Are Patriots Still Fighting NFL? 8,000-Word Essay Doesn't Make It Clear
By Michael Hurley, CBS Boston
BOSTON (CBS) -- For weeks, or perhaps months, I've contended that for as long as the Patriots maintain a link prominently placed atop their official homepage to the Wells Report in Context, and for as long as the team would continue to update the "Critical Articles" section, then the Patriots' fight with the NFL cannot be declared dead.
Yet after Friday's development, it feels safe to say that not only is the fight still alive, but it just got a fresh can of diesel fuel dumped on top of it in the form of an 8,000-word essay attacking the NFL's credibility for the league's actions and behaviors throughout the saga known as "DeflateGate."
Now, all that's left is for someone to light a match.
Whether that actually happens -- now, next week, at the owners' meetings the week after that, or any time before the draft in late April -- will be the real story. If Robert Kraft deems that he has been unmistakably wronged by Roger Goodell and the NFL, and if Robert Kraft demands to have the "DeflateGate" punishments amended and lessened, then we will have ourselves a big-time story. But if, ultimately, the team's only war is waged on a Wordpress blog, then there's frankly not much to see here.
Regardless, that is what we have now, and because we've all invested more hours than any of us would care to admit toward this case, it's worthwhile to comb through the entire thing and see what stands out.
(There is one consideration with the release of this long statement from the Patriots, and it's the timing. Last week in a federal appeals court, the judges seemed to take the Wells report's findings and Roger Goodell's judgments based off those findings at face value. They seemed to believe the Wells report was an independent work which produced thorough, conclusive results. So perhaps this is an effort to help influence the judgment of that panel? That might be an idealistic plan from the Patriots if it were to be the case.)
Below are some highlights, followed by my own thoughts.
"... science fully explains the PSI measurements found in the Wells Report. ... Many thoughtful people have, with further information and consideration, revised their initial impressions, which were largely based on false information leaked by League personnel and on the interpretations put on ambiguous, at best, facts by the League and its lawyers."
The impact of this statement might get lost, considering we're in month 15 of this mess. But think about it: the New England Patriots, in what is as close to an officially sanctioned statement as is possible in this situation, are stating in no uncertain terms that the league has been lying throughout the whole ordeal. They're saying, "We did nothing wrong, and the league lied." That remains a powerful statement from the team. Surely, wherever Al Davis is watching this affair play out, he's giving a thumbs-up at this opening statement.
"[The NFL] chose to perform 'random spot checks' during the season and then refused to release the results of those checks, no doubt because doing so would confirm that there was nothing unusual about footballs falling below regulation in cold weather."
The sass has begun. This statement is reacting to the league ignoring the scientific factors at play by not measuring the PSI of every football at every game and then releasing the data. It's a very strong point, but writing that there's "no doubt" that the league chose this course of action is the type of attitude that we've come to expect from Daniel Goldberg and the Wells Report in Context.
"We hope that [this document] will induce added examination by those who are interested and allow them to reach their own conclusions regarding this matter and how the PSI of the footballs at the AFC Championship Game in January 2015 came to be under 12.5 PSI."
Again, if they all hope to do is change the public narrative, it's going to be an uphill battle. It's March of 2016, and minds aren't changing. So, if this stated goal is the actual intended goal, then that's not going to make much of an impact anywhere, except among the group of people who already believe them.
"Nor did the League consider the potential impact of weather on PSI, because the League was completely unaware of such impact."
"Completely unaware" is funny.
"Unfortunately for all involved, the League leaked inaccurate PSI numbers to ESPN shortly after the AFC Championship Game."
Likewise, "unfortunately for all involved" is so passive-aggressive that it hurts.
"What was initially seen as scandalous (and, remarkably, continues to be characterized that way by the League) was that the Patriots' footballs, which measured pre-game at 12.5 or 12.6 PSI, had fallen below regulation after being used in the first half. This circumstance is now generally understood to reflect a basic law of nature ... ."
It's a good point. This came just after four sentences which were used to belittle Troy Vincent, who testified to having "no idea" that the air pressure inside of footballs changes when moved from one environment to another.
"Had the actual PSI halftime measurements been released in the days following the game, there would have been a quick scientific assessment and explanation of the situation. Instead, the accurate information was inexplicably kept from the public (and the Patriots) by the League and the League's lawyers for months. The false information was allowed to fester, creating largely inalterable and inaccurate public perceptions of what happened."
Another good point.
Myth 1: It took the officials nine minutes to measure the PSI of New England's footballs at halftime.
There are 15 myths listed. The first one is interesting because it spotlights how the NFL claims that it took nine minutes for the officials to gauge the footballs, an assertion that stands in direct contrast with the Wells report's fundamental belief that Jim McNally was capable of entering a bathroom, locking a door, removing 12 footballs from a bag, inserting a needle into each football, placing the footballs back in a bag, unlocking and opening the door, and then leaving the room, all in 100 seconds.
"If all that can be completed by one person in roughly 1 minute and 40 seconds, it is reasonable to conclude Messrs. Blakeman and Prioleau could begin to gauge the Patriots' footballs less than a minute into halftime and complete the gauging in two minutes — i.e., taking 5 seconds for each man to gauge each football. That timing would support Exponent's conclusion that science can fully explain the PSI of the Patriots' footballs."
Myth 1 also points out how the NFL has claimed attorney-client privilege in not releasing the interview notes of all the officials who were present in the room at halftime. The only claim the NFL could have to privilege in this instance is if it was a "work product," which would only be the case if the NFL assumed guilt prior to undergoing the testing.
These arguments are all about the process of measuring the PSI of the footballs, from the timing of the measurement on the Colts' footballs, to Exponent ignoring the rain factors, to the wrong gauges being assumed to have been used, to Wells' denying referee Walt Anderson's "best recollection" on which gauge was used, to the unreliable data and the fact that an unaccounted Patriots football was measured without any explanation of where that football came from.
It's some real nitty-gritty stuff, even for the most ardent "DeflateGate" followers. But it all amounted to this:
"In all events, what is 'certainly possible' is not 'more likely than not,' which is the required standard of proof for the League to find a rule violation."
Myth 7: The texts between Jim McNally and John Jastremski prove a scheme to deflate footballs existed.
This is a much better response to "The Deflator" than what the Patriots initially offered last year:
"Despite it being clear from the texts that neither Mr. Jastremski nor Mr. McNally thought their texts would ever be seen by others, not a single text directs or recounts a scheme to deflate footballs after the Referee's pre-game inspection. Not a single text even suggests that Tom Brady would want footballs below regulation. The absence of any texts confirming a scheme to deflate footballs is compelling evidence that there was no such scheme."
Next, is an updated explanation for "The Deflator," one that doesn't rely on weight loss terminology:
"The Wells Report repeats the term [Deflator] numerous times (and the League's appeal brief falsely asserts the term was used in texts throughout the 2014 season). It is an undisputed fact that, in the thousands of texts, the term was actually used only once, in a single text sent in the off-season (May 2014), some eight months before the AFC Championship Game. It appears in a string of texts that had nothing to do with footballs. The May 2014 text was so disconnected from footballs and the football season that, in over 20 hours of questioning of Mr. McNally and Mr. Jastremski, the NFL's lawyers had overlooked it and never asked about it.
This is a much better explanation than before. Personally, I've always felt it to be dangerous and damn-near impossible to try to infer the true meaning behind private conversations, particularly ones held via text message. I know that if any high-priced, mustachioed lawyer were ever to take a gander through my text conversations, I'd likely have a lot of inside jokes that I'd have to explain, and it really wouldn't turn out that well.
By that measure, I've never been certain what the "Deflator" meant exactly in those text conversations. We can all think we know what it means, but we cannot know what it means.and really, only McNally could have known. Yet, Wells failed to ask him about it. That's a Wells problem more than it is a Patriots problem. If Bill Belichick were to weigh in on this flub by Wells, the coach would likely offer the advice, "Do your job."
Myth 8: The Jastremski/McNally texts did not contradict the existence of any deflation scheme.
In my opinion, not enough has been made about the fact that the PSI of the footballs were jacked up for the Patriots' home game against the Jets, yet:
--No discipline has ever publicly been meted out to the referee that night, Bill Leavy.
--Bill Leavy was interviewed by Wells' investigative team, but he appears zero times in the Wells report.
--Jastremski texted his fiance that the footballs were "supposed to be at 13" PSI.
Now, the Patriots add this: After the balls were measured at 16 PSI the day after the game, via text, Jastremski blamed the referees for not properly checking the footballs. Jastremski did not blame McNally for failing to deflate the footballs.
"The refs f'd up," Jastremski texted.
"These texts are inconsistent with the hypothesized scheme to deflate footballs. But since they do not fit with the conclusions of the Wells Report, they were essentially ignored."
Myth 10: Tom Brady wanted to play with deflated footballs.
As the Patriots' statement declares:
"The investigation took months and involved dozens of witnesses. None could point to a single statement by Mr. Brady that he preferred under-regulation footballs – either in games or in practice. ... There is not a single witness, text, or any other evidence which supports the premise that Tom Brady wanted footballs at less than 12.5 PSI. "
That is factual.
Myth 12: Increased communications between Mr. Brady and Mr. Jastremski after the AFC Championship Game is proof that there was tampering and that Brady knew about it.
As has been noted in the past week, the NFL is hinging much of its case against Brady's credibility to the idea that he was elusive when asked about his increased communications with Jastremski after Bob Kravitz broke the story of the investigation into the air pressure levels of the Patriots' footballs. In fact, Brady was quite open about the exchanges, as detailed in the transcript of his appeal hearing.
I pointed out last week that the NFL's lawyer expressed this known untruth to the judges last week and was not checked for it. The Patriots added to it by invoking some subtle sarcasm:
"If one assumes there was the long-running scheme involving Messrs. Brady and Jastremski, then one would also have to assume that the absence of any texts between them while that scheme was being implemented was quite deliberate — part of a vigilantly followed code of silence. Of course, once the story broke, there would be even more reason to be sure there were no texts being exchanged between them, and particularly none that referred to the breaking story."
"A vigilantly followed code of silence." If you can't chuckle from this, then you're missing out.
"None of the Brady-Jastremski texts even suggest that there had been a scheme of any kind to deflate footballs or to engage in a cover up of any such scheme. But when pressed by Judge Berman for the evidence against Brady, the increased texting was one of the only things to which the NFL's lawyers could point."
Myth 14: Tom Brady's decision not to retain his phone reflects his guilt.
The cell phone. The damn cell phone. Can you imagine where this case would be if not for the damn cell phone?
Well, for one, it would have been on the front pages of the New York tabloids, with every "Hey baby" text from Brady to Gisele providing fodder for months or perhaps years for those animals. But it also would have removed a red herring from a case in which the investigative team had access to every single text Brady could have sent to any of the potentially involved parties. They just didn't have the messages from Brady's phone; they had them from the recipients' phones.
Alas, the phone. All the judges cared about last week was the phone. Why not give up the phone? Why destroy the phone? Phone phone phone phone phone. PHONE!
Well, now the Patriots argue that the only reason the league used the phone as a sign of guilt is because the NFL knew that "general awareness" of wrongdoing by other people has never resulted in a suspension for the person who was "generally aware." So, absent any factual proof of involvement in any scheme, the NFL focused on the phone, even after telling Brady, "We are not seeking to take possession of his phone or to image its contents."
Notably, the Patriots declare it a myth that the phone was "destroyed" in order to hide evidence of wrongdoing. In fact, it was Brady's own lawyer who characterized the phone as being "destroyed" during the appeal hearing. On that note, even though the second part of the statement is true, the Patriots should be more careful when calling something a myth. They have enough to go on without harping on the word "destroyed."
That's seen in the conclusion to Myth 14, which is fairly strong:
The League has escalated the importance of the phone even further, now equating Brady's non-retention of a phone it never asked for to a player masking the use of banned substances. This inflammatory reliance on the phone's non-retention reflects the League's realization that there is simply no evidence that implicates Mr. Brady in any deflation scheme.
Myth 15: There was no action by any League officials that reflected any predisposition against the Patriots or warranted any criticism.
This was a good one. We're going to go ahead and list all of the claims made by the Patriots that should have warranted further investigation by the "independent" investigators who were being paid by the NFL.
1. Taking zero steps pregame to ensure the PSI of the footballs was maintained in a proper fashion.
2. Referee Walt Anderson losing custody of the footballs.
3. Failing to record the pregame PSI of the footballs, AND failing to record which gauge was used to measure the footballs.
4. Failing to immediately bring the Colts' concerns about the PSI of the footballs to the attention of Anderson, "who, under the rules, has sole responsibility to determine if footballs comply with the rules."
5. "Allowing the rest of the first half to be played with what were then presumed to be under-inflated footballs
6. Eschewing the rules by not having Anderson take the halftime measurements of footballs.
7. Failing to have any understanding that environmental factors can impact the PSI inside footballs (Ideal Gas Law).
8. "Rushing to judgment, including accusing the Patriots of cheating ... despite the total lack of understanding of the Ideal Gas Law."
9. Sending false numbers to the Patriots in a letter which was sent to get the team to open its doors to the investigation.
10. Leaking false numbers to ESPN's Chris Mortensen. "ESPN has confirmed that the false information came from sources within the NFL."
11. "Refusing to correct the false PSI information for months, despite seeing the media and public reactions, and the harm to the Patriots, caused by that false information."
Perhaps the Patriots should have just released Myth 15. It's a whopper.
And it reads well. It would just resonate much louder if it were coming from the mouth of Robert Kraft, into a microphone. He's flirted with it in the past, but whether he takes that final step remains to be seen.
"For reasons still unknown, the League and its lawyers refused to release the accurate information for months, doing so only in the context of a report which based its conclusions primarily on dubious interpretations of ambiguous texts. The Wells Report is written more as a piece of advocacy trying to support its predetermined conclusions than as an independent and dispassionate review of all the facts."
The Patriots have harped on this issue for some time. Last July, on the same website, the team released emails exchanged between the team's lawyer and the NFL's lawyer, in which the NFL steadfastly refused to correct the public record. Surely, if the NFL was interested only in the facts, the league would have corrected the public misinformation. The league has done so numerous times in the past year (see here, and also here).
"The integrity of the League is of vital importance. One can only wonder if it has been seriously compromised by the League's lack of transparency and what appears to be an ongoing effort to defend, rather than critically assess, the dubious conclusions and methodology of the Wells and Exponent Reports."
This is the final line, and for anyone who was hoping this was some grand declaration of war against the league, it should be a disappointment.
The wording "One can only wonder" lacks assertion and is remiss of any definitive plan. If the purpose of the 8,000-word exposé was solely to make people wonder, then it was a grand waste of time. If it is just one step on a path toward the ultimate goal of launching a legitimate fight to reclaim that stolen first-round pick, then it certainly has not yet been stated to be anything of the sort.
One can only wonder what will be the next shoe to drop.
You can email Michael Hurley or find him on Twitter @michaelFhurley.
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