Sacked: Second Circuit Reinstates Brady Suspension

Today a federal court reinstated the four regular season game suspension for New England Patriot quarterback Tom Brady in the “Deflategate” scandal. The decision of the lower court to strike down the suspension was in my view facially wrong at the time so this decision is not much of a surprise. The key to the suspension — Brady destroying his phone — was ample support for such a suspension and was never fully explained by the quarterback.

Brady appealed the suspension in a federal court in New York and won before Judge Richard Berman. I was unconvinced by Berman’s analysis at the time since the decision seemed well within the discretion of the NFL. The teams and players agree to play (or not play) according to rules that give the Commissioner broad authority, including, but not limited to sanctioning “conduct detrimental to the integrity of, or public confidence, in the game of professional football.” Goodall investigated and used that authority in a way that many thought was justified and restrained in light of Brady’s actions.

It appears that the Second Circuit was left even less convinced. The Second Circuit details damning evidence against the team and Brady in the wide range of material reviewed by the NFL investigation. It was deemed as more than sufficient given the broad discretion afforded to the Commissioner under the rules.

The findings are worth repeating at length beyond the ultimate destruction of the cellphone by Brady:

That investigation culminated in a 139‐page report released on May 6, which concluded that it was “more probable than not” that two Patriots equipment officials—Jim McNally and John Jastremski—had “participated in a deliberate effort to release air from Patriots game balls after the balls were examined by the referee.” Joint App. at 97.2 Specifically, the Report found that McNally had removed the game balls from the Officials Locker Room shortly before the game, in violation of standard protocol, and taken them to a single‐toilet bathroom, where he locked the door and used a needle to deflate the Patriots footballs before bringing them to the playing field.

In addition to videotape evidence and witness interviews, the investigation team examined text messages exchanged between McNally and Jastremski in the months leading up to the AFC Championship Game. In the messages, the two discussed Brady’s stated preference for less‐inflated footballs. McNally also referred to himself as “the deflator” and quipped that he was “not going to espn . . . yet,” and Jastremski agreed to provide McNally with a “needle” in exchange for “cash,” “newkicks,” and memorabilia autographed by Brady. Joint App. at 99–102. The Report also relied on a scientific study conducted by Exponent, an engineering and scientific consulting firm, which found that the under inflation could not “be explained completely by basic scientific principles, such as the Ideal Gas Law,” particularly since the average pressure of the Patriots balls was significantly lower than that of the Colts balls. Joint App. at 104–08. Exponent further concluded that a reasonably experienced individual could deflate thirteen footballs using a needle in well under the amount of time that McNally was in the bathroom.

The investigation also examined Brady’s potential role in the deflation scheme. Although the evidence of his involvement was “less direct” than that of McNally’s or Jastremski’s, the Wells Report concluded that it was “more probable than not” that Brady had been “at least generally aware” of McNally and Jastremski’s actions, and that it was “unlikely that an equipment assistant and a locker room attendant would deflate game balls without Brady’s” “knowledge,” “approval,” “awareness,” and “consent.” Joint App. at 112, 114. Among other things, the Report cited a text message exchange between McNally and Jastremski in which McNally complained about Brady and threatened to overinflate the game balls, and Jastremski replied that he had “[t]alked to [Tom] last night” and “[Tom] actually brought you up and said you must have a lot of stress trying to get them done.” Joint App. at 112. The investigators also observed that Brady was a “constant reference point” in McNally and Jastremski’s discussions about the scheme, Joint App. 13 at 112, had publicly stated his preference for less‐inflated footballs in the past, and had been “personally involved in [a] 2006 rule change that allowed visiting teams to prepare game balls in accordance with the preferences of their quarterbacks,” Joint App. at 114.

Significantly, the Report also found that, after more than six months of not communicating by phone or message, Brady and Jastremski spoke on the phone for approximately 25 minutes on January 19, the day the investigation was announced. This unusual pattern of communication continued over the next two days. Brady had also taken the “unprecedented step” on January 19 of inviting Jastremski to the quarterback room, and had sent Jastremski several text messages that day that were apparently designed to calm him. The Report added that the investigation had been impaired by Brady’s refusal “to make available any documents or electronic information (including text messages and emails),” notwithstanding an offer by the investigators to allow Brady’s counsel to screen the production. Joint App. at 116.

The panel consisted of Robert Katzmann, Denny Chin and Barrington Parker Jr. Parker wrote:

“We hold that the Commissioner properly exercised his broad discretion under the collective bargaining agreement and that his procedural rulings were properly grounded in that agreement and did not deprive Brady of fundamental fairness . . . Given this substantial deference, we conclude that this case is not an exceptional one that warrants vacatur. Our review of the record yields the firm conclusion that the Commissioner properly exercised his broad discretion to resolve an intramural controversy between the League and a player.”

While my support of the Chicago Bears might undermine my credibility, my past criticism of the NFL and Roger Goodell should balance things out. This is the correct decision in my view and the Patriots should make plans for a Brady-less start.

Here is the decision: Brady Decision

17 thoughts on “Sacked: Second Circuit Reinstates Brady Suspension”

  1. I am with jimm22 and fudds line of reasoning here. Plus were the actual deflators punished? Seems to me if the ref checked he … intervened. Also i gather football is like golf and not basketball or soccer. That is you bring your own ball? So there isn’t a “game” ball both sides use? That ‘s just dumb.

  2. The Patriots organization is dirty from top to bottom, from sophisticated high-tech spying operations all the way down to an equipment manager draining balls in the mens’ room.

    But really, it’s the incessant whining of their fans that has become the most annoying. Can’t wait to hear more about how the guy who called himself The Deflator was really just trying to lose weight.

  3. Joseph Jones, apparently you are not aware your hero Joe Montana said deflategate is a stupid story and all the qbs deflate balls including himself and that all teams are cheating. Hes commented on the story several times. heres one.

  4. Do they not have referees in the NFL with one task among many of examining the players’ balls?
    If they failed in their duty to squeeze Brady’s balls then they should be fired or suspended.
    I put this directly on Goodell and the League and not on Brady.

  5. Independent Bob – “Now I know what it’s like to be a Yankees fan!”

    I used to be a huge Yankee fan until the commissioner ruined it by going after George. Going after George resulted in him tearing down all their history and building a new piece of crap stadium. I don’t watch baseball anymore.

  6. Turley drops a few rungs on the respect ladder on this one. Hey, did you even read that report? Why did you leave out the part where the ref who checked the balls couldn’t remember what gauge he used to check them? The gauges didn’t read the same psi. So the report goes on to say, probably more likely than note. What a bunch of crap and you are all lawyers? That report sure seemed like a first year law student could poke all sorts of holes in it. But Turley takes the bait? This whole thing came from the fact the NFL had a stupid rule that they had no way of enforcing. So instead of just saying that, the go after an MVP quarterback. This is why the NFL sucks and I’ve re-dedicated myself to the only good sport left, Hockey. Go Isles!

  7. It truly does amaze me that some folks continue to be incensed that Brady is being punished for cheating. He cheated. He got caught. He’s being penalized. Get over it.

    What really is pathetic is that both Brady and Belichik so lack confidence in their own considerable talents and abilities that they feel the need to cheat at all. Brady is one of the best of all time, but is now tainted by his own insecurity. A legacy with a footnote isn’t much of a legacy.

  8. Maybe but when there are corrupt systems with corrupt officials, it sometimes create odd behavior by the players in such a system. Goodell also had it in for Brady and there were virtually no checks on Goodell.

    It’s similar to the FBI CoinTelPro program, where it was perfectly legal to fabricate evidence and even frame innocent people – not innocent mistakes by FBI agents but premeditated malicious intent. It’s the same game with many local and state agencies.

    Whether it’s sports or a criminal justice system, in such a rotten justice system it makes the innocent on the receiving end of those corrupt systems act very odd and can make them look guilty when in fact they are just not supplying additional ammunition to the real bad guys. Judges don’t seem to ever fully understand how that really works giving far more deference to the accusers than the accused.

    You may be right but since Goodell had it out for Brady (according to league team insiders) and there was no real oversight on Goodell – in those types of corrupt systems sometimes the innocent guys do look guilty.

    A Washington Post writer did a great piece on Goodell’s corruption earlier this year. Corrupt justice systems can make those it preys upon look very guilty and most judges don’t know the difference.

  9. Dear Professor Turley, I just took a cold shower. I feel mush better.

  10. “EXCUSE ME”! I sense a little prejudice here. May be if they didn’t win so many games you wouldn’t dislike them so much. Nothing tainted as far as I am concerned. Mr. Rogers up in Green Bay likes his footballs under inflated. 13 lbs of pressure is the standard for air pressure in NFL footballs. Most of the big name quarterbacks are given “some” leeway as how they like their footballs. The biggest problem the Patriots have is they have won more games over the past 15 seasons than anybody else. The year Tom Brady was out they still won 11 games. They didn’t make the playoffs that year(I’ll bet you’re all happy about that one”). If you remember that game against the Colts, at 1/2 time the balls were inflated to their proper PSI and in the second half “The Patriots” blew the Colts off the field with properly inflated balls. In Camera gate(New York Jets). Even Jimmy Johnson said that first of all there wasn’t enough time to review the Jets practice film and secondly quite a few teams evidently did this(according to him), but none of them faced the scrutiny that “THE PATS ” did. The Patriots are going to go 2 and 2 in their first 4 games. Then they are going to blow away their division. Not only will “THE PATS” win their division but they will go deep into the playoffs. I wonder how many of your favorite teams even win 1/2 their games. Come January 2017 they (“THE PATS”) will be in the playoffs. I hope they win the next super bowl just to make all the haters cringe with pain. There now, I feel much better. Dear Professor Turley, I hope you have a good day.

  11. Don’t follow football and don’t know the teams but an honorable experienced top-flight quarterback would know immediately the first time he held the ball that it was deflated and would have called a time out to have the ball replaced. Dishonest QB isn’t needed.

  12. Would you expect anything less from the “Religion” of Pieces, founded by a mass murdering pedophile? How many times do I have to ‘splain reality to you folks?

    Oops, sorry, wrong thread. My apologies to Tom Brady.

  13. Which is worse…betting on games or rigging games?

    Pete Rose vs Tom Brady
    Pete—he bet to win with no evidence of point shaving but needs permission to go to a little league game decades later??
    Tom—he not only rigged the game but had two others (others?) doing the deed. A 4 game suspension????

    What is funny though is that the portion of game with deflated balls had no score by Brady…when played with properly pressurized balls, Brady wins.

    Well at least the whole team suffers from TBs action. Surely receivers, backs and the center noticed but said nothing. Klink “I know naathink”.

  14. Brady and Belichick are superb in their respective NFL positions, period, full stop.

    Similarly, the Patriots earned all or most of their four SB titles by a proven, chronic track record of outright cheating and rule breaking. If not during the actual four SB games, the games leading to them.

    97% of all football fans (of teams not named Patriots) stand on firm solid moral and ethical ground, in labeling the four SB titles as tainted. Further, the proven record of intentional cheating forever supports the same 97% in rejecting the term “best” applied to Brady, Belicheck, and the Patriots in general.

    Superb, excellent, very good: yes. “The best:” the track record of proven confirmed intentional cheating disallows such label.

    As someone who used to park Joe Montana’s red Ferrari when he visited The Buena Vista singles bar (between marriages), this makes me very happy.

  15. Were not the Patriots also fined but saved more money than the fine by not having to pay Brady for 4 games? so it only cost Brady and the team gets away scat free

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