New England Patriots vs. NFL Wells Report. Compare and contrast

The biggest sports story of the 2014 and 2015 NFL seasons looks to be the accusation of the New England Patriots for cheating during the AFC Championship game (The Game), and its subsequent investigation, determination, and punishment meted out by the League and its agents. The conclusions of the investigators and the punishment are still under appeal, but the process is what we're interested in today.

It's tempting to call the incident "Much Ado About Nothing" because it revolves around changes in football internal air pressure that seems to be insignificant, but it's really closer to the Ray Donovan corruption case of the 1980's, because it's really about integrity--of the game, of the NFL, and of Tom Brady. After he was acquitted, Donovan asked, "what office do I go to to get my reputation back?" Only, so far the Patriots and Brady have been convicted.

Breaking news:  The Patriots have decided not to appeal the team penalties; Brady has filed an appeal with the NFL Players' Association.

Dueling Reports

The NFL hired a law firm (Paul, Weiss, Rifkind, Wharton & Garrison, LLP, a firm for whom the NFL is already an important and frequent client) to investigate the charges. Mr. Theodore (Ted) Wells, Jr., was the individual who conducted the investigation, reported on his findings, and made the determination that cheating had "more [probably] than not" occurred, perpetrated by two low-level employees of the Patriots (Jim McNally and John Jastremski, "ball handlers") and that it is "more probable than not" that Patriots' quarterback Tom Brady "was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls." This is what is called the "Wells Report."

The NFL Commissioner accepted those findings, and meted out significant penalties against the Patriots in the form of a $1 million fine and forfeited future draft picks, and against quarterback Tom Brady in the form of suspension without pay (resulting in loss of income of about $2.5 million) and a severe hit to his personal reputation.

In response, the Patriots prepared a website with its own report, called "The Wells Report in Context," attempting to debunk the assertions of the Wells Report. My own conclusion is that the Patriots' report is by far the more convincing of the two. Maybe that's because it's easier to write a rebuttal for the defense than to describe the investigation, lay out the indictment, and justify the conviction.

I don't intend to list every point of contention beyond saying that the Wells investigation did uncover some curious text messages between the two ball handlers but not Brady. Those messages are not only ambiguous, they aren't nearly as damning as the League claims because of their timing.

Instead, let's look at the logic of the situation.

The League's scenario (Skip this part if you already know the details)

The NFL says that we should believe that one of the two best quarterbacks in the League, a sure future Hall of Fame selection, intentionally risked his reputation in order to gain an insignificant advantage in the championship game. By implication, they also say he had the two ball handlers tamper with the balls for him for throughout the season.

We are to believe this because of text messages between the ball handlers sent in May, October, and November of 2014, months before The Game played on January 18, 2015. To support this conspiracy theory, the Wells Report cites the texts and gifts of autographed footballs and the like, given by Brady to McNally, via Jastremski, and they cite an "implausible number of communications" as being proof of the conspiracy, but it's unclear whether they mean communications between the ball handlers or phone calls and text messages in the days after The Game between Jastremski and Brady.

We are also told to believe that McNally was able to carry two large ball bags into the tunnel restroom (this isn't in dispute), and in less than 1 minute and 52 seconds (estimated downward by the League to 1:40) he was able to take 12 (or perhaps 13) footballs out one of the two bags, release an uncontrolled amount of air from each of them, put them back and re-zip the bag, then to compose himself after committing an offense for which he could be fired and walk calmly from the restroom out to the field, where he placed the ball bags exactly where they always went.

From that point on, there is no claim that any more tampering was done.

D'Qwell Jackson intercepted a pass, then gave it to a Colts official who noticed it felt "soft" and that led to the Colts themselves checking the football with their own pressure gauge to discover it was at 11 psi. This set in motion the attempts to check the pressure in the rest of the footballs at halftime.

Tom Brady would not provide information from his personal cell phone to the investigators.

My take on the Patriots' rebuttal (Skip this part if you already know the details)

The League report offers no evidence at all to show the ball handlers tampered with football pressures earlier in the season (beyond some ambiguous text messages between the two), nor do they suggest any way the two could have tampered with inflation pressures in any prior game, but they imply that it was done. In fact, the testimony of officials supports the contrary position: no tampering at all occurred before the day of The Game. Yet the text messages they rely on to "prove" a deflation conspiracy were sent months before the only game they claim to have any actual evidence that deflation occurred, and those texts are ambiguous if you start with an assumption of innocence rather than of guilt.

None of those pre-Championship text messages quoted by the Report are either from or to Tom Brady.

By implication, the League asks us to believe that the deflation process either happened several times during the season; that is, the Wells Report cites evidence that deflation of footballs was going on as early as October, or as early as after the Jets game, or during the previous Patriots-Colts game, or even during spring practices, yet it cites contrary evidence that McNally was never known to use that tunnel restroom before other games (even though McNally said he had used it before). This is supposed to prove that something happened just before The Game, but it's not clear how it proves it. The story of the D'Qwell Jackson interception and its aftermath supports the idea that the Colts at least thought Patriot footballs were under-inflated at their previous meeting.

We are also expected to believe that the ball handlers knew that Brady wanted the balls deflated to less than League specifications, even though there's no evidence that Brady ever said that was his preference to anybody, and that the ball handlers concocted a complicated plot to provide that for him without actually knowing he wanted it.

Exponent, the external test company hired by Wells, conducted tests to show that 13 footballs could be easily deflated by about one-half to one psi in one minute and forty seconds. (The report from Exponent didn't suggest how long an inflation needle would have to be left in a football to do that, but if one assumes it was done, one could also assume that the miscreant practiced his moves.) Anyway, it isn't impossible.

Brady had no obligation to provide information from his cell phone to the investigators, and doing so would set a precedent that the Players' Association urged him to avoid. All of his texts and calls to the ball handlers were already available from their phones.

Problems not noted by either side (This is the important part)

1.  The first problem is that the entire issue grew out of the application of a logical fallacy, "post hoc ergo propter hoc," or at least a variation of it. The assumption that because the footballs were measured at halftime below the pressure they were measured at before the game, somebody must have tampered with them, was immediately accepted as true. Therefore, the investigation looked for how tampering had been accomplished, rather than anything that might have caused the measurements to be lower at halftime than they were before the game. Natural causes were prejudicially rejected. After conducting the investigation, the Wells team found one occasion that could have been used to slightly deflate the balls, so therefore that must have been what happened.

2.  Next problem:  How likely is that scenario? It requires two relatively unsophisticated (based on their text messages) ball handlers to anticipate what Tom Brady wanted done, to figure out a way to do it without his direction, and to actually tamper with footballs in a way that if discovered would cause them to lose jobs they obviously considered highly valuable. It requires them to successfully deflate footballs during the season (remember, the Colts were "suspicious" of inflation pressures days or weeks before The Game, supposedly because they or another team had observed low-pressure footballs during the season), and then "cool as the other side of the pillow" to do it again before The Game.

It requires Tom Brady, who seems to be intelligent, at least smart enough to frequently pick the best NFL defenses apart, to decide that he would encourage or at least condone cheating by two ball handlers, and the cheating would be of a kind that is essentially insignificant in game play. Although people do many things that don't make sense, nothing in that scenario makes any sense at all.

Why do I say "insignificant?" Because even after the League was alerted, even after the game officials were alerted, no League prescribed procedure was put in place to guarantee the integrity of the balls used in The Game. The game official failed to keep track of the balls after they were tested, and one must assume it was because he didn't consider it to be a high priority. In other words, the pressure of game balls was considered to be "insignificant" by the League. This assumption is further supported by the fact that the game balls for the Patriots-Jets game were inflated by game officials to 16 psi, far over the upper limit allowed and far more over-inflated than balls from The Game were allegedly under-inflated.

3.  Which brings me to the biggest error in this whole sequence of events:  Both the NFL and Anderson originally treated the situation as if it was not important, allowing what was either a minor incident or no incident at all to grow into a big deal. The League basically told the game officials, "Watch out for tampering with the balls," but no particular plan of action was specified. Just, "Watch the footballs."

Still, the game official, Walt Anderson, could have prevented the entire fiasco. If he had kept track of the balls, either he would have known immediately that something had happened to the balls, or he would have known that nothing had happened to them because THEY WOULD HAVE BEEN UNDER HIS CONTROL FOR THE ENTIRE TIME FROM MEASUREMENT TO KICKOFF. Read that again. Had Walt Anderson done his job, there would be NO cloud over The Game, the Patriots, and Brady, because we'd know that properly inflated balls had gone into the game, OR he would have reported to the League that the balls HAD BEEN TAMPERED WITH by somebody before game time, and the alternate balls could have been used (or the balls in the bag could have been checked and inflated as necessary).

Either way, the League would have saved both face and millions of dollars, and if tampering did occur the punishment would be accepted by everybody as being appropriate. As it was, it seems a conclusion had been reached that cheating took place in the tunnel restroom because they had pre-determined that somebody cheated somehow, and that restroom was the only possible place it could have happened; but that's not proof, it's only suspicion.

If the closest thing to "guilty" Wells can say is, "We nevertheless believe, based on the totality of the evidence, that it is more probable than not that Brady was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls," that is a very low-confidence type of conclusion. It contains no less than five equivocating words or phrases. When the investigators chose to give credence only to incriminating evidence and to disregard all exculpatory evidence, it becomes even weaker. 

4.  Next problem:  One of the teams is known to have had a needle that could deflate a football on the field during The Game. That team was the Colts. Nobody on the Patriots has been shown to have had a football inflation needle on them before or during the game. 

5. Next problem:  The only people who handled the balls who thought they were "soft" were Colts personnel. The game officials, who handle the ball between every play noticed nothing. Even D'Qwell Jackson, who intercepted the Brady pass and started the sequence rolling said later that he noticed nothing odd about the ball, even though the original story fed to the sporting press claimed that he was the one who raised the red flag. This suggests that the Colts may have been involved as more than innocent bystanders. It also suggests that a small difference in inflation pressure really is insignificant, undetectable unless measured with a gauge.

6. Next problem:  The League leaked, or allowed the Colts to leak, much of the story before any investigation at all was done. Many of the leaks contained inaccurate information. The fact that was allowed indicates to a suspicious person that the Patriots may have been set up, or at least that the League intended to make sure they were labelled "guilty" about something. The leaks certainly turned public sentiment against the Patriots--verdict first, trial later.

7. Next problem:  The Report references the NFL rule that requires the balls to be inflated between 12.5 psi and 13.5 psi before the game. It does not reference any rule as to what the footballs must be during the game. Perhaps a minor point, but in fact no footballs have EVER been checked for inflation pressure during a game before. It is certainly possible, even more probable than not, that some deflation occurs in every game. In fact, on cold days the Ideal Gas Law demands it, and if the ball starts out at 12.5 psi as the Patriots footballs did (the low end of acceptable), on a very cold day they might lose even more than 1 to 2 psi and register 11.5 or 10.5 psi by the end of the game.

This becomes important only because it's apparent that the Colts were very invested in having the Patriots' game balls checked during the game. An email from the Colts' General Manager Ryan Grigson and Colts' Equipment Manager Sean Sullivan to NFL officials is quoted on page 45 of the Wells Report:

As far as the gameballs are concerned it is well known around the league that
after the Patriots gameballs are checked by the officials and brought out for game
usage the ballboys for the patriots will let out some air with a ball needle because
their quarterback likes a smaller football so he can grip it better, it would be great
if someone would be able to check the air in the game balls as the game goes on
so that they don't get an illegal advantage

Footnote 25 of the Wells Reports then reads:

Because Sullivan‟s email did not provide specific factual support for the Colts‟ concerns, NFL officials

determined that it was not necessary to ask the game officials preemptively to check the air pressure in the

Patriots game balls during the game, as Sullivan had requested. They reported during interviews that, without

 additional specific information that might raise further concern, they believed that the referee‟s standard pregame

inspection of the game balls would be sufficient, and that a change in the standard inspection protocols

was not necessary. In particular, prior to the game, there was no plan to check the air pressure of the balls at

halftime or any other time during the game. Ther e was no “sting” operation, no plan for a  “sting” operation and

no discussion of a  “sting” operation.

Combine that with Problems 4 and 5 above, and it becomes plausible to think that the Colts were prepared and waiting for their first opportunity to handle a Patriot football, and that opportunity came when Jackson intercepted a pass. It would only be speculation to think that the Colts were ready to use their own needle and gauge to deflate that intercepted football to a point that the referee would be obligated to test the Patriot footballs ASAP, but it wouldn't be wild speculation.

Why would they do that? Maybe just to embarrass the Patriots, or the make Brady mad enough to throw his game off, that is, psychological gamesmanship. We could even go a step further. 

Andrew Luck was an engineering student at Stanford, graduating with a degree in Architectural Design. He undoubtedly understood the Ideal Gas Law, something that isn't an everyday topic of conversation among most NFL players. He could easily have concocted the idea of using the natural tendency of footballs to lose some pressure during a cold game to embarrass and/or distract the Patriots enough to throw them off their game plan. This conjecture is no less plausible than the complicated story of intrigue the NFL says is "more probable than not," and it's neither against the rules nor unethical, unless the Colts actually deflated that one football before handing it to the official staff. (Using a gauge to measure its air pressure apparently was a violation of the rules, though.)

8. Next problem:  The fact that ball pressures were found to be lower became itself "proof" that there had been tampering, when it really only proved that the pressures were lower. Other causal factors were essentially ignored.

The totality of the evidence would include the testimony of the "friend" of Jastremski, indicating that the incriminating text messages meant something entirely different than what the investigators claimed they meant. The Wells Report rejects this out of hand. It would recognize that text messages sent months before an event can be made to seem like they're related to an event when they may not be, and probably are not, related to it. It would recognize that cheap pressure gauges may not be accurate down to one-tenth psi.

It would include the scientific opinion, contrary to the League's expert, that atmospheric and game conditions could account for all of the pressure-reading "anomalies." Once that opinion is given credence, it is no longer "more probable than not" that human intervention reduced the air pressure in the footballs. It really is more probable that natural forces were at play than that Two Stooges and a quarterback carried out a season-long conspiracy to cheat on an insignificant detail which was very high risk and literally no reward.

Summary (All you need to know)

There is no direct evidence that anyone tampered with the footballs, ever. McNally was not observed tampering, and he wasn't searched for an inflation needle. None of the communications discussed circumventing League rules and deflating game footballs. Most of them were ambiguous at best. What evidence exists is very weak circumstantial evidence based on actions that would be considered completely normal and/or trivial had the game footballs not lost some pressure before halftime.

Credible scientific opinion exists that temperature conditions alone could account for the change in football inflation pressure. The Wells Report disagrees, but to support the disagreement it has to make some odd assumptions. The records that were kept of pressure readings after the game, combined with the referee's BEST recollections of his pre-game procedures confirm the temperature hypothesis as being reasonable.

A change in temperature is the simplest explanation for the pressure change, which satisfies the Occam's Razor test:  The simplest explanation is the "most probably correct" explanation.

It is therefore more probable than not that no tampering occurred, no ethical violation was committed, and no punishment is warranted.

Disclaimer

I am not a Patriots fan; I've rooted for the Chiefs since their first year in Kansas City. In the Brady vs. Peyton Manning debate, Manning has been my preference.

A Ted Cruz victory isn't all that far-fetched

George Will recently published an interesting critique of Republican Presidential hopeful Ted Cruz. In it, he writes that Cruz can't win without going after what Cruz has called the "mushy middle" (based on a piece from Politico). Will says, 

"The Republican nominee must crack the ice that has frozen the electoral map. Cruz cannot do that by getting more votes from traditional Republican constituencies."

While I would say that the people quoted by Politico don't have things quite right, they could win in spite of themselves, depending on just what the "mushy middle" turns out to be. They say he will target tea party and evangelical voters, as if he intends to ignore everybody else. That would likely be a recipe for disaster. But could he really mean to do that? I don't think so.

Two goals

From Will,

"Henry Olsen of the Ethics and Public Policy Center identifies “four faces of the Republican Party” — evangelical Christians, very conservative but secular voters, somewhat conservative voters and moderates. He says the largest group, about 35 percent to 40 percent of the national party, are the somewhat conservatives. And in presidential years, moderates are the second-largest (25 percent to 30 percent). The somewhat conservatives “are found in similar proportions in every state” and “always back the winner.”"  [emphasis added]

There are two objectives of any campaign. (1) Convince people you are the best person for the job, and (2) get them to actually vote for you. The interview in Politico was primarily about the strategy to achieve the second goal, specifically among conservative voters who didn't vote for Romney in 2012. But it's possible to attack both goals at the same time. The common knowledge that he's too far right to win because he can't achieve the first objective can be challenged. 

First, he is already in position to bring back those conservatives who failed to support Romney. They are believed to be evangelicals and the very conservative "tea party faithful." And they are professed to be the primary target of goal number 2.

Second, somewhat conservative center-right and many moderate Republicans would not have a problem with his philosophy of government and principles, and they could accept his tactics, given that Republican senior tacticians have failed miserably for about 10 years. Most of them would be enthusiastic about it. He can succeed with both groups.

It seems to me that Cruz is uniquely situated in the coming primary and Presidential campaigns. Compared to many other candidates, current and prior, he can run with the same messages in both of them. He doesn't need to run to the right in the primaries and to the center in the general. He can campaign "as is" to achieve the goal of convincing voters that he has the right ideas for the country. 

Using Olsen's four categories, Cruz's advisors seem to believe he needs to get the evangelicals and very conservative secular voters to the polling place, rather than to convince them. Still, all four of those categories of Republican voters are the ones he needs to convince to nominate him. If Olsen is right, the somewhat conservatives must be addressed during the primaries, but they will support whomever is the eventual candidate.

So the remaining moderates and left-centrists, whether Republicans or not, are the additional constituency he really needs to get on his side in both campaigns, and as Reagan showed, they CAN be got. But how?

Voters compare candidates. Give them substance, style, and performance, and you can convince them to choose you. They compared their experience with Carter to the promise of Reagan, and they chose Reagan on all three criteria. They effectively did the same with McCain and Obama, with substance almost being a non-factor. IMHO, Romney simply came up too short on campaign performance to outweigh Obama's style and incumbency, even though he was way ahead on substance.

If I'm right, what is there about Cruz (or any Republican) to convince centrist Reagan Democrats and even other frequently left-of-center voters, to pick the Republican? These voters recognize that politicians from both sides pander to them, so phony promises and posing doesn't work. If we call our general target "uncommitted voters," what might they be looking for?

Style

Appearance counts, but not much can be done to spruce up an already presentable candidate. Cruz, Rubio, and Walker are all a bit ahead of the rest in this area, probably not least because they're younger. It's part of style, which of course includes demeanor, presence, speaking ability and apparent competence, and personal behavior during the campaign and during debates. Cruz holds up well in the style criterion. Edge: Cruz.

Performance

Performance means "performance during the campaign." We've seen Cruz can win competitive elections, which is more than his known likely Presidential competition can say. It definitely includes the instinct to recognize and attack Democrat weaknesses, which our last two candidates have been loath to do. Even his critics say Cruz does a fine job of laying out his ideas understandably and debating the shortcomings of opponents effectively. Edge: Cruz.

Substance

That brings us to substance, which is also where the Wills of the central-right punditry find him wanting. "Too extreme. He shut down the government. Too uncompromising. Poor tactician. Too smart for his own good."

But what if many of the uncommitted voters are that way because they've been given nothing to commit to? Shifting positions, unclear positions, hidden agendas (once exposed), are what make commitment impossible. Voters will even opt for imaginary positions if they think they mean something. Hope and Change, anybody? 

Cruz has been laying down a consistent record of upholding his professed conservative principles, even in the face of adverse publicity and resistance from establishment Republicans. Voters can appreciate courage and firmness, even if they differ with the direction. While this may or may not give Cruz an advantage over a given Democrat, his substance may be nowhere near the impediment Will and others presume.

It also seems that Reagan Democrats can agree with his principles and may prefer them to the failings of the current Progressive Democrat administration, as they did with Reagan v. Carter. There are more conservative-leaning voters than there are progressives, and they will appreciate what his positions are. Edge: That's the question, isn't it? Cruz.

Will it work?

Reagan was elected in a different era, but there is evidence that American voters still honor, respect, and will vote for a candidate who can convince them he says what he means and means what he says, even if they disagree with him on some details. If so, Cruz doesn't have to target anybody. He just has to continue being himself.

If Will is right, and Cruz addresses only evangelicals and very conservative Republicans, his candidacy is probably doomed from the start. But if Cruz presents himself reasonably to the somewhat conservative and moderate voters (including Democrats), the list of five big competitive states that Will described (Ohio, Colorado, Florida, Nevada, and Virginia) can be made to grow, and what is considered by common knowledge to be his certain failure can be averted.

We've been exploring whether Cruz can attract enough somewhat conservative and moderate voters to win. A question that hasn't been covered:  Can any other Republican candidate win without bringing evangelicals and very conservative Republicans out to the polls? Can they win without having firm conservative positions on the major issues?