By Michael Hurley, CBS Boston
BOSTON (CBS) — For many Patriots fans who spent much of 2015 vehemently defending their quarterback and their organization, New York law professor Robert Blecker provided a major boost when he sat down with Armen Keteyain on “60 Minutes Sports” and provided an unbiased evisceration of the NFL’s case.
Now, Blecker is providing a solid not just for the fans but also for Tom Brady himself, as the law professor filed an amicus curiae brief with the United States Court of Appeals for the Second Circuit in New York, the court that is considering the ongoing case between Brady and the NFL.
“The record as a whole clearly reveals an NFL investigation purportedly ‘thorough’ and ‘independent’ but actually biased, dishonest and fundamentally unfair,” Blecker wrote.
The purpose of the brief was to provide an outside perspective to the judges, one that comes from neither party and theoretically sets out to provide honest, uncompromised information. And while biases and/or influences can never fully be accounted for, Blecker left no doubt that Roger Goodell and the NFL ran an inherently unfair investigation and subsequently issued an unjust penalty to Brady.
“Naturally, the NFL summarily characterizes its own investigation as full and fair, emphasizing a Commissioner’s unfettered discretion to define and punish conduct detrimental to the integrity of the sport,” Blecker wrote. “However from the start, the NFL’s investigation, adjudication, and punishment of Tom Brady for actively participating in a scheme to illegally tamper with ball pressure has been infected with bias, unfairness, evident partiality and occasional fraud.”
Clearly, Blecker doesn’t mince many words.
Blecker’s desire to file the briefing came from his research into the events, investigation and punishment, as well as his observation that neither the NFL nor the NFLPA properly addressed or recognized the issue of bias affecting an arbitrator’s ruling of what can be considered “detrimental conduct” to the sport.
“Amicus has no financial interest in this case, but a strong interest to assist this Court to reach the right outcome, and for the right reasons,” Blecker wrote.
Among Blecker’s points:
- The NFL leaked false PSI numbers in the hours following the game in question and then allowed those false numbers to linger in the media for seven weeks. The NFL also banned the Patriots from releasing the actual numbers, which weren’t initially available to the Patriots in the first place.
- The NFL dismisses facts of science which explain the drop in air pressure during the game. Blecker also finds it curious that the NFLPA seems to have stopped fighting on that front as well.
- “The NFL engages in conduct detrimental and demonstrates its unmistakable bias by an analogizing unproven and improbable ball deflation to fixing the World Series, thus blurring distinctions between more and less serious cheating.”
- “The NFLPA reply brief fails to assert or explore the NFL’s bias, dishonesty, or fraud in the investigation. … In short, neither side challenges much less explores the integrity of the arbitration process and its effect on the integrity of the sport.”
Blecker also took aim at the Wells report, which was the final result of an investigation that cost millions of dollars, all paid for by the NFL.
“This amicus demonstrates that unfairness, consistent bias and occasional fraud infected the NFL’s investigation from the start,” he wrote. “The Wells report’s central finding, that science alone could not explain the drop in Patriots ball pressure and therefore Tom Brady knew of, incentivized and approved of a scheme that resulted in AFC championship game ball tampering resulted from Exponent’s — its outside experts’ — pseudo-science, artful distortion, unfairness, dishonesty rightly characterized as fraud, and evident partiality.”
Those words again: “pseudo-science, artful distortion, unfairness, dishonesty, fraud, evident partiality.”
Blecker then moved on to the scientific aspects of Wells’ findings, writing, “A growing chorus of disinterested scientific, statistical and engineering experts, however, have demolished the Wells report’s most essential finding: Beyond any reasonable dispute, today we know, contrary to the ‘crux’ of the League’s finding, scientific principles and environmental conditions can fully explain the Patriots pressure drops without any human tampering.”
Blecker harshly criticized the NFL for using “artful phrasing” to convince the country that Brady and the Patriots cheated.
“The [NFL’s] statement has been irrelevant, completely consistent with scientific principles, and thoroughly misleading to an un(der)informed public and media who seized upon it as proof positive that the Patriots had cheated,” Blecker wrote. “As the League now admits, unaware of the Ideal Gas Law, it never considered that ball-pressure would naturally drop when moved to a cold, wet playing field. But almost a year later, to the delight of high-school physics teachers, everybody following this story now understands this basic fact of nature. Everybody, it seems except the NFL whose brief still repeats this misleading attack as if it somehow indicates conduct detrimental to the game.”
A major point of contention for Blecker was Ted Wells’ decision to reject the memory of referee Walt Anderson as to which gauge he used to measure the PSI numbers in the footballs. That is because if Anderson did in fact use the gauge which he claims to have used, then the resulting numbers from the readings would fall exactly in line with where science would dictate them to be. This decision by Wells to disregard Anderson’s best recollection was compounded by Exponent’s intentional misrepresentation of the difference in size between the two possible gauges.
Blecker presents this evidence as the “clearest … instance of anti-Patriots bias” at work in the investigation and scientific consultation.
“The Long needle measures 1.4 inches because it is 1.4 inches. The short needle, however, measures .9 [inches] because they shifted the ruler an extra .2 inches! (They conveniently didn’t line up the gauges under each other so your eye wouldn’t catch it.) The Logo gauge needle actually measures twice as long as the non-logo — .7 vs. 1.4,” Blecker noted. “These ‘independent’ investigator/consultants artfully photographed the Logo needle at the single angle that diminishes its much greater bend. Look carefully. Truth lurks in the shadow. And [research assistant Alex Weinman] later noticed that their Logo gauge photo subtly shrank the needle and ruler, further diminishing the needles’ apparent difference in length to an observer’s eye.”
Blecker went on to accuse Wells of using “deceptive words to support Exponent’s deceptive photos” when he quoted Anderson as saying that he used one gauge but that it’s “certainly possible” he might have used the other gauge — aka, the only gauge that could possibly give the NFL any case against the Patriots.
“It’s certainly possible the ceiling above will suddenly collapse and kill us as we read this,” Blecker sarcastically wrote. “Not only does bias infect Exponent’s photos; it also infected Wells’ standard of proof. … This ‘certainly possible’ standard brazenly mocks that claim of unbiased analysis.”
He added: “Bias, unfairness, or shall we call it what it is? Fraud.”
On the issue of the NFL claiming that it did not record the order in which the footballs were tested at halftime, Blecker claimed that every other bit of information regarding the halftime measurements indicated that the Patriots’ footballs were measured first, followed by the Colts’ footballs. And as has been proven, footballs which had time to sit in a warm room would have time to adjust and therefore their PSI readings would be closer to their pregame readings, as opposed to the Patriots’ footballs which were measured immediately after coming in from the cold, rainy weather.
Blecker likened this tactic by the NFL to something which the NFL itself claimed to be quite devious when the other party committed a similar act.
“If an unbiased arbitrator were to draw adverse inferences from missing evidence, this too would dwarf Tom Brady’s cell phone destruction,” Blecker wrote.
In the filing, Blecker seems as frustrated with the NFLPA’s case as he does the NFL’s investigation, because the NFLPA side spent little time arguing the scientific facts of the case. I would add that such a strategy may have simply been reactionary to Judge Richard Berman’s interests. The judge was so taken by the inherent unfairness in the process of the appeal hearing that Jeffrey Kessler never had to even use the arguments of science. It remained in the attorney’s back pocket throughout the summer, but Judge Berman made his opinions on the NFL’s case quite clear throughout the process. Kessler likely read the judge’s interests and argued accordingly.
Finally, Blecker concluded that despite Goodell’s regular claims to be upholding the integrity of the game, the commissioner has done more to damage the public’s trust in the league and the game than anything the Patriots and Brady have been accused of doing.
“The League’s own tilted investigation, coupled with appellate escalations of accusations that Brady is a liar and a cheat, mock these well-articulated core values of fair play, honest effort and healthy competition in getting at and disseminating the truth. Increasingly the public views the Commissioner as tainted and the League’s investigation as the antithesis of fair play,” Blecker wrote.
He added: “If that 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. 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.”
The point here: In accusing Brady and the Patriots of lying and cheating, Roger Goodell has lied and cheated his way to reach conclusions. That is, by definition, “conduct detrimental” to the league, and as a result, the public has and will continue to lose trust in the NFL.
That may be true, but only to the people who have followed the case and read the filings with a close eye. Most Americans and most football fans moved on long ago, accepting the league’s accusations as gospel and cementing their opinions without closely examining the situation. On that point, there may be no way to change that many minds.
But the purpose of this filing was not to change the minds of the masses, but instead to influence the minds of the judges who have to hear this case in February. And though its tone may shift from appropriately scathing to flippantly sarcastic, its points are irrefutable and provide reason to believe that Brady’s side will be successful whenever that appeals court makes its ruling.