Third-party brief in Brady case focuses on “integrity of sport”
The #Deflategate drama has a lengthy cast of characters. One of the fringe players has weighed in with a strong argument in support of Patriots quarterback Tom Brady. Or, more accurately, in opposition to the NFL.
Professor Robert Blecker, a lawyer and law school professor with a “scholarly and moral interest in cheating and the integrity of law and sport,” has submitted a third-party brief in the pending federal appeal of the case that scrapped Brady’s four-game suspension.
Dubbed an amicus curiae brief (Latin for “friend of the court” . . . not, as I learned many years ago, “cure for mice”), Blecker’s 34-page submission purports to explore issues that neither the NFL nor Brady address “relating to the integrity of sport and the proper limits of investigation and arbitral adjudication necessary to protect it.” In other words, Blecker takes aim at the entire process that resulted in Brady’s four-game suspension for alleged involvement in a supposed scheme to deflate footballs.
Blecker describes the process at page 2 of his brief as “infected with bias, unfairness, evident partiality and occasional fraud.” He reminds the court of the leak of false PSI data to the media, which went uncorrected “while public opinion congealed against the Patriots.” He calls the insistence that the Patriots’ balls were below the 12.5 PSI minimum but that the Colts’ were within legal limits as “literally true but contextually misleading.” He accuses the NFL of engaged in “deceptive logic and demonstrable fraud” in support of the notion that science alone could not explain the dynamic.
Blecker also chides the NFL Players Association for failure to “assert or explore the NFL’s bias, dishonesty, or fraud” in the investigation culminating in the punishment imposed on Brady, focusing instead on the idea that the labor deal authorizes fines but not suspensions for first-time equipment violations. “In short,” Blecker writes, “neither side challenges much less explores the integrity of the arbitration process and its effect on the integrity of the sport.”
At pages 7 and 8, Blecker explains that the NFL has in its appeal brief “largely abandoned, without any acknowledgement the entire scientific basis for concluding that human beings illegally deflated footballs.” Likewise, Blecker points to what he calls "[t]he NFLPA’s puzzling and distressing silence on the NFL’s unacknowledged retreat from the scientific basis for Brady’s guilt.”
Blecker believes that the NFL abandons the science because the science is hopelessly flawed. He points out at page 11 something that has gotten little attention throughout the #DeflateGate saga.
By way of background, Exponent (the outside scientific firm hired by Ted Wells to study the case) rejected the recollection of referee Walt Anderson that he had checked pregame air pressure in all footballs with the gauge that, if this was the gauge used, would have exonerated the Patriots immediately. Put as simply as possible, Anderson recalled using the “Logo” gauge; Exponent assumed that his recollection was incorrect, and that he used the more incriminating “non-Logo” gauge. (The two gauges varied by nearly 0.5 PSI, a fact that arguably should have short-circuited the entire investigation, resulting in a finding that the evidence necessarily is inconclusive.)
Blecker now explains that the air-pressure gauges used by the two teams to set football air pressure could have helped break the tie, but Blecker notes that the team-owned gauges “went missing,” and that the Wells report fails to explain how this happened or what was done to find team gauges that could have helped confirm or debunk the assumptions made by Exponent regarding which NFL-owned gauges were used to check the pressures before the AFC title game. “If adverse inferences should be drawn from a party’s failure to produce relevant evidence,” Blecker writes, “the League’s failure to produce either gauge overshadows Brady’s failure to produce his cell-phone -- especially when all phone records confirm that the NFL has all relevant texts.”
At page 14, Blecker catches something that most previously had missed. When comparing the length of the needles used in the two NFL gauges via photograph, Exponent positioned the shorter needle against the ruler in a way that conceals the fact that one gauge had a needle exactly twice as long as the other gauge -- a distinction that should have made referee Walt Anderson’s recollection more credible, and in turn harder for Exponent to ignore.
Blecker also points out the photograph comparing the lengths of the needles conceals the dramatic bend of the longer one, another characteristic that would have made Anderson’s recollection of which gauge he used more credible.
Later, after pointing out the flaws in the assumption by Exponent that, at halftime of the AFC title game, the NFL: (1) measured the air pressure in all of the Patriots footballs; (2) measured the air pressure in four of the Colts footballs; and (3) refilled and recalibrated all of the Patriots footballs, Blecker argues that the NFL’s effort to eradicate conduct detrimental to the integrity of or public confidence in the game of professional football necessarily amounts to conduct detrimental to the integrity of or public confidence in the game of professional football.
“If [the] investigative and adjudicative process is biased, if its substantive factual findings fly in the face of probability and consistently impute misconduct -- ball tampering -- where there was none, that more than anything undermines the integrity and public confidence in the game,” Blecker writes. “In nearly a year since the AFC championship game, the NFL’s investigation of Deflategate has more adversely affected public perception of the integrity of the game than any purported misconduct by Brady.”
As #DelfateGate lingers, and as more legitimate questions are raised regarding the flaws in the NFL’s case against Brady and the Patriots, it’s becoming more clear that the investigation has done far more damage to the league than whatever it was that the Patriots were or weren’t doing. Nearly a year later, we still don’t know what the Patriots were doing. But we definitely know that the NFL has failed to make a persuasive case that the Patriots were doing something wrong.