#DFG: Canceling the Noise

[Van Everyman]

So you're with Russell Crowe on the "They can't do that" comment then?

Damages in that scene roughly match what the Pats should have been fined.

On another note, holy crap the talent in that embarrassment of a movie.

 

[dcmissle]

Interesting. One question I'm sure has been addressed but I haven't seen:

If Brady/Kessler destroy the report in court and the independent arbitrator throws out Brady's suspension in court, does the arbitrator have the ability to throw out the sanctions against the team as well? Or is there a firewall between these two aspects of the report?

Asking because the case against Brady is almost entirely dependent on the case against the team, ergo Brady (a la Brunell's argument) must have known as the QB and thus is guilty. If Kessler goes deeper than the texts and successfully argues that the underlying science of the whole thing is bunk (as I'm assuming he would), could the arbitrator vacate the team sanctions as well? Or would he/she just simply say something to the effect of "Goodell overstepped his bounds here and based his punishment on shoddy research and flawed logic" (which is IIRC more or less what the arbitrators have said in the Peterson, Rice and Bountygate cases).

No. The individual who ultimately decides Brady's case has no jurisdiction to rule on the sanctions imposed on the Pats. You are free to take a loved one to dinner the first Thursday next May.

 

[DJnVa]

Didn't they request that Goodell recuse himself in the filing itself? How would the clock be restarted?

 

No. They couldn't officially ask Goodell to recuse himself until the league announced that he was going to hear it.
 
Brady appealed on May 14th.
 
The NFLPA filed for Goodell to step aside on the 19th.

 

[Van Everyman]

No. The individual who ultimately decides Brady's case has no jurisdiction to rule on the sanctions imposed on the Pats. You are free to take a loved one to dinner the first Thursday next May.

Which is why I asked whether the arbitrator will be silent on the matter of team penalties and who is responsible or whether he or she will tear the League a new one on their whole process.

Maybe it's wishful thinking but based on Goodelle's prior success or lack there of it's certainly not impossible. That wouldn't do anything for the Patriots and their draft picks and so forth but I do think a vacation of the suspension and a screed from the independent arbitrator about the process could go a long way to restoring Brady's reputation.

 

[Reverend]

Which is why I asked whether the arbitrator will be silent on the matter of team penalties and who is responsible or whether he or she will tear the League a new one on their whole process.

Maybe it's wishful thinking but based on Goodelle's prior success or lack there of it's certainly not impossible. That wouldn't do anything for the Patriots and their draft picks and so forth but I do think a vacation of the suspension and a screed from the independent arbitrator about the process could go a long way to restoring Brady's reputation.

 
Yes it is. It's not a matter before the court--that's what dcmissile is telling you.
 
It's all mixed together and connected from the fan's point of view, but the legal issues are distinct and Kraft would have to bring a claim before the court for the judge to act upon it.

 

[lexrageorge]

Playing this game because it's more fun than what I'm doing right now....
 
The chances of the Pats penalty being changed are probably somewhere between 0 and none.  Assuming that Brady does get a day in court, Kessler will obviously try to hammer on the Wells report, among several other issues (e.g,. was the appeal handled properly as per the CBA; is the punishment just given past history).  I would have to think that Kessler will find a way to win based on the many holes in Goodell's case (that could just be the fan in me talking; I've been wrong about this whole process so far).  
 
First, the judge could throw out the penalty based on historical punishment for similar transgressions.  Brady is not cleared, the Wells report stands, but TB12 is playing on Opening Night after paying the $25000 fine.  
 
Second, the judge could decide that the Wells "report" does not establish that Brady was "generally aware".  We all here know that the Wells report had nothing on Brady specifically; Wells just made that one up to pacify his client.  So, Brady's punishment gets tossed, but nothing is concluded about whether McNally actually did deflate the footballs prior to the AFCCG.  Which means Kraft is still on the hook for the behavior of his employees.  
 
Of the judge may decide this is strictly a matter internal to the NFL, and that since the procedures outlined in the CBA were followed (in the judge's opinion), there was nothing arbitrary or capricious in the punishment.  

 

[tims4wins]

 
Yes it is. It's not a matter before the court--that's what dcmissile is telling you.
 
It's all mixed together and connected from the fan's point of view, but the legal issues are distinct and Kraft would have to bring a claim before the court for the judge to act upon it.

I think you misread the post you quoted - Van Everyman was saying it's not impossible that the league will be torn a new one if Brady takes it to Federal court. I think.

 

[Van Everyman]

You're misunderstanding me but perhaps the first sentence of the second paragraph of the post you quoted didn't make it super clear.

I'm not arguing whether the arbitrator could throw out the patriots penalties. I'm wondering whether the arbitrator might criticize the whole process in his or her judgement on Brady's appeal. It seems they have before and in this case the alleged violations seem very much intertwined.

Edit: what tims said.

 

[Reverend]

I think you misread the post you quoted - Van Everyman was saying it's not impossible that the league will be torn a new one if Brady takes it to Federal court. I think.

 
This would be inconsistent with the theory of judicial minimalism whereby judges are supposed to rule on as little as necessary to dispose of the issue.
 
It's not unheard of for a judge to go on a rant or something, but that's usually when it's a shitty lower court judge or Justice Scalia. Basically, though, insofar as that would not be necessary to dispose of Brady's case, it is so unlikely as to be borderline impossible. But hey, we can dream.

 

[Reverend]

It's also worth mentioning that were the arbitrator to do so, it might be considered sorta inappropriate and make the ruling more vulnerable to appeal by the league.

 

[tims4wins]

Apologies if we have been over it before, but what specifically will the arbitrator rule on?

 

[lexrageorge]

Apologies if we have been over it before, but what specifically will the arbitrator rule on?

Whether Brady's punishment should stand at 4 games, be reduced, or vacated altogether.  Nothing more, nothing less. 

 

[tims4wins]

Whether Brady's punishment should stand at 4 games, be reduced, or vacated altogether.  Nothing more, nothing less. 

 
So then, in order, Brady's side would argue:
 
1) penalties are arbitrary and capricious based on Vikings-Panthers game, Favre, Chargers incident, etc.
and if that isn't enough
2) No proof that Brady wanted balls deflated, no proof that he had any knowledge of anything done by JJ and JM
and if that isn't enough
3) junk science
 
Is that about right?
 
Edit: just read your post from above. You covered it pretty well.

 

[TheoShmeo]

Agree with Rev.  Commentary from the Judge in the ruling is highly unlikely.  And I'll take the penalty being knocked out on any of the bases enumerated by lex without anything more needed, thank you.   

 

[Reverend]

 
So then, in order, Brady's side would argue:
 
1) penalties are arbitrary and capricious based on Vikings-Panthers game, Favre, Chargers incident, etc.
and if that isn't enough
2) No proof that Brady wanted balls deflated, no proof that he had any knowledge of anything done by JJ and JM
and if that isn't enough
3) junk science
 
Is that about right?
 
Edit: just read your post from above. You covered it pretty well.

 
Here's the letter the NFLPA filed. In order:

1. Violation of process in that the delegation of authority to Vincent was not allowed;
2. Unfair and inconsistent penalties (~your #1);
3. Wells report contains insufficient evidence (~your #2).

For our best case/dream scenario of the arbitrator actually negging the suspension, I think #2 would be the easiest way for the arbitrator to rule narrowly based on the violation of "the law of the shop" that requires consistent penalties. Note, of course, that if the punishment were nixed for that reason, the arbitrator wouldn't even have to speak to the issues of process to the CBA or anything.
 
Of course, I'm pretty sure that that doesn't end things anyway. In the Peterson case, the judge vacated the punishment but also remanded it back to the league, meaning not that there can be no punishment, but that they have to redo the punishment process correctly. So we could end up with something interesting like the arbitrator throwing it back to the league and then have to wait to see what the league does.
 
And then again, in the Peterson case, the league did nothing and appealed the ruling in court. So it's not at all clear how close we actually are to seeing this resolved.

 

[djbayko]

 
No. They couldn't officially ask Goodell to recuse himself until the league announced that he was going to hear it.
 
Brady appealed on May 14th.
 
The NFLPA filed for Goodell to step aside on the 19th.

Okay, I wasn't aware of the formal request on the 19th. However, there was already a formal request in the initial appeal filing as well. Resetting the clock would be BS, unless both parties agreed to it, of course.

 

[tims4wins]

Thanks Rev

 

[DJnVa]

Legal question--if, as expected, this thing gets to court, I can't imagine it would be on any kind of expedited schedule.
 
Could Brady then go in and ask the courts to stay the penalty until he gets his day in front of the judge? What're the chances something like that would happen?
 

 

[dcmissle]

Yes. Rather good.

 

[Dan Murfman]

And the way this story goes he gets his stay and then gets his day in court in December and loses and misses the playoffs.

 

[Myt1]

 
This would be inconsistent with the theory of judicial minimalism whereby judges are supposed to rule on as little as necessary to dispose of the issue.

It's not unheard of for a judge to go on a rant or something, but that's usually when it's a shitty lower court judge or Justice Scalia. Basically, though, insofar as that would not be necessary to dispose of Brady's case, it is so unlikely as to be borderline impossible. But hey, we can dream.

It could go to credibility and Courts seem to like going that route these days against The Shield. wouldn't shock me to see maybe a terse footnote about the credibility of the report in general.

 

[Reverend]

Apropos of the current conversation, I was watching NFL Turning Point for the Ravens and LaFell says afterwards that they never even practiced the play. Belichick and McDaniels came up with the play during the 3rd quarter on the sidelines and executed.
 
Here's the video, it's pretty cool. This is all the guy recorded, I'd love to get more of these turning point videos:
 
[youtube]https://www.youtube.com/watch?v=1WahWVPefz0[/youtube]

 
Does anyone actually buy this?

 

[Reverend]

It could go to credibility and Courts seem to like going that route these days against The Shield. wouldn't shock me to see maybe a terse footnote about the credibility of the report in general.

 
I would love little more than for this case to become the Carolene Products of the future of NFL discipline.

 

[Myt1]

Nine years of the imbecile are enough.

 

[RIFan]

 
Unrelated: Chris Gasper continues to soil himself on this story in the Globe.  First he naively argues that Tom should make a statement and make it NOW.  No lawyer worth squat would allow that given the ongoing appeals.  Today, he argues that Patriots Hate is down to arrogance, and brings SpyGate, Kraft's Apology Demand and Being Uncooperative re Witnesses as his indicators.  Only SpyGate makes sense.  SpyGate was exactly a sin of arrogance.  And not much else.  But Kraft SHOULD have been defiant in the week before the Super Bowl.  Being statesman like would have been a huge negative and buzzkill for the team (or it might have).  The witness thing?  Ho hum.  There are arguments on both sides on that and the Context Report makes a good case on why the Pats were well justified in their approach.
 
Opposing fans are rightly taking advantage of the opportunity to needle Pats fans.  It's what fans do.  But to a person, the people I talk to get that DeflateGate is a big nothing and has been wildly bungled by Goodell.  That Goodell did not nip this in the bud BEFORE the AFC Championship Game remains the biggest story of all, and Sally Jenkins and Dan Wetzel have put the Globe writers to shame on every aspect of this silly story in pointing that out recently.  Regardless, people who hate on the Pats do so because they are fans of rival teams, they are tired of seeing one team win so much, Belichick is such a sour puss and unlikable man if you are not rooting for him, and Brady is too damn everything (a top 5 QB of all time, handsome, beautiful wife, richer than rich, cute kids and everything else Tom is).  Sure there are some fans who are steamed by the possibility that the Pats stretch the rules, but suggesting it's all based on that one factor is preposterous.  Similarly, suggesting that we would all lose our minds and think that the sins of DeflateGate actually provided more than the chance for some levity if Peyton Manning was in the middle of it is pretty stupid.  Yes, we'd have fun with it.  But transforming that to actually believing that a serious violation -- such as pumping in freaking crowd noise -- had occurred?  Not bloody likely, Gasper.  

Gasper has been awful on this.  Overall, considering he inherited Bob Ryan's column he is the very definition of 'meh'.  He really is the least compelling columnist in Boston right now.  It seems like he is using this story to create an edge to his work and at least generate some conversation around what he is writing.  When CHB can write a more level headed column on this mess you know you are doing something wrong.

 

[ivanvamp]

And the way this story goes he gets his stay and then gets his day in court in December and loses and misses the playoffs.

This is precisely my concern.

 

[Marciano490]

 
I would love little more than for this case to become the Carolene Products of the future of NFL discipline.

Pats as discrete and insular minority?

 

[garzooma]

Perhaps it's just that I'm sick in bed but this was the best written analysis on the ball pressure readings I've read the far:

http://emailwagon.blogspot.com/2015/05/how-i-trashed-wells-report-from-swan.html?m=1

Good fodder as we look forward to Kessler destroying the report in court.

 
Thanks for posting this.  I posted an observation in a comment there that I'd like to put before this board:
 
From p. 70 of the Wells report:
 

The pressure of the Patriots ball that had been intercepted by the Colts was separately tested three times and the measurements—11.45, 11.35 and 11.75 psi, respectively-- were written on athletic tape that had been placed on the ball for identification.
 
 

 

Then in Appendix I, pages 39-40:
 

For example, using 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 psig, a starting temperature of between 67 and 71°F and a final temperature of 48°F prior to the balls being taken back into the Officials Locker Room), these equations predict that the Patriots balls should have measured between 11.52 and 11.32 psig at the end of the first half, just before they were brought back into the Officials Locker Room.
 

 

So doesn't this mean that the Colts measurements of between 11.34 and 11.75 were pretty much the same as what the balls should have measured with no tampering -- between 11.32 and 11.52?
 
It seems to me that this shows up the junk science in the Wells Report in terms even a sports reporter can understand: the one ball measured at a known temperature (outside) shows that there was no tampering.

 

[DJnVa]

And the way this story goes he gets his stay and then gets his day in court in December and loses and misses the playoffs.

 

The chances of that happening are probably hovering a shade above 0%, but way below 1%.

 

[brandonchristensen]

This seems like such a bad idea for Goodell.
 
What is he thinking holding so firm on this? Considering he's so self-image conscious, you'd think he would have wanted this swept under the rug. The way he hanlded this from the start is baffling.

 

[Ed Hillel]

 
 
Thanks for posting this.  I posted an observation in a comment there that I'd like to put before this board:
 
From p. 70 of the Wells report:
 

 

Then in Appendix I, pages 39-40:
 

 

So doesn't this mean that the Colts measurements of between 11.34 and 11.75 were pretty much the same as what the balls should have measured with no tampering -- between 11.32 and 11.52?
 
It seems to me that this shows up the junk science in the Wells Report in terms even a sports reporter can understand: the one ball measured at a known temperature (outside) shows that there was no tampering.
 

 
This is a really good point, thanks for bringing it up, and first time I've seen it mentioned (doesn't mean it hasn't, just haven't seen it). It also demonstrates how much variance there can be between even one air guage

 

[Van Everyman]

BTW, it's worth noting that after a well-written, reasoned and balanced piece, Garofalo completely goes INSANE on a commenter who argued none of his science mattered because Brady didn't turn over his texts and, hence, was guilty.

 

[nattysez]

 

Adam Schefter ‏@AdamSchefter  2m2 minutes ago
Tom Brady’s appeal hearing will be held June 23, and possibly continued June 25, a league source told ESPN.

 
link
 
Edited to add:  As speculated above, this was likely done for Brady's convenience -- this is right after mini-camp is over.
 
Does anyone know if there is a requirement re: how fast Goodell has to rule on the appeal once the hearing happens?  Is that the 10-day timing that's been discussed? 

 

[ifmanis5]

This just in, Goodell finds Brady guilty.

 

[brandonchristensen]

He's the Potato Judge

 

[nighthob]

BTW, it's worth noting that after a well-written, reasoned and balanced piece, Garofalo completely goes INSANE on a commenter who argued none of his science mattered because Brady didn't turn over his texts and, hence, was guilty.

That person is, I'm pretty sure, a former member here. (I know who it is, I post with him on another board and he was bragging about that idiotic comment.)

 

[Ed Hillel]

@MarkLeibovich: Former NFL QB: What Tom Brady Did Common, 'Officials Don't Care' - Breitbart http://t.co/NYnk9Bo6Ns via @BreitbartNews

 

[PaulinMyrBch]

I'm guessing the date has more to do with Kessler having a busy schedule than Goodell. 
 
Kessler had Hardy this week, so I'm fine with him having a block of time leading up to the 23rd where he'll have ample time to design ways to rip Goodell, Wells, and "Troy" a new A-hole. 

 

[CaptainLaddie]

That person is, I'm pretty sure, a former member here. (I know who it is, I post with him on another board and he was bragging about that idiotic comment.)

"former" means you drop names

 

[CoffeeNerdness]

@MarkLeibovich: Former NFL QB: What Tom Brady Did Common, 'Officials Don't Care' - Breitbart http://t.co/NYnk9Bo6Ns via @BreitbartNews

Kind of annoying that they only spoke on a condition of anonymity. Also it doesn't mention anything illegal, but the tweet frames it with "what Brady did". What he did and what the anonymous source did was ask for balls on the low range. Also, the AFC championship was played in hurricane like conditions? OK, then.

 

[geoduck no quahog]

Perhaps it's just that I'm sick in bed but this was the best written analysis on the ball pressure readings I've read the far:

http://emailwagon.blogspot.com/2015/05/how-i-trashed-wells-report-from-swan.html?m=1

Good fodder as we look forward to Kessler destroying the report in court.

 
Hesitate to post here again, but the debunking of the scientific analysis is pretty good. What's particularly interesting is how well Wells/Exponent hid the scientific prejudices (completely fooled me, which is no great shakes) and how anyone with real brains (like a university professor) could miss all that.
 
One thing that makes this re-analysis even more damning is the incredible variation in pressure gauge readings, for example:
 
1. The difference between the logo/non-logo readings at halftime should theoretically have been identical for each ball, but they ranged from 0.30 to 0.45 (with one outlier at 0.08). That's a .15 psi difference just from reading the same gauge over and over.
 
2. The Colt's field measurement of the Patriot's ball using the same gauge 3 times showed: 11.45, 11.35, 11.75 -> a 0.40 variation just in 3 consecutive measurements
 
3. Exponent's own shady test of "similar gauges (not)" in the lab showed a variation as much as .65 psi between them. The gauges used by all parties probably had a high degree of inaccuracy.
 
So, if the uncertainty ranges are factored into these reports, it looks even worse for Exponent. I understand why he didn't do this because to insert ranges for every analysis would have made reading the conclusion difficult.
 
Every analyst should want to see Exponent's people on a stand and cross examined under oath. That would be a TV show worth watching. Ain't gonna happen.
 
{EDIT: You know, time is a wonderful thing. Enough has passed that I, for one, don't really care about the manufactured "scandal" any more. It's really fading. Interestingly, I care more about the manipulation of facts than whether or not McNally deflated footballs. So, even if the footballs were deflated, why does the NFL specifically prejudice the report to ignore facts and science in order to come to a conclusion?}

 

[Harry Hooper]

Since Kraft surrendered it's probably of no importance now, but the reality that the gauge readings are all pretty much crap is why I didn't like the Pats' rebuttal to the Wells Report going all-in with the argument that Walt used the gauge generating the higher readings.

 

[Devizier]

 
Hesitate to post here again, but the debunking of the scientific analysis is pretty good. What's particularly interesting is how well Wells/Exponent hid the scientific prejudices (completely fooled me, which is no great shakes) and how anyone with real brains (like a university professor) could miss all that.
 

 
Pretty easy, actually. They got paid, with no risk to reputation, to do some consulting. Not exactly their life's work.

 

[amarshal2]

 
Hesitate to post here again, but the debunking of the scientific analysis is pretty good. What's particularly interesting is how well Wells/Exponent hid the scientific prejudices (completely fooled me, which is no great shakes) and how anyone with real brains (like a university professor) could miss all that.
 
One thing that makes this re-analysis even more damning is the incredible variation in pressure gauge readings, for example:
 
1. The difference between the logo/non-logo readings at halftime should theoretically have been identical for each ball, but they ranged from 0.30 to 0.45 (with one outlier at 0.08). That's a .15 psi difference just from reading the same gauge over and over.
 
2. The Colt's field measurement of the Patriot's ball using the same gauge 3 times showed: 11.45, 11.35, 11.75 -> a 0.40 variation just in 3 consecutive measurements
 
3. Exponent's own shady test of "similar gauges (not)" in the lab showed a variation as much as .65 psi between them. The gauges used by all parties probably had a high degree of inaccuracy.
 
So, if the uncertainty ranges are factored into these reports, it looks even worse for Exponent. I understand why he didn't do this because to insert ranges for every analysis would have made reading the conclusion difficult.
 
Every analyst should want to see Exponent's people on a stand and cross examined under oath. That would be a TV show worth watching. Ain't gonna happen.
 
{EDIT: You know, time is a wonderful thing. Enough has passed that I, for one, don't really care about the manufactured "scandal" any more. It's really fading. Interestingly, I care more about the manipulation of facts than whether or not McNally deflated footballs. So, even if the footballs were deflated, why does the NFL specifically prejudice the report to ignore facts and science in order to come to a conclusion?}

The part I read didn't even talk about the effect of time/warming so I found it unconvincing. Same with your points about the variation in readings.

 

[tedseye]

After weeks of accepting the legitimacy of the Wells/Exponent report, Ben Volin in the Sunday Globe at last joins other critical minds:

"And, of course, Goodell's office levied historically harsh penalties -- a four-game suspension to Tom Brady, a loss of a first-round pick for the Patriots and $1 million fine --based on incomplete evidence and shaky science."

(Edited to correct omitted dashes and apostrophe.)

 

[ivanvamp]

I've been digging more into this whole thing (like I haven't been through enough of it).  Here's an interesting piece.
 
Consider these words from the NFL regarding the punishment handed down:
 
"was not candid in several respects during the investigation"
 
and
 
"his failure to cooperate with the investigation in a forthcoming manner".
 
These were key factors in the penalty handed down from the NFL (Goodell) to a future Hall-of-Fame quarterback.  Not being candid and failing to cooperate and not being forthcoming - those were the things that ultimately led to the harsh penalty.
 
For Brett Favre, back in 2010.
 
That penalty?  $50,000 fine.
 
Here's the language used by the NFL with respect to Brady and the Patriots: 
 
(Brady) "failed to cooperate fully with the investigation"
 
And
 
(Brady) "not fully candid during the investigation".
 
That penalty?  4-game suspension and the loss of $2 million.  (never mind the team penalties)
 
Again….
 
Favre:  "was not candid in several respects during the investigation"
Brady:  "not fully candid during the investigation"
 
Favre:  "his failure to cooperate with the investigation in a forthcoming manner"
Brady:  "failed to cooperate fully with the investigation"
 
Favre:  $50,000 fine
Brady:  4-game suspension, loss of $2 million
 
Same commissioner.  Same reasoning.  Completely different penalty.  Orders of magnitude more severe for Brady.

 

[BrazilianSoxFan]

Not same reasoning. By his words Favre was a lot more uncooperative.

 

[tims4wins]

Nicely done. Awesome research. Thanks for that.

 

[ivanvamp]

Not same reasoning. By his words Favre was a lot more uncooperative.

 
Agreed.  And yet a lighter penalty by orders of magnitude.

 

[ivanvamp]

Nicely done. Awesome research. Thanks for that.

 
Sure thing.  Any semi-competent lawyer and any reasonable judge or jury would absolutely shred what Goodell has done to Brady and the Patriots here.  People outside NE accept it and like it because it's the Patriots, but holy crap if this happened to their team they'd scream bloody murder.  And they'd be right.