#DeflateGate (Court of Appeals Reinstates Suspension)

[knuckleballer]

We also learned that you can be a courtroom sketch artist and be drunk on the job. Don't forget that.

I didn't realize that was an actual job. But yes, that one was good for a couple of good laughs that day.

The sketch was pretty funny.  The one of Don Yee didn't get much attention, but was probably the worst.

 

[Roy H.]

McNally: Tom sucks…im going make that next ball a [expletive] balloon

Jastremski: Talked to him last night. He actually brought you up and said you must have a lot of stress trying to get them done…

You think this text message exchange is:

1.  Not about Tom Brady; and
2.  Is about season tickets?

Again, it's not necessarily a smoking gun, but you have to wonder why the Patriots are giving such a strained (i.e., fictional) interpretation.

I have no doubt there's something that the Patriots are unwilling to disclose. But that's not what's all this is about.

You have a text in which Person A communicates to Person B something that Person C allegedly said. In the practical absence of corroborating evidence that Tom Brady _actually_ said this (or any corroborating evidence of what he actually said), I find it hard to justify how he's being hit with an unprecedented punishment when the league has barely proven the scheme he's allegedly ringleading even existed (at least Berman seems to think so...)

Oh, I agree.  It's cheating, but it's fairly minimal cheating.  If I recommended a penalty, it would have been 1 game plus one additional game check, which incorporates the penalty for not complying with the investigation.  Two games should have been the max.  That said, the NFL being heavy-handed didn't really surprise anybody.

[knuckleballer]

Roy H. Do you agree that it wouldn't make much sense for Brady and the Patriots to present the game officials with the PSI rule in October in 2014, if they were already deflating the balls after approval before May of 2014?

No idea. Maybe it happened at a game where the Pats couldn't deflate balls for whatever reason, so they were playing it straight. That's more plausible than the season tickets explanation.

So far, I have convinced myself of a handful of things:

1. There is certainly something here the Patriots don't want to admit to. It may or may not be deflating game balls after inspection.

2. The deflator explanation is so dumb (and the alternative argument  fits the narrative so poorly) that it just must be true.

3. The season tickets story doesn't make much sense.


None of these indicate any particular involvement of Brady in anything. Heck, even the fact that he signed balls for McNally didn't mean that he was aware that anything was done in violation of the rules.

That season tickets story came after the Jets game where the balls were overinflated and the one where Jastremski said the balls should have been 13.  There is some contradiction there. 
Also, regarding that story, Wells and Jastremski would have had to foresee Wells asking them about that four month old single text, gotten together and concocted the story which involved a mutual friend who is not a team employee, and this friend would have been ok being brought into this national attention receiving investigation and been willing to lie.   He even volunteered to be interviewed by a high powered attorney running the investigation.  That's one heck of a friend.  Is that really more probably than the story just simply being true?

As koz says, the "season tickets" explanation doesn't necessarily implicate Brady in an illegal scheme, but come on. 

McNally: Tom sucks…im going make that next ball a [expletive] balloon

Jastremski: Talked to him last night. He actually brought you up and said you must have a lot of stress trying to get them done…

You think this text message exchange is:

1.  Not about Tom Brady; and
2.  Is about season tickets?

Again, it's not necessarily a smoking gun, but you have to wonder why the Patriots are giving such a strained (i.e., fictional) interpretation.

And you don't know that there was not another conversation going on about the tickets which is what their explanation was.  I agree it's suspicious looking at that text message alone, but when considering all things about the case and the fact Wells had thousands of texts to pick and choose from, I don't find it convincing.  Jastremski and McNally did not know what they were going to be questioned about by Wells who had them for 12 hours combined and they never mixed up their story.  And the fact that there's a third guy who said that he made that comment, that's just not enough to be convinced that they were lying and covering up a ball tampering scheme.

[Roy H.]

And you don't know that there was not another conversation going on about the tickets which is what their explanation was.  I agree it's suspicious looking at that text message alone, but when considering all things about the case and the fact Wells had thousands of texts to pick and choose from, I don't find it convincing.  Jastremski and McNally did not know what they were going to be questioned about by Wells who had them for 12 hours combined and they never mixed up their story.  And the fact that there's a third guy who said that he made that comment, that's just not enough to be convinced that they were lying and covering up a ball tampering scheme.

Then why aren't McNally / Jastremski / the Patriots saying "Hey, this was all taken out of context.  There were five intervening texts in between the ones Wells quoted, and here's what they said"?

If there were additional texts that make the conversation make sense, why haven't we seen them from anybody?

[knuckleballer]

Roy H. Do you agree that it wouldn't make much sense for Brady and the Patriots to present the game officials with the PSI rule in October in 2014, if they were already deflating the balls after approval before May of 2014?

No idea. Maybe it happened at a game where the Pats couldn't deflate balls for whatever reason, so they were playing it straight. That's more plausible than the season tickets explanation.

So far, I have convinced myself of a handful of things:

1. There is certainly something here the Patriots don't want to admit to. It may or may not be deflating game balls after inspection.

2. The deflator explanation is so dumb (and the alternative argument  fits the narrative so poorly) that it just must be true.

3. The season tickets story doesn't make much sense.


None of these indicate any particular involvement of Brady in anything. Heck, even the fact that he signed balls for McNally didn't mean that he was aware that anything was done in violation of the rules.

That season tickets story came after the Jets game where the balls were overinflated and the one where Jastremski said the balls should have been 13.  There is some contradiction there. 
Also, regarding that story, Wells and Jastremski would have had to foresee Wells asking them about that four month old single text, gotten together and concocted the story which involved a mutual friend who is not a team employee, and this friend would have been ok being brought into this national attention receiving investigation and been willing to lie.   He even volunteered to be interviewed by a high powered attorney running the investigation.  That's one heck of a friend.  Is that really more probably than the story just simply being true?

As koz says, the "season tickets" explanation doesn't necessarily implicate Brady in an illegal scheme, but come on. 

McNally: Tom sucks…im going make that next ball a [expletive] balloon

Jastremski: Talked to him last night. He actually brought you up and said you must have a lot of stress trying to get them done…

You think this text message exchange is:

1.  Not about Tom Brady; and
2.  Is about season tickets?

Again, it's not necessarily a smoking gun, but you have to wonder why the Patriots are giving such a strained (i.e., fictional) interpretation.

And you don't know that there was not another conversation going on about the tickets which is what their explanation was.  I agree it's suspicious looking at that text message alone, but when considering all things about the case and the fact Wells had thousands of texts to pick and choose from, I don't find it convincing.  Jastremski and McNally did not know what they were going to be questioned about by Wells who had them for 12 hours combined and they never mixed up their story.  And the fact that there's a third guy who said that he made that comment, that's just not enough to be convinced that they were lying and covering up a ball tampering scheme.

I still have to go back to the science and the ball measurements.  The evidence that they were tampering with the balls is weak at best.  You would have to assume that the ref was wrong about which gauge he used and that they were only removing just three to four tenths of a psi which coincidentally is the calibration difference between the two gauges.  That's laughable.

I don't think it would be difficult to find single texts that could infer guilt about tampering with balls when searching through at least 8 months of text messages of two guys who handle footballs especially when they are friends and use a lot of jokes and hyperbole in their text messages.

[knuckleballer]

And you don't know that there was not another conversation going on about the tickets which is what their explanation was.  I agree it's suspicious looking at that text message alone, but when considering all things about the case and the fact Wells had thousands of texts to pick and choose from, I don't find it convincing.  Jastremski and McNally did not know what they were going to be questioned about by Wells who had them for 12 hours combined and they never mixed up their story.  And the fact that there's a third guy who said that he made that comment, that's just not enough to be convinced that they were lying and covering up a ball tampering scheme.

Then why aren't McNally / Jastremski / the Patriots saying "Hey, this was all taken out of context.  There were five intervening texts in between the ones Wells quoted, and here's what they said"?

If there were additional texts that make the conversation make sense, why haven't we seen them from anybody?

They haven't spoken publicly, but according to the Patriots, they did say that it was taken out of context and that there was another conversation going on.  I don't know if that conversation was over the phone, in person, or what.  The third guy said that he did make that comment.  He's not a team emoloyee, he has a respectable career.  I know if two of my buddies were involved in a conspiracy that was under the nation's spotlight and was being investigated by a high powered attorney and they asked me to lie about some story they made up to cover for them, I'd say sorry but no.  Keep me out of it.  It's not like they committed a crime and were facing prison time.

And of course there was another text written the exact same day as that text that stated the balls should have been 13 which directly contradicts the inference you are drawing.

[danglertx]

Several random points throughout the thread since I haven't been on the last several days.  First off, you can't waive negligence to whomever said that.  Some States may have refined the definition of negligence to different versions and are calling the old negligence gross negligence but that is first year law school.  It is the nature of negligence.

Person A telling person B that person C said "XYZ" is classic hearsay.  There is a reason it isn't allowed without hitting one of the exceptions.  If you want to know what C said, you ask C.  I assume they did, didn't like it, so they went with what A said.   Person A wasn't under oath when he made that statement, taking it as fact is irresponsible.

Thirdly, just in general about evidence.  Testimony is direct evidence.  You can not believe the direct evidence, but you not believing it doesn't magically raise the evidence bar to 50.1% guilt.  You need evidence to contradict direct testimony that outweighs it.  To say three people are lying without actual proof is pathetic work by Wells.

If you say, what does this email mean and the person says, "its about losing weight," your opinion that it isn't doesn't outweigh the person's direct testimony.  Saying it does is dishonest and mangling our jurisprudence system. 

Finally, every one of these points Wells makes has to be more likely than not.  If even one fails then his whole case does.  Such as the balls being intentionally deflated.  If that isn't more likely than not, then the entire case can't be more likely than not.  While I am not sure this is being reviewed by Berman it is important to see just how deceptive Wells was with reaching his conclusion.

To add to that last point though.  Goodell has a duty, legal term, as an arbiter to not be partial to one side or the other.  A better way of saying that would be fair.  I haven't really looked into the case law on it, but I would assume an investigator on which the arbiter is relying would be under that same duty.  Clearly Wells wasn't being fair.  He simply dismisses all direct evidence as non believable while making wild leaps about other things that he takes for fact.

 

[Rondo2287]

Several random points throughout the thread since I haven't been on the last several days.  First off, you can't waive negligence to whomever said that.  Some States may have refined the definition of negligence to different versions and are calling the old negligence gross negligence but that is first year law school.  It is the nature of negligence.

Person A telling person B that person C said "XYZ" is classic hearsay.  There is a reason it isn't allowed without hitting one of the exceptions.  If you want to know what C said, you ask C.  I assume they did, didn't like it, so they went with what A said.   Person A wasn't under oath when he made that statement, taking it as fact is irresponsible.

Thirdly, just in general about evidence.  Testimony is direct evidence.  You can not believe the direct evidence, but you not believing it doesn't magically raise the evidence bar to 50.1% guilt.  You need evidence to contradict direct testimony that outweighs it.  To say three people are lying without actual proof is pathetic work by Wells.

If you say, what does this email mean and the person says, "its about losing weight," your opinion that it isn't doesn't outweigh the person's direct testimony.  Saying it does is dishonest and mangling our jurisprudence system. 

Finally, every one of these points Wells makes has to be more likely than not.  If even one fails then his whole case does.  Such as the balls being intentionally deflated.  If that isn't more likely than not, then the entire case can't be more likely than not.  While I am not sure this is being reviewed by Berman it is important to see just how deceptive Wells was with reaching his conclusion.

To add to that last point though.  Goodell has a duty, legal term, as an arbiter to not be partial to one side or the other.  A better way of saying that would be fair.  I haven't really looked into the case law on it, but I would assume an investigator on which the arbiter is relying would be under that same duty.  Clearly Wells wasn't being fair.  He simply dismisses all direct evidence as non believable while making wild leaps about other things that he takes for fact.

Great post IMO.  First TP I have given in over a calendar year

[D.o.s.]

We also learned that you can be a courtroom sketch artist and be drunk on the job. Don't forget that.

I didn't realize that was an actual job. But yes, that one was good for a couple of good laughs that day.

The sketch was pretty funny.  The one of Don Yee didn't get much attention, but was probably the worst.

 

Or the best. 'Don Yee: Emoji' has a nice ring to it.

[Roy H.]

First off, you can't waive negligence to whomever said that.

Of course you can.  Are you saying that waivers / limitations of liability for negligence are per se unenforceable?  That is just a misstatement of the law.  There are probably tens of thousands of citations to this proposition, but we'll go with this cite from the Volokh Conspiracy:

The California Supreme Court issued an interesting decision this week on the enforceability of liability waivers in standard form contracts. At issue in City of Santa Barbara v. Superior Court, -- Cal.Rptr.3d -- (2007 WL 2027806), was a release from liability for "any negligent act" signed by a parent as part of an enrollment contract that allowed her daughter to participate in a camp for disabled children run by the city of Santa Barbara. The court ruled, 6-1, that the contract was enforceable as to allegations of ordinary negligence, but not gross negligence. This wasn't surprising; it is standard hornbook law that such waivers in the context of recreational activities are enforceable as to ordinary negligence but not as to gross negligence, although a few jurisdictions won't even enforce waivers for ordinary negligence. But it is interesting that, according to the court, it had never actually addressed this issue (although for decades Witkin on California Law has claimed that the majority rule applies in the Golden State).

Some States may have refined the definition of negligence to different versions and are calling the old negligence gross negligence but that is first year law school.  It is the nature of negligence.

I was fairly attentive in law school, and overall I enjoyed the experience, but I never was taught this concept.  I would like to think that that's because it's not true.

Oftentimes (but not in every jurisdiction) you can't waive gross negligence.  You can't waive legal malpractice or medical malpractice.  However, general, ordinary negligence?  That's waiveable in a contract, so long as the waiver is clear, knowing, and voluntary.

You need evidence to contradict direct testimony that outweighs it.  To say three people are lying without actual proof is pathetic work by Wells

There is a lot of nuance here.  You're not arguing that a finder of fact has to accept all testimony as true unless it's rebutted, are you?  Because that's obviously not the case.

Theoretically, there needs to be some evidence other than the fact that you know a suspect is lying based upon your assessment of his credibility.  However, that evidence of guilt doesn't have to directly contradict the testimony you have rejected as non-credible.  For instance, in the presence instance, Wells can find guilt is more likely than not based simply on his assessment of credibility and the fact that several footballs didn't conform to the ideal gas law, even if it is assumed that the gauge most favorable to the Patriots was used. 

If there's a minimal level of evidence showing deflation of the balls, and then the finder of fact assesses the key witnesses to be non-credible, that's enough to sustain a civil level of proof.  Piggy-backing on that with contradictory / non-credible testimony, lack of cooperation, etc. is probably enough for a finder of fact to reasonably find guilt linking Brady.

A lot is made about this being an arbitration award, but in terms of the evidence, I can't imagine any appellate court in the country would reverse the verdict for sufficiency of evidence if a judge / jury found the Patriots civilly guilty. 

To me, the real issues are relate to procedure and punishment.  I think it's crystal clear that a reasonable fact-finder could have found guilt here.

[knuckleballer]

We also learned that you can be a courtroom sketch artist and be drunk on the job. Don't forget that.

I didn't realize that was an actual job. But yes, that one was good for a couple of good laughs that day.

The sketch was pretty funny.  The one of Don Yee didn't get much attention, but was probably the worst.

 

Or the best. 'Don Yee: Emoji' has a nice ring to it.

I like this one.



She just drew a stereotypical picture of an Asian guy.    She had a bad day.

[Moranis]

First off, you can't waive negligence to whomever said that.

Of course you can.  Are you saying that waivers / limitations of liability for negligence are per se unenforceable?  That is just a misstatement of the law.  There are probably tens of thousands of citations to this proposition, but we'll go with this cite from the Volokh Conspiracy:

The California Supreme Court issued an interesting decision this week on the enforceability of liability waivers in standard form contracts. At issue in City of Santa Barbara v. Superior Court, -- Cal.Rptr.3d -- (2007 WL 2027806), was a release from liability for "any negligent act" signed by a parent as part of an enrollment contract that allowed her daughter to participate in a camp for disabled children run by the city of Santa Barbara. The court ruled, 6-1, that the contract was enforceable as to allegations of ordinary negligence, but not gross negligence. This wasn't surprising; it is standard hornbook law that such waivers in the context of recreational activities are enforceable as to ordinary negligence but not as to gross negligence, although a few jurisdictions won't even enforce waivers for ordinary negligence. But it is interesting that, according to the court, it had never actually addressed this issue (although for decades Witkin on California Law has claimed that the majority rule applies in the Golden State).

Some States may have refined the definition of negligence to different versions and are calling the old negligence gross negligence but that is first year law school.  It is the nature of negligence.

I was fairly attentive in law school, and overall I enjoyed the experience, but I never was taught this concept.  I would like to think that that's because it's not true.

Oftentimes (but not in every jurisdiction) you can't waive gross negligence.  You can't waive legal malpractice or medical malpractice.  However, general, ordinary negligence?  That's waiveable in a contract, so long as the waiver is clear, knowing, and voluntary.

You need evidence to contradict direct testimony that outweighs it.  To say three people are lying without actual proof is pathetic work by Wells

There is a lot of nuance here.  You're not arguing that a finder of fact has to accept all testimony as true unless it's rebutted, are you?  Because that's obviously not the case.

Theoretically, there needs to be some evidence other than the fact that you know a suspect is lying based upon your assessment of his credibility.  However, that evidence of guilt doesn't have to directly contradict the testimony you have rejected as non-credible.  For instance, in the presence instance, Wells can find guilt is more likely than not based simply on his assessment of credibility and the fact that several footballs didn't conform to the ideal gas law, even if it is assumed that the gauge most favorable to the Patriots was used. 

If there's a minimal level of evidence showing deflation of the balls, and then the finder of fact assesses the key witnesses to be non-credible, that's enough to sustain a civil level of proof.  Piggy-backing on that with contradictory / non-credible testimony, lack of cooperation, etc. is probably enough for a finder of fact to reasonably find guilt linking Brady.

A lot is made about this being an arbitration award, but in terms of the evidence, I can't imagine any appellate court in the country would reverse the verdict for sufficiency of evidence if a judge / jury found the Patriots civilly guilty. 

To me, the real issues are relate to procedure and punishment.  I think it's crystal clear that a reasonable fact-finder could have found guilt here.

thanks Roy, TP.  Saved me the response.

[colincb]

http://espn.go.com/pdf/2015/0804/goodell_arbitration.pdf

Page 150 is where the NFLPA expert testimony is regarding the Exponent testing. Lots of problems beyond the arbitrary assumptions used to come up with a suspect conclusion. These objections have been out there since the Wells Report was published and never adequately addressed.

[Csfan1984]

And you don't know that there was not another conversation going on about the tickets which is what their explanation was.  I agree it's suspicious looking at that text message alone, but when considering all things about the case and the fact Wells had thousands of texts to pick and choose from, I don't find it convincing.  Jastremski and McNally did not know what they were going to be questioned about by Wells who had them for 12 hours combined and they never mixed up their story.  And the fact that there's a third guy who said that he made that comment, that's just not enough to be convinced that they were lying and covering up a ball tampering scheme.

Then why aren't McNally / Jastremski / the Patriots saying "Hey, this was all taken out of context.  There were five intervening texts in between the ones Wells quoted, and here's what they said"?

If there were additional texts that make the conversation make sense, why haven't we seen them from anybody?

Possibly more "Brady is a __" stuff. Seems that stuff was too rampant to give everyone those texts. I wish I could see those. It would be funny. Also makes Brady more typical demanding or micro-manage boss type. New England fans would seriously be disappointed in the person if he rides the team's staff hard.

[Vermont Green]

And you don't know that there was not another conversation going on about the tickets which is what their explanation was.  I agree it's suspicious looking at that text message alone, but when considering all things about the case and the fact Wells had thousands of texts to pick and choose from, I don't find it convincing.  Jastremski and McNally did not know what they were going to be questioned about by Wells who had them for 12 hours combined and they never mixed up their story.  And the fact that there's a third guy who said that he made that comment, that's just not enough to be convinced that they were lying and covering up a ball tampering scheme.

Then why aren't McNally / Jastremski / the Patriots saying "Hey, this was all taken out of context.  There were five intervening texts in between the ones Wells quoted, and here's what they said"?

If there were additional texts that make the conversation make sense, why haven't we seen them from anybody?

Possibly more "Brady is a __" stuff. Seems that stuff was too rampant to give everyone those texts. I wish I could see those. It would be funny. Also makes Brady more typical demanding or micro-manage boss type. New England fans would seriously be disappointed in the person if he rides the team's staff hard.

This all went down after a game where the balls were found to be at 16 psig.  Brady probably did get in some people's kitchen over that.  16 psig vs. 12.5 psig is enough to affect his throwing, just like if the balls were at 9 instead of 12.5.  Why is this surprising to anyone, fan of Brady or otherwise?  As I understand it, he got the rules printed out, told these guys they had to push back on the Refs if they tried to give them over inflated balls and probably in general told them "don't let this happen again" in a not so nice tone.

McNally then wrote the disparaging texts about Brady.  This is also probably when he referred to himself as the deflator meaning he had to deflate the balls from 16 psig to 12.5 psig.  Brady did not tell him to deflate the balls though.  Brady said show the refs the rules and make sure they don't over inflate the balls.

Clearly, the most incriminating "evidence" in all of this the text reference to himself as deflator.  I can't honestly offer a reasonable explanation for what this really was supposed to mean based on what I have seen/read.  But a penalty based on this when all other evidence goes in the other direction (including and most importantly the actual measurements of the balls on the day in question)?

I continue to be dumbfound that anyone can still think there was some big conspiracy here (or even a small conspiracy)

I can understand why the NFL would want to look into this based on the deflator text and the video of McNally going into the bathroom.  But once they investigated this, they should have been impartial enough to say "nothing here".  But no, the NFL had already made up its mind, made premature statements, orchestrated leaks and otherwise made it so this whole thing became about saving face.  This is just so clear now and becoming more clear with every new release of information.