When the matter gets in front of a judge, the most plausible argument isn’t going to be that Jim McNally called himself the Deflator because he was trying to slim down.
It will be that the NFL began its investigation during the AFC Championship Game, prejudged the Patriots’ guilt and was the source of leaks that fed the media maelstrom the Patriots found themselves in.
In an email sent Feb. 6, Goldberg expressed dismay that the Wells investigation was not going to look inward at the NFL to determine how culpable the league’s employees were in creating the firestorm.
“We learned last night from Ted that the issue of how League personnel handled the pursuit of the low psi issues, including whether there were inappropriate prejudgments and unfounded presumptions of wrongdoing, selective leaks of information and misinformation, failure to correct obviously misreported information, and the like, are not part of what the Paul Weiss firm has been asked to investigate. I understand that the League has opted to investigate those matters internally. Because of the significance of these issues, their obvious interrelationship to the matters being pursued by the Paul Weiss firm, and the benefits of having them investigated by individuals who are not employees of the League (particularly since they involve the conduct of high level League employees), the Patriots ask that the League add these issues to the matters that are being independently investigated. In our view, League personnel's serious mishandling of this psi issue during and after the AFC Championship Game has caused the Patriots grievous harm. As a member club, we think this issue is no less serious than the related issues now in the hands of independent investigators and even more appropriate to be pursued by those who are not League employees, since they involve the conduct of other League employees. We would be happy to discuss this matter with you further.”
The instances Goldberg no doubt was referring to were issues the team had with the demeanor or NFL Game Operations lieutenants Mike Kensil and Dave Gardi. Kensil reportedly told Patriots equipment man Dave Schoenfeld, “We measured the balls at halftime. You guys are in big f****** trouble.” Gardi sent an e-mail to Patriots owner Robert Kraft with desperately inaccurate PSI readings purportedly taken at halftime. Also, early media reports that 11 of 12 footballs were two PSI under the low threshold fed a narrative that the Patriots were involved in aggravated cheating. That information could have only come from league sources.
Replying to Goldberg’s concerns, Pash replied:
“With respect to the internal matters that you have identified in your email, I think the Commissioner has been unequivocal in saying that the league office has made no judgments and reached no conclusions about why the footballs were under-inflated and who [if anyone] was responsible for that. I have repeated that as well. But I will state again -- There are no prejudgments. There are no presumptions of wrongdoing. We are taking seriously the explanations offered by Coach Belichick and others and are committed to giving them thorough and objective consideration. I am quite certain that I speak for the Commissioner in this respect I know the Commissioner is as displeased by the media activity as you and others are. He has been as clear as possible on this point. To some extent, the media activity is inherent in Super Bowl week -- having now been to 7 Super Bowls, the Patriots know better than any club the feeding frenzy that takes place around the game. I am somewhat encouraged that the media activity seems to have slowed down a bit, and I am hopeful that the investigation can now proceed in a calm, quiet, and professional way.”
The Patriots also pointed to the league's "preliminary finding" that the Patriots tampered with the pressure of the footballs.
From the rebuttal:
The hiring of Mr. Wells and his law firm followed the written notice to the Patriots (on the day after the AFC Championship Game) that the League had already made a “preliminary finding” that the Patriots may have tampered with the pressure of the footballs. See January 18, 2015 Letter from D. Gardi. League personnel, thus, with no basis and no understanding of the effect of temperature on psi, had already prejudged the issues. The Colts footballs also lost psi, but no similar “preliminary finding” was made regarding the Colts. The Wells investigators, then, were hired by the League to investigate an issue that the League had already prejudged. The report nowhere questions League personnel having made this “Preliminary Finding” or any other prejudgments by League personnel. The January 18 letter to the Patriots also contained two significant misstatements that set a tone for this investigation and were an apparent source of media misreporting: 1) that one of the Patriots footballs was measured at 10.1 psi at halftime, an obvious misstatement; 2) that all of the Colts footballs measured within regulation — another misstatement. The League never corrected this notice in any respect. Why was the League content to have the Patriots dealing with this investigation for months based on inaccurate information? The investigators were not troubled by any of these obvious errors or by the League’s failure to correct them. The inaccuracies in this letter, combined with subsequent leaks to the media that were never corrected by the League placed this investigation on a footing of misinformation, to the Patriots substantial disadvantage. The report treats these inaccuracies as inconsequential (See page 101), when quite the opposite is true; they fueled international media misinformation to the Patriots serious detriment.
You can roll your eyes at the Patriots' contentions that McNally was wasting away to nothing thanks to his new diet and came up with a bizarre nickname.
But they make points back with their takedown of the league's claim of objectivity.