By Michael Hurley, CBS Boston


BOSTON (CBS) — The DeflateGate day of reckoning is finally, mercifully drawing near, as Tom Brady will meet with NFL commissioner Roger Goodell on Tuesday for the quarterback’s appeal hearing.

Brady is, of course, fighting the four-game suspension assigned to him by Goodell — upon the “recommendation” of NFL executive VP Troy Vincent — for the quarterback’s alleged knowledge of illicit activities regarding footballs that might have happened prior to the AFC Championship Game, as well as his purported “lack of cooperation” in Ted Wells’ investigation into the matter.

There are a number of maybes and qualifiers in that charge, which is what makes this hearing such an intriguing matter. But because this was a situation that began nearly five full months ago, it would be easy to forget some of the details. So as the clock ticks toward that fateful meeting on Park Avenue, here’s a brief refresher course on what’s at stake.

The Charges

This much could be gleaned from just reading the first few pages of the Wells report. A multiple-month, multiple-million-dollar investigation turned up the following conclusion:

“… it is more probable than not that Jim McNally (the Officials Locker Room attendant for the Patriots) and John Jastremski (an equipment assistant for the Patriots) participated in a deliberate effort to release air from Patriots game balls after the balls were examined by the referee. Based on the evidence, it also is our view that it is more probable than not that Tom Brady (the quarterback for the Patriots) was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls.”

Vincent, in his disciplinary letter to the Patriots, wrote that the NFL “accepted the findings contained in the comprehensive report independently prepared by Mr. Wells and his colleagues.” He also noted that Brady’s refusal to turn over information from his cell phone, as well as Brady not being “fully candid” factored into the punishment.

“Your actions as set forth in the report clearly constitute conduct detrimental to the integrity of and public confidence in the game of professional football,” Vincent wrote to Brady on May 11. “The integrity of the game is of paramount importance to everyone in our League, and requires an unshakable commitment to fairness and compliance with the playing rules. Each player, no matter how accomplished and otherwise respected, has an obligation to comply with the rules and must be held accountable for his actions when those rules are violated and the public’s confidence in the game is called into question.”

The Details

Obviously, you read all of that, and it seems as though the NFL has built a very strong, lock-solid case against Brady. However, that’s not exactly the situation.

For one, the Wells report didn’t necessarily prove that footballs were deflated illegally, and recent developments even suggest that no deflation took place at all (more on that later). Yet the punishment handed down assumes that not only were the balls deflated, but that Brady also knew about it. The quarterback is multiple levels away from any alleged activity, so the foundation for the punishment has sat on shaky ground from the start.

The Wells report details that Brady told Jastremski that he prefers balls be inflated to 12.5 PSI, something he learned was the lower limit after NFL referee Bill Leavy wrongly inflated footballs to 16 PSI in a Week 7 game against the Jets. The Wells report does detail a text exchange between Jastremski and McNally, in which Jastremski relays that Brady believes McNally must be under stress to “get them done.” The inference is that Brady’s message refers to illegally taking air out of footballs after the referees’ inspection. Additionally, McNally referred to himself as “The Deflator” in May 2014, and the two discussed the exchange of a needle.

Surely, there was enough in these text messages to raise suspicions, and one could make a logical leap to assume the alleged activity did in fact take place. But the fact remains that there is no indication that Brady instructed the employees to:

A) Lower the PSI of the footballs below the allowable range of 12.5-13.5 PSI, or
B) Deflate the footballs after they had been inspected by the officials.

Those are the main charges, and not only did Wells fail to uncover direct evidence of either taking place, but there’s no precedent in place for punishment. A four-game suspension, by any standard, certainly seems excessive. Brady has himself a case.

What Tom Brady’s Camp Will Argue

Fortunately for us, the NFLPA laid out the attack plan in a letter to the NFL last month. Brady’s side will argue:

1. Vincent was not authorized by the CBA to impose punishment on Brady. That responsibility falls solely on the shoulders of the commissioner.

“You [Troy Vincent] have no authority to impose discipline on Mr. Brady under the CBA, and such discipline must therefore be set aside,” wrote NFLPA general counsel Tom DePaso.

2. The four-game suspension does not fall under fair and consistent treatment of a player.

“No player in the history of the NFL has ever received anything approaching this level of discipline for similar behavior — a change in sanctions squarely forbidden by the CBA and the law of the shop,” DePaso wrote.

3. The Wells report did not provide sufficient evidence to find Brady guilty of committing any violations.

“[The Wells report] grasps at dubious, contradictory and mischaracterized circumstantial evidence merely to conclude that it is ‘more probable than not’ that Mr. Brady was ‘generally aware of’ ‘inappropriate activities,'” DePaso wrote. “Mr. Wells conceded that ‘there is less direct evidence linking [Mr.] Brady to tampering activities than either [Messrs.] McNally or Jastremski.’ The Report — based on speculative possibilities piled on top of speculative possibilities and a disregard of contrary evidence — is a legally inadequate basis upon which to impose this unprecedented discipline.”

4. Goodell and Vincent, among other NFL officials, may have colluded to conduct a “sting operation” in order to find Brady and the Patriots guilty of wrongdoing.

This letter is a bit dated, as Goodell has since taken the opportunity to reject the NFLPA’s demand that he recuse himself as the arbitrator of the hearing. So it’s likely that Brady’s camp — namely, high-powered lawyer Jeffrey Kessler — has had time to really dig in and lay out a plan of attack.

(They might want to note that Goodell stated on record that if the NFL acted in any way improperly, the Wells report would indicate it. Yet the entire 243-page report fails to place any blame on any NFL employee, including the one who was fired for stealing a football on the sideline, as well as the referee who improperly inflated footballs to 16 PSI in a Week 7 game, and including the referee who lost possession of the footballs prior to the championship game despite a warning to be on high alert earlier in the week.)

What’s also come out since the letter was written is the report from AEI, which concluded that it is “unlikely that the Patriots  deflated the footballs.” The three authors penned a pretty damning analysis of the scientific data in the Wells report, which was generated by Exponent. The AEI trio said that the methods used by Exponent could not have been the methods which they claim to have used, which speaks to a clear slant from the scientific firm that had a bad reputation to begin with.

Since the AEI report’s release, the tide has changed somewhat in terms of the general public’s understanding of the Wells report. Jason Cohen, who has a PhD in  applied probability and statistics from Cornell, detailed how the Wells report twisted the results of Exponent’s findings. A Science News article by Rachel Ehrenberg noted that the pressure measurements were “collected so haphazardly that they wouldn’t be allowed in a high school science fair” while sharing the work of scientists who replicated significant pressure drops using simple temperature experiments.

In the immediate wake of the controversy, people who made these types of arguments were considered to be off their rocker. After all, how could a scandal so big be based on shoddy science? Clearly, something took place.

But the chorus of scientific minds is growing seemingly by the day, and their work is growing too loud to ignore. And if can be proven that Wells manipulated the science to bring about a certain conclusion, then certainly the credibility of the entire report disappears rather quickly.

That AEI report is certain to be brought up by Brady’s camp, because if there is no evidence of deflated footballs … then what is this entire thing all about?

What Roger Goodell Will … Not … Argue?

Serving as the “independent” arbitrator of this hearing is most certainly an interesting position for Goodell, because he’s not there to argue. He’s merely there to hear the case from the NFLPA and then make a ruling. But with so much stake, it’s hardly that simple. In appealing the suspension, Brady and his lawyers will be directly arguing against Goodell, and Goodell is merely in a position to listen to their case.

It is a peculiar system, to say the least. It is inherently compromised, to say a bit more.

First and foremost, Goodell has the weight of maintaining the integrity and thoroughness of the Wells report, for which he paid a reported $5 million. The disciplinary decision — which was “recommended” by Vincent, then “authorized” by Goodell, who later claimed full responsibility for the decision — was based entirely on the findings of the Wells report. Much of the NFL’s — and Wells’ — reputation is at stake in this appeal hearing. If Goodell, as “independent arbitrator,” admits that some of the work in the Wells report was faulty, then it sets a dangerous precedent for NFL-sponsored investigations going forward. How reliable can they really be if they didn’t get this one right? What would that say for the integrity of the Mueller report?

Further, the NFLPA has claimed that it intends to call Goodell as an “essential witness” in the proceedings. Goodell has already answered back, claiming not only that he’s not an appropriate witness but also that Brady’s camp is not allowed to call on witnesses to present testimony. That screams of a legalese standoff that could really slow down the entire process and all but guarantee that the appeal hearing extends into the second scheduled date on Thursday.

Interestingly, in his letter to the NFLPA, Goodell claimed that the Wells report will not serve as a document of absolute truth in the appeal process.

“I have publicly expressed my appreciation to Mr. Wells and his colleagues for their thorough and independent work,” Goodell wrote. “But that does not mean that I am wedded to their conclusions or to their assessment of the facts.”

It’s a curious statement, to say the least. This was, of course, the document used as the basis for issuing an unprecedented level of punishment on Brady and the Patriots. Yet the commissioner, the man who made that decision after reading the Wells report, is stating on the record that he is not bound to its contents. If Goodell would indeed disregard certain information from the Wells report, then he is discrediting the basis for the punishment. Mind you, the punishment he issued to the team — the forfeiture of a first-round draft pick, a fourth-round draft pick and $1 million — is not being contested by the Patriots. While the ship may have sailed in terms of possible courses of action for Robert Kraft in that fight, his support for the commissioner would almost assuredly plummet if even Goodell admits fault in the Wells report.

It’s truly hard to imagine that Goodell would accept that some of Wells’ findings were not accurate, given the opening it would give Brady, Jeffrey Kessler and the NFLPA to attack.

The Results

That part is truly hard to predict. On the one hand, Goodell would likely prefer to maintain the integrity of the investigation for which he paid $5 million and subsequently used as reasoning to punish the Super Bowl champions and their quarterback. On the other hand, Goodell has been hell-bent on assigning himself as the independent arbitrator, rather than leaving it in the hands of someone likely to reverse his decision (see: Rice, Ray; and Peterson, Adrian). So if Goodell wants to prove that he is truly “neutral” and “independent” and “fair,” then he will have to reasonably listen to the many valid, cogent points laid out by Brady’s camp.

Goodell also faces the tricky proposition of being told that there’s no actual evidence that footballs were deflated. That issue looms large.

No result would be altogether surprising, save for a complete removal of the four-game suspension.

It would not be shocking if Goodell upheld the four-game ban. That decision would force Brady to take the case to court in order to win the appeal, which will be a long, drawn-out process. While it’s likely that Brady would continue along that path, it is nevertheless an unappetizing idea for a man of Brady’s status. The NFL might eventually end up looking bad by the end of that timeline, but so many fewer people will be following the story closely that the PR damage might be significantly less than a complete reversal would be now.

It also would not be shocking if Goodell lessened the suspension to anywhere between one and three games. It’s not outrageous to believe that Goodell issued the four-game suspension for this very reason — so that he could sit in as an “independent” thinker and prove to be reasonable by lessening the punishment to something a bit more palatable. Still, lessening the suspension would essentially be admitting that Goodell and the NFL ruled unfairly just one month ago. That surely would not reflect well on the league, but still, most attention would be geared toward Brady — who would in most people’s eyes be admitting guilt by accepting a punishment. I would say a reduction of a game or two is the most likely outcome of this appeal, but that could change if Brady’s camp makes it clear that they are not setting out to settle for anything less than a complete elimination of the suspension entirely.

And on that note, it absolutely would be shocking if Goodell rules to remove the suspension. If he does, for one, it completely discredits everything the NFL has done since January. And secondly, it would fuel speculation that Goodell and Robert Kraft did indeed work out some sort of back-channel agreement that would allow Brady to be on the field for the banner-raising season opener at Gillette Stadium in September.

It’s hard to properly forecast the decision-making process of this commissioner, who’s typically flown by the seat of his pants throughout his tenure as head of the NFL. Now that he’s put himself in the seat of power, truly anything can come as a result of this hearing.

The one safe bet? Don’t expect a speedy resolution. As you can tell, there’s quite a bit to get through.

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

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