Up to this point, DeflateGate has been all about the NFL’s accusation that Tom Brady cheated. But a three-judge federal appeals court is considering a more important question contained in the finer legal points: whether NFL Commissioner Roger Goodell is the actual cheater here. There is a wealth of evidence that suggests so, and the court should make the league rue bringing this case in front of it.
On Thursday, the second-highest court in the land was to hear oral arguments on whether it should affirm or reverse, on narrow procedural grounds, District Judge Richard Berman’s decision to throw out Goodell’s four-game suspension of Brady. But a little-noticed and powerfully written third-party brief by renowned legal scholar Robert Blecker lays out a third option for the court to consider. Blecker argues that the court should find Goodell’s arbitration process was “infected with bias, evident partiality, unfairness and fraud,” and he doesn’t stop there.
He makes the delightfully explosive suggestion that the appellate court could remand the case to Berman and order the NFL to share its investigative files — which were withheld from Brady’s team during the hearing process, denying him the basic fairness of knowing what the supposed evidence against him was. There are major questions as to whether the league guided the so-called independent investigation and whether Goodell was truly an honest, unbiased arbiter.
Think about that. Wouldn’t you like to see the jotted asides, the margin notes of this mess? If that happens, Goodell is probably finished as a public figure. Nobody in the league office ever counted on this kind of exposure when the NFL spent millions going after Brady and the New England Patriots over an ownership grudge, then pressed the case into the courts driven by Goodell's hubristic refusal to admit a mistake.
Normally, judges shouldn’t interfere in arbitration. Courts give “presumptive validity” to arbitrator decisions, and judicial action is acceptable in only the most extraordinary circumstances in which there are “severe transgressions” such as “dishonesty,” the NFL argued in it own filings. Bingo. Exactly those circumstances exist, Blecker declares in his brief, which the appellate court posted on the case docket.
Blecker’s brief is just 33 pages, but it lays out glaring instance after glaring instance of the league’s procedural dishonesty in an argument more persuasive than either side has made so far.
First of all, the junk science in the NFL-commissioned Wells Report has been so fully discredited by real experts that the NFL quit arguing it, Blecker points out. “What happened to the science; what happened to the deflate part of DeflateGate?” he asks in a phone interview. What happened is that scientists now agree that weather conditions can fully explain the pressure drop in the Patriots’ footballs on the day of the 2015 AFC championship game — without any human tampering. Yet even as the NFL abandoned “the factual foundation of its accusation,” it not only pursued the case against Brady but elevated the charges against him, asserting that he cheated on the level of the Chicago Black Sox fixing the World Series.
Blecker, for his part, cites some damning facts that never quite made it into full public view and clearly suggest a bias in the investigation. For instance: The Wells Report treats referee Walt Anderson’s memory as inaccurate on the matter of what gauge he used to measure the balls in pregame. If Anderson indeed used the gauge he claims he did, then there is no evidence of tampering. What hasn’t been heard before is that Anderson used his air-pressure gauge 48 times that day — it’s hard to believe he misremembered which one it was.
Then there is this: It would have been merely sound science for the investigators to test a gauge similar to the long-needled NFL logo one Anderson remembers using. Instead, they tested only shorter needle gauges that gave lower, and therefore guiltier, readings. Why didn’t they test a gauge like Anderson’s? They claim they couldn’t find one. Anywhere.
“Did they check eBay?” Blecker asks scathingly.
From there, the evidence of NFL bias only “gets clearer and morphs into fraud,” Blecker charges. The Wells Report contains a photograph comparing two gauges in an attempt to show that they looked similar and thus Anderson must have confused them. But the junk-science firm used by Wells, Exponent, apparently doctored the photograph, misaligning two rulers and changing a camera angle to hide that the needle on the gauge Anderson remembers was twice as long as the other; it would have been almost impossible to mistake them.
“How could a leading scientific consulting and engineering firm whose physicists, engineers and statisticians generated so many sophisticated graphs based on complex simulations innocently fail to line up two simple rulers?” Blecker asks.
Time after time, Wells and Exponent make “ungrounded, illogical and biased” assumptions, Blecker observes, and every single significant one went against Brady — even when it required the most implausible and improbable sequences.
If the NFL were compelled to turn over its investigative notes to Brady, we might discern why there was such a “gross failure to consider the effects of timing, temperature, wetness.” And why there was a rejection of the referee’s own quite-sure memory and measurements.
“By now, hopefully this Court should see clearly how the interview notes could, and probably would, reveal the bias that infected the investigation,” Blecker writes.
This is no small suggestion. It would force the league to take DeflateGate to a place it never likes to go: fully public transparency. Imagine for a moment if league counsel Jeff Pash’s notes and communications with so-called independent investigator Wells showed partiality, that the league operated from a predetermination that Brady and the hated, envied Patriots were guilty?
“My theory is they thought it was true and wanted it to be true, and then they became committed to it,” Blecker says. “And then confirmation bias appeared.”
The arguments of attorneys Paul Clement for the NFL and Jeffrey Kessler for the NFL Players Association were the ones that got all the attention Thursday. Blecker, however, makes a point that the appellate judges ultimately may find more relevant. Goodell insists that he’s fighting this case in court to protect the “integrity” of the sport. But the commissioner’s skewed process has along the way damaged another integrity that’s far more important — that of the arbitration system as an instrument of justice.
“Under cover of that concern, no Commissioner can initiate an investigation saturated with unfairness and bias, then find guilt on the basis of that bias and pseudo-science, only to escalate the accusation even as he abandons the very factual basis for it,” Blecker writes. “The Commissioner’s ‘final’ decision must not be final.”
For more by Sally Jenkins, visit washingtonpost.com/jenkins.