James on DeflateGate
BJOL has about the best you'll read on Tom Brady ... outside of SSI, naturally


There's a article up at BJOL.  It dissects BradyGate at a level which is several plateaus above anything else you'll read on it.  James methodically demonstrates that Roger Goodell made 11 separate questionable lapses in judgment/process before he got to the point where he decided to suspend Brady.  If you haven't yet broken down and spent the measly $3 per month to get his stuff, now's a good time to do so.

Of course, Bill also did this very thing with respect to Bart Giamatti and Pete Rose.  It turned out later that Rose was VERY guilty, and that Giamatti knew this, and that the only problem lay in Giamatti's (public) documentation of Rose's guilt.

And before getting into it, lemme ask Mojician a real-world legal question.  To what extent are you confident that the NY judge was himself fair in his legal review?  Ruth Bader Ginsburg is very, very predictable in her political/legal decisions.  If gay marriage comes before her, there is zero question, BEFORE the evidence is presented, how she will rule.  Should I look at a New York judge this way?  Or can I be 80%, 90% confident that he gives a fair effort to sorting the argument as he best can?  I'd love to have your take Counselor on your attitude if you go into that court to argue one side or the other.

Anyway ... it's a tremendous article, but let me re-print the questions I just asked on his site:


Hey Bill. Good stuff. Particularly enjoy your thoughts when it pertains to this general territory. In my mind, you'd be an interesting nomination for the U.S. Supreme Court, at least a couple of hundred years ago when the legal resumes were more negotiable. You've got a unique blend of logic, fairness, and perspective. This article is great. 


That said, I'm *wondering* whether the article is "true but not accurate" as they say at Boeing. I loved your defense of Pete Rose, because it was the only even-handed, presume-innocence voice at the time. But as it turns out, Rose was kind of a bad guy, and Giamatti knew it. Giamatti's written arguments against Rose of course had (these kind of) holes in them, but sitting at Ground Zero is it not possible that Giamatti had a feel for the situation that we lacked? 


With all respect, I'm wondering whether NFL owners may have gotten tired of the Patriots' cheating (?) shenanigans, and whether they all agreed that it was time to bring down the Invisible Hammer. I'd be interested in your (famously even-handed) take as to this POSSIBILITY. 

I didn't, and don't, care about Brady's ability to grip the football in the rain. But the Patriots' fumble rates have been extraordinary the last several years, and *that* is huge. 

I also care that Brady looks the camera in the eye and says that he didn't know squat. The ballboys are there to say Yes Sir Mr. Brady Sir or they get replaced. Aaron Rodgers and others have spoken to the idea that the ballboys are extensions of Brady's will. I suspect that this is common knowledge around the NFL, and that among NFL insiders, Brady's denials are preposterous, like an ML player claiming he didn't know his bat was corked. 


Again, appreciate the sterling analysis. Mostly just seeking your take on a (hypothetical) situation in which a guilty verdict is hard to document by the P's and Q's, but in which the people at Ground Zero know good and well what is going on. 


Addendum to the previous, re: 'Fairness and Due Process.' 

1. I agree that Bill has documented, here, that there were serious holes in Goodell's adherence to the process. 

2. In the 30,000-foot view ... fairness is fairness. Agree with that too. But would add that there comes a point to which "fairness" means a different thing for a defendant in a murder trial, than it does to a boss who is evaluating whether to keep me on as an employee in his company. In the latter case, the boss's judgment is a factor; in a murder trial it's not. 

The process included the idea that Goodell was/is an arbitrator, and apparently that's in keeping with the CBA. I don't know whether it's appropriate for us to call for the total elimination of Goodell's judgment as a factor here. 

But then again, I don't know anything about unions or CBA's. Just from a bleacher-bum point of view, I personally would like to see SOMEBODY (in any pro sport) have discretion as to whether Joe Shlabotnik is a bad guy and deserves to be rebuked for it. Without having to hit the standards used in a criminal trial. 

3. I agree that the NFL is itself highly suspect as it pertains to fairness. It's easy to visualize them just getting ticked off at somebody and deciding to ruin them. Am not naive about that. 

But as a general rule, if you DO have a team that is continually "breaking code" about cheating and integrity, I do think that the league should retain an Invisible Hammer it can bring down. 

Suppose some team or player really were spitting in the water hole? Do you ever want the commish to be able to slap them down for it




I prefer that judges have as little discretion and are as predictable and methodical as possible.  That way, I can tell my clients what will happen at court and they can plan their lives accordingly.  It takes much blood, sweat, tears and money to litigate.  It is very undesirable when court outcomes seem determined by what the judge had for breakfast or when my clients are bushwhacked by an adverse ruling.

If RBGs  judicial philosophy is set in stone, that is a very good thing, unless it is a bad philosophy, which is a different issue.  For we are a nation of laws and not men.  Another bad judicial event is when a court stretches facts or law to achieve a desired outcome.  That is, courts can reverse engineer a case.

I never read the judges deflate gate decision.  I can check it out if Doc is assigning NFL collective bargaining agreement homework on Labor Day weekend, but I'd rather not.  Had six trials in six weeks and would like to chillax.  I'm back!  The CBA and football in general is like Mad Max Thunder Dome Court.  With Goodell being Aunty Tina Turner of course.  Brady knew the law: break a deal and face the wheel.  Federal judges should not try to fix the NFL and should just roll with it.  


Hope you won at least six of your trials.  Wow.  Here I thought 1-2 trials in six weeks were about par for the course.

No, please don't bear down on the Brady silliness if you're not interested on your own accord.  I just wanted a few general insights about the system, as you gave.  Muchas gracias.

... Interesting last line.  That's part of what seems odd to me, that Goodell has been given some latitude by the CBA and here we are in court, replacing Goodell's discretion with that of a judge.

Only followup question I'd have ... how often is it that you would go in, on a constitutional issue let's say, fearing that the judge was going to 'reverse engineer' the decision?


I don't suspect judicial reverse engineering all that often except in criminal drug law.  Much dope, warrants and confessions should be suppressed that aren't.  No one seems to mind this.


If the league wants to swing that invisible hammer against the Pats, it's going to be a rough time for Brady and co. Witness the Seattle-Pittsburgh Super Bowl as one example. They don't need a four game suspension to punish the org if they are convinced of systemic cheating. Parity looms so large that a couple of calls per Sunday could cost them four games, easily. And an NFL official could call a penalty on virtually every play if he wanted to. A first down called back because of a push off by the receiver. A big run called back because of holding on the OL. A successful defense on third down turned into a first down by defensive holding. It won't take much and it'll be impossible to prove. Something to watch, anyway. 


This was always about Goodell blowing/botching other Big Big Deal NFL stories.  Elevatorgate, Spankinggate........Goodell botched them.  In many ways he was punishing Brady for other guys errors (because Goodell played his cards badly in those cases).

Interestingly, Goodell bothces all the high profile things except the most high profile thing:  The cash on the barrellhead thing.  The NFL is awash in oodles of dough.....and the owners know it.  The NFL's bottom line is sky high.  In discretionary things Goodell is a dweeb.  In the profitability sector he is at the helm of a ginormous sea liner, this one really unsikable.  In that respect it is unlikely the owners relieve him of command.

But they should....

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