Go Kiko go

A few quick thoughts on that ruling. As to whether another court would follow that ruling, the first thing to recognize is that no courts outside of Missouri (or a federal court hearing a Missouri dispute) are obligated to follow that decision (you probably already had a sense of that, but I just wanted to start from the beginning). So, the first question is whether another court would follow the Missouri decision. There's a tendency in the judiciary--not necessarily a good tendency, but a tendency nonetheless--to give more weight to decisions of courts that are considered to be more reputable than other courts. To make a sweeping generalization, the more "reputable" courts tend to be in locations with a rich and respected legal history--New York, Massachusetts, California, D.C, those sorts of places. The short of it is that another court may be less inclined to follow this decision simply because it came from the Missouri Supreme Court. Another factor bearing on the amount of weight another court would give to this decision is how well-reasoned the decision is. Frankly, the Missouri court's decision is a little light on reasoning--the court only takes about 250 words to come to the conclusion that the Commissioner can't serve as the arbitrator, citing only one other Missouri Supreme Court case for authority that in turn cites no authority of its own: Presumably, this isn't the first time that the Commissioner's impartiality has been challenged (or that similar challenges were raised in analogous contexts, like arbitrations in other major sporting leagues), so it's a little troubling that the Missouri court neither cites nor discusses any other decisions under similar circumstances. On the other hand, from the little I know about arbitration agreements, courts are sensitive to ensuring that the arbitrator who will preside over the hearing is not biased toward one of the parties. Here, there's some obvious problems with having the Commissioner, who admitted that he was involved in the decision to suspend Brady, preside over Brady's appeal of that very decision. In fact, the Commissioner's relationship to Brady's appeal is much more direct than in the Missouri case, where the Commissioner would have been presiding over an employment dispute between an employee of the Rams and the club, not a dispute involving the league itself.

I don't think there's any doubt as to why Rodgers would do that. The question, however, is whether he is violating a rule by doing so. Did I miss where you cited the rule you believe he would be violating?

The rules provide that "[t]he Referee shall be the sole judge as to whether all balls offered for play comply with these specifications." Could you cite which rule Rodgers would be violating by playing with a ball that the referee, who is "the sole judge" of the matter, has approved for play?

Intent doesn't matter if no rule violation occurred. If someone intends to break the law by speeding, and proceeds to drive no higher than the speed limit, it doesn't matter that they intended to break the law. They didn't. It doesn't appear that furnishing a ball to the referees that fails to meet the league's requirements constitutes a violation of the rules (the rules appear to contemplate a process by which each team furnishes balls to the referees, and the referees determine whether those balls are appropriate to be used for the game. The rules provide that "[t]he Referee shall be the sole judge as to whether all balls offered for play comply with [the] specifications", and given that the rules require that "[a] pump is to be furnished by the home club", the rules appear to contemplate that a team may furnish balls that fail to meet the league's specifications.). If furnishing a ball that does not meet the league's specifications does not violate the rules, what would Rodgers be punished for? Intending to break a rule that doesn't exist?

Evidence doesn't somehow not count if it's circumstantial. The only question is whether the evidence, circumstantial or otherwise, establishes that it is more likely than not that the rules were violated.

That's fair, I phrased my question incorrectly. Do you believe that the evidence shows that it is more likely than not that a member of the Patriots organization violated the league rules?

I'm curious about your opinion of the bottom line: from all the evidence you have heard, do you believe it is more likely than not that no member of the Patriots organization violated NFL rules?

My point is that Yee's claims that Brady or his attorneys were justified in refusing to turn over his responsive communications lack merit, which calls into question the reason for Brady's refusal to cooperate. But yes, independent of any wrongdoing related to deflation of the footballs, he may be punished for failing to cooperate with a league investigation into possible rule violations, which he agreed to do as part of his status as a player in this league. Do you object to him being punished for failing to cooperate with the investigation?

Yee's comments run counter to how discovery is conducted in civil litigation every day, in courts across the country, for stakes far greater than Tom Brady's reputation. This is how the process should have unfolded: The NFL asks Brady's attorneys to produce any text messages or email communications that are relevant to the investigation, which the NFL did. Then, Brady's attorneys are responsible for reviewing Brady's communications in order to sift out the communications that were relevant to the investigation from those that were not (a number of posts in this thread have suggested that Brady would have had to turn over his phone, or all of his messages; that is not accurate, and is not how discovery works). His attorneys would have then provided the NFL with the responsive communications, redacted as necessary to remove any material not relevant to the investigation that Brady wanted to remain private. His attorneys would have also prepared what's called a "redaction log" where they would provide a brief explanation of why they chose to omit certain communications or redact portions of communications (for example, because those materials were not relevant to the investigation). Then, the NFL would review the communications Brady's attorneys turned over, and they could challenge his attorneys' decision to withhold certain information or redact parts of communications, which the parties could have attempted to resolve themselves or through a neutral mediator, who could review the communications in question (in private) and decide whether Brady's attorneys were correct in their decision that the information they chose to withhold was not relevant to the investigation. But instead of following this normal, well-established procedure, Brady (or Brady's attorneys) elected to refuse to provide any of his communications.

But you haven't identified the potential flaw in the measurements that could have affected the conclusion that atmospheric pressure was not to blame. As I pointed out, the report assumes the best case scenario for the Patriots with respect to the initial measurements, and the measurements taken at halftime were recorded, taken using both pressure gauges, and the scientific consulting firm concluded that the gauges were reliable and consistent, as noted in the excerpt from the report posted a few posts earlier in this thread. Where is the flaw in this methodology that you've identified?

This, for once, is a reasonably probative source of potential bias that the league may have had (I would think you would agree that this explanation--a league-wide belief that the Patriots are cheating, but haven't been caught--is more compelling than the belief, without more, that the NFL took it upon themselves to engage in a sting operation in the hopes that they would get to denounce Brady as a cheater, with no plausible explanation for the league's motivation). I still believe that it is unlikely that the NFL's preferred outcome in this matter was a public finding that Brady was likely involved in cheating, and more unlikely still that Paul, Weiss prepared an intentionally-biased report--which they knew would be publicly available for review and critique--so that one of the faces of the NFL could be denounced as a cheater. But this is interesting information nonetheless.

Did you read my post? The point is that having a record of the precise PSI level of each ball at the start of the game--instead of Anderson's recollection that the footballs were all around the 12.5 PSI level--would not have affected the determination that atmospheric conditions could not have accounted for the pressure drop because the report assumed that the footballs were inflated to the lowest PSI permissible under the rules--the most favorable possible scenario for the Patriots. The footballs could not have been any lower than 12.5 PSI, because the officials would have raised the pressure of those footballs to bring them to the minimum level--as they did with two of the Patriots footballs. It's possible that some of the footballs were inflated to a higher pressure (indeed, Anderson said that some of the footballs may have been inflated to 12.6 PSI instead of 12.5) and that having a record of the pressure of each ball may have shown that some of the footballs were inflated to a higher pressure than the report assumed. But, as I pointed out, that information would be less favorable to the Patriots because it would show an even greater drop in pressure. Could you explain why you believe that having documented records of the initial inflation level of each of the Patriots footballs would alter the conclusion that atmospheric conditions could not account for the drop in pressure?

We don't need clear evidence of the starting PSI. The report assumed (as Anderson recalled) that the starting PSI was 12.5--the lowest level permissible under the rules. The starting PSI couldn't have been lower, otherwise the referees would have added pressure to the balls to bring them up to the minimum (and indeed, two of the footballs were below the minimum 12.5 PSI, and the referees inflated those two footballs up to the minimum--see page 52). It's possible that that the starting PSI could have been higher, but that would have been more unfavorable to the Patriots, because a higher starting PSI would have indicated an even greater drop in pressure. In other words, the Wells report's calculations were based on the best possible scenario for the Patriots and still concluded that the pressure drop couldn't be explained by atmospheric conditions.

There are only two points of data relevant to whether atmospheric conditions could account for the decrease in pressure: the pressure of the footballs before the game, and the pressure of the footballs when measured at halftime. With those two data points, physics can supply an answer for whether that change in pressure could have been caused by atmospheric conditions. How do any of your contentions--assuming that any of these contentions are actually meritorious--call into question either of those two data points? The only assertion you made that appears to bear on either of these two data points appears to be your statement that "further incompetency is suggested as a result of the refs failing to use the same gauges on the same balls before/at half." With respect to the initial inspection of the footballs, the report states: "Anderson travels with two pressure gauges. He acquired both from the League within the past few seasons, and both are battery-powered digital gauges. The gauges appear similar, but one has the word “ON” on its face to indicate the on/off button and has a red Wilson logo on the back, while the other gauge has a red on/off button with no lettering and does not have the Wilson logo on the back. These gauges will be referred to herein as the “Logo Gauge” and the “Non-Logo Gauge,” respectively. Anderson is certain that he checked the footballs prior to the AFC Championship Game with one of the two gauges that he brought with him to Gillette Stadium. Although Anderson’s best recollection is that he used the Logo Gauge, he said that it is certainly possible that he used the Non-Logo Gauge." Then, with respect to the halftime inspection, the report states: "Blakeman and Prioleau [two of the referees] were each given one of Anderson's two pressure gauges, one of which had also been used to test the footballs before the game. Riveron stood next to the officials with Vincent, Grossi, and Farley observing nearby. Each ball was checked first by Blakeman and then by Prioleau, with each official calling out the pressure measurement for each ball tested and Farley writing down the measurement announced by each official before moving to the next ball." When the expert consultants conducted an analysis of the drop in pressure of the Patriots footballs, they considered the halftime pressure readings from both pressure gauges, and concluded: "Once Exponent converted the game day measurements recorded for each gauge into a corresponding “Master Gauge” pressure (in order to provide for a direct comparison with the results predicted by the calculations), the measurements for all but three of the Patriots game balls, as measured by both gauges, were lower than the range predicted by the Ideal Gas Law." Could you please explain the flaw you perceive in the report's conclusion?

I agree with most everything you've written, with the exception of this assertion. While the investigation differed in numerous ways from a judicial proceeding (such as the scope of the evidence reviewed, the lack of a true adversarial process, inapplicability of the rules of evidence), the report's conclusions were reached in the same manner they would have been reached in a trial: based on a review of the evidence collected, was it more likely than not that the rules were violated and Brady was aware of them? That's precisely how the question would be posed to a jury. Put differently, if the evidence discussed in the report (and that evidence only) was put to a jury, the report concludes that the jury's finding would have been that these rule violations did transpire. The difference, by contrast, is that the evidence presented to a jury would have likely differed from the evidence considered by the report (e.g., some may have been inadmissible, or as you pointed out, other evidence not available here, like Brady's communications, may have been presented). Did you expect absolute certainty? The state is permitted to execute individuals convicted of crimes without "absolute certainty"--merely a lack of reasonable doubt. And as has been discussed ad nauseam in this thread, the NFL (as in a civil judicial proceeding) considers a fact proven when it is more likely than not that the fact is true. That is what the report concluded. It was unnecessary for the report to reach any more certain conclusion.

Your words were that "the league got what they wanted in all of this." I'm asking how you concluded that the league wanted the report to conclude that Brady cheated. Do you believe that the league engaged in a sting operation hoping to catch Brady cheating and publicly reveal him as a cheater, or is there some other reason you believe that the league wanted this result?

How is that relevant to the question of whether weather conditions, alone, could have caused the drop in pressure? I was responding to the post by Fan in San Diego, where he stated that: "Cold rainy weather would have caused the balls to lose some inflation. Brady's psi is 12.5, Lucks is higher like 13 if I remember right. The balls sit outside during the game. They would have deflated some by halftime." The number of Colts footballs that were measured has nothing to do with the question of whether weather conditions could have caused the Patriots footballs to drop from 12.5 PSI to the air pressures measured at half time. The report concluded that "application of the Ideal Gas Law within the context of the most likely game day conditions cannot account entirely for the pressure drops observed in the Patriots halftime measurements."They could have measured zero Colts footballs and still reached this conclusion. It's just a question of physics, not a comparison of the Patriots footballs to the Colts footballs. Do you disagree?

To which referee incompetence are you referring?

Did you read note 25 on page 46? The report concluded that "prior to the game, there was no plan to check the air pressure of the balls at halftime or any other time during the game. There was no 'sting' operation, no plan for a 'sting' operation and no discussion of a 'sting' operation." Even if you don't want to believe the report's conclusion, you believe that this "sting" angle indicates that the league was acting with the purpose of having Brady publicly denounced as a cheater? You stated that the league "got what they wanted" when the report concluded that Brady was aware of rule violations, and you're pointing to this characterization of the league's actions as a "sting" as an indication that the league wanted the report to conclude that Brady cheated, correct? So, in other words, the story would go something like this: the Colts tipped off the league that the Patriots may be violating a rule, the league decided that they wanted to (again, for reasons that have not been articulated) have Brady publicly denounced as a cheater, so they did not inform the Patriots of the Colts's unfounded suspicions that they may be deflating footballs, instead hoping that the Patriots in fact were deflating footballs and that they would be able to catch them in the act, and then be able to publicly demonstrate that Brady was a cheater. Thus, when the report concluded that Brady was aware of rule violations, the league "got what they wanted." Is that correct?

From the report: "As a result of exposure to the colder temperature on the field during the first half, the air pressure of all of the game balls tested at halftime decreased from the levels measured prior to the game. This result is consistent with basic scientific principles, including the Ideal Gas Law, which predicts the proportional change in pressure that is caused by a change in temperature of the gas inside a pressure vessel of fixed volume (such as a football). According to Exponent [one of the leading scientific and engineering consulting firms in the country], based on the most likely pressure and temperature values for the Patriots game balls on the day of the AFC Championship Game (i.e., a starting pressure of 12.5 psi, a starting temperature of between 67 and 71 degrees and a final temperature of 48 degrees), the Ideal Gas Law predicts that the Patriots balls should have measured between 11.52 and 11.32 psi at the end of the first half, just before they were brought back into the Officials Locker Room. Most of the individual Patriots measurements recorded at halftime, however, were lower than the range predicted by the Ideal Gas Law. Indeed, once Exponent converted the game day measurements recorded for each gauge into a corresponding “Master Gauge” pressure (in order to provide for a direct comparison with the results predicted by the calculations), the measurements for all but three of the Patriots game balls, as measured by both gauges, were lower than the range predicted by the Ideal Gas Law. As a result, Exponent concluded that application of the Ideal Gas Law within the context of the most likely game day conditions cannot account entirely for the pressure drops observed in the Patriots halftime measurements."

You wrote: Could you explain how "the league got what they wanted in all of this"? Again, I'm having trouble understanding how a report that concludes that Brady cheated benefits the league or "gives the league what they wanted."

We should probably be clear, this appears to be Brady's agent, not his lawyer. Regardless, Brady's agent asserts that the law firm was biased in favor of its client, which is a reasonable inference to make (the idea that one of the most prominent law firms in the world publicly presented a biased report in a high-profile matter is a bit far-fetched, but not unreasonable). But Brady's agent never explains why the league would have wanted the report to conclude that Brady cheated. Brady's agent writes, "it is common knowledge in the legal industry that reports like this generally are written for the benefit of the purchaser," but Brady's agent fails to explain why a finding that Brady cheated would benefit the league.

I've seen this allegation that the law firm was biased in media reports as well, but I don't understand the inference. Wouldn't the fact that the law firm was hired by the league, which, presumably, does not want to have to discipline the quarterback of the team that just won the Super Bowl for cheating, indicate that the law firm would have an incentive for the report to not implicate Brady? Not the other way around? I think that's a good point to keep in mind--because this was not a judicial proceeding, we don't have all the relevant evidence before us (any of Brady's texts that were relevant to this matter would have had to be turned over, for example), and this wasn't an adversarial proceeding. But, I don't think the report's language indicates that the evidence we do have, if this was all the evidence that exists, is deficient. The report uses words such as "likely" and "probable" because in all matters like this, we don't deal in certainties. It is a rare case indeed where evidence is so overwhelming that more definitive language is appropriate.

Nothing, you're correct. The only point to keep in mind is that the "beyond a reasonable doubt" standard only applies when a person is facing a criminal conviction, which isn't really analogous to these circumstances. As judges tell jurors in civil cases, "You may have heard of the term 'proof beyond a reasonable doubt.' That is a stricter standard of proof and it applies only to criminal cases. It does not apply in civil cases such as this. So you should put it out of your mind."

Again, assuming (in this mythical world where NFL rule violations could go to trial), this would be in the nature of a civil trial, since no one would be threatened with a criminal conviction or jail time. As has been mentioned numerous times in this thread, the standard that would apply in such a proceeding is the "preponderance of the evidence" standard, which is the standard that the report applied: is it more likely than not that something did or did not occur? To determine whether there would be enough evidence for the case to get to a jury, the court would ask whether a reasonable jury could conclude that it was more likely than not that the rules were violated. Here, it appears that it a reasonable jury could so conclude (as the report so concluded).