Deflategate, one year later: The anatomy of a failed controversy
Can you believe it’s been a year since a handful of footballs sparked the most bizarre and intense sports controversy in recent memory? That controversy, of course, is Deflategate, which centers on footballs thrown by New England quarterback Tom Brady in the Patriots’ 45–7 trouncing of the Indianapolis Colts in the 2015 AFC championship game. Only hours after the game, as the Patriots celebrated their upcoming trip to Super Bowl XLIX, columnist Bob Kravitz of WTHR Indianapolis broke the sports story of the year: “A league source tells me the NFL is investigating the possibility the Patriots deflated footballs Sunday night.”
The “possibility the Patriots deflated footballs” became a certainty for the NFL but a source of implausibility for many in the scientific community. While the NFL relied on indirect and arguably speculative evidence to conclude that the Patriots had covertly deflated footballs, Ideal Gas Law and other basic principles of science told a radically different story: the footballs’ air pressure seemingly matched what the rules of physics would predict. The Patriots were severely sanctioned by the NFL and, until U.S. District Judge Richard Berman ruled otherwise, Brady similarly faced the wrath of NFL commissioner Roger Goodell.
An allegation of a quarterback cheating began with that quarterback throwing an interception
The controversy that became known as Deflategate started when Colts linebacker D’Qwell Jackson intercepted a pass thrown by Brady in the second quarter of the AFC championship game. Colts personnel believed the football seemed a little light, and when an intern measured its air pressure, he found the intercepted football to be less than 12.5 pounds per square inch or PSI, the basic unit for measuring pressure. This was significant since NFL rules require that game footballs fall within a range of 12.5 to 13.5 PSI. Those rules also assign a minimum penalty of a $25,000 fine to those who tamper with game footballs’ air pressure and other qualities. The NFL regulates the PSI of footballs to ensure uniformity in how games are played and, although many football players downplay its competitive significance, slightly under-inflated footballs may be easier to catch.
Colts officials then alerted the referees about the intercepted football’s air pressure and the referees in turn alerted NFL officials. Referees and league officials then tested the same intercepted football three times, yielding results of 11.45 PSI, 11.35 PSI, and 11.75 PSI. The league then ordered that the Patriots’ other 11 footballs be tested at halftime; four Colts footballs were also tested at that time. While two different types of gauges were used and produced inconsistent results, all 11 of the Patriots footballs and three of the four Colts footballs measured under 12.5 PSI. The footballs were then re-inflated and used in the second half. Brady actually performed better using the re-inflated footballs, completing 12 of 14 passes.
The ball deflating was not terribly surprising, given that the game was played in weather conditions—cool and rainy—that tend to cause footballs to lose pressure. Even in good weather, footballs lose pressure as they are used. Indeed, as Massachusetts Institute of Technology Professor John Leonard has demonstrated, the PSI measurements taken at halftime are consistent with Ideal Gas Law, a basic scientific formula used to measure pressure when temperature, volume and number of gas moles are known. His findings are consistent with the findings of others, including data scientist Nick Kistner, three authors at AEI and University of New Hampshire science professors Michael Briggs and Martin Wosnik.
In the hours and days following the game, Brady repeatedly brushed off questions about deflated footballs, at one point insisting, “I would never do anything to break the rules.”
An erroneous tweet inflates Deflategate
The dynamics of Deflategate changed two days after the AFC championship game, when ESPN’s Chris Mortensen tweeted that 11 of the Patriots footballs were under-inflated by two PSI. A league source had leaked Mortensen this startling news on the condition of anonymity.
The considerable degree to which the footballs were reportedly under-inflated suggested that human misconduct played an explanatory role. The obvious inference was that the Patriots had hatched a deflation plot. This report would later prove wrong—nine of the 11 footballs actually measured 11.35 PSI or higher—but by then Deflategate had been transformed from an odd sports controversy into a national news crisis. Had the most dominant NFL franchise over the last 15 years been cheating? Were the Patriots, who had already disregarded an NFL memorandum in the “Spygate” controversy, breaking rules the whole time?
For Patriots haters, Deflategate seemed like a gift. For many scientists, Deflategate seemed like a lot of hot air. And, for the Patriots and coach Bill Belichick, their focus remained on playing the Seattle Seahawks in Super Bowl XLIX, which the Patriots would go on to win aided by a memorable Malcolm Butler interception.
The NFL launches an “independent” investigation and the Wells Report
In response to the growing controversy, Goodell launched what he styled as an “independent” investigation to be co-run by attorney Ted Wells of the prominent New York law firm Paul, Weiss, Rifkind, Wharton & Garrison and by NFL general counsel Jeffrey Pash. Their investigation would last more than three months. During this time, Patriots employees met repeatedly with Wells and submitted materials studied by Exponent, an engineering and scientific consulting firm retained by Wells and his team. The choice of Exponent, which has secured government contracts from NASA and FEMA, drew criticism from some corners. Critics have labeled Exponent a “hired gun” used by companies to reach scientific conclusions that are compatible with those companies’ legal and financial interests. Here, the inference was that the NFL—which employs referees who were criticized in Deflategate and the officials who leaked information to media—wanted results showing that the Patriots were at fault.
On May 6, 2015, the much-anticipated report authored by Wells and others was released. Over the course of 234 pages, Wells lobbed serious accusations at the Patriots and particularly Brady. Wells concluded it was “more probable than not” that Brady was “at least generally aware” Patriots locker room attendant Jim McNally and equipment assistant John Jastremski plotted and carried out “a deliberate plan” to use slightly under-inflated footballs. While the league’s Policy on Integrity of the Game & Enforcement of Competitive Rules required that Wells use the “more probable than not standard,” the applicability of that standard to Brady, who is protected by the CBA, remains a source of legal debate and Wells’ decision to use—and the technical meaning of—the “at least generally aware” standard remains a mystery.
There was no direct evidence for any of the key accusations in the Wells Report. Not one witness mentioned a deflation plot and not one video or recording revealed such a plot. Instead, the Wells Report reached conclusions by extrapolating circumstantial evidence. Such evidence included increased phone and text communications between Brady and Jastremski following the AFC championship game, a pattern that might sound suspicious unless you consider that the Patriots were also preparing to play in the Super Bowl. Wells also repeatedly highlighted one single text sent by McNally to Jastremski in May 2014—during the offseason when McNally was not working for the Patriots and eight months before an AFC championship game whose participants were unknowable in May 2014. In that text, which was one of hundreds shared by the Patriots, McNally referred to himself in a seemingly joking way as “the deflator,” which the Patriots’ “Wells Report in Context” contends likely concerned McNally’s efforts to lose weight.
Wells also found it notable that McNally took the footballs into the bathroom before the game for one minute and 40 seconds (which, perhaps revealingly, is also consistent with the amount of time it takes to use the bathroom) and that Brady complained about the footballs being too inflated following a Patriots-New York Jets game in October 2014 (but no evidence surfaced that Brady directed or encouraged the footballs be deflated below 12.5 PSI). Wells also disapproved of Brady’s unwillingness to share all electronic and phone information, but no rule compelled Brady—who was disturbed by league leaks—to share such information and Wells would later testify that he would not have punished Brady over his refusal. Wells also had access to texts sent by Brady to Jastremski and McNally when the latter two turned them over.
In short, after a three-month, multi-million dollar investigation, actual proof of a plot to deflate footballs was never found. In the absence of such evidence, it is difficult to understand why Wells found such a plot “more probable than not.”
Goodell punishes the Patriots and Brady, and why the Patriots acquiesced while Brady fought back
Five days following publication of the Wells Report, Goodell doled out harsh punishments on grounds that the Patriots as an organization and Brady as a player had breached the integrity of the game and failed to fully cooperate in a league investigation. The Patriots were fined $1 million, and they lost their first-round pick in the 2016 NFL draft and fourth-round pick in the ’17 draft. But the biggest punishment was Brady’s four-game suspension.
The Patriots and Brady were in very different legal positions to appeal Goodell’s punishments. As a franchise, the Patriots had contractually relinquished rights to contest league discipline that the team might otherwise enjoy. Like the 31 other NFL franchises, the Patriots are required to adhere to the league constitution, which expressly precludes teams from going to court to challenge decisions by the league and its commissioner. The Patriots could have internally petitioned Goodell to reconsider his punishment, but doing so would have enlarged the controversy and, perhaps more importantly, appeared doomed to fail: by all accounts, Goodell is unbendingly wedded to the belief that the Patriots deflated footballs.
Some nonetheless urged Patriots owner Robert Kraft to pursue the antitrust litigation strategy used with some success by the late Oakland Raiders owner Al Davis in the 1980s and ’90s. Indeed, Kraft could have argued that the NFL and certain teams, such as the Colts and other AFC rivals, had conspired to frame the Patriots of wrongdoing and that such a conspiracy constituted anti-competitive conduct. There were emails between Colts general manager Ryan Grigson and NFL officials David Gardi and Mike Kensil (who formerly worked for the Patriots arch rival, the Jets) prior to the AFC championship game about Grigson’s belief that the Patriots were intentionally under-inflating footballs. Some believe the Patriots were set up in a sting operation of sorts.
Still, such a litigation strategy would have likely taken years to play out and would have awkwardly pitted the 74-year-old Kraft in court against the same league in which he is considered one of its most influential figures. Kraft’s argument would have also been a difficult fit for antitrust law. Recall that Davis had used antitrust law to challenge the NFL on the issue of business relocation, which is a type of controversy well suited for antitrust law. Kraft’s antitrust challenge, in comparison, would have been based on league discipline, which is a traditional power of a professional sports league and is less likely to have received a favorable reception in court. Therefore, it’s not surprising that Kraft declined to challenge the NFL, even if the loss of draft picks is a source of great aggravation to the Patriots and their fans.
In striking contrast, Brady, as a member of the NFLPA, enjoyed the collectively bargained right to appeal Goodell’s punishment. That right is found in Article 46 of the collective bargaining agreement (CBA) and calls for Goodell or his designate to hear an appeal. Brady exercised that right, and despite demands by the NFLPA that Goodell recuse himself as the hearing’s presiding officer, Goodell elected to serve as that officer. In other words, Goodell would decide whether he was correct in suspending Brady for four games.
Brady’s appeal hearing at NFL headquarters and the legal significance of Brady testifying under oath
Brady’s appeal was heard at the league’s headquarters on June 23, 2015. Attorneys Jeffrey Kessler and David Greenspan represented Brady during the hearing, which lasted all day. Brady elected to testify under oath during the hearing, which means Brady risked the potential of criminal perjury charges if it was later determined that he knowingly lied. This is an important point. Many athletes adamantly deny wrongdoing through press conferences, media interviews or spokespersons. When doing so, they can lie without the risk of criminal charges since they are not under oath. Brady, in contrast, would have risked criminal charges by lying during his appeal. Brady categorically denied any involvement or knowledge of a ball deflation plot. His attorneys also stressed that the collective bargaining agreement did not authorize a suspension for an equipment controversy and that similar controversies (such as use of Stickum or heated footballs, or Brett Favre’s $50,000 fine for uncooperative conduct in a league investigation) never triggered suspensions.
Brady’s legal team objected to several aspects of the hearing. For one, Paul Weiss attorney Lorin Reisner, who had assisted Wells in investigating Brady and the Patriots in their “independent” investigation, sat with league counsel and asked Brady many questions. This exchange undermined the veneer of separation between Wells and the NFL. Further, Brady’s legal team was denied an opportunity to review investigative notes and to cross-examine Pash, who Goodell, while acting as the commissioner, had tapped to co-lead the investigation. Goodell, while acting as the arbitrator, reasoned that Pash’s testimony would have been “cumulative” of testimony by Wells since Pash’s involvement in Wells investigation was allegedly minimal.
Goodell upholds Brady’s suspension and both the NFL and Brady seek court intervention
On July 28, 2015, Goodell issued his ruling to uphold Brady’s four-game suspension. The ruling was an arbitration award, as Goodell was acting as an arbitrator when hearing Brady’s appeal. Goodell clearly did not believe Brady, despite Brady having testified under oath. In fact, Goodell seemed even more certain of Brady’s alleged wrongdoing than had Wells. Goodell stressed that, in his view, Brady was uncooperative and that Brady “destroying” his cellphone (which Brady testified was part of his ordinary practice) indicated guilt. Goodell also reasoned that a four-game suspension was appropriate given that it is the same length of suspension for use of performance-enhancing drugs. This analogy has been widely criticized given that the suspension for performance-enhancing drugs is in writing, requires direct evidence—a positive test result—and contemplates specific rules for chain of custody and review.
Within hours of Goodell’s ruling both the NFL and Brady, through the NFLPA, filed lawsuits, with the NFL asking a federal court to uphold Goodell’s arbitration award and Brady asking a federal court to vacate it. In a move that the NFL likely now regrets, the league beat Brady to the punch by filing in New York before Brady could file in Minnesota.
Both sides were clearly engaging in “forum shopping” where each yearned to receive a hearing before a court that would be inclined to favor it. Brady elected to file in Minnesota with the hope that his case would be heard by U.S. District Judge David Doty, who has ruled several times against the NFL including in the Adrian Peterson case. Brady’s lawsuit, however, was instead assigned to U.S. District Judge Richard Kyle. The NFL picked New York mainly to avoid Judge Doty and because the league believed New York offered favorable case precedent, including in analogous cases where arbitration awards were almost always upheld. Judge Berman was assigned the NFL’s lawsuit and, because the NFL had filed first, Brady’s lawsuit was moved to New York. Judge Berman then announced a court schedule for August that required Brady and Goodell to attend and participate in settlement talks. Berman also allotted time for both sides to present legal arguments in court. Further, in a move opposed by the NFL, the judge ordered the release of Brady's NFL appeal hearing transcript.
Judge Berman hears historic case and rules for Brady
It didn’t take long for Judge Berman to signal skepticism about the NFL’s case. He almost immediately expressed doubt that Brady partook in a ball deflation plot. At one point during oral arguments, Judge Berman led NFL attorney Daniel Nash to admit that there was no direct evidence of Brady’s involvement. Judge Berman’s focus on factual questions surprised many legal commentators. Federal law requires judges to accord high deference to the fact-finding of arbitrators (in this case, Goodell) and directs judges to focus on whether the arbitrator utilized a reasonable process for decision-making. Judge Berman, however, repeatedly appeared mystified why the NFL would punish Brady for alleged conduct that lacked factual support.
After unsuccessfully imploring the parties to reach a settlement, Judge Berman announced his decision on Sept. 4, 2015—one day before Brady’s suspension was set to begin. Judge Berman vacated Goodell’s arbitration award, meaning Brady’s suspension was lifted and he would be eligible play in Week 1 against the Pittsburgh Steelers. Although federal judges rarely vacate arbitration awards, Judge Berman believed that he was compelled to do so in Brady’s case. Judge Berman concluded that Goodell had “dispensed his own brand of industrial justice” in violation of the law of the shop, which requires fair notice of punishment and consistency in how an arbitrator finds fault and determines punishments. Judge Berman highlighted three specific problems with the process used by Goodell: (1) Brady had no collectively-bargained notice that he could be suspended for “general awareness” of a ball deflation scheme; (2) Goodell unlawfully denied Brady an opportunity to cross-examine Pash, who was co-lead investigator and who edited the Wells Report before it was published; and (3) and Goodell unlawfully denied Brady an opportunity to review investigative notes, which the NFL had permitted in other player discipline matters.
Judge Berman declined to rule on whether Goodell was unlawfully impartial as the arbitrator, leaving the issue open should Brady v. NFL return to his court through an appellate court remand. On this issue, the NFL repeatedly stressed case precedent where federal judges upheld arbitration awards, even in instances where the judges disagreed with the arbitrator. Those cases, however, involved a neutral arbitrator, which Goodell could not have been in reviewing whether he correctly suspended Brady.
Brady’s on-field success in the aftermath of Judge Berman’s order as the appeal looms
Some have called Brady’s 2015 regular season, in which he threw for 36 touchdowns and only seven interceptions, part of a “revenge tour” against the league. Brady, who is 38 years old, statistically had one of the best seasons of his career, and it has continued into the playoffs: Brady led the Patriots to a 27–20 victory over the Kansas City Chiefs in the AFC divisional round. The Patriots have as good a shot as any team still remaining in the playoffs at winning Super Bowl 50, and one can only imagine the drama should Brady go on to win the Super Bowl MVP and receive the award on stage from Goodell. It’s safe to say that any smiles exchanged between the two men would be fake.
Whether or not Brady plays in Super Bowl 50 and greets Goodell at Levi Stadium in Santa Clara, he will likely be seeing Goodell this spring. The NFL appealed Judge Berman’s decision and on March 3, a three-judge panel on the U.S. Court of Appeals for the Second Circuit will hear oral arguments. The three judges are expected to be named on Feb. 25 and, as explained on SI.com, the pool of potential judges is varied as to whether they might be inclined to favor Brady or the NFL. Neither Brady nor Goodell will be required to attend the March 3 hearing, which will consist of one lawyer for Brady and one lawyer for the NFL each presenting a brief (most likely 10 or 15 minute) oral argument to the three judges, who can interrupt each lawyer at any time with questions. The hearing will involve no examination of evidence and no witnesses—only discussion between each lawyer and the three judges. Also, the record for the appeal will be limited to what Judge Berman considered. As a result, PSI testing by the NFL during the 2015 season will not be part of the discussion. The three judges will likely take several months to issue an opinion, which will consist of a 3–0 or 2–1 vote.
The odds favor Brady in the appeal. Judge Berman is only reversed about 8% of the time, and although Judge Berman’s order in Brady’s favor can be debated, it was logically argued. Yet don’t count the NFL out; the league has retained a highly regarded legal team for the appeal, and it is banking on the fact that federal judges rarely vacate arbitration awards and thus the three-judge panel should closely scrutinize Judge Berman’s decision to do so. As a twist, the three-judge panel might remand the case back to Judge Berman with new instructions for further analysis. This would mean that Brady and Goodell could be back in Judge Berman’s court during the summer or fall of 2016.
In addition, the “loser” of the three-judge Second Circuit panel can petition for an “en banc” review by the all the judges on the Second Circuit (such petitions are almost never granted in the Second Circuit) and then petition the U.S. Supreme Court. While the Supreme Court only accepts about one percent of cases for review, should the NFL defeat Adrian Peterson in their appeal before the U.S. Court of Appeals for the Eighth Circuit and should Brady defeat the NFL before the Second Circuit, a “circuit split” might emerge where two federal appellate courts reach contradictory conclusions about a specific area of law. To be clear, the Peterson and Brady cases involve different matters—Peterson was punished under a new domestic violence policy for conduct that took place during a previous policy, whereas Brady was punished for conduct that might not have occurred and arguably implicated equipment rules. Both cases, however, go to the core issues of notice and process in a labor-management dispute. Conflicting decisions in their outcomes would make it at least slightly more possible that the Supreme Court would hear Brady v. NFL.
Some have wondered if Brady will separately file a defamation lawsuit against the NFL. After all, even if he defeats the NFL on the labor law/arbitration law appeal, the word “Deflategate” will forever be linked to him. It is very unlikely that Brady will file a defamation lawsuit. As a public figure, he would need to show that the NFL had “actual malice,” meaning Brady would need proof the league intentionally or knowingly lied about him. A defamation lawsuit would also take months, if not years, to play out and would require Brady to attend many meetings with attorneys and several hearings in court—this is likely the last way Brady would want to spend his time after spending last August in court. Plus, even if Brady, who is reportedly worth in the ballpark of $120 million, wins a defamation lawsuit, he would “only” receive money. Brady would also be subject to potentially invasive pretrial discovery as part of lawsuit. All things considered, it’s likely not the worth Brady’s time or energy to commence a separate defamation lawsuit.
Nonetheless, Deflategate will live on in court into 2016 and perhaps beyond. And even when the litigation finally ends, the aftermath of Deflategate won’t run out of air for a long, long time.
Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He teaches an undergraduate course at UNH titled “Deflategate” and co-lectured on the Law and Science of Deflategate at the Massachusetts Institute of Technology. McCann is also the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law.