The New England Patriots have responded to the Wells Report and to the punishment issued by the NFL in a lengthy document published on a website entitled The Wells Report In Context. The response is almost 20,000 words long and includes links to the Wells Report itself along with a report by its own scientific expert, Professor Roderick MacKinnon, as well as a letter from T. David Gardi, Sr. Vice President of Football Operations for the NFL, dated January 19, 2015 where he outlined the investigation and its scope.
In our initial review of the information, we cannot help but note that that the response begins by relying heavily on its own analysis of the text messages between Patriots employees Jim McNally and John Jastremski. In particular, the report attempts to downplay the significance of McNally’s nickname “the Deflator” and indeed cites rather curiously to a long string of text messages, personal in nature, that also took place between McNally and Jastremski.
We say curious because the heavy use of these text messages, including the personal texts between the two, are strong and compelling evidence for why the Wells investigators asked for and indeed needed the communications of Tom Brady during this relevant time period. It is exactly this type of analysis the investigators would have utilized with the requested evidence which of course was denied to them because Brady refused to turn over his personal phone.
The response attempts to sidetrack this issue by pointing out that the text messages of these two lower level employees would include any and all communication between them and Brady which was recorded via text communication. This is absolutely true. It does not address that Brady’s own communications still might corroborate the nature of the communications.
Further, what the response ignores, and what has been largely ignored, is that this wasn’t simply an investigation into these two employees and their actions vis a vis Tom Brady. The investigation also involved the Patriots themselves and what knowledge anyone in the organization, including head coach Bill Belichick and owner Robert Kraft, had of the possible deflation and of Brady’s involvement in the same.
Thus, we find the following statement rather curious.
Its not a difficult stretch to believe Brady wasn’t text buddies with two lower level employees of the Patriots organization, particularly when you consider the nature of the personal texts between the two. Again, however, that is not the only question here. It is very reasonable to believe Brady had multiple text communications with high level members of the Patriots organization regarding the issue and those text messages could provide valuable information.
First, those text messages could possibly reveal what communications Brady did in fact have with these two level employees that did not take place via record-able method such as text. Thus the need to review Brady’s communications to determine if corroborating, or exculpatory, evidence was contained therein. On the contrary to the assertion above, all evidence and logic does not suggest this conclusion but again rather just the opposite.
Second, and as stated earlier, this investigation wasn’t simply about what took place between McNally, Jastremski and Brady. Also at issue was the complicity and knowledge of the Patriots organization as well. It is here that Brady’s communications not only are important but vital in determining any possible knowledge by those on higher levels.
It is very reasonable to assume Brady communicated via text message with higher level Patriots employees or those otherwise associated with the organization. Given that Brady’s reputation was at stake, as well as the reputation of the organization, we simply fail to see why better effort wasn’t made to provide some of this information. Indeed, the response itself goes above and beyond by providing personal communications between McNally and Jastremski.
Updated:
We have finally waded through the voluminous response to the Wells Report. We must note that much of the report spends time dealing with the measurements and the underlining science of the PSI of the various game balls used during the AFC Championship game. We took issue with this as well in our initial analysis of the Wells Report.
The data and the two expert reports provided by both sides in this matter do little to sway us either way. As the Wells Report noted, and has been reported voluminously, Brady was involved in the 2006 rule that allowed visiting teams to prepare game balls in accordance with the preferences of their quarterbacks. Brady himself has admitted such and attempts to shift the discussion to the “tactile feel” of the ball aren’t terribly persuasive either.
Despite numerous hand wringing over the data, we tend to agree with the Wells Report that the full weight of the evidence supports a conclusion that a violation of the rules occurred. Here, it is important to note two separate but very important things.
First, we are talking about two separate and distinct rules under which the discipline arose. The first is the “Official Playing Rules and the established guidelines for the preparation of game footballs set forth in the NFL’s Game Operations Policy Manual for Member Clubs.” (hereinafter Rule 1) This rule of course sets the PSI levels for which game balls should be prepared and submitted. It is this rule that brings into play the data at the heart of the response. It is this rule that brings into play the 2006 amendments discussed above.
Second, the league has a long established rule protecting the game itself called the NFL’s Policy on Integrity of the Game and Enforcement of Competitive Rules. (hereinafter Rule 2) It is this rule under which the investigation was conducted. It is this rule that led to the “Spygate” penalty against the Patriots back in 2007. It is also this rule that provides the legal standard under which the league conducted it’s investigation and through which it applied it’s penalties. That standard is the now infamous “more probable than not” that gave so many such a difficult time initially.
The distinction is important. While it is never directly stated anywhere our reading and analysis of the various documents in the matter lead us to that inevitable conclusion. A simple reading of Troy Vincent’s letter to the Patriots should provide some insight.
From Troy Vincent’s letter to the Patriots:
“On May 6th, independent investigator Ted Wells issued his report regarding the footballs used by the Patriots in this year’s AFC Championship Game. That report established that the footballs used by the Patriots were inflated at a level that did not satisfy the standard set forth in the NFL’s Official Playing Rules and that the condition of the footballs was the result of deliberate actions by employees of the Patriots. The activities of the Patriots’ employees were thoroughly documented in the report, including through a series of text messages and telephone communications, as well as evidence of a breach in pre-game protocol. In addition, the conclusions were supported by extensive scientific analysis, as detailed in the report.
“Based on the extensive record developed in the investigation and detailed in the Wells report, and after full consideration of this matter by the Commissioner and the Football Operations department, we have determined that the Patriots have violated the NFL’s Policy on Integrity of the Game and Enforcement of Competitive Rules, as well as the Official Playing Rules and the established guidelines for the preparation of game footballs set forth in the NFL’s Game Operations Policy Manual for Member Clubs. In making this determination, we have accepted the findings contained in the comprehensive report independently prepared by Mr. Wells and his colleagues.
“In determining that a violation occurred, we applied the standard of proof stated in the Integrity of the Game Policy: namely, preponderance of the evidence, meaning that ‘as a whole, the fact sought to be proved is more probable than not.’ This is a well-recognized legal standard, which is applied in courts and workplaces every day throughout the country. The evidence gathered during the investigation and reviewed in the report more than satisfy this standard and demonstrate an ongoing plan by at least certain Patriots’ employees to deflate footballs, to do so in a secretive manner after the game officials have certified the footballs as suitable for play, and to hide these activities even from their own supervisors.
“As you know, we regard violations of competitive rules as significant and deserving of a strong sanction, both to punish the actual violation and to deter misconduct in the future. In this case, the footballs were intentionally deflated in an effort to provide a competitive advantage to Tom Brady after having been certified by the game officials as being in compliance with the playing rules. While we cannot be certain when the activity began, the evidence suggests that January 18th was not the first and only occasion when this occurred, particularly in light of the evidence referring to deflation of footballs going back to before the beginning of the 2014 season.
“It is impossible to determine whether this activity had an effect on the outcome of games or what that effect was. There seems little question that the outcome of the AFC Championship Game was not affected. But this has never been a significant factor in assessing discipline. There are many factors which affect the outcome of a game. It is an inherently speculative exercise to try to assign specific weight to any one factor.
The key consideration in any case like this is that the playing rules exist for a reason, and all clubs are entitled to expect that the playing rules will be followed by participating teams. Violations that diminish the league’s reputation for integrity and fair play cannot be excused simply because the precise impact on the final score cannot be determined.
“Here, there are several factors that merit strong consideration in assessing discipline. The first is the club’s prior record. In 2007 the club and several individuals were sanctioned for videotaping signals of opposing defensive coaches in violation of the Constitution and Bylaws. Under the Integrity of the Game Policy, this prior violation of competitive rules was properly considered in determining the discipline in this case.
“Another important consideration identified in the Policy is ‘the extent to which the club and relevant individuals cooperated with the investigation.’ The Wells report identifies two significant failures in this respect. The first involves the refusal by the club’s attorneys to make Mr. McNally available for an additional interview, despite numerous requests by Mr. Wells and a cautionary note in writing of the club’s obligation to cooperate in the investigation. The second was the failure of Tom Brady to produce any electronic evidence (emails, texts, etc.), despite being offered extraordinary safeguards by the investigators to protect unrelated personal information. Although we do not hold the club directly responsible for Mr. Brady’s refusal to cooperate, it remains significant that the quarterback of the team failed to cooperate fully with the investigation.
“Finally, it is significant that key witnesses – Mr. Brady, Mr. Jastremski, and Mr. McNally – were not fully candid during the investigation.
“In accepting the findings of the report, we note that the report identified no evidence of wrongdoing or knowledge of wrongdoing on the part of any member of the coaching staff, including Head Coach Bill Belichick, or by any Patriots’ staff member other than Mr. Jastremski and Mr. McNally, including head equipment manager Dave Schoenfeld. Similarly, the Wells report is clear that Patriots ownership and executives did not participate in any way in the misconduct, or have knowledge of the misconduct.“Nonetheless, it remains a fundamental principle that the club is responsible for the actions of club employees. This principle has been applied to many prior cases. Thus, while no discipline should or will be imposed personally on any owner or executive at the Patriots, discipline is appropriately imposed on the club.”
We will take up the first rule first and attempt to dispel the notion that a conclusive finding that the footballs were inflated to the proper PSI was required to prove a violation of the rule. Of course, that is certainly the easiest mechanism by which you could find a violation here but it is certainly not the only requirement. One need not be a successful or even talented bank robber to be found guilty of attempting to rob a bank.
The league found through statements by the parties, actions or lack thereof by the parties, and suspicious circumstances surrounding the gameballs that a violation occurred. The gameballs did not meet the specified requirements when presented to the attending referee on gameday. Walt Anderson, the presiding referee, corrected this issue but then a deviation in standard procedure taken by McNally occurred. If we just stopped here there is certainly more than a mere suggestion that shenanigans were involved and that an attempt to circumvent the rule had occurred.
The data at the subject of the dispute primarily involves the halftime measurements. Due to discrepancies in the recording of the evidence, no clear conclusion can be drawn from this data. It is subject to interpretation but that merely goes to the weight of the evidence and not to the ultimate conclusion.
Therefore, all the mental maneuvering over the “scientific data” is just a basic failure to understand that conclusive scientific proof was neither necessary nor required in this matter. Preferable maybe but we live in an imperfect world. The legal standard “more probable than not” does not require definitive proof based on scientific evidence. Such evidence can be taken from the totality of the evidence.
The league didn’t need to prove the Patriots were successful at circumventing the rules. Under the Official Playing Rules and the established guidelines for the preparation of game footballs set forth in the NFL’s Game Operations Policy Manual for Member Clubs, there was a procedure to follow in providing gameballs. There is certainly enough evidence through which you could conclude the Patriots didn’t fully comply with Rule 1.
The saga could have ended there had Tom Brady complied with a request to turn over electronic communications. Under the NFL’s Policy on Integrity of the Game and Enforcement of Competitive Rules, it only needed to prove that the Patriots tried to break Rule 1 or that it interfered with the league’s enforcement of competitive rules. This key difference is crucial in understanding the Wells Report as well as the accompanying punishment.
1.12 DEFINITION OF “DIRECT” AND “CIRCUMSTANTIAL” EVIDENCE You may have heard the phrases “direct evidence” and “circumstantial evidence.” Direct evidence is proof that does not require an inference, such as the testimony of someone who claims to have personal knowledge of a fact. Circumstantial evidence is proof of a fact, or a series of facts, that tends to show that some other fact is true. As an example, direct evidence that it is raining is testimony from a the witness who says, “I was outside a minute ago and I saw it raining.” Circumstantial evidence that it is raining is the observation of someone entering a room carrying a wet umbrella. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. You should decide how much weight to give to any evidence. In reaching your verdict, you should consider all the evidence in the case, including the circumstantial evidence. (Pattern Jury Instructions 7th Circuit)
In our initial analysis we discussed the intersection between direct and circumstantial evidence which is important to an understanding of how evidence rules work. We must now discuss another key rule which we mentioned but didn’t delve into deeply. It’s called the missing evidence rule (or sometimes the missing evidence instruction).
5.01 Failure To Produce Evidence or A Witness If a party to this case has failed [to offer evidence] [to produce a witness] within his power to produce, you may infer that the [evidence] [testimony of the witness] would be adverse to that party if you believe each of the following elements: 1. The [evidence] [witness] was under the control of the party and could have been produced by the exercise of reasonable diligence. 2. The [evidence] [witness] was not equally available to an adverse party. 3. A reasonably prudent person under the same or similar circumstances would have [offered the evidence] [produced the witness] if he believed [it to be] [the testimony would be] favorable to him. 4. No reasonable excuse for the failure has been shown. (Pattern Jury Instruction Illinois)
When a party to a civil proceeding refuses to provide evidence, the trier of fact is entitled to infer the evidence would have been unfavorable. Indeed, it is reasonable to assume someone would not withhold evidence beneficial to his case or by which his case might be deemed stronger.
Why it matters here is that under Rule 2, the rule through which the league polices the integrity of the game and enforcement of the rules, the failure to provide the requested evidence hampers the league’s investigation and enforcement ability. As the “trier of fact” in this situation, the league is more than justified in believing the missing evidence was not provided because it was detrimental to Brady and/or the Patriots.
In conclusion, while Rule 1 is what sparked the investigation into the Patriots handling of their game balls, it is not the Rule that ultimately got Tom Brady and the Patriots in hot water. It is Rule 2, the rule under which the Patriots had previously run afoul, and under which the investigation was conducted, that led to their downfall.
As we wrote earlier, the NFLPA has now appealed on Brady’s behalf and requested an independent arbiter be assigned to the matter.
