As the NFL tries to create in-house judicial systems for the purposes of investigating violations of the Personal Conduct Policy and/or rules regarding the integrity of the game, the league needs to take a closer look at how the various roles in these investigations are being assigned and fulfilled. After carefully reviewing both the 243-page Ted Wells investigation report and the 20,000-word manifesto from the Patriots responding to that report, it’s clear that the current model doesn’t work as well as it should.
Wells was hired to serve as an independent investigator. At some point, his role morphed into that of special prosecutor and, inevitably, judge.
During hundreds of hours of research and interviews and the discovery of what seemed to be incriminating text messages suggesting the general existence of a quid pro quo arrangement pursuant to which Jim McNally did something to the balls in exchange for shoes and/or autographed memorabilia, Wells and his team apparently became convinced that tampering occurred. But prosecutors routinely become convinced that the persons they’re investigating have committed crimes. A fair system of justice requires prosecutors to test their evidence through an adversarial process, with the defendant challenging the proof and presenting evidence of its own -- and with a third party hearing the evidence and making a decision.
The NFL’s in-house justice system, as to this specific case, made the prosecutor the judge. But once the prosecutor developed a point of view, there was no judging to be done. The only remaining task at that point entailed sitting at a keyboard and banging out a 243-page report that justified the conclusion.
In this case, frankly, Wells failed to make a sufficiently compelling case in those 243 pages that the Patriots tampered with footballs on January 18, 2015 and that Tom Brady was at least generally aware (whatever that means) of the effort to do so. Most significantly, common sense suggests that the PSI readings generated by footballs that were hastily deflated on the floor of a bathroom in the bowels of Gillette Stadium would be much lower than the numbers predicted by the Ideal Gas Law. They weren’t.
At a time when many Patriots fans believe that Wells’ entire project was based on working backward to reach a conclusion someone in the league office wanted him to reach, the more plausible conclusion could be that Wells decided on his own that tampering must have occurred (possibly after reviewing the handful of key text messages between John Jastremski and Jim McNally), and that Wells then worked backed to reach the conclusion he personally believed the evidence should justify -- regardless of whether the evidence justified that conclusion.
After spending much more time and effort studying this case in the last 11 days than I ever intended or desired, I believe the evidence is insufficient to prove that tampering happened on January 18, 2015. I believe that the evidence suggests something unusual was happening, but I believe that Wells and his team failed to uncover sufficient evidence to prove that it ever happened on any specific occasion.
I also believe that the Patriots didn’t fail to reasonably cooperate with the investigation in refusing to make McNally available for another face-to-face interview. Wells wanted to interview McNally based on information that already was in the possession of the investigation/prosecution when McNally was first interviewed. Wells could have -- and should have -- asked McNally those questions when Wells had the chance. In no legal proceeding does a lawyer ever get another shot at questioning a witness because the lawyer failed to exercise full diligence in reviewing the materials that were already available.
That said, I believe that Brady failed to reasonably cooperate with the investigation by refusing to accept the league’s invitation to allow his agent/lawyer, Don Yee, to search Brady’s phone for text messages or emails that could be relevant to the case and to give them to Wells. If, as some have observed, Wells was looking for communications between Brady and Jastremski and Brady and McNally, Wells already had those messages from the phones of Jastremski and McNally. Still, it was reasonable for Wells to check any texts or emails from Brady; with the offer to let Yee supervise the process and sift out any potentially sensitive material that had nothing to do with the matter at hand, someone should have persuaded Brady to accept.
But that shouldn’t have been the end of the issue. In a true system of justice, a presiding judge would have decided whether and to what extent Brady’s phone should have been made available. The NFL’s in-house system of justice needs to have similar procedures in place.
At a minimum, the investigator/prosecutor should be able to go to someone within the league office for a ruling on whether further cooperation is required. With Wells starting as an independent investigator and at some point morphing into a special prosecutor, it’s not surprising that the Patriots and/or Brady felt compelled to eventually resist his demands. Surely, the lawyers representing the team and the player eventually sensed that this was no longer about getting to the truth but about supporting a truth Wells subjectively believed to exist.
Judges deal with disputes over the evidence that will be surrendered in litigation and criminal prosecutions every day. If the NFL is going to dispense justice fairly through its own in-house procedures, a similar system becomes critical to achieving a sense of fairness.
None of this means that the NFL should adopt Constitutional safeguards that apply only when a person’s liberty is on the line, such as the very high bar of proof beyond a reasonable doubt. Still, with the American system of criminal justice aimed at ensuring 10 guilty men will go free in lieu of one innocent being imprisoned, the NFL’s system of justice currently seems to be based on the notion that, when it comes to protecting the integrity of the game, the potentially innocent will be found guilty, perhaps in order to avoid another P.R. firestorm that would arise from failing to dispense sufficient punishment in any and all circumstances where punishment could be warranted.
Before anyone complains that a system of this nature would be expensive and time consuming, the current system already is. Wells has admitted that the fee for his work is in the millions, and it took more than 100 days for his report to be filed. If the league’s internal investigations are going to entail that kind of time and expense, the league should be willing to spend even more of both to ensure that the end result is received by those on the inside and the outside of the sport as fair.
Really, what has done more in recent months to erode public confidence in the game of professional football -- whatever it is that the Patriots did or didn’t do in blowing out the Colts on January 18, or the endless three-ring circus that has emerged as fans debate the various flaws in a process that, if the league has its way, will never be decided by a truly independent and unbiased party?
