite the fact that it took four months, cost millions in legal fees and was supposed to be comprehensive. After all, the league used it to levy historically harsh penalties against Brady and the Patriots, claiming they deflated footballs in the AFC championship game. Nevertheless, Goodell opened the door to walking it back, saying he wants to talk personally to Brady, who has appealed his four-game suspension.

“‘I look forward to hearing directly from Tom if there is new information or there is information that can be helpful to us in getting this right,’ Goodell said.

“Now this is the height of disingenuousness. Because we already know the Wells report missed crucial information and didn’t consider important facts. Ted Wells either overlooked or ignored crucial text messages, he used a firm with a reputation for bending science to fit predetermined conclusions and he cherry-picked the memory of an NFL referee. But that’s not all. The Wells report left completely unexamined the fact that the NFL has never once considered the inflation of footballs to be a matter of great integrity or competitive advantage before now.

“League history makes it obvious that Goodell is practicing selective enforcement, purely for his own purpose.”[65]

It is clear that Goodell had no interest in an independent discovery of the facts.  The Ray Rice scandal hurt Goodell in a big way, and when faced with this new “scandal”, he knew he had to deal with it strongly.  Sheriff Roger needed to return.  This is his personality, he ethos, the image he wants to project.  During the Saints’ bountygate scandal, Peter Ginsberg, the attorney for Jonathan Vilma, met Goodell to question the investigation.  Ginsberg recalled, “Roger was stone silent.  He almost acted insulted that someone would be questioning him.”[66]

Goodell has always been about his own authority.  Jenkins wrote, “The commissioner needed a big case to restore his authority and prestige after a series of judicial embarrassments. Federal judge David Doty reversed him on Adrian Peterson’s suspension. Arbitrator Barbara Jones overturned him (and found him not credible) for suspending Ray Rice twice for the same offense. And former commissioner Paul Tagliabue issued a stunning rebuke in the New Orleans Saints BountyGate case, when he not only reversed player suspensions but found a pattern of “arbitrary” as well “selective, ad hoc or inconsistent” punishments by Goodell.

“The guess here is that Goodell’s support and respect among owners was eroded badly after he mishandled each of these cases and turned them into months-long scandals that undermined public trust in the league office. DeflateGate is nothing more than a bid to reconsolidate his power.”[67]

The Patriots are a perfect foil, and an ideal team for Goodell to take to the woodshed for a beating.  In a league that is built for parity – from the draft to the salary cap to the schedule formula – the Patriots have stood out as an historically great team, defying the odds and the very system the NFL has built.  Moreover, the specter of Spygate ever looms for the Patriots, which is unfortunate, because that itself was a glaring example of Goodell’s “tough cop” authoritarian style, doling out punishment far outstripping the seriousness of the infraction.  We should have seen this one coming, in retrospect.

At this point, we'll have to just wait and see if Brady's appeal can overturn the suspension. (USA TODAY Images)

It remains to be seen what happens with Brady.  Patriots’ owner Robert Kraft has already conceded the punishment from the NFL.  After all, the NFL rules do not permit teams to appeal punishments, and because of that system – which Kraft had a big hand in making, it must be said – Goodell could literally issue any punishment against the Patriots he desired.  $1 million and two draft picks?  Sure.  How about first-round picks for the next five seasons?  Crazy?  Maybe, but Goodell has the power to issue that kind of discipline.

Kraft realized he essentially had no other option, so he capitulated, regretfully.  But Brady has a recourse.  He may appeal, but even that brings in thorny questions.  In his letter to Brady, Troy Vincent wrote,

“Based on the extensive record developed in the investigation and detailed in the Wells report, and after full consideration of this matter by the Commissioner and the Football Operations department, we have determined that the Patriots have violated the NFL’s Policy on Integrity of the Game and Enforcement of Competitive Rules, as well as the Official Playing Rules and the established guidelines for the preparation of game footballs set forth in the NFL’s Game Operations Policy Manual for Member Clubs. In making this determination, we have accepted the findings contained in the comprehensive report independently prepared by Mr. Wells and his colleagues.”[68]

From this letter, it is unclear who is issuing the penalty.  Is it Vincent?  Goodell indicated as such in a press conference at the owner’s meetings.  He said, “Once we had the Wells Report, our staff, led by Troy Vincent, who handles these matters on a regular basis and has all spring, immediately began meetings.  I participated in some of those meetings, so I understood the discussion that they were having. Troy made the recommendation. I authorized him to go ahead and initiate that, as I have in every other case.”[69]

As Phil Perry of csnne.com pointed out, “It was Vincent who wrote to Brady informing him of his suspension, not Goodell. And Goodell admitted that it was Vincent and his team that determined the severity of the punishment.”[70]

Goodell himself said as much.  In a statement released after the Wells report came out, Goodell said, “I want to express my appreciation to Ted Wells and his colleagues for performing a thorough and independent investigation, the findings and conclusions of which are set forth in today’s comprehensive report. As with other recent matters involving violations of competitive rules, Troy Vincent and his team will consider what steps to take in light of the report, both with respect to possible disciplinary action and to any changes in protocols that are necessary to avoid future incidents of this type. At the same time, we will continue our efforts vigorously to protect the integrity of the game and promote fair play at all times.”[71]

And Gary Myers of the New York Times added, “Goodell set himself up perfectly by allowing Troy Vincent, the executive VP of football operations, to make the decision on all the Patriots’ penalties. Goodell then authorized them. This puts Goodell in a position where he can claim he’s not ruling on his own ruling. He’s ruling on Vincent’s ruling.”[72]

Well and good.  But if Vincent was the decision-maker, this is a clear violation of the collective bargaining agreement.  In the appeal letter sent to the Vincent on behalf of Brady, the NFLPA stated,

“First, as both Mr. Brady’s discipline letter and the NFL’s public statements make clear, you were tasked by Commissioner Goodell to determine whether Mr. Brady should be subject to discipline for conduct detrimental in connection with the events described in the Wells Report (the “Report”), and if so, to decide and impose the discipline. And, you have, in fact, imposed Mr. Brady’s discipline pursuant to the Commissioner’s purported delegation of his authority. Any such delegation is a plain violation of the CBA.

The CBA grants the Commissioner—and only the Commissioner—the authority to impose conduct detrimental discipline on players. CBA, Art. 46, § 1(a); id., App. A, ¶ 15. This express CBA mandate is further confirmed by the “law of the shop.” See Rice Art. 46 Appeal Decision (“Rice”) at 15; Bounty Art. 46 Appeal Decision (“Bounty”) at 4. Indeed, whereas the CBA expressly authorizes the Commissioner to delegate his authority to serve as Hearing Officer over Article 46 appeals, after consultation with the NFLPA, it contains no corresponding provision authorizing the Commissioner to delegate his exclusive role to impose conduct detrimental discipline to you or anyone else. You have no authority to impose discipline on Mr. Brady under the CBA, and such discipline must therefore be set aside.”[73][74]

So if Vincent was the one issuing the penalty, it was in clear violation of the CBA.  Again, this is typical of a commissioner not interested in following rules or precedent, but rather asserting his authority over the league.

But if it was Vincent, why would he say, “after full consideration of this matter by the Commissioner…”?  Clearly, Goodell was involved in the decision, and a good case can be made that the penalty was overwhelmingly the decision of Goodell.  So we may assume, as Vincent hinted, that Goodell truly was the one behind the decision.

Goodell, in his letter to the NFLPA rejecting the motion for him to recuse himself from hearing the appeal, said,

“There can be no dispute that this is an appeal of Commissioner discipline: As the letter signed by Mr. Vincent explains in its first sentence, ‘The Commissioner has authorized me to inform you of the discipline that, pursuant to his authority under Article 46 of the CBA, has been imposed upon you ... .’ I did not delegate my disciplinary authority to Mr. Vincent; I concurred in his recommendation and authorized him to communicate to Mr. Brady the discipline imposed under my authority as Commissioner.”[75]

But if so, how can Goodell also hear the appeal?  How can the same man be both prosecuting attorney and judge in the same case?  It makes no sense.

“Commissioner Goodell will hear the appeal of Tom Brady's suspension in accordance with the process agreed upon with the NFL Players Association in the 2011 collective bargaining agreement,’ NFL spokesman Greg Aiello said.”[76]

Goodell answered the previous question by citing the words in the CBA, saying, “Our Collective Bargaining Agreement provides that "at his discretion," the Commissioner may serve as hearing officer in "any appeal" involving conduct detrimental to the integrity of, or public confidence in, the game of professional football. I will exercise that discretion to hear Mr. Brady's appeal.”[77]

So when the decision was first handed down, the letter to Brady implied – and Goodell’s own words supported this notion – that Vincent was the decision-maker in the case, which allowed Goodell to be a truly independent arbiter who could handle the appeal fairly and objectively.  But when it was pointed out that such a move violated the CBA, Goodell changed directions and said that it was him that made the decision based on Vincent’s recommendation, and authorizing Vincent to send the letter to Brady notifying him of the penalty.  That allowed Goodell to hear the appeal, in conjunction with the CBA.

But that puts Goodell in the position of prosecuting attorney and judge in the same case.  It may be permissible in the CBA, but it makes it laughable for Goodell to reject the NFLPA’s claim that he cannot be independent because he’s prejudged the case.  Goodell wrote,

“Nor have I "prejudged" this appeal. I have publicly expressed my appreciation to Mr. Wells and his colleagues for their thorough and independent work. But that does not mean that I am wedded to their conclusions or to their assessment of the facts. Nor does it mean that, after considering the evidence and argument presented during the appeal, I may not reach a different conclusion about Mr. Brady's conduct or the discipline imposed. That is true even though the initial discipline decision was reached after extensive discussion and in reliance on the critical importance of protecting the integrity of the game. As I have said publicly, I very much look forward to hearing from Mr. Brady and to considering any new information or evidence that he may bring to my attention. My mind is open; there has been no "prejudgment" and no bias that warrants recusal.”[78]

How can Goodell say he is not “wedded” to their conclusions or their assessment of the facts?  If Vincent made the ruling, then Goodell could truly say this.  But Goodell hired Wells.  He told Wells what to investigate and what not to investigate.[79]  And as Goodell said in his letter to the NFLPA, it was him who evaluated Wells’ work and issued the harshest penalty the league has ever seen.  If he did not agree with Wells’ conclusions, and if he did not judge the case, how could he issue a penalty?  Clearly he has issued a conclusion.  Clearly he has judged the case.  If he wanted more information, he could have personally sat down with Brady before issuing the penalties.  He did not.  He accepted the Wells report – as he should have; they gave him exactly what he was looking for – and he issued a huge penalty based on his conclusions.  How can there has been no “prejudgment” on his part?  Of course he has prejudged the case!  It’s how he made his ruling in the first place!

This entire episode is much ado about nothing.  Not because cheating doesn’t occur, and not because the Patriots didn’t cheat.  They very well may have.  It would surprise nobody – including Patriots fans themselves if they are honest – if they did.  But this is the epitome of a tempest in a teapot.  The league took an issue that it never, ever cared about before – including during the 2014 NFL season – and never issued a penalty for in its history, and turned it into the greatest scandal in 75 years.  All without anything that would remotely resemble conclusive evidence, but rather begun with shaky assumptions, and buttressed (as it were) by embarrassingly poor science done by a spurious company and a law firm that set out to give the NFL what it wanted.  Every piece of evidence used against the Patriots has a perfectly reasonable explanation if the starting assumption is one of innocence.

This is one gigantic power trip by Goodell that easily could have been avoided any number of times if Goodell was competent.  But, as we have seen during his tenure, competence is practically the last adjective one could ascribe to him.  But Robert Kraft has supported Goodell, even in the aftermath of the ridiculous Spygate scandal, as he was overturned by one independent arbiter after another, and even after his utterly incomprehensible handling of the Ray Rice case.  Moreover, the system that Kraft helped put into place is now coming back to bite him again.  It is unfortunate that the Patriots are being punished by a man such as Goodell for something that probably did not even happen.  But that’s the bed Kraft must lie in, for he helped create this monster.

Brady, however, is a different matter.  As a leading member of the NFLPA, he fought against the system in place.  He has recourse.  And there’s a good chance he will take this to court if he does not win his appeal.  Perhaps this entire episode brings Roger Goodell to heel for his arbitrary decision-making.  Brady’s suspension (and subsequent financial loss) is utterly undeserved, even if he was involved in football-tampering.  The penalty was completely out of line with the rules and with recent precedent, in any and every way imaginable.

“‘In my opinion, this outcome was pre-determined; there was no fairness in the Wells investigation whatsoever,’ Yee (Brady’s lawyer) said. ‘There is no evidence that Tom directed footballs be set at pressures below the allowable limits. In fact, the evidence shows Tom clearly emphasized that footballs be set at pressures within the rules. Tom also cooperated with the investigation and answered every question presented to him. The Wells Report presents significant evidence, however, that the NFL lacks standards or protocols with respect to its handling of footballs prior to games; this is not the fault of Tom or the Patriots.’

“Yee concluded: ‘We will appeal, and if the hearing officer is completely independent and neutral, I am very confident the Wells Report will be exposed as an incredibly frail exercise in fact-finding and logic.’

“Ultimately, Brady will appeal the suspension, and he’ll likely win. Adrian Peterson won his suspension, as did Ray Rice, as did the Saints players who were penalized for the team’s bounty program. Those men all committed much worse acts, and there was more clear evidence in all three cases, yet the NFL’s heavy-handed punishment was eventually overruled by judges who were truly independent — unlike the NFL-funded Wells team.”[80]

Perhaps Brady stands a good chance of victory.  One can only hope.  For his own good and for the good of a league that sorely needs stability, fairness, and justice at the highest level.

[1] http://www.nytimes.com/2013/11/24/sports/football/eli-mannings-footballs-are-months-in-making.html?_r=0

[2] http://espn.go.com/blog/new-england-patriots/post/_/id/4776728/jim-nantz-phil-simms-discussion-adds-context-to-deflated-football-talk

[3] http://profootballtalk.nbcsports.com/2015/01/20/brady-said-in-2011-he-likes-deflated-footballs/

[4] Wells Report, page 5.

[5] http://www.businessinsider.com/nfl-didnt-take-colts-deflated-football-warning-seriously-2015-5#ixzz3auUWEVqz

[6] http://www.businessinsider.com/nfl-didnt-take-colts-deflated-football-warning-seriously-2015-5#ixzz3auUWEVqz

[7] http://profootballtalk.nbcsports.com/2012/10/21/chargers-facing-sanctions-for-illegal-use-of-stickum/

[8] http://profootballtalk.nbcsports.com/2012/10/23/towel-maker-chargers-were-using-our-product-not-stickum/

[9] http://articles.chicagotribune.com/2012-11-07/sports/sns-rt-us-nfl-chargers-finebre8a705v-20121107_1_towels-san-diego-chargers-nfl

[10] http://i.imgur.com/GiNGKHk.gif

[11] http://profootballtalk.nbcsports.com/2015/05/07/ball-tampering-involving-panthers-vikings-produced-a-far-different-reaction/related/

[12] http://www.slate.com/blogs/the_spot/2015/01/19/nfl_investigates_patriots_for_deflated_game_balls_versus_colts.html

[13] http://blogs.nfl.com/2011/09/15/nfl-releases-details-on-fines-discipline/

[14] http://espn.go.com/video/clip?id=12226086

[15] http://thornography.weei.com/sports/boston/2015/01/28/john-brenkus-refutes-deflategate-once-and-for-all/

[16] http://espn.go.com/nfl/playoffs/2014/story/_/id/12201369/aaron-rodgers-green-bay-packers-upset-referees-take-air-footballs

[17] http://www.sharpfootballanalysis.com/blog/2015/the-new-england-patriots-mysteriously-became-fumble-proof-in-2007  and   http://www.sharpfootballanalysis.com/blog/2015/the-new-england-patriots-prevention-of-fumbles-is-nearly-impossible

[18] http://fivethirtyeight.com/datalab/your-guide-to-deflate-gateballghazi-related-statistical-analyses/

[19] http://www.nytimes.com/2015/01/25/sports/football/footballs-fair-game-at-bill-belichicks-practices.html?_r=0

[20] The Wells Report, pg. 19.

[21] The Wells Report, pg. 37-38.

[22] Wells Report, pg. 52.

[23] http://larrybrownsports.com/football/mike-kensil-told-patriots-youre-in-big-f-ing-trouble/261974

[24] If we decide that the non-logo gauge was used, then we need to point out that 3 of the 4 Colts’ footballs also measured below the 12.5 psi threshold.  If that alone is evidence of tampering, then why weren’t the Colts investigated?

[25] http://www.nytimes.com/2015/01/30/sports/football/deflation-experiments-show-patriots-may-have-science-on-their-side-after-all.html?_r=2

[26] http://drewfustin.com/deflategate/

[27] https://www.khanacademy.org/science/chemistry/gases-and-kinetic-molecular-theory/ideal-gas-laws/v/deflategate-ideal-gas-law

[28] The Wells Report, Appendix I, pg. 39-40.

[29] The Wells Report, pg. 67-68.

[30] The Wells Report, pg. 55.

[31] The Wells Report, pg. 58.

[32] http://wellsreportcontext.com

[33] http://wellsreportcontext.com

[34] The Wells report assumes the Patriots started with 13 footballs.  The 11 that were tested at halftime, the ball that Jackson intercepted (which wasn’t tested with the 11), and another one that the Patriots gave to James Develin, which also wasn’t taken into the locker room at halftime.

[35] Interestingly, the text exchanges between McNally and Jastremski almost certainly disprove Wells’ entire case, and here’s why.  Consider that they rip on Tom Brady pretty openly together.  Brady is the fourth-most important person in the Patriots’ organization, behind owners Robert and Jonathan Kraft, and the head coach Bill Belichick.  There is zero chance that McNally and Jastremski ever dreamed their text exchanges would ever be made public, or they would never in a million years have spoken of Brady in such disparaging terms – that is, if they valued their jobs.  The fact that they did speak about Brady like this tells us that they spoke very openly and freely in their text conversations, about things that would have been taboo subjects.  If that’s the case, where are the references to illegally tampering with footballs?  They simply aren’t there.  There is no indication at all of any scheme to illegally deflate footballs, to any level, never mind below 12.5 psi.  None.  This is, given their propensity to say things that would quickly get them fired if those messages were ever made public, a glaring omission, and strong evidence damaging Wells’ contention.

[36] http://www.cbssports.com/nfl/eye-on-football/25185118/patriots-lawyer-responds-to-wells-report-three-things-to-know

[37] http://www.boston.com/sports/football/patriots/2015/05/08/watch-tedy-bruschi-get-fired-defending-tom-brady/979bl5k2RZkCI1UZOwEodN/story.html  - Bruschi referred to McNally and Jastremski as “Bird” and “John John”.

[38] http://www.slate.com/blogs/the_spot/2015/01/19/nfl_investigates_patriots_for_deflated_game_balls_versus_colts.html

[39] http://mmqb.si.com/2015/05/11/tom-brady-suspension-patriots-deflategate-punishment/

[40] http://www.nfl.com/news/story/0ap3000000492190/article/nfl-releases-statement-on-patriots-violations

[41] http://www.foxsports.com/nfl/story/brett-favre-faces-fine-in-jenn-sterger-scandal-122910

[42] http://www.nfl.com/news/story/0ap1000000091683/article/san-diego-chargers-fined-20k-by-nfl-in-towel-case

[43] http://www.nfl.com/news/story/0ap3000000451968/article/ndamukong-suhs-suspension-reduced-to-70k-fine

[44] http://sports.espn.go.com/nfl/news/story?id=5855075

[45] http://yourteamcheats.com/NYJ

[46] http://www.nfl.com/news/story/0ap1000000109668/article/paul-tagliabues-full-decision-on-saints-bounty-appeal

[47] Ibid.

[48] http://www.nola.com/saints/index.ssf/2012/12/tagliabue_essentially_declares.html

[49] http://espn.go.com/nfl/story/_/id/11296028/roger-goodell-defends-suspension-ray-rice-baltimore-ravens-running-back

[50] http://www.cnn.com/2014/09/08/us/ray-rice-new-video/

[51] http://www.nfl.com/news/story/0ap3000000456365/article/john-harbaugh-pats-substitutions-deceptive

[52] Ibid.

[53] http://baltimore.cbslocal.com/2015/01/22/report-ravens-tipped-off-colts-about-patriots-deflating-balls/

[54] http://nypost.com/2015/02/20/colts-gm-we-warned-nfl-about-deflated-balls-before-title-game/

[55] “Grigson was visibly upset in the press box at halftime when he was informed from the sidelines the football intercepted by linebacker D’Qwell Jackson was under-inflated.” – (http://indysportscentral.com/2015/05/12/ted-wells-nfl-didnt-take-colts-concerns-seriously-there-was-no-sting-operation/)

[56] http://www.si.com/nfl/2015/05/11/robert-kraft-roger-goodell-deflategate-wells-report

[57] http://www.businessinsider.com/brady-patriots-employee-texts-deflategate-2015-5

[58] Ibid.

[59] https://twitter.com/mortreport/status/557748673208401921

[60] The Wells Report, Appendix I, pg. 39-40.

[61] http://profootballtalk.nbcsports.com/2015/05/06/finally-the-halftime-psi-numbers-are-known/

[62] http://sports.yahoo.com/news/this-is-how-the-nfl-let-deflate-gate-get-so-out-of-control-and-ridiculous-200459796.html

[63] http://articles.latimes.com/2010/feb/18/business/la-fi-toyota-exponent18-2010feb18

[64] http://profootballtalk.nbcsports.com/2015/05/20/roger-goodell-wants-to-hear-from-tom-brady-himself/

[65] http://www.washingtonpost.com/sports/redskins/in-trying-to-restore-his-authority-goodell-undermined-his-credibility/2015/05/21/142c8d2c-ffd4-11e4-805c-c3f407e5a9e9_story.html

[66] http://www.nola.com/saints/index.ssf/2015/01/roger_goodells_relationship_wi.html

[67] http://www.washingtonpost.com/sports/redskins/in-trying-to-restore-his-authority-goodell-undermined-his-credibility/2015/05/21/142c8d2c-ffd4-11e4-805c-c3f407e5a9e9_story.html

[68] http://www.bostonglobe.com/sports/2015/05/11/nflstatement/YARzQCnZNGsdpgmv3p6C5H/story.html?hootPostID=cbf61963ce116bb6fb32631466be87d9

[69] http://www.csnne.com/new-england-patriots/goodell-responds-nflpa-assessment-vincents-authority

[70] Ibid.

[71] http://www.bustle.com/articles/81716-roger-goodell-responds-to-deflategate-his-statement-is-flatter-than-those-footballs

[72] http://www.nydailynews.com/sports/football/myers-tom-brady-roger-goodell-play-article-1.2233396

[73] https://nflpaweb.blob.core.windows.net/media/Default/PDFs/Media%20Resources/Brady_Appeal_Letter.pdf

[74] The letter further stated, “one arbitrator has previously found that you (Vincent), in particular, are unfamiliar with proper NFL discipline procedures and have no role in imposing discipline. Peterson Art. 46 Appeal at 7.”

[75] http://www.nfl.com/news/story/0ap3000000495253/article/letter-from-roger-goodell-to-nflpa-regarding-brady-appeal

[76] http://espn.go.com/boston/nfl/story/_/id/12889745/nfl-commissioner-roger-goodell-hear-tom-brady-appeal-four-game-deflategate-suspension

[77] http://www.nfl.com/news/story/0ap3000000495253/article/letter-from-roger-goodell-to-nflpa-regarding-brady-appeal

[78] http://www.nfl.com/news/story/0ap3000000495253/article/letter-from-roger-goodell-to-nflpa-regarding-brady-appeal

[79] For example, he rejected the Patriots’ request for Wells to investigate the Colts or the league’s handling of the situation.

[80] http://boston.cbslocal.com/2015/05/11/hurley-nfls-punishment-of-tom-brady-for-deflategate-goes-far-beyond-ridiculous/