It was like watching Master Sergeant Hans Georg Schultz suddenly appear in back-to-back performances in the New England Patriots headquarters. Coach Bill Belichick insisted that he not only had no idea how the balls in the game with the Colts were deflated, he claimed utter ignorance about virtually anything to do with the subject of air pressure and footballs. He was followed by quarterback Tom Brady who, despite previously saying that he preferred underinflated balls, said that he could not tell that the balls were deflated (even when a Colts employee could immediately feel the difference and report it). It is the immaculate deflation. It just happened by some cosmic coincidence over(1) and over(2) and over(3) and over(4) and over(5) and over(6) and over(7) and over(8) and over(9) and over(10) and over(11) again.
In the law, there is a certain thing called circumstantial evidence and it reads like this. First, the Patriots were playing on a rainy day when deflating a ball can help a QB throw and a receiver catch in the conditions of play. Second, Brady previously said that he preferred under-inflated balls.. Third, 11 out of 12 balls were deflated. Fourth, it appears that the Colts did not have deflated balls. (I will not include a suggestion of modus operandi or prior conduct evidence involving the Patriots in prior allegations of cheating).
What appears clear is that such deflation is not accidental. The New York Times includes a quote from Kevin Murphy, who runs the American football division at Wilson that such deflation could not be the result of colder weather or spiking the ball.
No one is of course coming forward to admit any knowledge of the cheating. However, that does not mean that the NFL should then just walk away in frustration without a designated defendant. In the absence of some notion of a crazed, rogue ball-inflating employee, the team is still accountable for another violation of NFL rules. There has been no plausible explanation offered thus far for the evidence. If the NFL walks away or simply issues some rhetorical sanction, it sends a message that rules cannot be broken unless there is no one caught in the act or willing to confess in the aftermath. As noted earlier, deterrence is accomplished through the relative adjustments between detection rates and sanctions. The lower the detection rate, the higher sanctions must be to achieve deterrence.
Under the rules, the organization could be fined $25,000. Even if you multiply that by the balls, it would still only be $275,000 — a small fine for giving Brady his preferred under-inflated balls. The most serious penalty may be the loss again of a draft pick, which would seem more than justified in this circumstance. My problem is that, if the NFL believes this was intentional, there is a continuing pattern of dishonesty.
There may be some challenge in terms of causation with reluctant witnesses, a problem often encountered in the medical area. This is a standard problem in the medical field where there is often multiple actors and sketchy records. Indeed, the court in Ybarra v. Spangard faced such a problem in terms of causation when no doctor or nurse came forward to identify the responsible party or parties in a case of malpractice. The court allowed the case to continue on the basis of the staff as a whole — a response to what is sometimes called the “conspiracy of silence” in the profession.
There is also a doctrine of joint and several liability that would seem analogous. This is a team working in concert for a common end. Regardless of which agent of the team committed the violations (if the NFL determines it was likely an intentional act), it was done on behalf of the team. There is a rogue employee defense but the team itself is responsible for the balls and compliance with the rules.
I am also curious how Brady was not questioned by the NFL, which insists that it is doing a thorough investigation. Brady said that he has not spoken with NFL investigators. I must also confess that I fail to see how a seasoned NFL quarterback had no inkling that the ball were deflated as Brady says. Brady simply insisted “I have no knowledge of anything. I have no knowledge of wrongdoing. I have no problem saying that – as far as I know.” Belichick also insisted that he knows very little about pressure and footballs period: “I had no knowledge of the various steps involved in the game balls and the process it went through and what happened.”
It all seemed strangely familiar: