Theoretical Crime

On the cosmic scheme of things, deflategate doesn't amount to a hill of beans in terms of impacting world peace, ameliorating global warming or eliminating rampant congressional corruption but what is does do is show how shoddy and weak the report was in condemning Brady of "possibly" being aware of what was going on regarding the deflation of footballs that did not impact the wax job the Pats did to the Colts in the AFC title game.

Tom Brady and Theoretical Crime

May 12, 2015

Exclusive: The NFL meted out a four-game suspension to New England Patriot quarterback Tom Brady while also fining the team $1 million and taking away two draft picks — though the NFL didn’t conclusively prove that footballs were deflated, establishing only a theoretical crime, a dangerous precedent, writes Robert Parry.

By Robert Parry

If Tom Brady did order two locker-room assistants to deflate footballs illegally, he should confess and take the harsh punishment meted out by the NFL. But if he’s innocent, he and the New England Patriots should fight the ruling because it sets a dangerous precedent for everyone who might fall under this concept of a theoretical crime based on “more probable than not” logic.

In this case of Deflategate, it’s not even clear that an offense occurred. NFL outside counsel Ted Wells struggled to get the odds over 50 percent that the footballs were intentionally deflated, even tossing in non-probative “gotcha” moments like the fact that one equipment assistant said he used a “urinal” in a small bathroom when Wells – playing a daffy Sherlock Holmes – noted that there was only a toilet in the room.

As with much of Wells’s report, innocent explanations for common events were rejected in a style that is more common in wild-eyed conspiracy theories than in a serious investigation that affects a person’s reputation and the future of a significant business in New England.

That Jim McNally, the assistant, might not have remembered something as mundane as whether he urinated in a urinal or a toilet was apparently not accepted by Wells, nor the logic that whatever McNally was doing in the bathroom – urinating or deflating footballs – he would have seen the toilet, so his misidentifying it is meaningless.

In my decades as an investigative journalist reading and evaluating many official reports, I have noted that when lawyers start including details like McNally saying “urinal” instead of toilet, they realize how weak their case is and are putting everything they can dig up on their side of the scales.

It gets better.

To reach this outcome, Wells had to stretch the case for believing that the footballs were intentionally deflated when the chilly, rainy weather could have accounted for all or nearly all the drop in air pressure, according to the NFL’s own scientists — while other variables were not fully taken into account, such as the way the Patriots conditioned their footballs by rubbing off the finish that, if not rubbed off, would have made them more water-resistant.

What the scientists hired by the NFL found was that the wetness of a football was a significant factor in both the drop in air pressure and the slowness for the pressure to restore once the football is moved to a warmer location. Thus, the amount of water that penetrates a football would be a relevant factor but that was not fully assessed by the NFL’s scientific testing.

By contrast, the footballs used by the Indianapolis Colts had not been rubbed down nearly as much, so they would have retained more of their water resistance.

Another key factor in evaluating the pressure of the Patriots’ footballs compared to those used by the Colts was the timing of the balls being tested inside the referees’ locker room at halftime. The scientists found that footballs, especially dry ones, regain their pressure fairly quickly once in a warmer environ, so the timing of those comparative tests represented another key variable.

Summing it up, is there undeniable guilt here? Would this Deflategate report finding stand in a court of law? I think not and, for the money Wells got for something that took three months to finish, wouldn't you think this document would be more definitive in determining quilt rather than depending on hearsay, innuendo and the "more probable than not" weasel words that permeate the entire document along with a lack of scientific rigor to truly determine that the Pat's balls were indeed truly deflated when some of the Colt's balls proved to be also, something just not kosher when penalizing a player and team on evidence as flimsy as this. 

The last question to ask it, would Pete Rozelle, the former head of the NFL, pull the trigger on this? For some reason, I rather doubt it.