By Michael Hurley, CBS Boston


BOSTON (CBS) — The New England Patriots and Tom Brady have come under fire for being cheaters — perhaps you’ve heard? — and so on Thursday they finally fired back.

All of the fire which was clearly evident in Robert Kraft’s post-punishment statement came across loud and clear in a response drafted by Morgan Lewis’ Daniel L. Goldberg, who represented the Patriots and was present during all of the interviews that took place during Ted Wells’ investigation.

The mission of the document released on WellsReportContext.com was “to provide additional context for balance and consideration.”

On that goal, they had a fair share of hits as well as a few misses. Here’s a digest of the key points.

“The Deflator” Explanation Falls Flat

For those who read beyond the first two pages of the Wells report, the evidence that appeared to work to paint the Patriots as guilty involved text messages between John Jastremski and Jim McNally. In one of those messages, McNally refers to himself as the “Deflator,” and he tells Jastremski, “I’m not going to ESPN … yet.”

On Tuesday, Wells stressed that this was the key evidence to proving that something illegal was taking place, but the Patriots fought this assertion rather strongly.

Their explanation, however, was summarily mocked as soon as it began to be shared on Thursday afternoon.

“Mr. Jastremski would sometimes work out and bulk up — he is a slender guy and his goal was to get to 200 pounds,” the Patriots’ report states. “Mr. McNally is a big fellow and had the opposite goal: to lose weight.’Deflate’ was a term they used to refer to losing weight.”

Realistically, “deflate” is a term that has been used multiple times to describe weight loss in various online publications, but in the court of public opinion, nobody is buying it.

This was, without a doubt, a rather silly explanation for the meaning of “deflator.” However, if you wanted to give the Patriots the benefit of the doubt that they are not thoughtless enough to think they could convince the public that “Deflator” meant “guy trying to lose weight,” you could say they did this to prove that one could reach any illogical conclusion one wanted if assumptions were based solely on the text conversation between McNally and Jastremski.

In that sense, it’s a fair effort. But unfortunately for the Patriots, it made the Internet rounds rather quickly and worked to discredit their overall purpose.

The Patriots Refute The Science Rather Well

If this case revolved solely around the PSI in footballs, the Patriots would have taken care of it rather quickly and easily with their response. First, they expose the variances between the two gauges used, as well as the Wells’ team’s refusal to accept referee Walt Anderson’s best recollection as to which gauge he used. The Patriots surmise that Wells’ team refuted Anderson’s recollection because had he been taken at his word, New England’s footballs would have been deemed to have an acceptable PSI level.

“With the Logo gauge, 8 of the 11 Patriots footballs are in the Ideal Gas Law range and the average of all 11 Patriots footballs was 11.49 — fully consistent with the Ideal Gas Law’s prediction of exactly what that psi would be,” the Patriots report said. “THAT IS, RELYING ON MR. ANDERSON’S BEST RECOLLECTIONS, BASIC SCIENCE FULLY EXPLAINS THE DROP IN PSI OF THE PATRIOTS FOOTBALLS DURING THE FIRST HALF.” (Caps Lock done by the Patriots. More on that later.)

The Patriots pointed out that nobody in the league was aware of the Ideal Gas Law before initiating an investigation.

“League personnel, thus, with no basis and no understanding of the effect of temperature on psi, had already prejudged the issues,” the report states. “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.”

And on that note …

If The Patriots Were Trying To Paint This As An Unfair Investigation From The Get-Go, They Succeeded

The Patriots contend that the information leaked to reporters was false. Without mentioning Chris Mortensen by name, the Patriots allude to his ESPN report which said 11 of the 12 Patriots’ footballs were inflated a full 2 PSI under the allowable level. The Patriots claim they requested the data taken from the halftime measurements of the footballs, but they were not given this information until March 23 — two full months after the AFC Championship Game.

“It was provided then only on the condition that it not be disclosed and, particularly, that it not be disclosed to the media until the final report was issued,” the report stated. “This condition was imposed in the face of the extensively reported misinformation about halftime football psi that the League had refused to correct.

“One can only speculate why it was so important for the League that the accurate halftime information be withheld from the public until it was ultimately part of a report that downplayed the science and instead relied on selective texts.”

That is a strong, strong assertion.

What the Patriots are saying is that the league, in some fashion, wanted the false information to remain public, with no effort to correct the released information. And they have a point.

Additionally, as it relates to Wells’ taking personal offense to having his independence questioned, the Patriots noted that all judges must disclose any financial relationships with either party prior to a case beginning, and considering Wells explained that his role was to be a judge, it is seemingly only fair that he reveal his multi-million dollar payday from the NFL for running the investigation.

“The Patriots certainly preferred that a lawyer like Mr. Wells, with an esteemed reputation, investigate these issues rather than have League employees do it,” the report states. “The issue that has been raised in the media is whether public acknowledgment and the disclosure of these extensive relationships with the League was appropriate. Such disclosures would help the public better assess the findings regarding League conduct, of which there is not a single critical comment or single suggestion for improvement in the report. No one should take calls for such disclosure personally.”

The Patriots’ Science Expert Could Be Considered Biased

A key point of contention for the Patriots is that the Ted Wells report relies on inaccurate and unreliable science. On this point, the Patriots prove conclusively that a sound scientific explanation for the PSI in the Patriots’ footballs can be made.

However, much like one could find fault with the Wells team hiring the questionable Exponent firm, and much like the Patriots claim that Wells was being paid by the NFL, one could say that Nobel Prize winner Roderick MacKinnon had reason to favor the Patriots with his findings.

The report says “Professor MacKinnon has no direct business or personal relationship with the Patriots” but acknowledges that The Kraft Group “made a passive investment in Flex Pharma as part of a large syndicated investor group.”

The details of that investment could be argued, but it does nevertheless represent a financial relationship of some kind.

The Patriots Prove The Obvious: There Is No Damning Evidence On Tom Brady

This much was clear to anybody who read the Wells report with a discerning eye, but that didn’t stop the general public from basing its collective opinion on the report’s second-page conclusion that Brady was “at least generally aware” of illegal activity which was never proven to have actually happened.

The Patriots’ report attacks the Wells team assertion that by requesting footballs at 12.5 PSI, Brady was actually requesting footballs to be inflated below 12.5 PSI.

“There is no evidence that Mr. Brady wanted footballs below 12.5 psi,” the report states. “To assume that wanting footballs set at the low end of the permissible range really reflects a desire they be even lower is mere speculation. No evidence exists that Mr. Brady wanted footballs below 12.5 psi — and the investigators were told quite clearly that footballs that are too soft do not roll off his hands as desired. Nonetheless, they assumed Mr. Brady actually wanted footballs to be below 12.5, that Mr. Jastremski and Mr. McNally knew that, and that they went through an elaborate plan all designed to remove about .5 psi beyond what weather would do naturally.”

Further, to discredit the Wells report’s reliance on the Jastremski-McNally texts as evidence of clear wrongdoing, the Patriots made an important note.

“Mr. Jastremski and Mr. McNally were obviously uninhibited texters, sending communications with no thought that anyone else would ever see them,” the report states. “They certainly would not have cursed at the team’s quarterback if they thought their texts would ever see the light of day. Perhaps most revealing, then, is that not a single text states that: (i) Brady wanted footballs set below 12.5 psi; (ii) there was a plan to deflate footballs after the referee inspected them; or (iii) there was any actual such deflation. Nonetheless, the report assumes that every text reference to inflation or deflation of footballs suggests there was a plot to improperly deflate footballs after the referee’s inspection. In reality, there is simply no basis to assume that conclusion.”

The Patriots Have An Explanation For Everything

Whether it’s the “Deflator” nickname, the threat to “go to ESPN,” the mysterious “he” concerned about McNally “getting them done,” or the reference of a needle, the Patriots had an answer for everything. (On those points, respectively, they were a weight loss term; a comment about stealing sneakers from the equipment room; a Jastremski friend being concerned with McNally’s family’s handling of season tickets; and providing a needle to the officials for their pregame work with the footballs. Heck the Patriots even argue that 1 minute and 40 seconds is how much time it takes to “enter a bathroom, relieve himself, wash his hands and leave.”)

The Patriots also explained that despite Wells’ claim that he did not acquire the “deflator” text message until after he had interviewed McNally,Wells’ team did in fact have this information.

“[Wells’ team] apparently just overlooked [the texts],  identifying them now as a matter they wanted to cover in yet another interview,” the report states. “It now appears that the Patriots are being severely punished because the Wells investigative team apparently overlooked materials they had in their possession long before their interview with Mr. McNally — scarcely an ‘unanticipated circumstance’ calling for yet another interview — and refused to disclose their reason for an additional interview.  There was no refusal to cooperate by the Patriots.”

While there are varying levels of believability to each explanation, the point is this: The Patriots introduced levels of doubt to every assertion made by the Wells report.

They may be lying, but they’re not setting out to convince the world of their stories — at least, I don’t think that’s their goal. Instead, they’re introducing alternative explanations to the assumptions made by Wells’ team, which were the assumptions upon which an incredibly severe punishment was based.

The Patriots’ Tone Was At Times Unprofessional — Very Unprofessional

Regular Internet users know that when a writer resorts to using ALL CAPITAL LETTERS TO MAKE A POINT, he or she is typically frothing at the mouth to try to make that case. That’s not necessarily the mind-set of a person who is making reasonable statements.

Nevertheless, Goldberg thought it wise to break out sentences such as:

“MR. ANDERSON SPECIFICALLY RECALLS THAT HE USED THE LOGO GAUGE FOR THESE PRE-GAME MEASUREMENTS.”

“THIS IS THE DEGREE OF EVIDENCE THAT IS OF GREATER WEIGHT OR MORE CONVINCING THAN THE EVIDENCE WHICH IS OFFERED IN OPPOSITION TO IT.”

Additionally, Goldberg inserted a certain level of snark that was simply not necessary to the Patriots’ making their point.

For example, Goldberg played on the “generally aware” assessment of Brady: “The League is, however, ‘generally aware’ of the impact of heat and cold on the psi of footballs.”

On the charge that Brady gave McNally autographed items in an effort to pay him for his misdeeds: “If receiving an autograph from Mr. Brady is evidence that you are being rewarded by him for nefarious conduct, then hundreds or even thousands of people must be part of a scheme of wrongdoing.”

Because the Wells team considered Brady’s refusal to give up his phone as a tacit admission of guilt, Goldberg played on that notion: “Perhaps releasing drafts of the consultant’s report, and all communications between the investigators and their consultants regarding the development of their opinions, would shed more light on this so the public can have all relevant information.”

It was, without question, a document filled with attitude. While the same could be said with Wells’ report, this retort by the Patriots included a multitude of facts which were ultimately weakened by the unnecessary infusion of tone.

Jim McNally Did Not Stealthily Steal The Footballs From The Officials’ Locker Room

When the Wells report details the “disappearance” of the footballs from the officials’ locker room, it assumes a level of deviousness to McNally’s departure.

However, the Patriots do a fairly good job of recreating the environment which McNally was in.

Pardon the long excerpt, but it’s necessary:

“The report acknowledges that game officials specifically allowed Mr. McNally to take the game footballs from the dressing room of the Officials’ Locker Room (where the referee was) into the separate sitting room (pg. 55). No one told Mr. McNally that he could not then proceed to the field with the footballs. When the NFC Championship Game ended abruptly in overtime and Mr. McNally started from the back of the sitting room towards the door to the hallway, he walked by numerous League officials in the sitting room. As the report states (pg. 55), the sitting room was crowded with ‘NFL personnel, game officials and others gathered there to watch the conclusion of the NFC Championship Game on television.’ Mr. McNally had to navigate this crowd of officials to make it through the sitting room with two large bags of footballs on his shoulders. Mr. McNally, a physically big man, hoisted two large bags of footballs and lumbered past all these League officials and out the door of the Officials’ Locker Room. As is clear from the report, no one objected; no one told him to stop; no one requested that he wait to be accompanied by a League official; no one told him that a League official had to carry the footballs to the field. After he walked past all of these League officials and out the door of the Officials’ Locker Room to the hallway, he then walked past James Daniel, an NFL official and one of the people who had been alerted to the Colts psi concerns pre-game (pg. 45). Mr. Daniel, as seen on the security video, looked at Mr. McNally carrying the bags of footballs toward the field unaccompanied by any League or game official, and made no objection to Mr. McNally continuing unaccompanied to the field. In short, if officials lost track of the location of game footballs, it was not because Mr. McNally stealthily removed them. (Omitted from the investigation were interviews with all those League officials whom Mr. McNally walked past with the bags of footballs on his shoulders.) Even after halftime, when obvious attention was being paid to game footballs and psi issues by League and game officials, who took control of the footballs at halftime, the security video shows Mr. McNally, with no objection, taking the footballs from the Officials’ Locker Room back to the field totally unaccompanied by any League or Game official. Mr. McNally’s removal of the footballs from the Officials’ Locker Room before the game began was simply not unauthorized, unknown, unusual, or in violation of some protocol or instruction.”

The fact that McNally was allowed to carry the footballs after the halftime hubbub shows how lax the officials cared for the footballs, and how unimportant the issue was being treated by the people employed by the NFL who were in charge that night.

The Bottom Line

While there are many individual points that were made within the lengthy document, the crux is this: The New England Patriots have waged war with the NFL.

This document sought to completely discredit the findings of a multi-million dollar investigation, paid for by the league, based on improper investigation methods, compromised parties, and inadmissible science. After three of their employees were publicly deemed to be liars in the national eye last week, the Patriots are returning the volley back to Ted Wells and the NFL.

While the “Deflator” explanation will draw the most headlines — and ridicule — that is but one point which will ultimately not distract any neutral arbiter from the facts and discrepancies pointed out by Goldberg at the behest of the Patriots.

This document serves as an unprecedented response to league-issued penalties, and its release — coupled with the filing of Tom Brady’s appeal — makes the next step in this ongoing saga absolutely fascinating.

How Roger Goodell responds to this challenge could define his tenure as the NFL’s commisisoner.

Read more from Michael Hurley by clicking here. You can email him or find him on Twitter @michaelFhurley.

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