TB Suspension: Cheater free to play again

nighthob

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On the other hand, the case has always been more about how people feel about the Pats than about the facts. Perhaps nothing they tried would have mattered considering the forces that were aligned and all too happy to crap all over them.
This is the sad reality, and people let their feelings about the Pats overwhelm everything. I can tell you that my closest friend is a Broncos' fan that despises New England, and despite holding two math and one physics degree she was still convinced far longer than rational that it had to be true because it was the evil Patriots involved.
 

Bergs

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scotian1

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After listening to the Ted Olsen interview, it becomes so much clearer what a mistake the NFLPA made in not having him take the lead in the appeal before the 2nd Circuit.
 

dcmissle

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After listening to the Ted Olsen interview, it becomes so much clearer what a mistake the NFLPA made in not having him take the lead in the appeal before the 2nd Circuit.
I'll get the back story on this - either from his firm or from the leading light on the other side, but I'll get it.

But like all pies, it needs to cool to cut.

Whenever I think about this, it gets me to cussing and drinking. And it's NOT 20/20 hindsight -- nor was the criticism of not getting Kessler involved early enough. Go back far enough in the pertinent threads, and you'll find people here distinguishing themselves. This is the sports' equivalent of someone serving time for something he did not do.
 
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Because the Patriots were playing the "we will cooperate" game in case anything did turn up. The NFL makes no bones about going after teams for failing to cooperate so it's best to play the "we'll do everything to cooperate" in public dance.
And they still got nailed for 'failure to cooperate' just as they did in Spygate. Playing nice did nothing to help, and allowed the NFL to poison public opinion. It was absolutely the wrong call.
 

Eddie Jurak

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And they still got nailed for 'failure to cooperate' just as they did in Spygate. Playing nice did nothing to help, and allowed the NFL to poison public opinion. It was absolutely the wrong call.
But the battle was already lost before the Patriots new that the NFL was spreading false rumors. Had the Patriots come out in denial mode, they would have looked like disingenuous assholes had the leaked data turned out to be accurate.
 
But the battle was already lost before the Patriots new that the NFL was spreading false rumors.
Not only that, but the public was clearly receptive to any narrative of the Patriots cheating. Had the Patriots ignored the gag order, they would have: 1) appeared defensive; 2) violated the gag order, unnecessarily providing ammunition for a penalty; 3) convinced absolutely no one outside of New England. That's why they implored the NFL to correct the record.

Once Ted Wells became involved, the public would have considered the investigation itself as sufficient evidence the Patriots had done something wrong. Spygate, the deflategate accusation itself, the stupid headset accusations - it's unfair, but all of this has left the Patriots with no credibility with the general populace. The public was never going to pressure the NFL on behalf of the Patriots.

Brady's suspension and the team penalty was a fait accompli. Had Brady not destroyed his phone, Goodell would have found the texts compelling. Had the texts not existed, Exponent's mental gymnastics to refute Walt Anderson's logo/non-logo gauge recollection would have sufficed. Even without that, a couple footballs were a tick under the expected PSI. A penalty was inevitable.
 

Marciano490

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I'll get the back story on this - either from his firm or from the leading light on the other side, but I'll get it.

But like all pies, it needs to cool to cut.

Whenever I think about this, it gets me to cussing and drinking. And it's NOT 20/20 hindsight -- nor was the criticism of not getting Kessler involved early enough. Go back far enough in the pertinent threads, and you'll find people here distinguishing themselves. This is the sports' equivalent of someone serving time for something he did not do.
I'd be curious, too, why the Wells Report work went to Paul Weiss and not Covington. Did they want to use a firm they had a more attenuated relationship with, or was Covington not willing to play ball?
 

WayBackVazquez

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I'd be curious, too, why the Wells Report work went to Paul Weiss and not Covington. Did they want to use a firm they had a more attenuated relationship with, or was Covington not willing to play ball?
Wells and PW did the Incognito investigation and report, too.
 

Shelterdog

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Wells and PW did the Incognito investigation and report, too.
More significantly Paul Weiss did the concussion representation as well and billed in excess of $35 million on the matter according to some reporters. They've represented the NFL on a number of matters for years.
 

PedroKsBambino

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I'd be curious, too, why the Wells Report work went to Paul Weiss and not Covington. Did they want to use a firm they had a more attenuated relationship with, or was Covington not willing to play ball?
I have no idea, but just speculating a few possibilities come to mind...

1) Covington is effectively positioned as quasi-inside counsel and they wanted someone who looked external. Could even have perceived a potential conflict.
2) NFL's leverage over PW is likely a lot greater than over Covington (NFL being a high-profile but not gigantic money client for Covington, I believe, and also length/depth of relationship...it's a lot easier to pull a major litigation than to replace the various things Covington does for NFL)
3) Tagliabue's presence at Covington cannot make Goodell feel great about handing an investigation to them, even with reality different lawyers would drive things
4) Wells likely biggest 'name' who would sign up for this
5) Covington made clear---now or in past---they aren't willing to trade their rep for this work. We now know Wells/PW is wiling to do so (to my surprise, candidly)
 

Otis Foster

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Covington made clear---now or in past---they aren't willing to trade their rep for this work. We now know Wells/PW is wiling to do so (to my surprise, candidly)
This surprises me also I was pretty adamant that Ted Wells would play this straight. Mea culpa.

Wells is I'm sure outraged that anyone would question his integrity. I'm confident that he's convinced they weren't co-opted. All I can say is that the human mind is capable of rationalizing anything. I'm just surprised they didn't realize how exposed their expert was on the IGL.

Measure twice and cut once, as Kraft likes to say.
 

Average Reds

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This surprises me also I was pretty adamant that Ted Wells would play this straight. Mea culpa.

Wells is I'm sure outraged that anyone would question his integrity. I'm confident that he's convinced they weren't co-opted. All I can say is that the human mind is capable of rationalizing anything. I'm just surprised they didn't realize how exposed their expert was on the IGL.

Measure twice and cut once, as Kraft likes to say.
His incredibly defensive performance in the post-report press conference tells me that he knows full well what a compromised, nonsensical report he put together.
 

Leather

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Honestly, if they wanted an unbiased investigation they would have given the assignment to an auditing firm like PriceWaterhouse Coopers, not a law firm. Law firms, especially ones that deal mainly in litigation, are in the business of advocacy.
 

dcmissle

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His incredibly defensive performance in the post-report press conference tells me that he knows full well what a compromised, nonsensical report he put together.
They have established who they are. As Shelter notes, this was the tail on the concussion dog. You might call it a loss leader save the fact that they premium billed for DFG too.

At all those NY cocktail parties, anyone with the least bit of sophistication -- which means almost everyone -- knows exactly what went down here. He'll carry that to his grave.
 

PedroKsBambino

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Honestly, if they wanted an unbiased investigation they would have given the assignment to an auditing firm like PriceWaterhouse Coopers, not a law firm. Law firms, especially ones that deal mainly in litigation, are in the business of advocacy.
That's completely the opposite of my experience. The audit firms are far less willing to push back on commercial pressures than law firms. They also have some vague professional responsibility I oversight. We kind of know this is so from the Enron fiasco (sadly, consulting activities at audit firms have come back)
 

Ed Hillel

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His incredibly defensive performance in the post-report press conference tells me that he knows full well what a compromised, nonsensical report he put together.
I was going to mention the exact same thing, but, beyond that, one could actually hear someone (Pash?) coaching Wells on his responses as he answered the questions. He knew what was happening.
 

djbayko

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That's completely the opposite of my experience. The audit firms are far less willing to push back on commercial pressures than law firms. They also have some vague professional responsibility I oversight. We kind of know this is so from the Enron fiasco (sadly, consulting activities at audit firms have come back)
Not saying you're wrong, but I'm not sure Enron is the best example today. Wasn't one of the main issues with Enron that Arthur Andersen was providing both auditing and consulting services to their client, resulting in huge conflicts of interest?
 

PedroKsBambino

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Not saying you're wrong, but I'm not sure Enron is the best example today. Wasn't one of the main issues with Enron that Arthur Andersen was providing both auditing and consulting services to their client, resulting in huge conflicts of interest?
Yes--and that is why I noted that consulting activities were coming back at the big 4. They are still constrained relative to Enron era but roughly 1/3 of revenue at the big 4 (and most of the growth) is advisory at this point. The Enron scandal shows that this pressure can lead to almost any audit outcome.

Perhaps even more significant than the conflict issue and lack of clear ethical standard, the audit firms also don't really have the experience to investigate something like the Deflategate accusations. Generally speaking, when they are called in to do a fact-intensive analysis they lean on lawyers anyway.
 

PedroKsBambino

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My recollection was that it was another lawyer from his firm, but yeah, I distinctly remember him being fed the "answers."
We'll never find out, but I suspect the 'villain' at PW is not Wells (who seems to have been the figurehead) but instead Reisner.
 

crystalline

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They have established who they are. As Shelter notes, this was the tail on the concussion dog. You might call it a loss leader save the fact that they premium billed for DFG too.
Don't forget Wells signed off on the exact same style of report in the Incognito case. Incognito isn't a very sympathetic figure, but that report totally absolved ownership and threw Incognito, other players, and low level staff under the bus.
 

djbayko

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Yes--and that is why I noted that consulting activities were coming back at the big 4. They are still constrained relative to Enron era but roughly 1/3 of revenue at the big 4 (and most of the growth) is advisory at this point. The Enron scandal shows that this pressure can lead to almost any audit outcome.

Perhaps even more significant than the conflict issue and lack of clear ethical standard, the audit firms also don't really have the experience to investigate something like the Deflategate accusations. Generally speaking, when they are called in to do a fact-intensive analysis they lean on lawyers anyway.
Hmmmm...are you sure you didn't edit that post? I kid. Shame on me for missing that :-/

It's scary that consulting services are coming back. Between the financial collapse and this, we really never do learn from history, do we? Back to football...
 

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5) Covington made clear---now or in past---they aren't willing to trade their rep for this work. We now know Wells/PW is wiling to do so (to my surprise, candidly)
I've got to say I wasn't surprised in the least by Wells/PW's willingness to do a biased report, and I think most similar firms or top practitioners would do something similar. In this day and age that's typically how outside counsel operates when conducting "independent" investigations into matters large and small--ultimately you stick with the company line even if you have to say something ridiculous, ignore contradictory evidence, get your expert to do a contorted analysis, etc.
 

amarshal2

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Hmmmm...are you sure you didn't edit that post? I kid. Shame on me for missing that :-/

It's scary that consulting services are coming back. Between the financial collapse and this, we really never do learn from history, do we? Back to football...
The audit and advisory sides aren't allowed to work for the same client, I believe. It's a meaningful change.
 

PedroKsBambino

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I've got to say I wasn't surprised in the least by Wells/PW's willingness to do a biased report, and I think most similar firms or top practitioners would do something similar. In this day and age that's typically how outside counsel operates when conducting "independent" investigations into matters large and small--ultimately you stick with the company line even if you have to say something ridiculous, ignore contradictory evidence, get your expert to do a contorted analysis, etc.
Perhaps it's a matter of degree---I think most all firms will seek to reach conclusion they are paid to find if there is a way to get there.

But, wells report is a level beyond that, it's pure advocacy unmoored from any credible reality. The Exponent report and its wording, for those of us who have used expert firms, is a tacit admission there is no case at all here. I do not think all firms would sign off on that---perhaps I'm just kidding myself.
 

kenneycb

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Companies generally value audits less and less, at least from a value add perspective, and the PCAOB has put higher standards on firms in the last 5 or so years, leading to lower fees from clients and lower margins on those fees due to time overages. Deloitte was the only Big 4 to keep its consulting arm after SOX came into effect so the rest of the three are playing catch up to grow the consulting pie, which has led to several acquisitions such as PwC's of Booz, which is probably the highest profile one off the top of my head.
 

dcmissle

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You will not find Big 4 in this space. They cannot confer privilege, and entities like the NFL want privilege to bury bodies.

In my experience, they would never sign on to the Exponent piece of this. I have hired testifying experts at PwC and like places repeatedly for more than 20 years. Everything that goes out over the firm name is peer reviewed within the firm so that no single partner or group of partners can whore the firm out. If anything, they tend to be too conservative.
 

GeorgeCostanza

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Companies generally value audits less and less...
Couldn't have more of a different experience where I work (big insurance/financial). The amount of $$ they are pumping into tools and staff that will help deliver audits and comply with findings has gotten staggering, border line obscene, over the last couple of years. Maybe because our parent company is Canadian?
 

kenneycb

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I've viewed that as less a value of the audits themselves and more of a being afraid of fines and other things, specifically in such increasingly regulated industries as insurance and finance.
 

TheoShmeo

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I've got to say I wasn't surprised in the least by Wells/PW's willingness to do a biased report, and I think most similar firms or top practitioners would do something similar. In this day and age that's typically how outside counsel operates when conducting "independent" investigations into matters large and small--ultimately you stick with the company line even if you have to say something ridiculous, ignore contradictory evidence, get your expert to do a contorted analysis, etc.
The thing that I found and still find to be very surprising is Wells/PW's willingness to put their name on a report that was so easily identified as an advocacy piece and was so easily picked apart. I also found Wells' tantrum with the media to be a big surprise. In short, that PW produced what the client wanted was expected; that the work was not better was not. Then again, Goodell got what he wanted and most of the world ignores the work quality or the reliance on the Exponent dreck.
 

PedroKsBambino

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You will not find Big 4 in this space. They cannot confer privilege, and entities like the NFL want privilege to bury bodies.

In my experience, they would never sign on to the Exponent piece of this. I have hired testifying experts at PwC and like places repeatedly for more than 20 years. Everything that goes out over the firm name is peer reviewed within the firm so that no single partner or group of partners can whore the firm out. If anything, they tend to be too conservative.
Yes, though let's separate two things..

In terms of who runs the investigation (the original suggestion) I think several of us have noted why the audit firms are not a viable/likely answer in this context.

In terms of the Exponent report, I am not sure an audit firm would have taken the assignment because of the subject matter. But I do think if they did, they wouldn't have been as willing to deliver the actual report we saw as Exponent, whose business is pimping out resumes to support pre-determined conclusions.

Also, a point was made about post-SOX Big 4 not providing audit and consulting services for the same client. Someone here is probably an expert on it---however, my understanding is SOX eliminated some types of consulting work for audit clients (including systems stuff, leading to all the divestitures in early 2000s) and left other types of consulting open. Over the last decade those 'others' have grown materially at many of the big 4, reflected in the big 4 purchase of strategy firms and development of stronger training groups, among other things. So I think the larger point still stands.
 

Kenny F'ing Powers

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The thing that I found and still find to be very surprising is Wells/PW's willingness to put their name on a report that was so easily identified as an advocacy piece and was so easily picked apart. I also found Wells' tantrum with the media to be a big surprise. In short, that PW produced what the client wanted was expected; that the work was not better was not. Then again, Goodell got what he wanted and most of the world ignores the work quality or the reliance on the Exponent dreck.
I think Wells and Exponent took a a huge public image hit. That the NFL & Goodell, somehow, are the only group walking away fairly unscathed says alot about...well, everything.
 

Shelterdog

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The thing that I found and still find to be very surprising is Wells/PW's willingness to put their name on a report that was so easily identified as an advocacy piece and was so easily picked apart. I also found Wells' tantrum with the media to be a big surprise. In short, that PW produced what the client wanted was expected; that the work was not better was not. Then again, Goodell got what he wanted and most of the world ignores the work quality or the reliance on the Exponent dreck.
This (and other posts like it by attorneys) is fascinating to me and suggests (to me) that knowledgeable attorneys don't have a deep understanding of what actually goes on in large firm white collar/regulatory practice. The Wells report strikes me as being pretty typical of the kind of report that white collar/regulatory groups routinely generate and they frequently do rely on shoddy "expert" analysis from shops like Exponent. I've seen practitioners with names comparable to Wells put their names on more embarrassing work than the Wells report in far more important (although less public) contexts. The idea that putting your name on this report--where Brady did destroy his phones and the guys did talk about deflating balls a bunch and the Pats cut off access to the dorito dinks--is somehow a step further than a top firm or white collar guy would typically go is amazing to me.
 
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TheoShmeo

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My firm has a top notch white collar practice. It's not my area and I do not participate directly but I am still aware of what goes on with them. All I can say is that my perception of their practice and practices is markedly different than what you describe.

Simply put, I don't think my partners would have put out out such shoddy work. Now, yeah, there are aspects of the report that were fine and I take your point on the phone destruction aspects.

I do not recall good specific examples right now and am too lazy to dig out the report, but I believe that Wells made some pretty obvious mistakes and his sleight of hand with Walt Anderson's ball measurements and some of the convenient assumptions Wells made are, again, things I believe my white collar partners would not have done.
 

Papelbon's Poutine

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My firm has a top notch white collar practice. It's not my area and I do not participate directly but I am still aware of what goes on with them. All I can say is that my perception of their practice and practices is markedly different than what you describe.

Simply put, I don't think my partners would have put out out such shoddy work. Now, yeah, there are aspects of the report that were fine and I take your point on the phone destruction aspects.

I do not recall good specific examples right now and am too lazy to dig out the report, but I believe that Wells made some pretty obvious mistakes and his sleight of hand with Walt Anderson's ball measurements and some of the convenient assumptions Wells made are, again, things I believe my white collar partners would not have done.
If they had a $5M check from a high powered and repeat client, your guys would have done exactly what Wells did.
 

Leather

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It's only shoddy work if the client thinks it is, and that's all that matters. If this were a court document, things might be different. But it's not, and the NFL was clearly pleased.

Theo, I say this respectfully, but I find it incredible that you have worked at a law firm for years (I'm guessing) and not yet come to realize the Ronin-like nature of the advocacy business. It's great when the guy(s) whose corner you're in are the good guys, but the other guys pay just as much, and usually more.
 
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TheoShmeo

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If they had a $5M check from a high powered and repeat client, your guys would have done exactly what Wells did.
Yeah, maybe. You are probably right in a directional sense.

But there are different ways to achieve the result.

My surprise is not that Paul Weiss put out a made to order report. That was to be expected. I just also expected them to do a better job at it given my great respect for that firm.

No doubt, they have a completely satisfied client and the extreme likelihood of further business, so they checked the right boxes. Still, there are often multiple ways of achieving the objective, and I'm very surprised Wells did not use them and I would like to think that my partners would have done better.
 

TheoShmeo

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It's only shoddy work if the client thinks it is, and that's all that matters. If this were a court document, things might be different. But it's not, and the NFL was clearly pleased.
Yeah, I don't share that definition of work quality. Sure, by far the most important considerations are achieving the client's objective and pleasing the client. No doubt. But many firms also think about other aspects of quality, like clarity of thought and whether it hangs together, to name a few. It's true that these things are heightened in litigation but this particular report was destined for a much wider audience than most such works. I just expected a higher level of workmanship given that context.
 

Leather

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But the Wells report might be exactly what the NFL wanted. They may have wanted a plausible, professional, report, with enough pseudo-scientific shit to give it a sheen of "complexity" that would confound, or bore, most people and the strident minority that bothered to write an equally confounding and boring rebuttal could be written off as self-interested and suspect.

It's the same playbook that cigarette companies and global warming deniers (and most conspiracy theorists) use(d) for years.

I mean, yes, the report is bullshit and contains lots of bad science. Of course it does, because it needs to to come to its final conclusion. They could not have given the NFL what it wanted without the very "shoddiness" you cite as being flaws.

If your firm did the report in a way that was more thoughtful, honest, and thorough (and I have no doubt they could have) the NFL would have told your partners to stick it.
 

TheoShmeo

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I assume that the NFL indeed got exactly what it wanted, and for the reasons you stated. I remain surprised that Paul Weiss did not deliver the same result but with fewer flaws and fictions.

Where we differ is whether Wells could have gotten there without so much obvious shoddiness. Given my great respect for the lawyers in that firm, and having just seen them make the most of a very weak hand in a case, I remain surprised that they could not have found a way to do it better.
 

Leather

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We are all dealing with hypos and theoreticals so who really knows.

I would not be surprised at all of the NFL gave Paul Weiss an outline of what they wanted in the report, and the majority of time spent on the "investigation" was really multiple drafts and meetings about what could be in the report without crossing the line line of implausibility and ridiculousness. Wells could very well have been instructed to dig up dirt on Belichick, for instance, but told the NFL that it was not possible to do so without losing all credibility.

We just don't know. Maybe the NFL really wanted something much worse and Wells really did reign them in.
 

PedroKsBambino

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I think we're somewhat overstating just how pliable practitioners are, and that's said as someone who is relatively aware of the tradeoffs that get made regularly. Let's keep in mind that even Wells wasn't willing to go as far as the NFL likely wanted---ultimately, he seemed to draw the line at "more probable than not" and "generally aware of" There's little chance that is the outcome they wanted.

I think he knew, and the report makes clear, he didn't have the goods here. This was ultimately like an insider trading investigation where they couldn't find evidence a trade ever occurred, but found some evidence consistent with a cover-up. That is why Exponent stretched as far as they did. And, I am a little surprised he was willing to sign off on what is so clearly a piece of junk advocacy given the public profile of this thing; I'd have imagined he'd push for even softer conclusions. But obviously, he did not.

To Dr Leather's point, interesting to ponder whether some of Wells' anger at that press conference might have been that he was pushed where he was, or whether it truly was all about him being questioned...
 

GeorgeCostanza

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Yeah, maybe. You are probably right in a directional sense.

But there are different ways to achieve the result.

My surprise is not that Paul Weiss put out a made to order report. That was to be expected. I just also expected them to do a better job at it...
That became a remarkably difficult task once they discovered it was more probable than not that the truth/facts/science were not on their side. I think an argument can be made that they made the best shit sandwich they could given the ingredients they had to work with.
 

Leather

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Well, I think it's safe to say that if Wells really was 100% satisfied and comfortable with the contents of that report, he does not give that press conference. He wouldn't have needed to.

I agree that Wells, in private, probably hates that his name is attached to that document, but is proud of himself for making the best of a shitty assignment that, for all the sturm und drang, doesn't really matter a whole lot, anyway.
 

RetractableRoof

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Well, I think it's safe to say that if Wells really was 100% satisfied and comfortable with the contents of that report, he does not give that press conference. He wouldn't have needed to.

I agree that Wells, in private, probably hates that his name is attached to that document, but is proud of himself for making the best of a shitty assignment that, for all the sturm und drang, doesn't really matter a whole lot, anyway.
Unless your name is Brady and your lifes effort has been tainted and smeared beyond belief. Or you're the organization which has done nothing wrong and has been penalized in a way which could affect years of success and profits.

Those were the targets of the effort and if he is satisifed with the result - not caring that he was the tool used to cause the damage - then he is a schmuck. Yes, no life was lost but in the context of the arena he was working in there were historic levels of damage and impact.
 

pappymojo

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Can someone explain why the NFL, as an organization, felt compelled to pursue this very expensive legal effort to hide the most likely truth? I understand that some of the other owners may have had it in for the Patriots, but once the NFL realized that the science didn't support the storyline, how is it not in the best interest of the league to advocate for the truth? How can it benefit a sports league to engage in perpetuating a dishonest story that directly compromises their audience's trust of the fairness of the league?

I get that the P.R. battle with the leaks to Mort may have gotten ahead of them, and that the majority of their audience hates the Patriots anyways, but how is an honest and impartial application of the rules not the most paramount objective of a sports league?