On good legal advice, it can be stated here that that rascally Tom Brady is in a bind. Because, beyond Brady getting beat up by (non-New England Patriots) fans on the jury in the court of public opinion, the term “more probable than not”—used to cite Brady’s culpability in the case of the squishy NFL footballs—is a valid one in establishing proof.
Furthermore, as Northeastern University law professor Roger Abrams explained in a telephone tutorial, “When the NFL wrote its own rules, unilateral rules, they were not negotiated with the union, because [the league] wanted it as easy as possible to sustain discipline.
“The NFL has its own housekeeping rules,” Abrams said. “If the question is whether the NFL has the power [to suspend Brady for four games], the answer is, ‘Sure.’”
Brady can appeal, and his agent has said he will. And the players’ union can appeal on Brady’s behalf. But either appeal, Abrams said, “does not go to an independent, neutral arbitrator. It’s to a person designated by the commissioner. The NFL has the edge, absolutely.”
It should be noted that Abrams, who has written extensively on law and sports and served as arbitrator in hundreds of legal disputes, was “floored” by the Brady suspension. “The NFL,” he said, “seems unable to get it correct,” citing how the league’s original suspensions in the matters of Ray Rice’s domestic violence, New Orleans Saints bounty practices and Adrian Peterson’s child abuse charges—each of those involving physical harm as opposed to fudging competitive rules by decreasing the air pressure in footballs—all were overturned.
But this is what happens when cloak-and-dagger activity is unearthed in sports, a universe founded on the ideal of the Level Playing Field and so closely scrutinized by passionate, partisan devotees. However stark, raving mad Patriots fans are about having Brady convicted of behavior they insist is neither conclusive nor outside the bounds of common practice around the league, those anti-Patriots loyalists have been just as nuts over Brady’s perceived arrogance and apparent treachery.
This opinion divide was evident in a sampling of New York Times’ reader reactions published Sunday. To both sides of the argument, then, the NFL penalties announced on Monday, including a hefty fine and loss or draft choices for the Patriots, were predictably gasoline on the flames.
The better part of valor in this fight could be humor, as when Columbia University physics and mathematics professor Brian Greene wrote in the Times—soon after the scandal surfaced—that the league’s attempt to obtain expert scientific analysis of pigskin inflation occasioned “one of the rare times when the jocks turn to the nerds….
“So fellow fans of molecules and momentum—climb out of that gym locker you were stuffed into—this is our moment.”
Greene, alluding to “gas physics” and a formula considering volume, pressure and air temperature, slyly concluded that NFL lawyers may “just want to increase their billable hours.” And, taking the meteorological elements into account, “It looks to me that mother nature at least provides a reasonable doubt” about any skullduggery. “So, based on what I know now, your honor, I cannot convict,” Greene wrote.
My friend Charlie Pierce, whose wickedly snarky style is to be envied in these situations, similarly advised that we all calm down. In a piece for the Web site Grantland just prior to the suspension order, Pierce wrote,
“1. I think [Brady] knew damned well what was going on with those footballs. I think his categorical denial at the January press conference was what my old journalism school dean would have called a “barefaced non-fact.” I think he should be suspended two games. And then, good god, people, we should all get on with our lives.
“2. I think anyone who advocates a more serious punishment than that, and anyone who equates Brady with Lance Armstrong or Barry Bonds, is a dangerous child who should be kept away from the public for the same reason we keep toddlers out of the cutlery….”
Meanwhile, back to the “more probable than not” guilt assigned to Brady, the face of the Patriots and—to some extent—the face of the NFL: “What it means in real life,” Abrams said, “is, ‘It could be, maybe it’s not, I’m not too sure.’ It’s 51-percent sure. Which means it’s 49 percent not sure.
“But ‘more probable than not’ is used in civil actions, not criminal actions, for damages in car accidents or breach-of-contract or actions involving real property. Does the evidence [against Brady] meet that standard? Ted Wells [the lawyer who authored the report on the deflation investigation] is a wonderful attorney. Known him for 30 years. I value his work.
“On the other hand, people are picking that report apart.”
In the end, Abrams said, this was “not a legal decision but a policy decision: What’s best for the business?” So what the NFL had to decide was whether it wanted to open the 2015 season on national television—New England vs. Pittsburgh—without the sport’s biggest star? Or wanted to risk, by some relatively meek penalty, reinforcing the notion that rules are not quite the same for superstars?
Either way, what has been aired out, with those footballs, is some of the game’s dirty laundry.
