An Award Obtained Without the Requisites of Fairness or Due Process

September 4, 2015

An Award Obtained Without the Requisites of Fairness or Due Process


Had someone suggested on Monday that the Brady suspension might be reduced, I would have been disappointed but not surprised. But knowing what we now know, he should feel fortunate that the suspension wasn’t lengthened. I would have suspended Brady for the season.

--William Rhoden

New York Times

July 29, 2015


            William Rhoden of the New York Times has been writing incisively about the Deflategate case for several months, and now that a Federal judge has ruled that every word that Rhoden has written for the last eight months is total and complete nonsense, Rhoden announces that the real issue is "sportsmanship".    Well, not to be immodest, but I’ve been right about everything connected to this case all summer, and, since this is such a rare event, let’s talk about this in more specifics than are being covered, it seems to me, in most other accounts.  

            On May 6 the Wells report was made public, the Wells report being the NFL’s hired professional investigation into the case, conducted by the law firm of Theodore V. Wells and his associates.   I have no problem with the Wells report; to the best of my knowledge it was a serious and fair effort to understand what had happened (although Judge Berman did have some problems with it, which we’ll get to later.)    The Wells report concluded that "it is more probable than not that Brady was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls." 

            Responding to a question in "Hey, Bill", asking whether Brady would be suspended by the NFL based on this report, I replied that I didn’t see how he could possibly be suspended, based on that report.    You cannot punish someone, as a rule, because it is more probable than not that he was generally aware of inappropriate conduct.   Let us say, to put this in a context both relatable and common, let us say that your co-worker is stealing things from the office, and that your boss believes that it is more probable than not that you were at least generally aware of this.   Can your boss legally fire you because he believes it is more probable than not that you were generally aware of the thefts?

            No, he can’t—not if you have a good lawyer, not if you have a decent union, not if you live in the modern world in which employers have a legal responsibility to deal fairly with their employees.   I took the words "more probable than not" and "generally aware" to be code words telling Goodell to back off.    That’s an understatement; they were code words telling Goodell to back off.   There is no other way to read them.  

            Wells, to his credit, was trying to let some of the air out of the controversy before it was placed on Goodell’s desk.   Unfortunately, Roger Goodell doesn’t go for that subtlety nonsense.   Another reader, identifying himself as "Pablo", took the NFL’s side in this dispute, and sought to edjacate me about the American legal system:


A lot of the uproar over the "more probable than not" standard is based in a widespread misunderstanding, or lack of familiarity, with the American legal system. As a previous poster pointed out, the "preponderance of the evidence" standard is the ordinary civil law standard, and the basis for the vast majority of legal actions in America. People get punished--yes, punished--all the time based on that standard. When the SEC fined an insider trader $93 million dollars, or when the FTC won $30 million in fines from a robocaller, or when OJ Simpson was ordered to pay $25 million dollars to his ex-wife's family, those were civil judgments based on the "more probable than not standard." We don't incarcerate people under that standard, but we certainly punish them, including barring them from conducting business or working in a profession. Nobody is putting Brady in jail here. There is no requirement of proof beyond a reasonable doubt when you're talking about a 4-game suspension.


            This discussion wandered off into a debate about the meaning of the word "preponderance" and whether that had changed over time. . .an interesting enough discussion, in that we learned something from it, but let’s not retrace that.  

            I am inclined, of course, to make blanket statements in disputes of this nature, and judges are not generally inclined to make blanket statements.    Judge Berman’s structured legal analysis of this problem is:

            a)  The investigative report says that "it is more probable than not that Brady was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls." 

            b)  Commissioner Goodell’s report of July 28, resolving the arbitration hearing, concludes that "Mr. Brady knew about, approved of, consented to, and provided inducements and rewards in support of a scheme by which, with Mr. Jastremski’s support, Mr. McNally tampered with the game balls." 

            From (a) to (b) is a rather large step up.  In order to take that large step up, there has to be some basis in fact or evidence—but in fact Goodell stated repeatedly that his actions were based on the Wells report, and that the Wells report was the factual basis for his actions.   Goodell simply took a leap forward from the factual record.  

            Why?  Berman doesn’t tell you, so I will.   Because the NFL’s lawyer told him that you can’t suspend someone for a quarter of the season based on the conclusion that it is more probable than not that he was  general aware of someone else’s misconduct.  Goodell wanted to suspend Brady, but the evidentiary report didn’t support that, so he made up additional conclusions, and counted on his unassailable position as the arbitrator to sustain those made-up conclusions.  

            A judge does not like to overturn an arbitrator’s judgment, and there is in the law a strong presumption in favor of the arbitrator—who, in this case, was Goodell.   Goodell had a right under the collective bargaining agreement to appoint himself as the arbitrator to review his previous decision.    But when he became the arbitrator, he had a responsibility to act equally on behalf of all parties in the dispute.    He did not do this. 

            Berman hammers Goodell on point after point after point after point, and I have mentioned two of them:

            1)  Goodell took a very large step forward in his interpretation of the evidence, with no factual basis, and

            2)  There was hardly even a pretense that, as an arbitrator, he was acting equally on behalf of all parties.    Rather than acting equally on behalf of all parties, he ratcheted up the charges based on his own undocumented assumptions.  

            It is acknowledged by everyone that a suspension is a greater and heavier punishment than a fine, but at times Berman seems to be saying that the factual record would not have justified Goodell even had he fined Brady, let alone suspended him.  His other blasts at Goodell include: 

            3)  Goodell cannot make up industrial law as he goes along.  As Berman stated it, "It is the ‘Law of the Shop’ to provide professional football players with advance notice of prohibited conduct and potential discipline."  There is no trail anywhere suggesting that a player can be suspended for an equipment tampering violation.   No player has ever been punished in a like manner for a like offense—and, in fact, there have been similar offenses committed in the past, with no punishment at all directed at the players who benefitted.   In 2009, a New York Jets employee was caught using a sideline heater to warm up the football that would be used to a attempt a field goal, making the ball travel further.   The Jets’ kicker was present and obviously aware of the activity, but no action was taken against him.  The league’s Competitive Integrity Policy states that the fine for a first offense for equipment tampering is $5,512.   But since Mr. Brady did not tamper with the equipment and there is no real evidence that he was even aware that it had been done, even that fine would be problematic in this situation.  

            A phrase in the NFL Game Operations Manual states that if the footballs are tampered with in this manner "the person responsible and, if appropriate, the head coach and other club personnel will be subject to discipline, including but not limited to, a fine of $25,000."   However, the Game Operations Manual is not provided to players, is not subject to collective bargaining, and is not a basis for disciplinary action against players, even if that disciplinary action was within the range outlined in the directive.  

            4)  League policy of which the players are informed states specifically that the punishment for a first offense of equipment tampering will be a fine. 

            5)  That Brady benefitted from this transgression is a presumption unsupported by any evidence.    In fact, Brady in the game in question completed 11 of 21 passes with the "illegal" balls, and 12 of 14 when the balls were re-inflated to meet the league standard.   No evidence is in the record that Brady benefitted from the balls being deflated or that he expected to do so.  

            6)  Goodell has stated in numerous places and times that Brady’s alleged misconduct is parallel to the use of steroids, but has offered no explanation for why or how they are similar, other than that he sees them as being similar.   They are objectively not similar at all.   Steroid use is prohibited by specific policies which were negotiated with the union.   There is an extensive program of educating the players about the health risks of using steroids, an extensive program of warning the players that the use of those substances is prohibited, and there is a testing program to determine who violating the policy.   There is an appeals process, there is a specified burden of proof, and there are discovery rules.  This alleged offense doesn’t have any of that.  In the words of the ruling, "The Award offers no scientific, empirical, or historical evidence of any comparability between Mr. Brady’s alleged offense and steroid use."  

            7)  For that matter, what does it even mean to say that Brady was "generally aware" of the misconduct?   In the exact words of the court (oral argument), "I am not sure I understand what in the world that means, that phrase.   So it says, at least generally aware of the inappropriate activities of Mr. McNally and Jastremski involving the release of air from the Patriot game balls.  So I don’t know what that is.   You know, did he [Brady] know that McNally took the balls unaccompanied into the bathroom?  Did he know that in the bathroom, if it in fact happened, McNally deflated the balls?  Did he know that McNally then went to the field with the balls?"

            Judge Berman’s point here is that the conduct alleged is of such a vague nature that it would be very difficult to see how the NFL could have complied with its obligation to notify the player what the penalties would be for such an offense. 

            8)  Goodell justifies his action against Brady by citing the Game Day Operations Manual.   But the Game Day Operations Manual does not normally apply to players, is not a part of the collective bargaining process, and has never been provided to the players.   It is a guidebook sent to the NFL teams, regulating the conduct of the teams.  

            9)  Goodell arbitrarily denied Brady the right to question witnesses, the right to see evidence, and the right to see the records of previous related cases, while allowing those opposed to him access to the same resources.   In Berman’s summary this is a long series of different offenses, but for brevity we will list it as two (9 and 10).

            10)  Goodell made judgments about what persons involved in the investigation would or could testify to, and denied Brady the opportunity to question these witnesses based on his own improper evaluation of the relevance of their testimony.    

            11)  In numerous times and places, Goodell states that some portion of Brady’s punishment is for obstructing the league investigation by destroying his cell phone, although he never says what portion.   However, while there have been many documented incidents of players interfering with misconduct investigations in the past, no player has even been disciplined for this in the past, and there has been no warning or notice that players will be disciplined for this in the future.   Former Commissioner Paul Tagliabue, in a recent and related case, states very specifically that no player has ever previously been disciplined for refusing to cooperate with an investigation.    

            The letter notifying Brady of his suspension, which is called the Vincent letter, states that the Wells report "documents your failure to cooperate fully and candidly with the investigation, including by refusing to produce any relevant evidence (emails, texts, etc.) despite being offered extraordinary safeguards by the investigation to protect unrelated personal information."  

            This is really the key to understanding this mess.   Unquestionably, Goodell attempted to go far, far, far beyond the punishments for this offense which are outlined by league policies.   Why did he do this?

            For two reasons.   First, in the arbitrary and random nature of publicity, the deflated footballs received an absolutely fantastic amount of immediate attention.    Goodell attempted to create a punishment which was in keeping with the publicity given to the offense, rather than with the league rules governing the situation.

            And second, when Brady destroyed his cell phone, he pissed Goodell off.  

            In Goodell’s mind, and in the mind of those like New York Times reporter William Rhoden, there is no plausible explanation for this, other than that the cell phone contained damaging information related to this.    But in reality, it is very easy to imagine, oh, I don’t know, ten billion extremely plausible alternative explanations for this.   Cell phones typically contain a wide variety of extremely personal information.  

            Tom Brady’s wife is a supermodel.   Let us suppose that the cell phone contained video of private intimate interactions between Brady and Giselle.   What do think Giselle is going to say, when she hears he has been ordered to turn over that cell phone?   I’ll tell you exactly what she is going to say:  Tom, we are not turning over that cell phone, and I don’t give a shit who is going to see it and who isn’t.   You destroy that cell phone right now.  

            Second scenario:  What if the cell phone contained some record of a relationship between Tom Brady and some other woman?  

            What if the cell phone contained messages from a friend or former teammate, telling personal and possibly damaging information about a relationship in HIS life, the friend or former teammates?  

            What if it contained medical information, either about Brady or about some family member, that that family member does not wish to share with the masses?

            Yeah, it is fine for the NFL to guarantee Brady that no one else will ever see this data, and there is no possible way it could ever become public, but we all know of a hundred situations in which somebody was given a promise exactly like that, and then the private data somehow became public.    Brady and his wife are both very famous people.   Some people make quite extraordinary efforts to invade their privacy.   Sometimes those efforts are successful.  

            It is entirely reasonable to believe that Brady destroyed his cell phone for reasons having nothing to do with this case.    But whether he did or not, Goodell cannot make up the rules as he goes along.   No player has ever been disciplined by the NFL for failing to cooperate with an investigation; therefore, within the collective bargaining arrangement, no player can be disciplined for failing to cooperate with an investigation unless or until the players are placed on notice that this will be done.   

            Goodell tries to use the magic words "conduct detrimental to the league" to justify overthrowing precedent, and making an example of Brady.   He skipped the necessary step of proving that Brady actually did something he shouldn’t have done.   In the words of the Berman ruling, "the deference due an arbitrator does not extend so far as to require a district court to countenance. . .an award obtained without the requisites of fairness or due process."









COMMENTS (54 Comments, most recent shown first)

Jeff, I have no idea as to the merits of the cheating allegations--as I said below, I neither like nor follow American football and all I know about this case is what I read here. But you're missing Bill's point, which is that Goodell didn't have a legal leg to stand on, and mine, which is that the NFL has been told what MLB was told in 1995: you are not above the law.

This may be an even harder lesson for the NFL to learn than it was for MLB. Its fan base pretty much gives it a pass on every one of its many blemishes: domestic violence, PED use, brain damage, you name it. It is not used to being told that it can't do any damn thing it pleases.
6:14 PM Sep 11th
Postscript: a friend of mine at pointed out that if Belichick had done this to David Stern, then Stern would have the Patriots referee'd out of the playoffs. LOL.

It will be an interesting subplot to the 2015 NFL season, whether the Patriots suffer from dubious officiating.

Just sayin' :- )

5:01 PM Sep 8th
If ESPN's take be at all accurate here ...

For one thing, I would hope that if you can empathize with Roger Goodell's seat in any way at all, you can see that he didn't have a lot of choice here. What would YOU have done? He is the voice of the owners. If you believe the decision was unfair to Brady -- and maybe it was -- your ire should probably be redirected away from Goodell and toward the body that is the NFL Owners Twenty-First Century.

For another thing: personally I would see Tom Brady as a scapegoat here IFF (if and only if) he were not an enthusiastic participant in Belichick's system. In other words, with Belichick as the Godfather, is Brady a happy hit man or a reluctant shop owner getting shaken down with little choice. For me, on the moral side, that's a key pivot point on Brady. DeflateGate may serve the function of establishing Brady as a Company Man complicit with Belichick.

From the 30,000-foot view ... I believe that you've got to have SOME way to deal with a renegade franchise that's spitting in the water hole. If you've got 25-30 other owners who agree on something, well, those billionaires come from a variety of backgrounds. Some are amoral, no doubt, but others are reasonable and another portion of them are "Doves" rather than Hawks.

I've got nothing to grind against the Patriots, but when they are successful in generating this kind of a consensus against them, I *doubt* that they are victims of sheer jealousy. That's my opinion I could be wrong.


4:54 PM Sep 8th
There is an article up on ESPN today (Don Von Natta Jr.) that purports to answer our questions. Those of us who have questions, of course, as opposed to those of us playing the role of advocate on one side or the other.

Exec Sum:

(1) The NFL owners were aghast at Belichick's videotape files on other team's signals and Belichick's response, to a room full of owners, annoyed them.

(2) Goodell helped cover for the Patriots, including a very quick punishment and a fast destroying of the Pat's files, because Kraft had been an ally for Goodell in getting his job.

(3) In order to keep his job, Goodell had to assure the 31 NFL owners that if the Patriots were caught again, he would be tough.

(4) So, DeflateGate is an extension of SpyGate, a "makeup call" in NBA ref parlance.

Not saying it's right, or isn't right. But that's the kind of thing that is very, very typical in Fortune 500 boardrooms.


4:31 PM Sep 8th
Marc Schneider
The reality is that Goodell's actions had nothing to do with whether he thought Brady was cheating or not. I mean, even if deflating the balls gave Brady an advantage, it probably wasn't much more than what other players try to do. Let's fact it, to some extent cheating is an inextricable part of professional sports. Gaylord Perry loaded up the ball. Players did (and do) take steroids. Linemen hold.I think the reason that Goodell made this such a big deal is that he was trying to get the public's mind off the more serious issues the NFL has had, in particular, the Ray Rice episode.

My personal feeling is that even if you accept that Brady did what Goodell said, it was a minor violation at worst that may have merited a fine. It's not as if Brady did something that would have hurt the Colts; say, done something to their footballs that would make it harder to throw. At best, he gave himself what appears to be (and I realize there is dispute over this) a minor advantage.
Goodell knew this was a tempest in a teapot, IMO, but he wanted to distract the public from the domestic violence issues that the NFL is experiencing.

It's clearly ridiculous for the commissioner of a sport to be the sole arbitrator of disciplinary actions. This isn't the days of Kennesaw Mountain Landis anymore. The owners want the commissioner to have the power because they want to be sure that he is able to protect their interests. In the early 70s, the MLB players association managed to get a requirement for independent arbitrators. If Bowie Kuhn had been arbitrating the Messersmith and McNally cases, what are the chances that he would have declared them free agents? I would say nil.

Past commissioners probably would have used the power more reasonably and perhaps avoided all this kerfluffle. But, really, this is a function of having a commissioner who is really the CEO of the league; his job is to protect the owners' interests; the players are secondary except to the extent that certain things, such as concussions, affect the reputation and profitability of the NFL.
2:21 PM Sep 8th
I have a response to Jermanji, who made the claim that Patriots fumble rates were exceptionally low.

That is not a correct statement. Patriot fumble rates were close to average. However, the Patriots had a high rate of recovering fumbles, which is something that they practice. There is no reason to believe that it would be easier for a Patriot to recover a deflated football (even if the footballs were actually deflated) than it would be for a player from another team to recover a deflated football.
12:23 PM Sep 8th
"After being cut from the Eagles, Tim Tebow's ego was so deflated, that Tom Brady tried to pass it." Tim Slagle.
9:43 PM Sep 6th
The analogy between this case and those of Rose or the Black Sox is 100% bogus. The rule specifying permanent banishment from baseball for participating in a scheme with gamblers (or even just knowing about some other player doing it and not telling management) has been in place since the 1880s or so and is posted in every major league clubhouse for all to see. The union, which has had many savage fights with management on any number of issues, has never even suggested modifying that rule.

8:18 PM Sep 6th
Zeth - right. Bill said politely, in his Ask Bill area, that he doesn't know what Goodell's merits are. Neither do I. Maybe he has few. He certainly doesn't come across on TV to me as likable or impressive.

But he obviously is a consensus-builder. I take him as the voice of the owners. And there was SOME reason the owners wanted the Patriots slapped down.

Could be sheer jealousy; that's VERY possible. But it could also be that the Patriots often break code on competitive integrity.
6:38 PM Sep 6th
Mark - couldn't agree more. A real pleasure to run into an online 'friend' with whom real idea exchange is easy.

Of course, Bill fosters this kind of environment, in which his readers use their indoor voices. His 'judicial philosophy' is to learn about the situation first, and state conclusions later. And if further arguments shed light, to revise conclusions.

Too much of the 'net works otherwise. Nice to find an oasis for idea exchange.

6:36 PM Sep 6th
It's already been said, but I want to add my voice of assent to this: Bill cited two valid reasons why Goodell tried to punish Brady far beyond what the evidence warranted, but probably more important than either of those is that at least 24 of the NFL owners--the number whose support Goodell needs in order to keep his job, so that is to say, his bosses--wanted him to harm the Patriots to the fullest extent he can get away with. By all accounts Bob Kraft is not a popular man in the cabal.

This rings true to me, because otherwise Goodell would not still be Commissioner. He retains his job despite enormous public unpopularity, because he remains popular among his 32 employers. Or at least among 24 of them.
6:35 PM Sep 6th
Don - thanks for the perspective from your experienced camera angle.

From where I sit -- let's say, on the jury as you folks argue the case in front of me -- this idea of "past practice" has tons of traction. (Of course it's one of the ideas that Bill underlined from the beginning.)

When a punishER's actions come in to question -- let's say Adrian Peterson's -- I definitely want to put it into scale, against what previous human judgments have been in similar circumstances.


Asterisk: I don't know that this principle is absolute, trumping all others. Again, it's possible that a sports commissioner has a "feel" for a pattern of behavior, against which this particular offense is just the tip of the iceberg. Al Capone was nailed for tax evasion. In that situation, a common penalty for tax evasion misses the point.

But yeah. Tremendous 'put.

6:33 PM Sep 6th
I want to bring this back a bit to the labor relations issue. (I am not a lawyer, but I taught collective bargaining regularly over a period of 20 years.)

In arbitration, especially of a discipline issue, a major factor that the arbitrator is, if not legally, then by accepted practice, required to consider is *past practice.* If past practice indicates that an employee committing a comparable offense I the past was suspended for 2 days without pay, then no reasonable arbitrator would uphold a seriously more punitive action. And, in fact, one of the few reasons someone appealing an arbitrator's decision might have a chance of winning, is that past practice has been violated.

Another way for an arbitrator to get over-ruled in court is to deny one side the opportunity to present clearly relevant testimony or evidence.

Goodell has, in imposing initial discipline, consistently violated past practice, which is why the (non-independent) arbitrators, including a former NFL commissioner, have over-ruled his decisions so often.

In this case, in imposing the initial penalty, it seems clear to me that he did, in fact, ignore past practice. As an arbitrator, he ignored past practice. And, as an arbitrator, he clearly denied one side to present clearly relevant testimony and evidence. In short, he gave us a textbook classic example of how to get discipline wrong to begin with, and how to get arbitration wrong as a follow-up.

In saying this, I am resolutely NOT making a judgment about the penalties imposed. Getting the penalties right while getting the procedure bass-ackward is not, in a collective-bargaining situation, and even less in a legal setting, something we want to allow.
11:56 AM Sep 6th
Well, I don't like to quarrel with Bill about anything, lest he be disqualified from serving as jury foreman in my felony trial, cuz he's the one I'd want... :-)


-- the lack of precedent in punishment on "obstruction of justice" or "destroying evidence" (or whatever) is a poor point, and weakens the argument. The pool of NFL cases is certainly not impressive in a sense of appealed precedent, and whatever other cases considered may have been diminimus and not risen to the level of an advantage sought, against the rules, in a playoff game, and...

-- we are talking about is an advantage sought in a playoff game, right? I have always felt a bit more outrage on this issue than Bill has expressed, corked bats come to mind...

-- destroying your cell phone feels right in my libertarian soul,it seems like a private communication that is no one's business. That is what it would seem like to an idiot, unfortunately, because in the workplace and in the courtroom your use of telecomm is in bounds. (shrug) rail against it, but Bin Laden and Tony Soprano and Hillary Clinton all understood that, or do now.

To me, maybe the outcome here was maybe about the best you can expect in a non-court setting. Did Brady seek an illegal advantage in a playoff game? I'd say probably. Beyond a reasonable doubt? Well, we never got to the adversarial court rules where that would be fought out.

I think the situation is analogous to the Black Sox or Rose where the integrity of the game must be protected. It is not, as some have said, comparable to Adrian Peterson...he was not trying to beat opponent's game plans out of his kid.

I think Brady was trying to gain an illegal advantage, as the Pats have a history of doing. I think his legacy will correctly reflect that situation.

If Brady doesn't like that, I assume he can sue the NFL and allow further discovery. Sorta doubt we'll see that.

Play ball!

PS: the real legal action that should be taken here is against the NFL for the sandlot level bizarro rules about each teaming bringing balls, like it was a t-ball league. WTF?
12:27 AM Sep 6th
Thanks for that last comment, and right back at you - I am going to have to look closer at the fumble thing. Its weird, at the very least....
I live in Europe but visit the US and Canada often (born and raised in Nova Scotia). One of the great pleasures of visiting North America is getting a rental car with Sirius XM and listening to all the talk radio. This past summer i drove all around Nova Scotia listening to ESPN's camp reports. It's great - for about a week. There is soooo much hyperbole around all things NFL, that after a while I go a little crazy.
That's a big reason why I treasure this site. I get to have a conversation with people like you. and we try to understand an issue, and each other's point of view. Its such a pleasure to discuss an issue from the point of trying to understand it rather than winning an argument.
Thanks, and keep it coming....

8:51 PM Sep 5th
I don't like or follow American football, so pretty much everything I know about this case is what I read in the article above. I think many of you are missing the point. It's not about whether Roger Goodell and/or Tom Brady are good or evil. It's not about whether or not the Patriots are chronic cheaters.

It's about this: there exists a collectively bargained agreement between the NFL and the NFLPA. This is a relationship that is governed by labor law; there is no room for either side to make up the rules as it goes along.

Seems to me that Judge Berman has sent the same message to the NFL that Judge Sotomayor sent to MLB in 1995: you are not above the law.
7:45 PM Sep 5th
Mark - agree with almost all of that amigo.

In particular, I *like* Bill Belichick's personality. He is about winning, not about ego. He's a steely-eyed assassin. And I also like the fact that he comes from the film room, rather than from an NFL roster. His non-football background is part of his cool.

I don't know the mechanics of a soft ball vs. fumble rate. But ... there are a lot of that scientists know to be true, without having a physical explanation. It is certain that the Patriots' fumble rates became insanely low, at the very moment they gained control over their footballs. How would this work? I don't know the middle part of the explanation, but the bottom part of the essay is very legible.

Brady and Belichick have had an incredible run of championships. Was it wind-aided? I dunno, and you make a very even-toned argument that it wasn't.

7:40 PM Sep 5th
Izzy - I'm wide open to that point of view. By default I assume that some portion of ... aahhh ... pushing the boundaries "is just part of the game."

Am genuinely confused as to whether Belichick/Brady deserve a slap-down or whether they don't. I'd like to read an insider's book or something about it.

Whether they "break warrior's code" or whether they don't, Belichick and Brady are tremendous gladiators, with the hearts of champions, and this kind of stuff wouldn't diminish that either way. Brady against the Legion of Boom last year ... it was a for-the-ages matchup that (for me) forever cemented Brady's place among the greatest competitors in sports history.

It's more a question (for me) whether you slide Brady from the Lou Gehrig category into the Barry Bonds category. I don't know the answer to that.

Muchas gracias for the link. :: knuckle bump ::

7:34 PM Sep 5th
Re: jemanji
Thanks for sharing this. I don't normally read the NY Post, so I never saw this. A couple of comments to your comments:
1) It was until 2006 OK to tape other teams from anywhere in the stadium, and as far as I understand it is still legal to tape them as long as it is not from the sideline. I don't see how you can tape the signals, analyse them and pass the information to the defense in the same game. Once again, I must be missing something here. Although I know no one believes him, Belichick has always said he did it to prepare for the next time the teams would meet, and this was also stated by Goodell in announcing the punishment.
2) I recently read something about that fumble rate. To be honest, I really don't understand how we connect this to deflation of footballs. We are talking about footballs that for the Colts game were deflated by something like 5-10% (much of that has to be from the game conditions as well). This is supposed to make that much difference? I don't see how.
In fact, no one knows if the Patriots really did deflate footballs. We have data that was poorly measured from one game. It has always seemed weird to me that somehow no one - refs, opposing players, league officials handling the balls - ever noticed. I think the Patriots fumble less because Belichick will not put players on the field who fumble. Period. Its not that he worries about it, or that he is aware of it. Rather, he is (I think) easily the most extreme coach in the league in this regard. Stevan Ridley would be a star on many teams, but kept getting benched by Belichick because he fumbles too much for him (btw look for Ridley to have a big year if healthy). In general, I think we should be really careful about spotting what seem to be statistical anomalies and tying them to unsubstantiated claims of cheating.
3) So the Patriots put players on IR who may not have been injured, or really that badly injured? There could be something there. Thee are more than two players PO'd at Belichick. He is not the easiest coach to play for. Of course, many more think the organisation is first class, straight laced and by far the best in the league.

Seeing as how I am wandering all over the map here anyway...
My own feeling is that this all seems from a couple of basic causes:
- the Patriots have been astonishingly successful in a league that is designed to prevent what they have been - a team that wins every year.
- the Patriots win largely because they play smarter than other teams. They have one of the best QB's ever (which counts for a LOT), but they also seem to get great performance out of players who don't seem to be as good elsewhere. Even today players do not really respect the talent on the team. I really think a lot of players can't believe the Patriots beat them.
- Bill Belichick makes no attempt to court the press or public opinion. In addition, he seems to enjoy provoking anger and irritation from opposing coaches, players, and fans. He is often rude to the media, and as much as I admire him for never grandstanding, I do find this element of his coaching approach somewhat juvenile and unnecessary.

And I think the Patriots do pay for this. Look at the controversies that other teams have been involved in. Take the Jets. Remember when the assistant coach tripped the player on the field, and the Jets were also caught with that ridiculous "trip line" strategy? If the Patriots had done this, Belichick would have been suspended for multiple games, and we would still be hearing about it. But it was the Jets, so no one cares or remembers.

One last thought... when did cheating become so awful in the NFL? Seriously, I remember back in the early 80's all the stories about things like Al Davis bugging locker rooms, Lester Hayes covering himself in stickum, Conrad Dobler wearing a club on his hand for a cast. We used to laugh at a lot of this, didn't we? Maybe it was just me...
7:32 PM Sep 5th
Jeff (and anyone else who may be interested:

If you can stomach the over the top homerism (and I say this as a huge Patriots fan) you might want to read this for an interesting look at spygate:; If you buy the facts that are being stated here it's hard not to see this as overblown.

Or just check out the site in general: The Patriots are not special.

I would argue that the salary cap issues by the Broncos in 1996 was much worse than anything the Patriots have done.

Again, I think anything the Patriots do wrong tends to get blown out of proportion in large part because of their success and Belichick's arrogance.

6:16 PM Sep 5th
Bill provides a critical service when he takes a Pete Rose or Tom Brady and says, "Slow down here. Take the pitchforks home. How would YOU like to be railroaded through a kangaroo court? And the public cheering things on? Let's THINK about this, point by point. Let's be fair about this."

I'm doing kind of the same thing ... on behalf of the other side of the courtroom. It's not popular to defend The Man, but ... is the internet not in its own kind of Lynch Mode against Goodell?

We've heard him compared to Bowie Kuhn. But for a Komissar-type commish, Roger Goodell hops through one whale of a lot of hoops, advisors, and legal counsel before he tries to make a decision. When then results in another firestorm. Honestly, I would hate hate hate to have that guy's job.

It's not like there aren't a lot of checks and balances on Goodell, compared to (say) David Stern.

I don't know if Goodell is a good guy. On the contrary, he may be a bad one. But the question remains: should a trusted NFL / NBA / MLB commissioner be able to slap somebody down when they need to? Or are those days gone, and commissioners should be there to rubber-stamp processes?

6:08 PM Sep 5th
Mark - good Q's.

I don't know if the Patriots are considered cheaters by their peers.

Personally I don't care about "cheating" that is against the rules but accepted by the players on the field, like a batter erasing the back line of the batter's box. My question is whether a player "breaks code" and infuriates his fellow *players,* ignoring the warrior's honor, like (say) Joe Jackson and the 1919 White Sox did. There's cheating and there's cheating.

1) Spygate, in 2007, received the kind of reaction (such as from Cary Williams and Steve Young) that tells you the Patriots were way, way over the line. You videotape the other team's signals illegally, deciphering (for example) that flapping your arms means a blitz? As Steve Young put it, "That's the whole game." All Brady needs is a tipoff on a few plays in order to tilt the game.

Spygate is the kind of incident that calls Belichick's character into question. Sometimes it only takes one incident to ruin your reputation, provided that incident is of a certain flavor.

The Patriots are accused of having done this on a massive scale since 2000-01. Link:

2) There's this current issue of whether the Patriots have gained a big edge through deflated, non-fumbleable balls. It's not "equipment tampering" like cutting your socks too high; a fumble in the NFL is worth 50 yards or something like that.

3) Patriots players, leaving the team, accuse the Patriots of stepping way over the (normal) line when reporting injuries. Link:

I don't know what it takes to raise the *objective* observer's antennae. But me? I've got no bone to pick with New England - they've been a fave team, in fact - and my antennae are raised.


5:43 PM Sep 5th
Excellent analysis, and I agree with it entirely...
One thing that I would to see is an actual list of all of the things the Patriots are supposed to have done to earn this reputation as cheaters. The prevailing view among many football fans seems to be, as Flyingfish puts it: "....the Patriots cheat and will do anything to win" (not saying this is his opinion, just using the quote as a good example of what I have seen elsewhere).
We all know about Spygate, but what else have they actually done, except win a lot of games? I see and hear former players like Marshall Faulk periodically make references to allegations that I understood to be totally discredited (ie filming the Rams walk-through before the Superbowl). I suppose I am missing something here. Does anyone know where I could find documentation of what the Patriots have actually done?
5:15 PM Sep 5th
Thegue - good post.

The two jerseys my son owns is a Tom Brady jersey and a Randy Moss one; he's always been among my top 5 favorite players. The 50-TD season was a lifetime sports memory. I almost cried when the helmet catch ruined a perfect story.

But whatever we think of Goodell, my opinion of Brady has taken quite a hit this winter. And that's hard to do for somebody who has watched pro athletes for 40 years.

It's one thing to be caught in a lie; it's another thing to be a Liar. Brady's view of himself, and of others, has really come across the TV this winter.

It makes me wonder what the other 31 owners really think of Belichick and Brady. Not that I know; I'm saying I *wonder* what the story is behind the scenes, here.

4:24 PM Sep 5th
Partially complete? :- )

Nah, Those ... there are lots of points I made that you could call partially complete BS. But the Patriots' fumble rates are certainly not among them. I'd like to think you know why.

The CAUSE of the fumble rates ... that has a certain amount of plausible deniability to it. But THAT the Patriots fumbled very, very seldom... that's not BS, partial or otherwise.

C'mon, let's be serious.

4:19 PM Sep 5th
Jemanji -- because you said "the Patriots' fumble rates have been extraordinary the last several years, and *that* is huge"

So I started looking at the data. When I got to the second year back and realized your statetment was at least partially complete b.s., I didn't bother looking anymore.

And instead of correcting or amending your statement, you asked why I didn't do more research. So carry on. Have fun. But myself, I have no doubt your original statement is incorrect. If you want to amend it to, "extraordinary so long as you don't look at 2013, and I really don't have any clue what happened that year because I'm just talking out of my butt," I'd agree with that if the data supported it.
4:06 PM Sep 5th
My two cents:

A friend and I do a podcast on Sports and Law - just started, still working out the rough edges, but he's a lawyer, and an excellent one at that (might have some bias).

Along with many talking heads, my friend thought Brady's appeal didn't stand a chance, whereas I thought Brady was getting railroaded (As a Raiders fan, it took Goodell to make me root for Brady...ugh).

But based on our evaluation of the Wells Report/arbitration hearing, I think it was accepted that something happened to those footballs. And Goodell asked Brady, would either McNally/Jastremski do something to those balls without Brady telling them, and Brady answered "No".

My friend called it the "Code Red".

Goodell did a LOT wrong here, and he continues to by appealing the ruling...but Brady doesn't look great. He was right by saying there weren't any winners here.
3:34 PM Sep 5th
Incidentally, I asked a very experienced trial attorney what he thought of this situation, of the courts taking over a steering wheel that had been collectively bargained already. He's not at all a Patriots fan or not, but he said, wryly,

++The CBA and football in general is like Mad Max Thunder Dome Court. With Goodell being Aunty Tina Turner of course. Brady knew the law: break a deal and face the wheel. Federal judges should not try to fix the NFL and should just roll with it.++

I'm not saying that's the end of the discussion, but it's a voice worth thinking about.


3:25 PM Sep 5th
On the 'arrogance' of Goodell -- I agree that Goodell may not be the commissioner the NFL needs.

I'm certainly not arguing that he is (necessarily) the right person to command respect, or the right man to make a judgment call and produce resolution from it, rather than chaos.

I get the impression, though, that for some people there IS no such person.

3:14 PM Sep 5th
Those - why do you take 2013 only? Why wouldn't you take 2007-14?


Izzy - I turned over to that article, expecting (based on your characterization) to find something interesting. I was very disappointed.

The author acknowledges that the Patriot's fumble rates 2007-14 were a crazy fluke on the order of 1 in 16,000, but ... sneers at Warren Sharp's verbiage, he takes two minor Sharp remarks out of context and uses them to misrepresent him, he offers a couple of excuses for the fumble rate (let's edit out WR's who catch the ball and don't fumble, etc), and tries to massage the Y-axis so it doesn't look quite so outlandish.


Guys, if Bill Belichick be the one coach in the NFL who doesn't like fumbles, his genius in coaching it utterly failed prior to 2007. Before the rule changed on ball inflation, the Patriots were right in the middle of the pack. ... also, Patriots running backs who leave town, promptly resumed their lifetime fumble rates.

You're talking to a Seahawk fan; Pete Carroll has one day of practice every week devoted to not fumbling. There was never a coach who emphasized turnovers more than Carroll. But he doesn't have a magic ability to prevent fumbles; the Seahawks have non-fluky fumble rates.


But this article isn't about Patriots fumbles. It's about whether Roger Goodell followed process, and my QUESTION is whether --- > a sports commissioner should be limited to process, or whether he should have a certain amount of discretion and judgment when he (and the 32 owners behind him) believe somebody has been spitting in the water hole.

Goodell reacts to PR, as Bill said; the NFL fits its punishment to what the lynch mob wants. We all applauded him for doing this with Ray Rice and Adrian Petersen.

But Goodell is also a consensus-builder, which is good; a lot of the time he trots around to the 32 owners and asks, "What is the will of the corporate body here?"

The problem isn't as simple as some of you guys in the comments are making it sound. And I doubt that Goodell is an appropriate target for 2-D cartoon characterizations.


3:10 PM Sep 5th
Rcrout, I'll take a shot at that, albeit without any expertise to offer. First of all I think that judges generally prefer that people settle their differences in a civilized manner, away from the courtroom. I also think that Goodell / the NFL rigidly refused to modify their position, which probably led to the " rebuke..."
2:49 PM Sep 5th
What I find a little odd is that the Judge's sharp rebuke of Goodell doesn't exactly square with the fact that he wanted both sides to come to a settlement. I mean, if Goodell was so capricious, and the process so arbitrary, why waste any time pressuring them to settle?
2:39 PM Sep 5th
doncoffin, thanks for the arrogance link. This is an excellent companion piece for Bill’s article. I say so partly because it supports my first comment, that the NFL / Goodell could have so easily avoided all this. I’m also glad of my Kuhn comparison. This is what happens when you take the actions that you think will please the masses, rather than the actions…or inactions…that are appropriate.
1:50 PM Sep 5th
And in other news of over-reach in football (college edition), this, which I somehow managed to miss until today:
11:06 AM Sep 5th
Just in case you all aren't tired of this entire thing:
10:55 AM Sep 5th
rgregory1956 and MarisFan61: I'm not really a football fan but one can't help noticing some of what goes on in that business if one is generally aware. :) I was in the camp that said the Patriots cheat and will do anything to win. Roger Goodell has done something quite impressive, though; he has put me into the Patriots' corner. There is an old saying that revenge is a dish best served cold, which means if you're going to get revenge, make sure you do it right. As far as I can tell, Goodell hasn't done of anything much right except pad his bank account since he's been NFL commissioner. And now, by announcing that he will file an appeal of Judge Richard's Berman's ruling, he has proved to me that he doesn't even have the sense to come in out of the rain. I think this debacle and Goodell's wretched performance completely overshadow any concern about the Patriots' behavior, at least for me.
10:12 AM Sep 5th
Jemanji, here's an article ripping that fumble rate crap to shreds:

Belichick will bench players for fumbling. He knows how important the turnover battle is and has said so on many occasions. The original fumble articles that came out were just a way to get ahead of the story.

I disagree with the assertion that the Wells report was independent. NFL Executive Vice President Jeff Pash edited the Wells report before it was submitted. Therefore, how can the Wells report be considered independent?

If the logo gauge was used (like referee Walt Anderson claims) then 8 of the 11 balls were well within the PSI range according to the Ideal Gas Law. And the average of the PSI's for the footballs (11.49) was exactly where you would expect it to be given the temperature. The NFL/Wells rejected this conclusion and insisted Walt Anderson must have used the non-logo gauge. Why? The only reason I can think of is it makes the Patriots look bad.

Had Mortensen not received faulty information (presumably from the NFL) this story probably never would have taken off. But because the Patriots have been dominating the rest of the NFL for the last decade and a half it became a bigger story.
9:46 AM Sep 5th

Personally, I am 100% behind Goodell. As a Colts fan, anything bad that happens to the Pats is okay by me.

'Course, if it was Andrew Luck who Goodell was going after, I'd be 100% behind Bill.

Ain't fandom wonderful?

8:43 AM Sep 5th
Jemanji -- in 2013, the Patriots fumbled 24 times, the 9th most in a 32-team league. That doesn't qualify as extraordinary.
8:40 AM Sep 5th
Fletch - I agree this is one of Bill's strongest points (among many). What's the precedent for a big Invisible Hammer on equipment tampering? Probably none.

That said, we DO hand out (non-criminal) punishments because "everybody knows." Even in the absence of an airtight proof and documentation. Or do you think all of the golf country clubs should be required to throw their arms wide and give O.J. Simpson his preferred tee times?

I don't believe that a Mafia-esque commissioner should have a free hand to ruin people he doesn't like. Of course not. But it also would be nice to find some middle ground, in which a *respected* commissioner -- one who has the trust of his colleagues and the public -- can make a judgment call when he needs to.


I don't want Mafia-type commissioners running amok. But neither do I want the leagues impotent to handle a situation that needs handling.

I dunno what the answer is. Maybe it is in strict process, in abandoning "The Spirit of the Law" in favor of "The Letter of the Law." I hope that's not the best we can do, though.

2:04 AM Sep 5th
......but Fletch, as is mentioned in Bill's article, even within the court system, differing standards are recognized -- y'know, not just "beyond a reasonable doubt" but also "the "preponderance of evidence" thing." It depends on the standard for the particular kind of case. Rightly or wrongly, this isn't a case that requires 'beyond a reasonable doubt." I think inevitably this does get back to what "preponderance of evidence" means, both in general and what it should mean for a case like this. That said, I'd guess it will play out according to what you're indicating. They'll want to go on what's solid and ignore what isn't, and they won't find any problem with Judge Berman's having followed that.
1:49 AM Sep 5th
Marisfan, thankful that punishments are not handed out just because "...everybody knows..."

If you cannot prove it, then you don't know. If there is no law against something, how can you break it? If there is a law and an agreed upon punishment, how can it be justified to grossly exceed that punishment?
1:11 AM Sep 5th
Loved every word, and indeed it makes me wonder what legal grounds the NFL could have in mind for an appeal.

That said, I'm mostly of Jeff's mind (jemanji) on this. The trouble is, I don't know how that's supposed to fit into the legal system and how it would or should reasonably bear on this case.

Although, I feel as though I have no trouble understanding what "generally aware" meant. It's exactly along the lines of what Jeff said, and what has been said and implied by many football insiders, and what seems like common sense. It seems impossible to think Brady didn't know what was going on, or that it wasn't being done according to his stated and known preferences -- not necessarily or particularly at his direction, but according to his stated and known preferences. To me, that's what "generally aware" clearly meant, and I don't see how it wouldn't be so -- not necessarily that he knew how or where or when it was ever done (that's the reason for the qualifier "generally") but that he knew it was being done in some way and according to his wishes.

But, should this hold any legal water? Any disciplinary water? Should "legal water" and "disciplinary water" require the same degree of backing? I guess now they should, because it's in the legal system; but I think that very often in our society those things are kind of separate. Discipline in many contexts if often done according to "C'mon, we know you did it." And, I'd guess that in the legal system, rightly or wrongly, it happens pretty often that decisions are made on the basis of "We're damn sure he did it even though there wasn't anything in court that really proved it." Is that enough of a standard? We could say no, it never is, but in any event I'm thinking that in this case it definitely won't be, because of how any decisions will be so scrutinized and discussed that no court would take anything beyond solid demonstrable facts.
12:41 AM Sep 5th
Addendum to the previous, re: 'Fairness and Due Process.'

1. I agree that Bill has documented, here, that there were serious holes in Goodell's adherence to the process.

2. In the 30,000-foot view ... fairness is fairness. Agree with that too. But would add that there comes a point to which "fairness" means a different thing for a defendant in a murder trial, than it does to a boss who is evaluating whether to keep me on as an employee in his company. In the latter case, the boss's judgment is a factor; in a murder trial it's not.

The process included the idea that Goodell was/is an arbitrator, and apparently that's in keeping with the CBA. I don't know whether it's appropriate for us to call for the total elimination of Goodell's judgment as a factor here.

But then again, I don't know anything about unions or CBA's. Just from a bleacher-bum point of view, I personally would like to see SOMEBODY (in any pro sport) have discretion as to whether Joe Shlabotnik is a bad guy and deserves to be rebuked for it. Without having to hit the standards used in a criminal trial.

3. I agree that the NFL is itself highly suspect as it pertains to fairness. It's easy to visualize them just getting ticked off at somebody and deciding to ruin them. Am not naive about that.

But as a general rule, if you DO have a team that is continually "breaking code" about cheating and integrity, I do think that the league should retain an Invisible Hammer it can bring down.

Suppose some team or player really were spitting in the water hole? Do you ever want the commish to be able to slap them down for it?


10:33 PM Sep 4th
Hey Bill. Good stuff. Particularly enjoy your thoughts when it pertains to this general territory. In my mind, you'd be an interesting nomination for the U.S. Supreme Court, at least a couple of hundred years ago when the legal resumes were more negotiable. You've got a unique blend of logic, fairness, and perspective. This article is great.


That said, I'm *wondering* whether the article is "true but not accurate" as they say at Boeing. I loved your defense of Pete Rose, because it was the only even-handed, presume-innocence voice at the time. But as it turns out, Rose was kind of a bad guy, and Giamatti knew it. Giamatti's written arguments against Rose of course had (these kind of) holes in them, but sitting at Ground Zero is it not possible that Giamatti had a feel for the situation that we lacked?


With all respect, I'm wondering whether NFL owners may have gotten tired of the Patriots' cheating (?) shenanigans, and whether they all agreed that it was time to bring down the Invisible Hammer. I'd be interested in your (famously even-handed) take as to this POSSIBILITY.

I didn't, and don't, care about Brady's ability to grip the football in the rain. But the Patriots' fumble rates have been extraordinary the last several years, and *that* is huge.

I also care that Brady looks the camera in the eye and says that he didn't know squat. The ballboys are there to say Yes Sir Mr. Brady Sir or they get replaced. Aaron Rodgers and others have spoken to the idea that the ballboys are extensions of Brady's will. I suspect that this is common knowledge around the NFL, and that among NFL insiders, Brady's denials are preposterous, like an ML player claiming he didn't know his bat was corked.


Again, appreciate the sterling analysis. Mostly just seeking your take on a (hypothetical) situation in which a guilty verdict is hard to document by the P's and Q's, but in which the people at Ground Zero know good and well what is going on.


10:11 PM Sep 4th
I thought the punishment was a joke. 4 games off? That's a vacation.

Make him play every minute of 4 pre-season games.
9:41 PM Sep 4th
CharlesSaeger: I think it's called "irony."
6:18 PM Sep 4th
Bill: hate to nitpick, but Rhoden has been writing "incessantly," not "incisively" about the case. I normally wouldn't go this route nowadays but the error makes the first graf hard to read. Was there an autocorrect failure?
5:43 PM Sep 4th
The "Bowie Kuhn of football" is right. Has Goodell ever won one of these fights?
5:40 PM Sep 4th
Great analysis, and many thanks for it. I've read Berman's decision and you have iot exactly right. Now, here's a worse part: Goodell has announced his intention to appeal Berman's decision. I am very curious to know what his grounds for appeal might be. I have heard nobody suggest that Berman has misapplied any law. Stay tuned. By the way, the NFL Player's Association's lawyer Kessler seems to have done an outstanding job. Goodell is nuts to take him on again.
5:28 PM Sep 4th
If you're keeping track of the best stuff to save for the next Fool's Gold type of collection, I'd put this one at the top of the list.

5:10 PM Sep 4th
Love it! Great to see a step by step explanation of why Goodell was wrong. He's the Bowie Kuhn of football.

It would have been so easy and sensible for him to tell everyone to calm down, that the quarterbacks have been adjusting the footballs for years with league knowledge, and that if anything it is the league that should be tightening up its own procedures.

Thanks, Bill.​
4:40 PM Sep 4th
As in all instances when human thought is required, if one begins the evaluation process with a conclusion in mind the facts seem to magically align themselves with that conclusion. This is what Goodell did.
When one begins the process without a conclusion the facts dictate what the conclusion is. This is what Bill did.
Strangely, this is the same way Bill uses baseball metrics and he never knows the conclusion until AFTER the facts are evaluated.
4:39 PM Sep 4th
The support from what appears to be most of the owners, to go after the Patriots/Belichick/Brady for transgressions real or imagined, was in my opinion very encouraging for Goodell to proceed the way he did. I looks like the commissioner and most owners felt that it was payback time: "This may not be a big deal, but they (the Patriots) have done a lot of wrong in the past, so this make it right". This is also why we won't see Goodell losing his job, most of the owners were very happy with the way he was acting. I believe this is stupid as any of them could be next in line for arbitrary offenses.​
4:35 PM Sep 4th
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