5 Things You'll Hear From The NFL Tomorrow That Aren't True
Tomorrow in New York City, Tom Brady and Roger Goodell will appear before Federal District Court Judge Richard Berman regarding Brady's appeal of his wrongful 4-game suspension. At this point, now that there is transparency into the NFL's mishandling of the investigation and distortion of the facts, it's clear that the NFL's case is full of holes. But that hasn't stopped the NFL from unfairly targeting Brady with the same disproven lines of argument they've used for the last 6 months.
Here are 5 things you can expect to hear from the NFL tomorrow -- and here are the real facts:
1. THE NFL WILL ARGUE THAT TOM BRADY DIDN’T COOPERATE WITH INVESTIGATORS.
IN DENYING HIS APPEAL, THE NFL CLAIMS THAT BRADY DID NOT COOPERATE WITH THE DEFLATEGATE INVESTIGATION BY REFUSING TO HAND OVER HIS PERSONAL CELL PHONE AND EMAILS.
FACT: Wells Told Brady and His Agents That He Did Not Need The Phone. At his hearing during the investigation, Wells told Brady and his agents that they did not need his cellphone for the investigation. On February 28th the Wells team sent an email to Brady and his agent, Don Yee, requesting his cellphone records - not the phone itself, just the records [Washington Post 7/30/15]. Complying with the request, Tom Brady turned over 7 months of cellphone and email records [Forensic Examiner Report, 1].
FACT: Brady Offered to Track Down Texts. Brady’s agents also offered to provide a solution to tracking down actual text messages. “Instead of handing over the phone, according Goodell’s 20-page decision denying the appeal, Brady and his agents “offered to hand over a spreadsheet that would identify all of the individuals with whom Mr. Brady had exchanged text messages during [the relevant time] period; the agents suggested that the League could contact those individuals and request production of any relevant text messages that they retained.” [WBUR, 7/30/15]
FACT: Goodell Rejected Brady's Offer. Goodell chose not to pursue the solution, and rejected the offer as “not practical.” Actually nothing would have been easier. Brady’s phone records showed he communicated with just 28 league-affiliated people. It was clear from the phone numbers which of them were Patriots employees in a position to manipulate game balls. It should have been a simple matter to discern whether Brady destroyed relevant communications with them. [Washington Post 7/30/15]
FACT: No One Told Brady that He'd be Punished for Not Turning Over the Physical Phone. Neither Wells nor Goodell ever notified Brady that not producing his phone would mean discipline for non-cooperation. As Wells has stated on multiple occasions: “I want to be crystal clear. I told Mr. Brady and his agent I did not, I was willing not to take possession of the phone. I said I don’t want to see any private information, I said you keep the phone. You the agent, Mr. Yee, you can look at the phone.” [Transcript of Ted Wells’ Conference 5/12/15]
“The request what I asked for, I made clear I didn’t want to take access to your phone. [...] I want to be clear-- I did not tell Mr. Brady at any time that he would be subject to punishment for not giving -- not turning over documents. -- Ted Wells [Transcript of Appeal Hearing 6/23/15]
FACT: Wells Also Said That Brady Was Totally Cooperative and Answered Every Question Asked of Him. “Mr. Brady, the report sets forth, he came to the interview, he answered every question I put to him.” “In terms of the back and forth between Mr. Brady and my team, he was totally cooperative.” [Transcript of Conference 5/12/15]
2. THE NFL WILL ARGUE THAT BRADY “APPROVED OF, CONSENTED TO, AND PROVIDED INDUCEMENTS IN SUPPORT OF . . . A SCHEME TO TAMPER WITH THE GAME BALLS.”
FACT: The Wells Report Said No Direct Evidence. The Wells Report stated that “there is less direct evidence linking Brady to tampering activities.” Instead, Wells used a subjective measure of “probability” to determine guilt. [Wells Report, 17]
FACT: The Wells Report Found No Communications. The Wells Report did not uncover any direct communications between Tom Brady and the Patriots assistants accused of deflating the footballs—instead it simply determined that it is “unlikely that an equipment assistant and a locker room attendant would deflate game balls without Brady‟s knowledge and approval.” [Wells Report, 19]
FACT: Goodell Distorts His Own Investigators’ Words. Even between the publication of the Wells Report and tomorrow’s hearing, the characterizations of Brady’s involvement by the NFL have shifted considerably. First the Wells Report claimed it was “more probable than not” that Tom Brady was “generally aware” of “inappropriate activities.” [Wells Report, 2]. Then, in his ruling on Brady’s appeal, Commissioner Goodell escalated those accusations to willful participation, saying “Brady knew about, approved of, consented to, and provided inducements and rewards in support of a scheme,” despite no new evidence indicating this was the case. [NBC Sports, 8/9/15]
3. THE NFL HAS SHOWN NO BIAS IN ITS INVESTIGATION OF BRADY.
FACT: The NFL Leaked False Information. The widely reported “fact” that 11 of the Patriots’ 12 footballs used in the AFC Championship game were under-inflated by two pounds was based on a single, uncorroborated and erroneous tweet by ESPN’s Chris Mortensen—which was later proven false by the NFL’s own Wells Report. “The Wells Report later found that only one football was deflated by nearly that much, while others were just under the standard inflation level.” [USA Today, 7/31/15]. Mortensen’s false tweet has been linked to a single source: NFL VP of Operations Mike Kensil. “Mike Kensil was the ‘main source’ for ESPN’s inflammatory and ultimately incorrect report that 11 of 12 Patriots footballs used in the first half of the AFC Championship Game ‘were inflated significantly below the NFL's requirements…’” [Comcast SportsNet, 7/31/15].
FACT: The NFL deliberately never corrected the false information during the four months between the AFC Championship game and when the Wells’ Report came out. “The NFL, despite knowing that the original report was untrue, never corrected it…” [USA Today, 7/31/15]. “Emails between the general counsel for the New England Patriots and Jeff Pash, the general counsel for the NFL, show that leaks about the deflated footballs in the 2014 AFC Championship Game to Walt Disney-owned ESPN were chocked full of misinformation, yet the NFL refused to acknowledge it.” [Forbes, 8/01/15].
FACT: Despite a request from the NFL Player’s Association for an independent arbitrator, Roger Goodell decided he would personally preside over Brady’s hearing—guaranteeing that Brady’s appeal would lack impartiality. [ESPN.com, 5/15/15] [Business Insider, 5/15/15] [CBS Sports, 5/15/15]
4. THE INDEPENDENCE OF THE DEFLATEGATE INVESTIGATION IS NOW “IRRELEVANT.”
FACT: NFL Contradicting Itself. The NFL promoted Ted Wells’ supposed independence as a key indicator of the integrity and objectivity of their investigation. "The investigation is being led jointly by NFL Executive Vice President Jeff Pash and Ted Wells of the law firm of Paul Weiss. Mr. Wells and his firm bring additional expertise and a valuable independent perspective. […] The investigation is ongoing, will be thorough and objective, and is being pursued expeditiously." —NFL statement on initiation of investigation into Deflategate, January 23, 2015.
"Ted Wells and our staff have been hard at work conducting a thorough and objective investigation."— Roger Goodell, January 30th, 2015.
FACT: Abandoned Argument When Proven Wrong. When questions were raised about Wells’ independence, the NFL and Goodell chose to abandon that characterization, saying it was “irrelevant.” "Finally, the NFLPA's contention that Paul, Weiss was not an 'independent' investigator and that the Commissioner improperly delegated his fact-finding authority to Paul, Weiss is irrelevant. The debate about the independence of the investigation has no bearing on whether the NFLPA had an adequate opportunity to present evidence at the hearing, which is all the CBA and fundamental fairness require. Furthermore, Article 46 does not require an 'independent' investigation prior to the imposition of discipline, and indeed it is commonplace for NFL personnel other than the Commissioner to investigate the problematic conduct." —NFL statement in latest filing for Judge Richard Berman, Friday August 7th
5. THE WELLS REPORT’S CONCLUSION THAT THE FOOTBALLS USED IN THE AFC CHAMPIONSHIP GAME WERE PURPOSEFULLY DEFLATED IS BASED ON SOUND SCIENCE.
FACT: Incomplete Investigation. The Wells Report failed to investigate plausible, alternative explanations as to why the Patriots’ footballs may have been deflated during the first half of AFC Championship game, such as the atmospheric pressure at Gillette Stadium. Footballs for the Colts were measured after sitting in a warm room for most of halftime while Patriots balls were measured immediately after being brought in from the cold, so they would inherently have had a lower pressure. [Wells Report, 68] [New York Times, 06/12/15] [Wells Report, 68] [New York Times, 06/12/15]
FACT: Atmospheric Conditions. Carnegie Mellon scientists determined that atmospheric conditions during the game could have created the discrepancy in PSI at halftime. “Healy,
who provided The New York Times with an advance copy of his technical paper on the experiments, concluded that most or all of the deflation could be explained by those environmental effects.” [New York Times, 1/29/15] Peer reviews validated Healy’s findings. “‘This analysis looks solid to me,’ said Max Tegmark, a professor of physics at the Massachusetts Institute of Technology who reviewed the paper at The Times’s request. ‘To me, their measurements mean that there’s no evidence of foul play.’” [New York Times, 1/29/15]
FACT: Bad Science. The Wells Report was examined by an independent third party (AEI)—and they concluded that its evidence and methodology were “deeply flawed."
“Our evidence suggests a specific sequence of events. The Wells report conclusions are likely incorrect, and a simple misunderstanding appears to have led the NFL to these incorrect conclusions.” [American Enterprise Institute, June 2015]
FACT: NFL Hired a Company Known for Skewing Results. Exponent, the scientific consulting firm retained and cited by the Wells investigators, has a reputation as a company that “skews results to benefit its clients.” [Los Angeles Times, 02/18/2010] In fact, “Exponent once argued for Big Tobacco that secondhand smoke does not lead to cancer, which we now know is false.” [CBS Boston, 05/6/2015]
FACT: Ignores Evidence. The Wells Report ignores pressure gauge inconsistencies that would account for the football air pressure changes.
Referee Walt Anderson travels with two different pressure gauges: the Logo Gauge and the Non-Logo Gauge. One gives higher readings than the other, also an explanation for the fluctuation in pressure readings. Anderson recalls likely using the Logo Gauge, with its higher readings, to check the Patriot footballs before the game, which could mean that the pre-game measurements of air pressure were artificially high.
“At halftime, 11 of the Patriots balls and only 4 of Colts balls were measured with both gauges. Unfortunately, the Logo gauge tends to give higher readings than the Non-Logo gauge (by about 0.4 PSI), and this has created some controversy. Anderson remembers that he used the Logo gauge before the game, but the Wells report, in a direct contradiction of that recollection, concludes that he used the NonLogo gauge before the game. The Patriots have argued that this decision was crucial to the analysis and that the evidence of excessive deflation disappears if one assumes the Logo gauge was used.” [American Enterprise Institute, June 2015]
The Wells Report operates under its own assumption that Anderson used the Non-Logo Gauge, which conveniently helps to support the report’s conclusion and precludes alternative explanations. [Wells Report, 51]. [On the Wells Report, 4]. [Wells Report, 52]
