Insights into litigation, sports law, media and legal culture

#Deflategate: A tale of team sport, circumstantial evidence and tough findings

Digitally generated american national flag against large football stadium

We know Tom Brady as the person who looks terrific in a tuxedo at an A-List event with his wife, fashion model superstar Gisele Bündchen. We know Tom Brady the champion NFL quarterback who has won four Super Bowls with the New England Patriots, and three Super Bowl MVP awards. Do we know Tom Brady as the subliminal if not overt instigator of #deflategate? Why is the finger pointing at Tom Brady in this way?

The answer does not lie on Twitter, which understandably has become a global community of #TeamTom or #TeamDefinitelyNotTom. The parochial passions of sports fans prevail, and encourage those of us Down Under to remember that not just Australian Rules Football (“AFL”) leads to intense supporter reactions.

In this case, there have also been a lot of puns.

Followers of the Essendon supplements saga in which an appeal is pending by the World Anti-Doping Agency to the Court of Arbitration for Sport, might find it interesting to read about a different integrity investigation in another sporting code. Of particular interest are the similar dynamics: the involvement of lawyers, the jurisdictional challenges and the criticism of a circumstantial case.

Background

#Deflategate is more than just a hashtag. Here is the story. On 18 January 2015, the New England Patriots and Indianapolis Colts played in the AFC Championship Game at Gillette Stadium in Foxborough, Massachusetts to determine which team would advance to Super Bowl XLIX. During the first half of the game, the Colts queried the inflation level of the Patriots’ footballs. At half time, members of the officiating crew assigned to the game, overseen by a senior officiating supervisor from the National Football League (the “NFL”), tested the air pressure of footballs being used by each of the Patriots and the Colts.

All 11 of the Patriots game balls tested measured below the minimum pressure level of 12.5 pounds per square inch (“psi”) allowed by Rule 2 of the Official Playing Rules of the National Football League (the “Playing Rules”) on both of two air pressure gauges used to test the balls.

The four Colts balls tested each measured within the 12.5 to 13.5 psi range permitted under the Playing Rules on at least one of the gauges used for the tests.

On January 23, 2015, the NFL announced it had retained Theodore V. Wells, Jr. and the law firm Paul, Weiss, Rifkind, Wharton & Garrison (“Paul, Weiss”) to conduct an investigation, together with NFL Executive Vice President Jeff Pash, into the footballs used by the Patriots during the AFC Championship Game.

The investigation was conducted pursuant to the Policy on Integrity of the Game & Enforcement of Competitive Rules. That Policy provides that “[a]ctual or suspected competitive violations will be thoroughly and promptly investigated”.

The facts and findings in this post are sourced from the resulting Report prepared by Wells and Paul, Weiss (“the Wells Report”).

The penalties

The NFL suspended Tom Brady without pay for the first four games of the season for detrimental conduct in connection with the events described in the Wells Report, citing his “general aware[ness] of the actions of the Patriots’ employees involved in the deflation of the footballs” and “failure to cooperate fully and candidly with the [Wells] investigation”.

The New England Patriots were also fined $1 million and lost two draft picks as punishment for deflating footballs used in the AFC title game.

In addition, the NFL indefinitely suspended the two equipment staffers believed to have carried out the plan.

Tom Brady has appealed the decision on the basis that the decision maker lacked authority to hand down a suspension, and that the outcome was overly harsh. Four games may not seem a lot to AFL enthusiasts used to a lengthy season, but four games in NFL terms equates to one quarter of the whole season. Tom Brady also claims there was insufficient evidence to make the findings against him, and that the decision maker was biased. It is fair to say he has not held back.

The reaction

The Patriots’ Chairman, Robert Kraft, released a statement reported as follows:

Despite our conviction that there was no tampering with footballs, it was our intention to accept any discipline levied by the league,” Kraft said. “Today’s punishment, however, far exceeded any reasonable expectation. It was based completely on circumstantial rather than hard or conclusive evidence.

“We are humbled by the support the New England Patriots have received from our fans throughout the world,” the statement said. “We recognize our fans’ concerns regarding the NFL’s penalties and share in their disappointment in how this one-sided investigation was handled, as well as the dismissal of the scientific evidence supported by the Ideal Gas Law in the final report.

The New England Patriots then changed their official Twitter feed profile to an image of Tom Brady’s No. 12 jersey.

The Patriots claim that insufficient weight was given to its scientific evidence. They also say that “attempts at humor and exaggeration are nevertheless interpreted as a plot to improperly deflate footballs, even though none of them refer to any such plot”: refer to The Wells Report in Context.

 The Wells Report

The Report’s exhaustive 243 pages disclosed the matters most compelling to the investigators. The opportunity to evaluate the full reasons is invaluable. Reading this information is no substitute for press statements, positioning language and images on Twitter.

The investigators were predominantly persuaded by:

  • video footage;
  • text messages containing apparent admissions;
  • telephone records indicating urgent and lengthy phone calls between the equipment staffers, and between one of the equipment staffers and Tom Brady after the issues with the balls were discovered;
  • inconsistent testimony from one of the equipment staffers; and
  • the absence of a plausible alternative explanation.

The standard of proof applied was a “preponderance of the evidence” meaning that as a whole, the fact sought to be proved is more probable than not.

This is the same as the common law test (which informs Australian law) of “balance of probabilities”. This civil test falls below beyond reasonable doubt (the highest criminal standard) and the comfortable satisfaction test applied in the World Anti-Doping Agency Code (an intermediate disciplinary standard). When applying the balance of probabilities test, and whilst it can be unwise to consider these things in percentage terms, people often say that 51% is enough.

The Report found it more probable than not that Jim McNally (the Officials Locker Room attendant for the Patriots) and John Jastremski (an equipment assistant for the Patriots) participated in a deliberate effort to release air from Patriots game balls after the balls were examined by the referee. Based on the evidence, it also was their view that it was more probable than not that Tom Brady (the quarterback for the Patriots) was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls.

Rule 2 of the Official Playing Rules of the NFL requires that footballs used during NFL games must be inflated to between 12.5 and 13.5 psi. In particular, the rule states that “[t]he ball shall be made up of an inflated (12½ to 13½ pounds) urethane bladder enclosed in a pebble grained, leather case (natural tan colour) without corrugations of any kind.”

According to the Report, these provisions have remained relatively consistent since at least 1940.

So too, according to NFL guidelines, one cannot alter the fundamental structure or surface characteristics of the footballs, deface or reshape the footballs, or place footballs on or inside heated benches or in front of heaters.

There is also a supplemental note that “[i]t is the responsibility of the home team to furnish playable balls at all times by attendants from either side of the playing field.”

One further matter is important by way of background. At the start of the 2006-07 season, guidelines were amended to allow both the home and visiting teams to prepare their own game balls to accommodate the preferences of their individual quarterbacks.

Before then, the visiting team depended on the home team in respect of game balls used. About this, Tom Brady said in a Sports Illustrated interview (Sept 11, 2006 edition): “I can tell you there’ve been nights before road games when I have had trouble sleeping because I’m thinking about what kind of footballs I’ll be throwing the next day”.

Of course, quarterbacks have different preferences for their footballs. Tom Brady and fellow champion quarterback, Payton Manning, led the charge for a change, which led to a unanimous recommendation from the NFL Competition Commiteee that “each team’s offense be permitted to use its own footballs, prepared by its equipment personnel, for its non-kicking snaps from scrimmage”.

The guidelines did, however, come with a disciplinary warning which remains on foot that once the balls have left the locker room, no one, including players, equipment managers and coaches are allowed to alter the footballs in any way. If any individual alters the footballs, or if a non-approved ball is used in the game, the person responsible and, if appropriate, the head coach or other club personnel will be subject to discipline, including but not limited to, a fine of $25,000. [This is interesting having regard to the severity of the $1 million issued to the New England Patriots plus loss of draft picks.]

Tom Brady prefers his game balls at 12.5 psi, the low end of the permissible range. According to the Wells Reports, he said at a press conference on 22 January 2015, he likes them this way because “that’s a perfect grip for football”. When interviewed for the investigation, he explained he focuses on the “feel” of the ball, citing the texture, grip or tackiness of the ball’s surface. He examines the laces, the leather and the ‘nubs’ or dimples on the surface of each ball when selecting one, and ultimately picks the ball that “feels best” to him. During a 14 November 2011 interview on Boston’s WEEI radio, Tom Brady also apparently said “…I like the deflated ball”.

The video footage

Before an NFL game the balls must be inspected to make sure they are within the regulated pressure levels.

One of the equipment personnel, Jim McNally, who has been employed by the Patriots for 32 years as a seasonal or part-time employee, brought the balls into the Officials Locker Room at Gillette Stadium. He told the referee, Walt Anderson, that Tom Brady wanted the game balls inflated at 12.5 psi (the minimum level). As a locker room attendant, the Wells Report noted that Mr McNally’s duties did not involve the preparation, inflation or deflation of Patriots game balls.

All but two of the Patriots balls met the specifications. The two testing below 12.5 psi were inflated by another game official to the required level. You might ask about the Colts game balls: these measured 13.0 or 13.1 psi.

The game balls then went missing. According to Walt Anderson, this was the first time this had ever happened to him in his 19 years as an NFL official.

Videotape evidence and witness interviews revealed the following: Mr McNally removed the game balls from the Officials Locker Room at approximately 6.30 pm. Carrying two large bags of game balls (Patriots balls and Colts balls), he turned left, and then left again to walk down the “center tunnel” heading towards the playing field.

Mr McNally then entered the bathroom with the game balls, locked the door, and remained in the bathroom with the game balls for approximately one minute and forty seconds. He then left the bathroom and took the bags of game balls to the field.

The text messages

In the weeks and months before the AFC Championship Game, Mr McNally periodically exchanged text messages with John Jastremski, the Patriots equipment assistant mainly responsible for preparing the Patriots game balls.

The Wells Report extracts the full text messages, profanities and all. For the more delicate reader, at least one news outlet linking to the report warned readers of the extreme language in the report, perhaps not making it sufficiently clear that the profanities were sourced from evidence, not from the authors of the report.

According to the Wells Report, on October 17, 2014 following a Thursday night game between the Patriots and the New York Jets during which Tom Brady complained angrily about the inflation level of the game balls, Mr McNally and Mr Jastremski exchanged the following text messages:

McNally: Tom sucks…im going to make that next ball a f…n 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.

On October 23, 2014, three days before a Sunday game against the Chicago Bears, Mr Jastremski and Mr McNally exchanged the following messages:

Jastremski: Can’t wait to give you your needle this week 🙂

McNally: F…k tom…make sure the pump is attached to the needle… f…n watermelons coming.

Jastremski: So angry.

McNally: The only thing deflating sun…is his passing rating.

On January 7, 2015, 11 days before the AFC Championship Game, Mr McNally and Mr Jastremski discussed how Mr McNally would have a “big autograph day” and receive items autographed by Tom Brady the following weekend, before the playoff game against the Baltimore Ravens. This led to the following exchange:

McNally: Remember to put a couple sweet pig skins ready for tom to sign.

Jastremski: U got it kid…big autograph day for you.

On January 10, 2015 immediately prior to the game between the Patriots and the Ravens, in the Patriots equipment room with both Tom Brady and John Jastremski present, Jim McNally received two footballs autographed by Tom Brady and also had him autograph a game-worn Patriots jersey.

Finally, and perhaps most significantly, before the 2014-15 season, in further text messages Mr McNally described himself as “the deflator”.

The telephone records

When suspicions first arose that the balls had been tampered with, and in the hours after the game, John Jastremski spoke with Jim McNally three times for a total of 37 minutes and 11 seconds.

Mr Jastremski also communicated with Tom Brady by telephone or text message with significantly increased frequency in the following days. After not communicating by telephone or text for more than six months (based on data retrieved from Jastremski’s cell phone, the report says), Tom Brady and John Jastremski spoke by telephone:

  • twice on 19 January (one call was 13 mins and 4 secs)
  • twice on 20 January (one call was 6 mins and 21 secs)
  • twice on 21 January (one call was 13 mins and 47 secs)

According to the Wells Report, Tom Brady also invited John Jastremski into what was essentially “Brady’s office” in Gillette Stadium on 19 January for the first and only time that Mr Jastremski can recall during his 21 year career with the Patriots.

Tom Brady also sent John Jastremski the following text messages:

  • You good Johnny boy?
  • You doing good?”

In turn, John Jastremski sent Tom Brady text messages:

  • Still nervous; so far so good though”.
  • FYI… Dave will be picking your brain later about it. He’s not accusing me, or anyone… trying to get to bottom of it. He knows it’s unrealistic you did it yourself.”

The inconsistent testimony

Before he left the stadium on the day of #deflategate, Jim McNally was interviewed by members of NFL Security. During that interview, Mr McNally apparently did not mention he had taken the game balls into the bathroom. Instead, he said he walked directly to the field and that nothing unusual occurred during the walk from the locker room to the field.

In subsequent interviews, the Wells Report found Mr McNally provided varying explanations for the bathroom stop and his decision not to use readily available bathrooms in the Officials Locker Room and in an adjacent room.

The absence of a plausible alternative explanation

Scientific tests were also conducted which attempted to replicate the likely conditions and circumstances on game day and the results recorded by the game officials at half time.

The Colts half time measurements and footballs were a “control” group because there was no plausible basis on which to believe there had been tampering with the Colts balls.

The scientific consultants could not explain completely the reduction in pressure of the Patriots game balls on the basis of scientific principles such as the Ideal Gas Law, based on the circumstances and conditions likely to have been present on the day of the AFC Championship game.

In light of all the evidence, the investigators found:

Indeed, in our view, a contrary conclusion requires the acceptance of an implausible number of communications and events as benign coincidences.”

They agreed with the Patriots that the text messages, for example, were attempts at humour. However, the investigators concluded that this humour was a product of actual events, involving the deflation of footballs in violation of the Playing Rules. The investigators did not consider it plausible that the exchanges were “hyperbole”.

Although Jim McNally started calling himself “the deflator” before the start of the 2014-15 playing season, the investigators were unable to conclude how long the practice of deflating balls had been going on.

They also acknowledged that there was less direct evidence linking Tom Brady to ball tampering.

That said, “based on the totality of the evidence”, the investigators found it “more probable than not” (the application of the preponderance of evidence test) that Tom Brady was at least generally aware of the inappropriate activities of Jim McNally and John Jastremski in releasing air from Patriots game balls.

In this regard, the investigators placed emphasis on the text message exchange in which Tom Brady allegedly said that Mr McNally “must have a lot of stress trying to get them done”.

They also observed that Tom Brady was a constant reference point in the discussions between the two equipment attendants.

Conclusion

The investigators concluded as follows:

In sum, with respect to all our conclusions regarding the Patriots, McNally, Jastremski and Brady, we believe that the totality of the evidence, including the text communications, McNally’s breach of pre-game procedure, McNally’s disappearance into a locked bathroom with the game balls for a period of time sufficient to deflate the Patriots game balls using a needle, the post-game communications between Jastremski and McNally, the increase in the frequency of text and telephone communications between Jastremski and Brady post-game, the half time data showing a larger reduction in air pressure in the Patriots balls as compared to the Colts game balls, which our scientific consultants inform us is statistically significant, together with the facts developed during the investigation and set forth in this Report support our conclusions.”

 

 

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