By Eldon Ham-
(CBS) Amid all the consternation and bluster, there's one Deflategate tampering possibility that no one is talking about: Could the New England Patriots be both guilty and innocent at the same time? And even if they are innocent, should the Patriots still be punished?
There are three reasons why the Patriots are innocent. First, the football pressure scheme may not be much of a transgression. Many quarterbacks like the footballs inflated a certain way, and tinkering with their feel isn't particularly malevolent.
Second, a supposed "smoking gun" opportunity gap has reportedly surfaced on tape whereby a looker room assistant took all the game balls into the bathroom for 90 seconds. But this is hardly proof of anything. In fact, the best explanation supports the Patriots -- the assistant had to go to the bathroom and didn't want to leave the balls unattended (even if that isn't true). Moreover, it's hard to deflate 11 or 12 balls in 90 seconds, but that does sound like a fairly standard time for a bathroom break.
Third, on top of all that, the balls were actually deemed legal for the game. News reports are now surfacing that confirm the officials had actually approved these balls, deflated or not, right at game time by virtue of their own feel test. (They only actually measured them later.) The NFL football specifications rule states that the referees are the sole final judges of such matters of football compliance. They approved.
Still, it seems likely that someone around the Patriots lied, stonewalled and tried to cover the whole ordeal up. And the cover-up may be worse than whatever preceded it, with the explanation of, "We are shocked, shocked to find deflated footballs in this establishment." It defies logic and common sense to believe those balls were deflated to Tom Brady's liking by accident.
Maybe the NFL could discipline the Patriots for offering up substandard balls, as the curious deflation occurred while the balls were in the full possession and control of the Patriots. The league doesn't necessarily have to pin this on one guy, although that might be helpful. But if the Patriots sell out some poor locker room mope whose dream job is working for the team, the guy may well expose the cover-up either out of spite, fear or maybe just an obligation to tell the truth. This would be more devastating to the Patriots than the original transgression.
There's one low-rung employee who may be the fall guy: whoever it was who took the bathroom break. But that only suggests opportunity, while the simple explanation is hard to counter: He went to the bathroom for 90 seconds, and the tape doesn't prove anything to the contrary.
Still, the NFL might nail the team harder for the cover-up by taking a draft pick or suspending coach Bill Belichik. That might be a tough thing to do, given the relationship between commissioner Roger Goodell and Patriots owner Robert Kraft. After all, accusing someone of lying is not conducive to lasting friendships. But if Goodell feels that Kraft has rubbed his nose in it, so to speak, then the NFL may not be swayed by personal relationships.
There's nothing new about pushing the envelope or twisting or ignoring the rules of the game for an advantage. Today's NBA players flop the court like flounders out of water. But if the future integrity of game footballs is important to the league, then the NFL should take the control away from the individual teams and instruct the officials to give a neutral set of footballs their own feel test, maybe inviting a pair of players to do the same (as NBA refs do with game basketballs), then measure the ones that seem off.
The Deflategate truth is becoming stranger than fiction. The Patriots may have been guilty of tinkering, but that's not unusual. This can't really be proved unless someone confesses. But all of this is irrelevant because the officials apparently approved these game balls anyway, and the rule states that their approval is the final word.
The Patriots seem to have lied about the whole ordeal, rather than just saying that Brady had gotten the feel he liked and the officials approved the footballs. So what's the violation, let alone the big deal? The big deal is that they probably covered it all up — so they are innocent and guilty all at the same time. A hard thing to do, yet costly nonetheless.
Oh, what tangled webs we still mange to weave.
Eldon Ham is the WSCR sports legal analyst, a professor of Sports, Law & Society at IIT/Chicago-Kent College of Law and the author of numerous sports books, including All the Babe's Men, the 2014 bronze medal winner in the national IPPY book awards for sports.
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