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