NFL15: Why Goodell Goofed in Patriots Penalty

12 May

Update: Shortly before this write was set to post on Monday, the NFL announced that Tom Brady would be suspended four games and the Patriots penalized $1M with the loss of two draft picks for their role in what the League believes was a rules violative effort to deflate game balls below acceptable standard.

* * * * * * * *

I wouldn’t exactly call it karmic backlash but these past twelve months have been one, hellacious rollercoaster ride for NFL’s standard bearer franchise, the New England Patriots.

The 2014 season began under cloud of apprehension over the arrest, indictment and impending criminal trial of former tight-end Aaron Hernandez, eventually found guilty last April by the State of Massachusetts of 1° murder. Downward.


In February the Patriots took a tremendous Super Bowl win, their fourth under coach Bill Belichick, over Junior America’s favorite team, the defending champion Seattle Seahawks (28-24). Upward.

Now, the Foxborough franchise is beset, their starry signal-caller Tom Brady in particular, by one more of what’s becoming a long, continuous line of storylines (Sterling-Stiviano, Rice, Sam, etc.) that seem to suck-in the entire sports cycle like a black-hole and has come to be known as Deflategate, harkening back to that original ‘gate’ scandal of somewhat greater significance in Nixon’s Watergate (‘73). But don’t try selling that to the trolls.

Which makes this writer wonder why NBA’s Cleveland club got off easy with their in-game video (v CHI) that made light of domestic violence. Maybe the Tosh.0 effect: degradation for laughs. As long as the offensive display was “not intended” to offend, as Cavs’ brass responded, I guess it wasn’t protest-worthy, I guess.

The power of royalty (James) and near-monopoly (Nike®).

Since NFL began its inquiry into whether or not Patriots & staffers Jim McNally and John Jastremski (‘Frick & Frack‘) feloniously fiddled with 2015’s AFCC Wilsons (IND) by deflating psi without official OK, wrapped-up last week on Ted Wells issuance of his report (“more probable than not” that Patriots worked a “deliberate effort to circumvent (NFL) rules” and Brady was likely aware), the saga has come to a halt, waiting on Commissioner Roger Goodell’s ruling.'10.HordeFTL.Wilson.thmb

As popular today as a black-hole storyline is the new national tendency to kick a winner when they’re down. Maybe that’s not so new, but clearly a habit taken up with a passion by millennials and their kin. Course, Fox News has been awful popular since the 90s, so there’s that. Suffice to write, it‘s a lonely walk “On The Sunny Side of the Street (McHugh & Fields)” in 2015.

It helps explain why the last prior inquiry (Mueller) that looked into NFL handling of the Rice matter and largely cleared Goodell of wrong-doing was met with a fair skepticism, while the arguably over-reach conclusions of the Wells report have been widely adopted.

The common thread: Whether it’s jumping anti-Redskins bandwagon, screaming for Roger’s resignation (Rice-gate) or trashing Tom as “The Public Enemy (31),” those who seek the League’s downfall will keep trolling for topics.

The minutemen are clearly winners, NFL’s biggest since America’s former Team, the Cowboys, were ropin’ Lombardis (mid-90s), and certainly down. So if you polled sport news followers (not fans, necessarily), most believe Brady “circumvented” and should then be punished by the Commissioner with fine and/or suspension.

That attitude makes the ‘How’ question (What sort of penalty should the All-Pro quarterback be handed?), the query of choice amongst non-footballers.

But given that, 1) There’s no good evidence a suspected “circumvention” was a long-standing ploy in Foxborough; 2) the Wilson’s slightly deflated state had any measurable bearing on the outcome of contests (See: AFCC (Colts) & SB49 (SEA)), unlike the harm that was Bountygate (See; Favre & Warner ‘10-PS); and, 3) that if the expected penalty, whatever form it takes, is assessed on New England, it will, as some speculate, be source of legal challenge and most “likely” voided on appeal (See; Vilma ‘13), the better question is this: Should Patriots and Brady be punished at all?


The answer: No.

While I trust Attorney Wells & staff acted in good faith, they appear to’ve over-broadly interpreted their duty as one that, if at all possible (‘reasonably’ omitted), should come to a conclusion as if in a civil court property-divvy.

But in Deflategate there’s no property dispute, no necessity for a determination.

More probable than not” or a preponderance of evidence (51%) is a standard used in civil trials across the land everyday when property & rights are put at issue and a decision must be rendered to settle a dispute. Loosely stated, the court says to the trier of fact, ‘You don’t have to be certain but we need a decision, so decide, one way or the other.’

Never written into law or formally instructed, the 51 percentile is a generally accepted understanding of the application of the standard by triers of fact.

Simply stated, in civil cases where a decision must be made up or down, one side or another, the ‘preponderance / more probable’ standard provides an easier deciding point from where the subject property can be divvied without the greater mental, emotional investment required in meeting the clear & convincing (75%) and criminal BRD (90% +/-) benchmarks.

But a preponderance being equal to a likelihood, the conclusion that Wells and media reports so haphazardly toss around in claim of Brady knowledge of a supposed deflating scheme, well, that’s pure gobbledygook. Since when does 2% (51 – 49 = 2) create likelihood of anything?


If Wells investigators didn’t have evidence to make firm findings, which appears the case, and questions on intent to tamper / deflate are left unanswered, so be it.

The Wells Report feels like conjectured conclusion where a result was so strongly sought that it would not be denied regardless of its “basis.” It suggests wrong-doing by Patriots even as it’s probabilities go largely unsupported by direct evidence.

It reads like an educated hunch that clumsily leaves one of the League’s standard-bearer franchises open to petty, endless criticism and mockery even as the findings fall far short of being definitive or even likelihoods on numerous issues.

Inconclusive’ should’ve been the drafter’s opening rather than setting out front the legal standard MPTN as motif unfairly creating public impression of a likelihood of misdeeds.

Maybe fearing public backlash, claim of bias, Wells played it safe and tried to have it both ways in stating there was probably a circumvention by New England, but we lack the “basis” to definitively state it with any degree of certainty. Ugh.

It would’ve served Wells, fandom, NFL and the general public much better had the attorney followed that physician’s creed (Inman): First, do no harm.

One fact that is well established apart from the Wells Report is that enhancing football-grip is only permitted in conjunction with NFL/PA approved (sticky) glove contracts.

The Report is, however, an official hunch so it’s impact per likely League punishment will be outweighed by its blemish on Patriots’ legacy that’ll resonate almost entirely with their and the NFL’s rivals.


Goodell can, firstly, suppress that erroneous motif, digest the report, consult, ponder and then, barring any clear evidence showing Brady or other investigatees failed to cooperate on material matters germane to the discovery truth, give Tom and the Patriots a punishment pass.

But Roger’s got a problem.

The Rice matter and the misdirected, somewhat self-serving public outrcry that arose post-TMZ video drop, has emotionally neutered the Commissioner, taken from him the verve & vigor that had been defining his leadership and left a man who’s now always looking over shoulder and gauging winds, not unlike politicos who live by the polls.

Goodell must find his inner Landis (Kenesaw Mountain), his greater Giamatti (Bart), and lead with the same wisdom and courage he showed in Bountygate.

My own hunch is that Patriots engaged in some extra ball management outside strict adherence to generally accepted practice and/or rules (J&M texts appear not much more than worthless drivel). Not so much because Belichick & Company like to bend the rules but because the Patriots Way believes in testing the limits, an ambitious approach that, in other venues, can be highly praised.

But whether or not Tom likes to bleed a little psi from his pigskins, investigators aught not engage in official hunchery. They have a higher standard to meet. As I can be wrong in my suspicions, so too could they even in an official capacity.


Absent firm findings on claims of non-cooperation (one (TB) could refuse to turn over phone records for reasons that have nada to do with hiding supposedly damning information (privacy & principle)) and tampering that go beyond mere face & bearing, the facts that New England dispatched Indy with ease in the fully-inflated 2nd half of the AFCC that triggered the inquiry, bested defending champ Seattle (SB49) and that ball-control was clearly not well regulated by NFL (unattended official‘s locker-room), all go a long way in ranking this possible rule violation in same class with a player who adds extra uniform padding but below NED (noise enhancing devilry): very low.

Given how Roger’s lost his hutzpah since Rice-gate firestorm charred NFL landscape, a blind obedience to the tenuous tenor of the Wellsian Hunch would not surprise with a Brady suspension to follow (2g). If so, as mentioned above, Brady suing the League in response with NFLPA support, no matter what penalty may be levied ($1 or 1 day), is real possibility. He’d seem to have the meritorious grounds to sustain such an action.

If you’re a fan of due process (fund’l fairness), NFL and capable of subjugating a prejudice, be it team / QB rivalry or NFL policy positions, you’ll support a cautious read of Wells and a ‘no punishment’ ruling by Goodell on Deflategate.

As to the loosey-goosey nature of ball management by NFL officials who‘ve gone mostly unscathed in Deflategate reporting, that state goes to the issue of clarity. In a legal venue, claiming unawares of the law works no defense, but an unclear law as written or in enforcement can give an accused a pass to walk out the door.


But best of all, Goodell taking a punishment pass would go a long way to putting this boring little mystery novella called Deflategate up on the shelf for good, and bad.

“Brady, Brady, Brady, Almighty!” The man from Milwaukee may’ve been a prophet (Inherit the Wind (‘60)).


Steven Keys

NFL HunchLine

Photo Credits: T.Brady, wc.cca, 9.14.14, A.Campbell; T.Brady, wc, 8.28.09, K.Allison; football.Wilson, extreme, wc, 2010, HordeFTL; R.Goodell, wc, 8.30.12, SSG.T.Wade, USMA; B.Belichick, 8.28.09, wc, K.Allison; R.Goodell, wc, 7.10.08, Sgt.B.DelVecchio, Afgah; T.Brady, wc, mongomez93; S.Tracy, F.March, screenshot, Inherit, 1960, wc; NFL-wikiproject.
Posted: 5.11.15 @ 9:39pm EST


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