Why is it unlikely that the Patriots seek litigation, to address the loss in draft picks, if nothing else?
It's very common for people without much experience in civil litigation to conflate the legal system with intuitive notions of fairness or justice.
From the standpoint of "fairness", the Pats have been treated unfairly, obviously. The leaked damaging false information, the biased report, the unsound science, the forcing of the Pats to keep the true PSI secret while the damaging news stories were bruited about.
So Kraft as an owner can go storming into his attorney's office, and say "I've been treated wrongly, what legal recourse do I have".
Here is where it gets confusing: whether Kraft was treated unfairly or not has next to nothing to do with whether litigation is advisable. The lawyer actually won't particularly care whether Kraft was treated unfairly. He's there just to assess what will likely happen in litigation. He's looking at various arguments he can make to a judge or to a jury, he's examining all the contracts between the NFL and the Pats, he's looking at the NFL likely reactions, he's assessing vulnerabilities and cost of litigation. Once again, the lawyer DOES NOT CARE whether what happened was unfair or not.
The primary hurdle the lawyer will have is whether there is a claim at all. Do the Pats even have a right to appear in court? The NFL has had a lot of very experienced lawyers working very hard to make sure that they cannot be sued by a team at all. I have no idea whether the Pats have a way of working around that, maybe, given the extremity of the NFL's conduct at issue.
So first of all there will be a lot of legal wrangling as to whether the Pats are even allowed to sue. This will actually not cost too much, three or four million maybe (?), and will just be done mainly in lawyer's briefs. If the Pats lose there, they will just have lost some money and time (they might have to pay the NFL's lawyers fees, too).
What if the Pats win, so a court finds they can sue? Here is where the actual lawsuit begins.
I should mention actually a key issue here is venue: where, and also in what jurisdiction, will the suit be heard? If the Pats could guarantee the suit would be held in Boston, they'd be pretty confident. Unfortunately, the NFL his headquartered in .... New York. Most likely the NFL has contractual language that all suits have to be heard in New York. In New York, the media, the jury pool, any state judge's constituency, will all be mainly Jets fans who revile the Pats. Can the Pats get a fair hearing there? I have no idea where the suit would be heard, I'm just saying, that's a key consideration.
Now, you say, you're a physicist. You can look at the mess of ridiculous protocols and sloppy readings and see that clearly one cannot say from that there was tampering. You also understand the preposterousness of even arguing about whether someone deflated by .5 psi given all the other uncertainties. So, based on, let's say, a minimum of eight years education in physics, you're confident that the Wells report is scientific nonsense (as am I).
But that's irrelevant. In most jurisdictions, the average education of a juror is somewhere around 10th grade level. That's general education. The average science knowledge of an attorney is probably that at best. Unless you have extensive experience with attorneys, I guarantee that you cannot begin to appreciate how little science they know.
So what a physicist thinks of the science is completely irrelevant, legally. Kraft can hire physicists to say one thing, the NFL can hire others to say something else. The jury is going to make a decision based on which attorney has the better smile most of the time.
Not literally the "smile" but juries mainly care about "credibility". They can't understand the logic or science, so they go by demeanor, body language, things like that. The attorney by the way is going to assess how credible the Pats witnesses will seem to a jury. How credible do you think the Pats witnesses are going to be to someone who doesn't understand the science? How do you think a jury would react to McNally's explanations of his texts under cross examination? These are the kinds of issues the lawyer is thinking about - not whether is McNally is telling the truth, the lawyer doesn't care, but whether McNally will sound credible to a bunch of people with minimal science background.
Again, I don't know how much experience you have dealing with people not educated in science. You probably expect that you can educate them. Maybe, but what about when the other side is trying to do the same thing? Not so easy. Have you actually tried educating a non-technical person about some scientific debate, by the way?
Next, non-lawyers typically have an image of the legal system as being something where both sides go to trial, present their best arguments, and that's that. But actually 98% of what happens in a civil trial happens before trial, mainly in discovery. I've actually already made a post about this, I'm just repeating it. Basically, in discovery, the opposing side will try and argue that they must get every scrap of information from the organization. This means long, annoying depositions of every QB, every player, every Pats employee who could have seen deflation. The NFL will do its best to schedule these depositions at the most inconvenient times, in the most inconvenient venues. How would you like a 4-day deposition of Tom Brady scheduled just before the playoffs? What do you do when Brady flies out to where the deposition is, then the deposition is canceled and rescheduled for the next week? And then that happens again? And that happens with Belichick too? The NFL could destroy a season with tactical deposition-taking alone if it wanted, if it got lucky with the judge. (This shouldn't happen but might).
Now, we've all seen how McNally's life has been messed up because he joked around in texts. Do you think he is the only Patriot who joked around in texts? The NFL lawyers will try and subpoena every text, personal and otherwise, from many different Patriots and employees. They'll get a lot more info than Wells was able to, most likely.
At a minimum, they'll get all the financial information on the Patriots, every deal, every contract.
Wells of course didn't have transcripts on his interrogations so he could spin them how he wanted. The NFL would likely demand video depositions of everyone. These are not always granted, and if they are, they are not always leaked. However, if they are granted (which is not uncommon, depends on a lot of factors), and if they are leaked or are made available, they are virtually always embarrassing. Attorneys have years and years of experience asking impossible-to-answer questions which, no matter how answered, can destroy a life or at least subject a person to a lot of distraction. Clinton, Deen, Bill Gates - all these folks wound up getting mocked for a long time, and Deen lost her career, over artfully phrased questions. And these were businessmen or lawyers themselves being deposed. You think an equipment manager can do better?
Can Brady keep his texts, emails, and phone records private? Don't count on it. Or on Belichick or anyone else.
The financial cost could be significant as well. I would guess that if a suit actually went to trial (most are dismissed or settle long before) then the cost to the Patriots of a suit, just in attorneys fees and litigation expenses, would be $50M, maybe more depending on how things go. (Worse case, Pats pay NFL attorneys fees, well north of $100M here in toto). This is very complex stuff: antitrust, defamation, conspiracy, tortious interference, labor law, NFL law, and of course all the science. Look, the Wells report alone cost $5M I would guess, and that was just one side doing a fairly short investigation. With two sides, both teams filing motions at each other, it's a lot more. Of course, the cost in distraction is hard to calculate.
Back to the beginning, you might say, well $50M to win $500M is a good investment, right? But whether the Pats can actually win, well, I have no idea actually.
That said, in this particular case, maybe litigation is the right route you know. I have never seen or heard of anything as outrageous in sports history as this, where a governing body conspires with a law firm to defame and defraud a member team for no apparent reason other than personal animus and to avoid admitting its own mistakes.
I want to be completely clear: I am not expert on the legal issues here, these are general thoughts that might or might not apply to the particular case, but they just illustrate the kinds of issues that lawyers and clients might consider in deciding whether to litigate.
