The New England Patriots, the NFL, Roger Goodell, and Tom Brady: DeflateGate, the Wells Report, the Courts, and more.


Feb 2, 2015; Phoenix, AZ, USA; New England Patriots quarterback Tom Brady (left) and NFL Commissioner Roger Goodell pose with the Pete Rozelle trophy during the Super Bowl XLIX-Winning Head Coach and MVP Press Conference at Media Center-Press Conference Room B. Mandatory Credit: Joe Camporeale-USA TODAY Sports

The National Football League has been riding one of its greatest publicity stunts since January and seems determined to continue its Vince McMahon/WWE level of entertainment through September. NFL commissioner Roger Goodell  has decided that selectively enforcing a standard which has never been an issue previously in the league. He has heavy-handedly punished the New England Patriots without any substantial evidence much to the excitement and pleasure of the 31 other NFL franchises and fan-bases which have seen their teams take a beating for the last 15 years on the field.

The NFL has been hard at work to create news this off-season. They took a rule that says each team can alter, inflate, deflate and then use a dozen footballs each game without any regulation as long as they fall within range of psi measurement when tested pregame by the referee (with no documentation or oversight). Suddenly at the AFC Championship game this has become a sting operation to humiliate and punish one franchise and the subject of a months-long investigation costing millions of dollars. While the NFL has cast the New England Patriots and specifically future Hall-of-Fame quarterback Tom Brady as the villain du jour for this “deflategate” pre-Super Bowl and off-season circus, Goodell may finally meet his match in court if he does not back down and have to face the NFL Players Association (NFLPA) again with a truly independent judge presiding.

It has become practically impossible to have a logical discussion regarding “deflategate” with the league-sanctioned hype surrounding it throughout the off-season. What was a minor incident to start with (Minnesota Vikings in 2013 were caught on television warming footballs got a warning from the league to stop doing so; the San Diego Chargers in 2012 failed to surrender and then tried to conceal towels containing Stickum, an illegal adhesive used to improve grip on a football and were fined just $20,000 with no other punishment) was turned into an off-season soap opera by a league desperate to keep their product in the public eye while games were not being played. What the league considered to be a non-issue and unimportant to competitive advantage became the greatest cheating scandal in league history.

The NFL has a stated goal to extend the off-season so as to continue to build league brand recognition while there are no game: the NFL has the Draft Combine as a television and news event; Free Agency is days upon days of leaks, twitter updates, news, signings, and so much more; and finally the NFL Draft was pushed back by the NFL to extend the off-season even longer. With mini-camps, training camp (another spectacle with fans flocking to the practices), the NFL Network, and the preseason games, the NFL has become a 24/7 and 365 league.

The only thing that keeps the NFL from actually being a truly year-round event has been the NFLPA.

Nov 5, 2014; New York, NY, USA; Suspended NFL running back Ray Rice (right) with his attorney Peter Ginsberg arrive for his appeal hearing on his indefinite suspension from the NFL. Mandatory Credit: Brad Penner-USA TODAY

The NFLPA has has fought commissioner Goodell for player safety issues and has won concussion protocols, protection from team doctors overprescribing painkillers; limiting padded practices and two-a-days in training camp, and recently overturned the Ray Rice and Adrian Peterson suspensions. Despite this, the NFL remains a billion dollar enterprise that continues to thrive and grow year after year.

With the NFLPA now working with quarterback Tom Brady and his attorney–Jeffrey Kessler–on his appeal what was a one-sided battle with the NFL smearing Brady and the New England Patriots without a competent investigation at the cost of millions of dollars.The report missed or ignored critical information and text messages while interpreting other messages to fit their agenda. The memory of the NFL referee was unassailable–except for the instance where it did not support the conclusion that New England cheated. How was Walt Anderson’s memory perfect when he remembers the psi prior to the game but not when he says which gauge he used? For a report using “more probable than not” and “likely” to determine guilt it was suddenly clear that the report was going to give the NFL whatever result they desired.

Now Tom Brady is punished for not being cooperative. Specifically, he did not turn over his cell phone. WIth all the leaks and misinformation that came directly from the NFL offices over the past four months how can anyone expect him to do so? The basic point of contention is that the NFL had no authority to ask him for his personal phone.

Remember, Brady is in a union. If the NFL wants to examine personal information from a member of the union, he needs to have a pre-negotiated agreement or a union agreed upon amendment to allow him to invade a union member’s personal privacy. Of course, what the NFL wanted from his phone is unknown since they had records of any calls or texts from Brady to equipment manager John Jastremski (and  there were no records of communication with locker room attendant Jim McNally–the alleged “deflator”).

As a member of a union in my personal life, I can fully understand how Brady not turning over his phone has little to do with hiding any information. It is a matter of protecting every current and future member of the NFLPA. The players should be solidly behind Brady for him not caving to the NFL and creating a precedent of the NFL having access to personal items of their union members without subpoena rights. If one player gives over something the NFL does not have the right to request, precedent is set. That is a dangerous precedent to set.

Apr 23, 2015; Washington, DC, USA; New England Patriots owner Robert Kraft (R) speaks with the media as Patriots head coach Bill Belichick , Patriots wide receiver Julian Edelman, Patriots tight end Rob Gronkowski, and Patriots defensive end Chandler Jones (L-R) listen after a ceremony honoring the 2014 Super Bowl Champion New England Patriots on the South Lawn at the White House. Mandatory Credit: Geoff Burke-USA TODAY Sports

Without a shred of evidence that the New England Patriots illegally deflated a football, the NFL took away a first and fourth round draft pick and fined the team $1 million dollars. For owner Robert Kraft, there was really no recourse. He is a member of a private club with an antitrust exemption that allows the league to make billions of dollars in broadcast deals and cannot go against a commissioner that he and the 31 other owners put in power without damaging the league. It would involve lengthy court cases and damage the NFL’s nonprofit status and rights to operate as an unregulated monopoly. No owner is going to trade billions and billions of dollars in future revenue over a $1 million dollar fine.

For Tom Brady and his lawyer Jeffrey Kessler, however, they have NFLPA leadership in their corner. After commissioner Goodell conducts his own appeal hearing for Brady despite the NFLPA’s request for him to recuse himself. Unless Goodell absolves Brady completely (which is highly unlikely) the case will land in court. The NFL has an extremely poor record in court losing to the NFLPA in the Adrian Peterson case, the Ray Rice case, the class-action concussion lawsuit, and the Saints players suspended in the “Bountygate” case.

The NFL might find it handy to throw around “independent” in referring to investigator Ted Wells and using “more probable than not” and “likely” to determine guilt. That does not work in a court of law. It is a different animal dealing with law, lawyers, courts and judges. Kessler has a few key points to lay out in the sham appeal headed by Goodell to play out in court:

The NFL has not even produced any specific evidence of guilt that the Patriots illegally deflated footballs. They only “feel” that Brady (and McNally and Jastremski) lied to them and were not “fully cooperative”. Brady has personal and legal reasons not to produce his phone without a subpoena (which is outside the NFL’s purview).  Per the Wells Report, NFL VP of Officiating Dean Blandino lied about his knowledge of the Colt’s suspicion prior to the game. However, he is free and clear of punishment.

This was a conclusion of the Wells Report, which is clearly flawed and fails to produce evidence that the Patriots committed any violation. The report indicates there was evidence of one person putting a needle into a football in violation of league policy and that was the sideline worker of the Indianapolis Colts who illegally tested the psi of the football (per the rule no one but the referee is allowed to measure the footballs). The Colts initiated the sting operation, violated the ball testing policy, and they leaked the story via text to the media. This–like NFL VP of Game Operations Mike Kensil and his bias towards New England–was never addressed by the Wells Report.

  • Brady being punished for “not cooperating” stems from not handing over his personal property (phone). When Brett Favre was investigated for sending inappropriate messages and photos to a New York Jets employee the league “could not conclude” he violated the personal conduct policy despite the fact it was “likely” and “more probable than not” that he did so. There was no team punishment and Favre was not suspended and just fined $50,000 (less than a game day check).
  • January 20, 2015; Phoenix, AZ, USA; NFL executive vice president of football operations Troy Vincent speaks during the Pro Bowl Kickoff Press Conference at The Arizona Biltmore. Mandatory Credit: Kyle Terada-USA TODAY Sports

    Finally, the role of Troy Vincent is called into question as he is involved in game day operations and is hardly unbiased. Add in that Goodell is the only authorized person to suspend a player, this is a point of contention. Most damning, is Vincent’s own words in the letter as he uses legal terms such as “substantial and credible evidence” which is a legal term the Wells Report went out of their way to avoid using. Vincent takes “more likely than not” to mean “conclude”. He takes it further saying that “more likely than not” violations definitely took place. In a legal setting, those points from the letter will be ripped to shreds by Brady’s lawyer.

    The NFL had a simple reason to let this blow up: hype. Super Bowl 49 was watched by over 114 million tv sets and drew the highest rating share (47.5) since Super Bowl 20 in 1986. Numbers like that were no doubt due to the NFL being the lead each day on national news programs and all over social media.

    The NFL is going to get blown out of the courtroom if they fail to throw out this four game suspension of Tom Brady. The NFLPA and attorney Jeffrey Kessler have an easy job of showing that Commissioner Goodell and his selective rule interpretation and arbitrary punishment should be reversed. What Goodell needs to consider is what his heavy handed power play to punish New England will result in if he does not reverse course. For Goodell, it could be the reversal that allows the NFLPA to end his reign as leader of the league.