Goodell and Deflategate Science

Yesterday, Roger Goodell released his decision on the Brady appeal.

Most of the early discussion has been about Brady’s destruction of his cell phone. Brady has contested the NFL’s characterization of this incident here (see cover here), saying that he had replaced a broken phone; that they had already told the NFL that Brady was not going to turn over his cell phone and that Brady had no obligation to do so under the labour agreement; that they provided the NFL with records from the carrier of all calls and texts; that he had “never written, texted, emailed to anybody at anytime, anything related to football air pressure before this issue was raised at the AFC Championship game in January”; that Wells already had Jastremski and McNally’s phones (on which there were no communications from Brady until after the AFC Championship game).  More on this below.

My specific interest in the decision was how the scientific issues were dealt with, given that there were serious statistical and scientific defects in the Exponent report.   There isn’t very much in the Goodell decision about the science and statistics. Goodell adopted the Exponent report in total.  It also looks to me like Brady’s side did a totally ineffective job of confronting the Exponent report.

Goodell accepted Exponent’s finding that the full extent of the decline could not “be explained” and that a “substantial part of the decline” was due to tampering. Goodell says that the Brady side submitted “alternative scientific analyses (including the study presented by economists from the American Enterprise Institute)” and, as an expert witness, produced Dean Edward Snyder of the Yale School of Management, described as an “economist who specializes in industrial organization”.    Against them, the “Management Council” produced two Exponent scientists (Caligiuri and Steffey) and the Princeton professor who had originally reviewed the Exponent study.

The salient section is as follows (with two footnotes) :

I find that the full extent of the decline in pressure cannot be explained by environmental, physical or other factors. Instead, at least a substantial part of the decline was the result of tampering….

I took into account Dean Snyder’s opinion that the Exponent analysis had ignored timing… Dr Caligiuri and Dr Steffey both explained how timing was, in fact, taken into account in both their experimental and statistical analysis. They concluded based on physical experiments that timing of the measurements did have an effect on the pressure but that the timing in and of itself could not account for the full extent of the pressure declines hat the Partiot balls experienced.  Dean Snyder, in contrast, performed no independent analysis or experiments, not did he take issue with the results of the Exponent experimental work that incorporated considerations of timing and were addressed in detail in the testimony of Caligiuri and Steffey.

I also considered Dean Snyder’s other two “key findings”, as well as the arguments summarized in the NFLPA’s post-hearing brief, including criticism of the steps taken in the Officials Locker Room at halftime to measure and record the pressure of game balls[1]. I was more persuaded by the testimony of Caligiuri, Steffey and Marlow and the fact that the conclusions of their statistical analysis were confirmed by the simulations and other experiments conducted by Exponent. Those simulations and other experiments were described by Prof Marlow as a “first-class piece of work”.[2]

[1] There was argument at the hearing about which of the two pressure gauges Anderson used to measure the pressure in the game balls prior to the game. The NFLPA and Snyder opined hat Mr Anderson had used the so-called logo gauge.  On this issue, I find unassailable the logic that the Wells Report that the non-logo gauge was used, because otherwise neither the Colts’ ball nor the Patriots’ balls when tested by Anderson would have measured consistently with the pressures at which each team had set their footballs prior to delivery to the game officials, 13 and 12.5 psi respectively. Mr Wells’ testimony was confirmed by that of Caligiuri and Marlow. As Marlow testified, “There’s ample evidence that the non-logo gauge was used”.

[2] For similar reasons, I reject the arguments advanced in the AEI Report. The testimony provided by the Exponent witnesses and Professor Marlow demonstrated that none of the arguments presented in that report diminish or undermine the reliability of Exponent’s conclusions.

If Snyder’s testimony was as represented, he was a singularly poor choice of expert witness.  There are major errors, defects and adverse assumptions through the Exponent report and Snyder should have taken issue with them.  Why they wouldn’t have challenged the 67 deg F assumption of the simulations or the apparent gross error in Figures 26 and 30 (at CA here; also at ^ here)  is beyond me.

It’s also hard to understand why the Brady side would have produced an expert witness who hadn’t gone to the trouble of doing his own independent analysis.   As represented by Goodell, Snyder focused on the single issue of “timing”, claiming that Exponent had “ignored” timing.  While there are issues with how Exponent handled timing, it is ludicrous to say that they “ignored” timing issues.  Yes, their “statistical analysis” in Appendix A, from which ludicrous claims of “statistical analysis” are derived, ignored timing issues, but timing issues were front and center in the simulations and claims that Exponent “ignored” timing – if Snyder made such claims – are easily refuted.

On the other hand,  Goodell and Exponent’s characterization are always shadow boxing with reality.  Goodell said :” Dr Caligiuri and Dr Steffey both explained how timing was, in fact, taken into account in both their experimental and statistical analysis. ”  This isn’t true either. Timing was taken into account in their experimental analysis, but not in the statistical analysis (in Appendix A).   (By the way, I haven’t written except in passing about the statistical analysis in Appendix A as the simulations seemed to me to be the core of the prosecution case, while the statistical analysis was so stupidly irrelevant and pointless as to be worthless, but the fact that it is referred to here as a factor in the decision may cause me to revisit this.)

One of the most important, if not the most important, arguments in trying to make sense of events was the scenario in which referee Anderson used the Logo gauge for measuring Patriot balls and the Non-Logo gauge for measuring Colt balls, inattentively changing gauges between measurements – as NFL officials also did during half-time, despite the heightened scrutiny.  This scenario neatly reconciles a lot of otherwise discordant information, as discussed in previous posts.  This scenario was raised in the AEI article as well and in an early response by the Patriots.  If Goodell has correctly characterized evidence from Snyder and the NFLPA, they botched this issue as well. According to Goodell, they argued that Anderson had used the Logo gauge for measuring both Patriot and Colt balls, raising the problem of the approximate pregame match of Colt pressures and Anderson’s measurements.  This argument is moot if, as seems entirely possible, Anderson inattentively changed gauges.  Then the issue is how Anderson’s pregame measurement of Patriot balls (if done with Logo gauge) could have reconciled with Patriot pregame measurements.   On this narrower issue, there are a couple of possibilities: (1) the Patriot (Jastremski) gauge might have had a similar bias to Anderson’s Logo gauge.  Exponent’s analysis of gauge variation is wildly irrelevant to the problem as they limited their analysis to other examples of new Non-Logo gauges. Also, the NFL appears to have been in possession of the Jastremski gauge at half-time and could have tested its calibration, but it didn’t do so, apparently not keeping track of the gauge.  (2) while Exponent has plausibly shown that the additional pressure arising from Patriot gloving protocols would have worn off by the time of Anderson’s measurements, it also appears possible that Patriot pregame measurements were done while the balls were still impacted by gloving.

The AEI report had raised the issue of switching gauges, but did not carry out the more detailed analysis of the implications of that scenario on the transients and simulations.  The Brady side needed more than provided in the AEI report, but the switching scenario cannot be trivially dismissed either. Goodell stated: “The testimony provided by the Exponent witnesses and Professor Marlow demonstrated that none of the arguments presented in that report diminish or undermine the reliability of Exponent’s conclusions.”  I don’t see how anyone can responsibly assert that the switching scenario does not “diminish or undermine the reliability of Exponent’s conclusions.” It’s an important possibility that really does call into question the validity of Exponent’s claim that the decline in pressure cannot be accounted for by environmental and physical factors.

I noticed that Goodell’s decision added the word “substantial” in saying that “substantial part of the decline” was due to tampering. This word is new in the Goodell decision and is not actually stated in the Wells Report, which said instead that the decline “cannot be explained completely” by environmental and physical factors. As I reported previously, Exponent said that pressures in Exponent’s Game Day simulations were “noticeably higher” than observed Patriot pressures, but did not use the word “substantial” – undoubtedly because the difference was only 0.1-0.24 psi (see Figure 30 and Exponent page 62).

It seems to me that the use of the word “substantial” changes the hurdle. Would the difference of 0.1-0.24 psi, described as “noticeable” in the Exponent Report also be fairly described as “substantial”? I don’t think so. Read carefully, I do not believe that the Exponent Report, even on its own terms, supports the term “substantial” (as opposed to, say detectable).


  1. kim
    Posted Jul 29, 2015 at 11:20 AM | Permalink

    It WAS football, it WAS.

  2. Posted Jul 29, 2015 at 1:28 PM | Permalink

    As a Colts fan, I was hoping that his four game suspension would be lifted. I don’t want any excuses in the event the Colts defeat him and the Patriots in the fifth game of the season.

    If it is his first game back from suspension, and the Colts defeat the Patriots, there will be claims that he is “rusty”.

    And if the Patriots thrash the Colts (as is the current unfortunate trend) the smugness of the Patriots and their fans will be insufferable.

    • MikeN
      Posted Jul 31, 2015 at 9:21 AM | Permalink

      I will be disappointed if the Colts don’t run footage from Field of Dreams, “I said I could never respect a man whose hero was a criminal.”

  3. mpainter
    Posted Jul 29, 2015 at 1:43 PM | Permalink

    Brady, or his advisor, has flubbed it. Snyder was no “expert” in thermodynamics and gas behaviour. One wonders how Snyder came to be chosen.

    The weakness of Goodell’s position is in the Exponent study and Brady failed to exploit this vulnerability. It appears that neither Brady nor his advisors fully grasp this.

    Goodell introduction of the word “substantial” into the matter could change the game. Now he has to show how 0.1 psi is not a slight amount when environmental factors changed pressures by a pound or more.

    • bernie1815
      Posted Jul 29, 2015 at 1:52 PM | Permalink

      True. However, this is really a propaganda battle where truth, objectivity and integrity were early and continuing casualties.

      • Follow the Money
        Posted Jul 29, 2015 at 3:39 PM | Permalink

        “a propaganda battle”

        Goodell hired one of the NFL’s own attorney firms involved in law actions including against NFL players, to create a report that happened to protect and exonerate NFL employees (Goodell, refs) from negligent or comical acts. So propaganda, maybe, but the report also shed light, inadvertently I think, on the possibility NFL employess, refs, were fixing game outcomes by overinflating footballs.

        As for the truth coming from Brady, if it is true a full record of text calls from the carrier was provided, I believe it probable he was hiding something else, i.e., conversations with persons that would not seem relevant to contact football-wise. If he had a Brett Favre-like sexting problem, Goodell would have exposed that in a sec.

        BTW, Goodell implying his own review of evidence is to be admired is impeached by his failure to review the Ray Rice elevator tape, or having done so, but denying it. Now he is invoking new legal standards or measurements (“substantial”) to protect his product, the “Wells Report” the NFL’s attorneys produced.

        • mpainter
          Posted Jul 30, 2015 at 1:02 PM | Permalink

          It seems that this affair has turned into a confrontation between Goodell and NFLPA Executive Director Demaurice Smith over issues having to do with Goodell’s authority to arbitrarily impose sanctions. Smith seems to want a venue to force some changes on such arbitrariness.

          The matter has been put in the public arena and Goodell obviously sees advantage in smear tactics because the stakes involve a challenge to league authority over the players. So Goodell now wants to paint Brady, a player represented by the NFLPA, as some sort of miscreant.

          I am becoming more convinced that the smart move for Brady would be to challenge the findings based on Exponent’s dubious science.

          Concerning that, the NFLPA brief made this point:

          67. The data collection was so deeply flawed that even Wells and the NFL’s consultants concluded that it was unreliable:

          Wells Report at 12:

          “Our scientific consultants informed us that the data alone did not provide a basis for them to determine with absolute certainty whether there was or was not tampering, as the analysis of such data is ultimately dependent upon assumptions and information that is uncertain”

          I do not see how Brady could fail to show that the data yields no conclusive evidence of tampering, unless his cause is bungled. But it seems that his cause becomes hostage to more general issues raised by the NFLPA brief.

        • Beta Blocker
          Posted Jul 30, 2015 at 3:07 PM | Permalink

          mpainter: I am becoming more convinced that the smart move for Brady would be to challenge the findings based on Exponent’s dubious science.

          Brady’s reputation and his place in the sports history books are on the line. If he is innocent, then he has everything to gain by using every logical argument he can marshal to push back against an unfounded accusation.

          If Brady’s top priority is maintaining his reputation and his place in the sports history books, as opposed to making peace with the NFL as merely an expedient action to diffuse the immediate situation, he has to push back, and push back hard.

    • Steve McIntyre
      Posted Jul 29, 2015 at 3:06 PM | Permalink

      Snyder looks like an administrator – seemingly a very able administrator – but hasnt published much recently. It looks like he’s been promoted above the need to handle data himself.

  4. Follow the Money
    Posted Jul 29, 2015 at 4:07 PM | Permalink

    It seems to me that the use of the word “substantial” changes the hurdle. Would the difference of 0.1-0.24 psi, described as “noticeable” in the Exponent Report also be fairly described as “substantial”? I don’t think so. Read carefully, I do not believe that the Exponent Report, even on its own terms, supports the term “substantial” (as opposed to, say detectable).

    Clearly the difference is important to Goodell. Goodell’s work is reminiscent of the IPCC’s science-twisting “Executive Summaries” of underlying IPCC physical science reports products.

  5. Posted Jul 29, 2015 at 5:03 PM | Permalink

    When the news first broke, “sources” reported:

    “11 of the New England Patriots’ 12 game balls were inflated significantly below the NFL’s requirements … the footballs were inflated 2 pounds per square inch below what’s required”

    When I read that it seemed clear they were tampered with and I formed an opinion based on the fact that 11 of 12 balls were under-inflated by at least 2psi. I assume many others formed a similar opinion as well.

    Later there is a report that was not accurate:

    So, did the nfl/wells report actually conclude this – 11 of 12 under by at least 2psi? I have not yet seen the measurements they found. What were the actual measurements?

    If the initial “11 of 12” report from espn was incorrect then it would change everything in my opinion. The article is still online at this time. I formed a strong opinion based on that report and I think a lot of others did as well. If the report was incorrect then that is indeed a travesty.

    Steve: you say: “If the initial “11 of 12″ report from espn was incorrect then it would change everything in my opinion.” It was incorrect. Brady and the Patriots, IMO rightfully, believe that the incorrect information was leaked by the NFL and the NFL should have corrected. It also sounds like they didn’t provide the right information to Brady and the Patriots prior to them being interviewed and that the correct information on measurements first became available in the Wells Report – leaving Brady no oppportunity to have had input based on the correct information. PRocedurally, it seems a travesty.

  6. MikeN
    Posted Jul 29, 2015 at 5:51 PM | Permalink

    I read that the Brady team conceded the point that 100 seconds was sufficient time for McNally to achieve his nefarious task. I think they should head to Indiana and challenge people of similar stature to do this.

    • Beta Blocker
      Posted Jul 30, 2015 at 12:13 PM | Permalink

      MikeN: I read that the Brady team conceded the point that 100 seconds was sufficient time for McNally to achieve his nefarious task. I think they should head to Indiana and challenge people of similar stature to do this.

      It is difficult to see how that many footballs could be deflated in that short a time and still end up with reasonably consistent final pressure values among the deflated balls.

      It would almost imply that the Patriots had adopted a Six Sigma quality assurance program for managing their cheating activities.

      • MikeN
        Posted Jul 31, 2015 at 2:11 AM | Permalink

        I guess the Wells team couldn’t bring themselves to write about Bill Belichick’s mastery of every minute detail would make this possible.

    • MikeN
      Posted Aug 2, 2015 at 11:46 AM | Permalink

      Does the Brady team have access to the hallway video? If McNally is coming out of that bathroom calm, then he is innocent. If he is out of breath, then he is guilty.

      • bernie1815
        Posted Aug 2, 2015 at 11:52 AM | Permalink

        Or he has a bladder complaint! Or he is in amateur dramatics! Or….

  7. Carrick
    Posted Jul 29, 2015 at 6:36 PM | Permalink

    The fundamental issue here is whether failed to cooperate with the investigation, as he was contractually obligated to do.

    It certainly appears that he did, and that he conspired to destroy evidence. Putting aside all of the fantasy football physics being bandied about, this is pretty damning.

    IMO, Brady violated the terms of his contract, and he is now suffering the consequence of that. He was wrong to assume that he did not have to produce the messages on his phone that were work related, and he was certainly wrong to orchestrate the destruction of the phone.

    Any appeal doesn’t adequately address Brady’s behavior wrt his failure to cooperate with the investigation is likely doomed to fail.

    Were I defending the decision, I would rightly downplay the physical evidence, which I personally see as too ambiguous on either side (I labeled it “fantasy football physics” in a previous thread) and concentrate on what I think are the substantive and truly damning issues of whether Brady complied with the terms of his contract.

    • MikeN
      Posted Jul 29, 2015 at 6:42 PM | Permalink

      I don’t see the Players Union ever approving the NFL’s right to individual cell phones. Can you produce actual contract language to support your theory.
      The NFL has a procedural issue which seemed laughable when the players union brought it up. That Tom Brady was never properly notified of his penalty. I’m still unclear what they are claiming.
      Nevertheless, the issue of destroying a cell phone or not being cooperative was not the charge against Tom Brady when the four game suspension was announced. So he is now being punished for something which he never got a chance to appeal.

      • chuckrr
        Posted Jul 29, 2015 at 9:50 PM | Permalink

        Everyone should consider the choice of words by each party here. The NFL… Brady “destroyed” his phone. Is that what Brady said? Not from what I read. But destroyed implies an intentional act. Again not what Brady says. Does anyone think that’s what Brady said? Of course when that’s the first thing you read about the subject now your perception has been influenced. I know it was for me. But then I started to read it carefully and I realized it was just another twisted paraphrase of the events. There are no quotes, no transcripts only interpretations.

      • Carrick
        Posted Jul 31, 2015 at 10:01 PM | Permalink


        I don’t see the Players Union ever approving the NFL’s right to individual cell phones.

        It has nothing to do with the Players Union. It has to do with established law. If you use your private phone for official communications (it can be undeniably established that Brady did), you can be required to produce those communications to the organization you are contractually bound to.

        The remediation here is not to use the same phone for work that you use for your personal affairs.

        chuckrr, I understand the meaning of words. I said Brady conspired to destroy the phone. And you are completely in a fantasy world if you think he didn’t know that was happening when the phone was supposed broken and he ordered it destroyed. He says as much on his Facebook post, he just provides an different motivation for destroying it.

        Steve: Carrick: “I said Brady conspired to destroy the phone”. You’ll be on Lewandowsky’s list soon. 🙂

        • chuckrr
          Posted Jul 31, 2015 at 10:40 PM | Permalink

          Carrick….I’m going to admit upfront here that there are some things about this phone destruction that I don’t know. For instance you say that Brady ordered the destruction of the phone..I hadn’t heard that. Maybe he has minions to carry out his evil doing. Maybe some mini Brady’s. It’s really not that hard to destroy a phone…I bet he’s competent enough to do it himself’ Regardless…. I can imagine many scenarios where Brady would destroy his phone whether he was guilty or not. Brady is an A list celebrity. Any info on him is subject to exploitation by the tabloids. Maybe he had some other totally unrelated embarrassing info on his phone. Maybe he had no embarrassing info but he didn’t want to take the chance that things would be taken out of context by the news….That only happens…like everyday. Or maybe he just felt like standing on principle and saying…screw you…I have some right to privacy

        • Carrick
          Posted Jul 31, 2015 at 10:53 PM | Permalink

          chuckrr, Brady himself says he ordered his assistant to destroy the phone. He says he did this to protect his private data, something you agree would happen if he destroyed the phone

          There were other more constructive ways Brady could have cooperated with the league without waiving his right to privacy. He could have kept the phone, and only released it by court order (and then in hopefully as more controlled fashion).

          Unfortunately, when you use your private phone for official purposes, you’ve waived your right to privacy. In fact, in certain circumstances, what Brady actually did could have been a crime (“obstruction of justice”).

        • chuckrr
          Posted Jul 31, 2015 at 11:12 PM | Permalink

          If you use your private phone for a couple of business related calls or texts it all becomes subject to discovery and you have an obligation to preserve that data?…Even if a court hasn’t ordered you to preserve it? Maybe,,,I don’t know. You seem pretty sure of that but I suspect there’s a lot of conditions and whereas this and whereas that involved.

        • chuckrr
          Posted Jul 31, 2015 at 11:14 PM | Permalink

          So he does have minions.

        • chuckrr
          Posted Aug 1, 2015 at 12:34 AM | Permalink

          Also…I think I’m correct here. Not only has no court asked for the data to be preserved Nobody including the NFL has asked for any other info from his phone.

        • Carrick
          Posted Aug 1, 2015 at 9:51 AM | Permalink

          It’s not very surprising Brady has an assistant. Most wealthy/famous people have handlers.

          Think about it from your companies perspective though: If you are using your private phone to conduct business, those communications are part of their business (literally).


          Also…I think I’m correct here. Not only has no court asked for the data to be preserved Nobody including the NFL has asked for any other info from his phone.

          The Wells report contradicts you. They specifically did want to review Brady’s messages from this phone. And of course we haven’t gotten to the court stage yet, so we don’t know how the court will respond to the destruction of evidence.

          Try destroying business records that might have something to do with a legal dispute, and see how well that works out for you. It’s generally seen as an awareness of wrongdoing.

          Steve hasn’t exactly played this controversy down the middle, but does properly recognize that destroying his phone was an amazingly stupid thing for Brady to do. Either it contains evidence that would incriminate Brady, or the absence of them would exculpate him.

        • chuckrr
          Posted Aug 1, 2015 at 11:11 AM | Permalink

          Carrick…I know he has an assistant, maybe several. It was just a another failed attempt at humor.

          But I think your analogy does not hold up. First this isn’t the same as some legal dispute where one party gains and the other looses. Brady has received the maximum punishment he’s going to receive. He can gain by less punishment. The league has nothing to lose..other than PR. Is the phone destruction bad PR for Brady? Sure. Can it be used against him in court? I’m sure it will be used. My point is that legally he had no obligation to preserve the phone and may have had other reasons to destroy it. He was never going to give up his phone and he gave up all the relevant texts already. The only way to find out if he was lying about that is if he gave up his phone. Which again he was never going to do and had no legal obligation to do. So is it bad PR? As I said yes but not really much worse than the alternative. Let’s say he kept the phone and the NFL asked to see other texts and Brady refused because he no longer wanted to be party in this fishing expedition. He looks guilty then too…right? You see he’s in a no win situation. If he’s innocent either way he looks guilty to those predisposed to think he’s guilty. And finally what if he just had said…”fine here’s my phone”. There could not possibly be any information to exonerate him. Other than some text from Goodell saying he knows Brady is really innocent but can’t you just take one for the league.

          So really it’s all PR at his point. And on that battlefield the NFL is winning at this point. But every once in awhile the public actually becomes informed…not that often but it does happen.

        • mpainter
          Posted Aug 1, 2015 at 3:04 PM | Permalink

          Carrick you say that Brady is “contractually bound” to the NFL and so thereby obligated to turn over his private cellphone to the investigators. I think you are making this up.

          Brady has a contract with the Patriots, no doubt. Can you show that he has a contract with the NFL? I doubt it.

          Individual players obligations toward the league are embodied in the NLF/NFLPA agreements. Show where this agreement says that Brady has to turn over his cellphone.

        • Posted Aug 1, 2015 at 3:25 PM | Permalink

          “And I want to be crystal clear. I told Mr. Brady and his agents, I was willing not to take possession of the phone. I said, “I don’t want to see any private information.” I said, “Keep the phone. You and the agent, Mr. Yee, you can look at the phone.”
          -Ted Wells

          The investigator said he didn’t want his phone. And the idea that the NFL can take his phone if he ever called someone he worked with is not well established law, it’s made up.

          I love the newest goal posts, after failing to find anything on Brady the latest excuse from five days ago is that he “destroyed” a phone the NFL didn’t want. His punishment from two months ago is justified by something the NFL discovered three weeks ago, makes perfect sense.

        • Gdn
          Posted Aug 1, 2015 at 8:14 PM | Permalink

          Characterizing any calls by a player as “Official” is a big stretch. They are not official except potentially in communications with the NFL.

          The NFL, like other companies, has no right to private phones of employees. This is why they issue phones to team staff, and insist that only these issued phones are used to conduct business – even between owners – so they can inspect and collect records on calls and usage on these phones because they own them.

          It is understood that Goodell himself followed this same pattern in regards the Ray Rice investigation: he turned over his NFL-supplied phone, but not his personal phone.

        • MikeN
          Posted Aug 2, 2015 at 11:48 AM | Permalink

          A court order doesn’t protect privacy. Testimony during Barry Bonds grand jury hearings were leaked, and those carry criminal penalties.

        • MikeN
          Posted Aug 2, 2015 at 11:57 AM | Permalink

          Again I think you are making up rules to fit how you want things to be.
          The Players Union certainly has a say on what Tom Brady is contractually bound to do, as they negotiated the Collective Bargaining Agreement through which Tom Brady might be obliged to provide communications.

          You have things backwards with regards to Ray Rice. He provided his ‘work phone’ because it wasn’t his phone. He was not obligated to provide his private phone. That you ‘shouldn’t use your private phone for work communications if you don’t want it to be revealed in a search’ is not a rule but a tautology.

    • chuckrr
      Posted Jul 29, 2015 at 7:01 PM | Permalink

      Brady claims he gave the Wells investigators the relevant texts and email’s. He also said that he told the NFL that he would not give up his phone and that he has no responsibility to do so. A celebrity of Brady’s stature would be a fool to give up that kind of information, even if he had guarantees that the information would be protected.

      • MikeN
        Posted Jul 29, 2015 at 8:48 PM | Permalink

        We saw it during the Barry Bonds grand jury, with everything getting leaked to the media.
        Even in this case irrelevant texts were reported by the Wells Team seemingly out of spite.

      • Steve McIntyre
        Posted Jul 29, 2015 at 10:27 PM | Permalink

        Goodell said “There is no question that Brady declined to make available to investigators electronic information, including text messages and emails, related to the subject of the investigation.” How does he know that Brady declined to do so? Brady says that he didn’t have such communications until after the controversy arose and the NFL made much of the fact that Brady hadn’t communicated with Jastremski in months. The NFL has Jastremski and McNally’s phones and neither had messages from Brady until after the AFC Game.

        Another thing that I just noticed in reading the Goodell report. The phone in dispute covers a relatively short period – mid-November 2014 to Feb 2015. Brady’s phone for the period ending in November 2014 was examined by a consultant, who appears to have reported nothing untoward. Goodell dismissed Maryman’s report as follows: “Maryman conducted only a limited review, searching available SMS and MMS messages for a select number of names and telephone numbers, rather than for all communications falling within the categories of information sought by the investigators.” I presume that the “select number” of names and numbers included Jastremski and McNally. Is the NFL’s theory that they should be able to forage through all of Brady’s texts in the hopes of finding something?

        BTW it is incomprehensible why Brady would have had the cellphone destroyed even if it was broken. Looking back, this incident happened within a couple of days of Hillary Clinton saying that she had destroyed tens of thousands of emails.

        • chuckrr
          Posted Jul 29, 2015 at 10:59 PM | Permalink

          Steve, I would think it would be common practice for celebrities to destroy there phones, their mail and any other information the tabloids could get a hold of. The tabloids and the papa racy are ruthless.

        • MikeN
          Posted Jul 31, 2015 at 9:24 AM | Permalink

          Broken or not, I think the correct course of action would have been for Brady to destroy his cellphone. As a matter of privacy it was worth a four game suspension.

        • Carrick
          Posted Jul 31, 2015 at 10:08 PM | Permalink

          Steve McIntyre:

          s the NFL’s theory that they should be able to forage through all of Brady’s texts in the hopes of finding something?

          I think the answer is “yes”. See my comment about remediation here: Don’t use your personal phone to send official communications if you don’t want your private communications to exposed during a search for official communications.

          BTW it is incomprehensible why Brady would have had the cellphone destroyed even if it was broken. Looking back, this incident happened within a couple of days of Hillary Clinton saying that she had destroyed tens of thousands of emails.

          Well I agree with you on that point. I am wondering if Brady got some really, really bad advice from that hack Michael Yee.

          When this comes to court, I do not expect the judge to be sympathetic on this point.

          Steve:the Patriots say that Wells said that he didn’t require the physical phone, only the records of calls. It appears that these records are available and were provided. If Wells did in fact say this (he said-she said), then that much diminishes the force. BTW is sounds like the NFL wanted to go through messages to people other than Jastremski and McNally, and, without any evidence, asserted that such other messages contained responsive texts. While they might well have wanted to fish through Brady’s emails to other people, I can understand why Brady would object to that.

        • Carrick
          Posted Aug 1, 2015 at 10:03 AM | Permalink

          Steve, I would argue that it doesn’t matter that much what rhetoric is present in the Wells report. I would argue that what is important now is how the destruction of this phone is perceived, were it to go to court.

          We both know you don’t destroy or otherwise tamper with evidence. It’s an extremely bone-headed thing to do.

          I can understand why he’d object to having his phone messages looked. But as I’ve said before, the remediation here is so simple that it’s hard for me to be sympathetic to him:

          Brady should own separate work and private phones, and he should never give out his private phone number to his co-workers, and never use his private phone to perform business-related communications.

          That way there’d be zero records of interactions between him and his organization using his personal cell phone, and the NFL would have no cause to ask him to show them the messages on his personal phone.

        • bernie1815
          Posted Aug 1, 2015 at 10:41 PM | Permalink

          Carrick: I see no merit in your admonition. The phone is and always was irrelevant. The optics are bad because the NFL’s PR effort was to make them bad. It will be a very weak judge who cannot see through their tactics and claims that the phone has relevance. If it was a jury hearing the appeal you might have a point.

        • MikeN
          Posted Aug 1, 2015 at 4:50 PM | Permalink

          Carrick, your solution would not have worked. You seem to think the NFL had and has the right to players’ cell phones if they use them for NFL reasons. I doubt this.

          If Brady had two cell phones, they would have demanded to see both.

        • MikeN
          Posted Aug 2, 2015 at 11:50 AM | Permalink

          They did not provide a record of calls and messages, but rather the identities of the parties who were called, and requested that the NFL go to those parties to get any text messages.

        • Posted Aug 2, 2015 at 1:53 PM | Permalink

          Interestingly, to me anyway, our company is involved in a now very old dispute which is in the courts hands. We have some young guys in the shipping dept who decided to wheel out a palette of old computers to the trash. I caught it happening myself by sheer luck. The shipping folk said it is because the computers are old and they wanted to make space but you always wonder when employees throw out valuable things. Of course we handled the personnel issue separately but we are under order not to remove any data related to the case.

          I nearly ended up accidentally doing the Hillary, or is it still the Mann when questionable data vanishes?

          I wonder if it would be considered obstruction of justice had they succeeded in chucking our data. It certainly wasn’t intended but it was very close and very lucky that I caught it.

        • MikeN
          Posted Aug 2, 2015 at 2:00 PM | Permalink

          Jeff if there is a court case, then the situation would be different.

        • Chris
          Posted Aug 2, 2015 at 7:25 PM | Permalink

          In the Wells interview, he says he told them they could keep the phone:

        • Posted Aug 13, 2015 at 1:43 AM | Permalink

          Steve, you’re glossing over almost all of the evidence that contests your desired conclusion, and it is substantial.

          It is an established fact that Brady refused to supply communications from his phone. This is in the Wells report, in detail. What is not in the Wells report is that Brady had his assistant destroy his phone just before his interview with Wells. This is not in the report because Brady and his agent did not disclose this fact to Wells. Wells had mistakenly operated on the assumption that the phone still existed. Brady disclosed its destruction much later, to Goodell.

          There’s a lot of confusion and fanboy nonsense on this thread regarding law, and rights, the nature of employment. Carrick muddied the issue by trying to distinguish between official and non-official communications, and calling for an ideal of separate devices. None of that is relevant.

          Tom Brady is a football player in the National Football League. One can think of the NFL as his employer. Football, being a sport, has rules. Tom Brady was accused of breaking those rules. If it helps, one can think of these rules as equivalent to normal rules of a workplace, such as those against sexual harassment, falsifying hours worked, etc.

          The NFL investigated Brady upon allegations that he broke some rules. He did not fully cooperate with the investigation, and as it happens, he destroyed evidence. If you don’t cooperate with an employer’s investigation of your conduct, normally you just get fired. And here, if Brady did something like this again, it is quite plausible that he would be fired, that is banned from the league. In this case, he was merely suspended.

          This has nothing to do with legal rights, courts, and such. In the eyes of the law, this is a private matter, perhaps a contractual matter. The NFL has special antitrust and labor relations standing, so there are federal arbitration entanglements that make it a bit more complicated than IBM firing someone for destroying their cell phone when evidence from that cell phone would be relevant to an investigation into an internal scandal.

          The NFL has no “right” to someone’s cell phone per se. But that’s irrelevant. The NFL, like all employers, has the right to investigate the conduct of its employees, and the right to act accordingly. Anyone is free to investigate anyone, and to make whatever judgments they will pertaining to the terms of their future relationships with that person.

        • chuckrr
          Posted Aug 13, 2015 at 7:30 AM | Permalink

          The “substantial” evidence you say exists comes down to the destruction of Brady’s phone. There is no other evidence. No evidence of Brady requesting the deflation. No evidence that Brady would like the balls under inflated. And as Steve has shown the recorded PSI evidence seems to show that the balls were probably never under inflated. Regarding the phone destruction. Celebrities have different priorities than the rest of us. They need to protect their privacy sometimes at the risk of seeming arrogant or suspicious. Brady was never going to give up his phone and he would have been foolish if he did.

    • stevefitzpatrick
      Posted Jul 29, 2015 at 9:07 PM | Permalink

      If you are right about a contractual obligation, and/or if Brady had some involvement in setting pressures low, then Brady will simply accept the 4-game suspension. If there is no clear contractual obligation to turn over his cell phone, and if Brady really had no involvement in setting low pressures, then Brady may bring legal action against Goodell and the NFL, and will likely win. My bet: he will wait out the suspension and that will be that. It’s not like he really needs his salary for those four weeks.

      • Carrick
        Posted Jul 31, 2015 at 10:44 PM | Permalink

        See Fitzpatrick:

        Brady had a contractual obligation to cooperate with the NFL investigation, and that obligation certainly applies to allowing the league to review all official communications.

        Had he not destroyed the phone and if he had no involvement (or there was no evidence on the phone of involvement), he could easily have won an appeal in a court of law.

        Now that he’s destroyed the phone, I’m not sure he’s in a very good legal position going forward.

        The league has, I think very cleverly wrapped this up as a contractual violation on Brady’s point. I know Steve is more interested in the physics, but I don’t think that is going to drive the case.

        As I said a previous thread, I think all you need here for the league to win a contractual dispute is to demonstrate that the physical evidence is consistent with tampering with the football: That is, that it is plausible, based on all of the evidence, that tampering with the footballs occurred by McNally.

        What Steve McIntyre seems to want to do is use the physical evidence to disprove that the tampering with the football is occurred. That is a much more challenging thing to do, and certainly would require a Herculean effort, even if it were possible to actually achieve.

        Given the general weakness of the testing procedure by the referees at half-time, I believe that is nearly impossible to achieve (and certainly not in such a way that a court of law would find persuasive). I also believe the case for exoneration of Brady based on physical evidence is much worse than Steve is arguing that it is.

        One of the things that Steve brings up is that the footballs were wet, which would impede the rate of warming of the footballs. (Steve incorrectly terms this “evaporative cooling”…technically they aren’t cooling, just warming at a slower rate.) The problem for Steve (I put it this way because it certainly seems that he’s biased towards exonerating Brady) is that the two teams treated their footballs differently, which they are allowed to do under the Manning-Brady rule of 2007.

        Based on descriptions that were given, the Patriots oil their footballs to a greater extent than do other teams, and certainly more than do the Colts. That would lead to actually less water absorbed in the skin of the footballs for the Patriots footballs compared to the Colts footballs.

        Practically, the effective of moisture on the rate of warming is likely to be larger for the Colts footballs than the Patriots. In turn, this would make the actual difference in pressure larger, rather than smaller, between the Patriots and Colts footballs, which is the opposite of what Steve McIntyre appears to conclude.

        I also suspect that the rate of warming of the footballs, once they were taken out of the bag and placed on the floor of the room where they were tested, would be much more rapid than suggested by the Exponent report. The testing is done in a rather farcical manner, apparently placing the footballs on a tee inside of an environmental chamber. In the real world, where you get room convection, the rate of heat exchange is much more rapid than in an environmental change with stable air.

        If all of the footballs were taken out and placed on the floor before testing, I would predict there will in practice be almost no difference from the additional warming of the Indy footballs before they were tested.

        If I had more time, I’d do these tests… correctly. Steve McIntyre is right (IMO) that the Exponent group muffed it on their testing.

        • Carrick
          Posted Jul 31, 2015 at 10:54 PM | Permalink

          Sorry Steve, autocorrect is up to its games again. Not “See” … “Steve”.

        • chuckrr
          Posted Jul 31, 2015 at 11:25 PM | Permalink

          Carick…A observation…no documentation, no actual recorded stats…I took a cold basketball out of my car countless times…It took a good hour to warm up.

        • Gdn
          Posted Aug 1, 2015 at 8:31 PM | Permalink

          Actually, the balls being wet would be subject to both thermal inertia relative to dry balls AND to evaporative cooling. The evaporative cooling could be quite pronounced if the balls were in a bag with high humidity, and then moved to to a lower humidity environment. Recall that two degrees Fahrenheit is just over 0.1 PSI in these ranges. When they are arguing over less than half a PSI, than that is substantial.

    • Posted Aug 13, 2015 at 8:22 AM | Permalink

      Joe, at the time wells/NFL didn’t notify Brady that not cooperating with wells request for phone info would result in any adverse consequences.

      Brady is part of union. I’m not a lawyer, but I find it hard to believe NFL can fire any player for anything, as you seem to be asserting?

      • Posted Aug 13, 2015 at 10:42 AM | Permalink

        Grown-ups don’t need to be told in advance that destroying evidence is a bad idea. I find it shocking that people here are saying an adult needed to be warned in advance that there might be adverse consequences to not cooperating with investigation, much less destroying evidence.

        Brady is clearly guilty, regardless of whatever the judge rules on technicalities of labor agreements.

        It’s important to understand how football works. Nothing is going to happen to balls without the quarterback’s knowledge. They are in charge of that domain. Troy Aikman made this very clear when he commented on the case. Every QB knows there’s no way anyone would do something to the balls without the QB’s knowledge or direction.

        Another important inductive note is that when professional athletes are accused of cheating, they are always guilty. Very often, they lie about it, and then confess years later as the evidence becomes insurmountable. Usually, this is about drugs. They’re never innocent. Well, someone must have been innocent somewhere along the line, but I can’t think of an example. It appears that athletes are always guilty. Believing an athlete at this point seems very unwise.

        The NFL can’t fire someone for anything. It usually takes multiple offenses. A more dramatic example of cheating would get a player banned. A repeat by Brady would likely get him banned. Anything to do with sports gambling would get them banned. Normal employers will invariably fire someone for not cooperating with a corruption investigation. It’s extraordinary to be able to not cooperate with an investigation and to still be able to come to work. That really has no parallel outside of professional sports and elected office.

        • chuckrr
          Posted Aug 13, 2015 at 12:15 PM | Permalink

          What’s he guilty of if the balls weren’t deflated. He did cooperate. He gave up all the relevant texts and allowed the NFL to interview him for several hours. He was never going to give them his phone and he had no responsibility to do so. Don’t you think that there should be proof of a crime before someone is convicted of a crime? I don’t care what happens to Brady. He’ll be fine either way. I would like people to realize that they are getting a distorted view of reality if they rely on the mainstream media for any story.

        • Posted Aug 13, 2015 at 12:30 PM | Permalink


          Clearly guilty?

          If you believe in “innocent until proven guilty”, or even “innocent in the realm of public opinion until there’s strong reason to believe they’re guilty”, then you ought to be asking yourself why you think Brady did something. Is it because there’s some factual basis? No, neither you nor anyone else can point to evidence that Brady even was “generally aware”, much less directed any attempt to subvert the rules.

          By now I’m sure you’ve read how there’s a basic law of chemistry (the Ideal Gas Law) that predicts how pressure of a gas (like air) varies with its temperature. I won’t rehash the issues with Exponent’s analysis. Suffice to say, the ball measurements reported in the Wells report are consistent with there being absolutely no human-directed deflation at all – just the natural effects of air cooling off. They are also consistent with human-directed deflation of a maximum of 0.2psi per ball. That’s kinda the point: there’s not sufficient evidence to conclude that the balls were deflated (and even if they were, only by an entirely imperceptible amount). If you believe in the scientific method at all, you’ve got to conclude that it’s far more likely that they weren’t touched after being approved by the refs.

          The simplest explanation for what went on here is also the one with the fewest problems with it: *absolutely nothing untoward happened*. If you start from that assumption, every other action (including Brady trusting his agent Yee to advise him on legal matters, leading to dumb decisions in his interview with Wells) and piece of evidence is consistent with that. If you start with the assumption that there was some massive conspiracy to do something against the rules that conferred no competitive advantage, though, you can start categorizing all sorts of nothingburgers as “circumstantial evidence”. Please fight that instinct.

  8. Michael Jankowski
    Posted Jul 29, 2015 at 6:39 PM | Permalink

    “never written, texted, emailed to anybody at anytime, anything related to football air pressure before this issue was raised at the AFC Championship game in January”

    Not sure how this is important. He could’ve directed the ballboys or the equipment manager verbally. Hell, it could’ve been passed verbally from generation-to-generation of ballboys over the years. The issues with the texts about air pressure was the cover-up after the issue was raised, and there were plenty of those.

    Brady proclaims now that neither he nor anyone with the Patriots did anything wrong, yet they suspended two ballboys.

    • MikeN
      Posted Jul 29, 2015 at 6:43 PM | Permalink

      NFL directed the suspension of the ballboys.

      The lack of texts from Brady or Jastremski to McNally after the Jets game, ‘How did you mess up the inflation level so badly?’ is a major hole in the theory.

    • chuckrr
      Posted Jul 29, 2015 at 7:07 PM | Permalink

      Brady could have been the mastermind behind 9/11. And there is no direct evidence linking him to either event.

  9. Steve McIntyre
    Posted Jul 29, 2015 at 11:03 PM | Permalink

    The Brady appeal in Minnesota is online. See:

    It seems very well written to me.

    Pleasant change from Mann’s legal briefs.

    • Steve McIntyre
      Posted Jul 29, 2015 at 11:30 PM | Permalink

      I understand that the NFL filed first in Manhattan. Case number shown here

      I understand that the NFL filed for declaratory judgement. From time to time, such tactics are used to preempt the plaintiffs choice of forum. HEre’s a discussion:

      Additionally, federal courts consider other concerns when analyzing whether to exercise
      their discretion and hear a request for declaratory relief. A declaratory judgment action may be
      inappropriate where it is filed to beat the natural plaintiff to the courthouse. This tactic may be
      intended to deprive the other party of its natural position as plaintiff. Or, it may be intended to
      deprive the natural plaintiff of its choice of forum. Federal courts sometimes discourage or reject
      such tactical maneuvers, or “preemptive strike[s]”, as inappropriate uses of the Federal
      Declaratory Judgment Act. Institute for Studies Abroad Inc. v. Int’l Studies Abroad Inc., 263
      F.Supp.2d 1154 (S.D. Ind. 2001). Such a use of the Federal Declaratory Judgment Act
      “provokes a disorderly race to the courthouse.” State Farm Fire and Casualty Co. v. Taylor, 118
      F.R.D 426, 429-30 (M.D.N.C. 1988); see also Fireman’s Ins. Co. of Newark v. Riley, 322
      F.Supp. 349, 351 (W.D. Ky. 1971).

      It’s hard to think of a clearer instance of a party carrying out such a preemptive strike. In this case, only the NFL knew the timing of the release of the Goodell decision. So it wasn’t even a fair race. They filed for declaratory judgement in New York on the same day that they released the decision – within minutes it seems.

      • Gary
        Posted Jul 30, 2015 at 8:16 AM | Permalink

        It’s never been about being “a fair race.” It’s about what the NFL calls “parity.” The owners want a reasonable chance of winning a championship occasionally and the Patriots, through hard work and consummate knowledge of the rules, win more than the other teams think is appropriate. So this whole effort to inflate a minor infraction, that may or may not have actually happened, to epic proportions is at its core just another way to enforce parity — this time by street fight rules rather than through the competition committee. The League’s behavior clearly shows a bias against the Patriots and Tom Brady as its lynch pin is the vulnerable target. All that said, if there was a violation of game rules, the team has paid a significant penalty with loss of draft picks and a hefty fine. Anything beyond that has an ulterior motive beyond punishment for misbehavior.

        The public reaction is fascinating sociologically. One might see the howling mob taking every scrap of misinformation and speculation with righteous indignation as a substitution for their frustrations with the way the power brokers in government and business get away with their schemes and hypocrisy. With something ultimately as inconsequential as professional sports, the public can vent anger about the failure their teams suffer and feel perfectly justified. Complaining about the climate science cabal’s bad behavior, or illogical SCOTUS decisions, or crony capitalistic activity gives little satisfaction. Trash Tom Brady and you feel vindicated. Maybe your team now can make the playoffs.

  10. EdeF
    Posted Jul 30, 2015 at 12:52 AM | Permalink

    The NFL has turned an issue about football pressures into a power play between the commissioner and one of his teams/key_players; and the commish holds all of the cards.
    The Union needs a better collective-bargaining agreement.

  11. mpainter
    Posted Jul 30, 2015 at 5:37 AM | Permalink

    Prime issue is whether communications in connection with the investigation between Paul, Weiss and NFL Commissioner Goodelll are privileged, whether work of same in connection with this “independent investigation” is privileged.

    It can be argued that the work concerned only NFL rules and standards and no issue of law.

    Something tells me that the NFLPA counsel anticipated events. Their lengthy riposte was filed the next day.

    • Gdn
      Posted Aug 1, 2015 at 8:35 PM | Permalink

      One question is whether Weiss is operating as the *NFLs* lawyer when conducting the investigation, as opposed to merely BEING a lawyer while conducting an investigation.

  12. Steve McIntyre
    Posted Jul 30, 2015 at 8:03 AM | Permalink

    The Brady appeal raised an interesting legal question about the policy under which the penalty was levied. Apparently the Collective Bargaining Agreement only permits fines, maximums of which are negotiated, for various violations including conduct “detrimental to the game”. The NFL issued its suspension under a policy which the Brady appeal argues only applies to Clubs.

    The NFL has a detailed webpage on Rules Enforcement about which we haven’t heard very much, but seems highly relevant to in consideration of this case as a labor dispute.

    It contains much verbiage about how diligent the NFL is in communicating rules, infractions and consequences of violations.

    • Gary
      Posted Jul 30, 2015 at 8:20 AM | Permalink

      Which is why the Players Association is pushing the case on procedural rules.

    • mpainter
      Posted Jul 30, 2015 at 9:43 AM | Permalink

      The regulations specify a minimum fine of $5,787 for “other equipment, uniform violations”. However, suspension is listed as a possible sanction, but nothing about whether the league has complete discretion in applying this sanction. The NFLPA seems to dispute that Goodell has such discretion.

      It would be interesting to have a general survey of NFL player attitudes on this issue and the suit filed by the association.

    • Posted Aug 1, 2015 at 12:41 AM | Permalink

      How weird is it that the same league that was diligent in destroying all the Spygate evidence (presumedly to cover themselves and the Pats for repeated violations including taping the Rams pregame Super Bowl practices) and now are going after Brady for diligently destroying his phone to cover his own arse?

      • Posted Aug 13, 2015 at 5:20 PM | Permalink


        you know that the story about taping rams pratices is false right? Sypgate was about a memo the NFL sent to teams telling them they could no longer tape defensive signals from the stands. It was legal to do before the memo. Belicheck incorrectly believed the rules still permitted him to tape from the stands – he did so in the first game after the memo – Mangini reported it and Belicheck stopped at half time of that first game.

        That’s it. That’s Spygate – So Belicheck taped defensive signals from the wrong spot on the stadium for 1 half – check wikipedia.

        The problem with claiming Brady destroyed his phone to cover his arse is that he turned over all his phone records at the appeal – no texts or calls to any of Pats employees involved in football prep were unaccounted for – NFL already has all the texts.

  13. mpainter
    Posted Jul 30, 2015 at 9:49 AM | Permalink

    Just now: “Minnesota court sends NFLPA suit to Manhattan” The court made short shrift of the NFLPA suit.

    • Steve McIntyre
      Posted Jul 30, 2015 at 10:04 AM | Permalink

      A commenter here claims that the Columbia University Physics Department did a report on PSI, which Wells ignored and which the NFL refused to turn over to Brady.

      The NFLPA filing laid out some very compelling arguments. But there is far more unknown at this time. For example Ted Wells originally ask the Columbia University Physics Department to analyze the PSI. They did a full report and for some reason Wells completely ignored it for the junk science produced by Exponent that has been completely debunked. The NFL refused to turn over any of that documentation during Brady’s appeal, but it will have to come out in court. Did Wells not like what the Columbia report said, maybe it didn’t support a predetermined outcome. All the documentation the NFL refused to turn over for the appeal will come out in court, every note, every text, and every witness the NFL refused to identify. This will be an interesting case, and precedent setting for the winner.

    • Steve McIntyre
      Posted Jul 30, 2015 at 10:07 AM | Permalink

      It actually makes sense for it to be considered in Manhattan where the affair has mostly taken place.

      • Jeff Westcott
        Posted Jul 30, 2015 at 12:17 PM | Permalink

        Bob Kraft, by the way, is a prominent Columbia alumnus and his name is now on their football stadium at the very northern tip of Manhattan. He played on their 150lb team as an undergraduate, as well. That is not to suggest that Columbia’s scientists didn’t reach a fair and more correct conclusion than Exponent did, however.

      • MikeN
        Posted Jul 31, 2015 at 2:45 AM | Permalink

        The courts in Minnesota have been favorable to players vs sports leagues in the past.

    • MikeN
      Posted Jul 31, 2015 at 9:27 AM | Permalink

      The Minnesota judge seems unhappy with the Players Association for bringing the lawsuit. Calls them out for forum shopping because there have been some friendly rulings in the past. Mentions that the Patriots play in Massachusetts, the Union is in DC, NFL is in New York, and the penalty was levied there.

      Steve: the judge’s ruling made sense to me.

  14. Howard
    Posted Jul 30, 2015 at 10:24 AM | Permalink

    This entire affair is just a clever cover story concocted by Kraft and his #1 minion Goodell for keeping Brady fresh for another Superbowl run.

  15. TWC
    Posted Jul 30, 2015 at 11:12 AM | Permalink

    The NFLPA legal brief is a devastating indictment of Roger Goodell and the whole process. I would be very surprised if the ruling is not overturned.

  16. Skiphil
    Posted Jul 30, 2015 at 6:59 PM | Permalink

    NFL and lack of due process

    • Steve McIntyre
      Posted Jul 30, 2015 at 8:51 PM | Permalink

      The NFLPA appeal says that the NFL applied penalties under the NFL Policy on Integrity of the Game and Enforcement of Competitive Rules – a policy that they say applies to Clubs. I’ve looked for a copy online and been unable to locate it. The NFL was a webpage in which they make various puffs about league diligence in informing players about rules and the consequences of breaking them:

      The NFL communicates with players and teams year-round so they understand what the rules are, why they exist, what happens when they’re broken and how the appeals process works.

      Whatever one may think of the merits, the NFL clearly didn’t live up to this standard either in communicating the pressure rules and consequences or obligations to provide cell phones to NFL investigators.

      • MikeN
        Posted Jul 31, 2015 at 2:20 AM | Permalink

        The NFL doesn’t publicize its entire rulebook. For example, Spygate cannot be properly evaluated with publicly released rules. Someone who has seen some of the ‘hidden’ rulebook wrote that NFL’s interpretation of the rule violates other rules about videotaping that teams are required to do.

        • Steve McIntyre
          Posted Jul 31, 2015 at 6:56 AM | Permalink

          You say: “The NFL doesn’t publicize its entire rulebook.” However, the NFL webpage says that players are fully and completely informed and sign forms acknowledging the code of conduct. How is this possible if Brady is being, at least in part, charged under non-public agreements between the NFL and its clubs which Brady, as a player, was not party to and may or may not have been aware of. This issue, not previously discussed here, is forcefully raised in the NFLPA brief. The apparent public unavailability of the policy under which the penalties were levied is surely relevant and interest.

          As you observe, this also seems to have impacted Spygate, but that was a dispute with the Club, rather than a dispute under the Collective Bargaining Agreement. If anything, this seems to support theNFLPA position in my reading.

        • Gdn
          Posted Aug 1, 2015 at 11:20 AM | Permalink

          The rule the Patriots were punished under for Spygate was self-described as a safety rule requiring certain filming be done from an area enclosed on three sides and with an overhead cover for the safety of the equipment and of fans.

      • mpainter
        Posted Jul 31, 2015 at 8:37 AM | Permalink

        It certainly appears that Goodell is making up rules and regulations as he goes along, much of that improvisation contrary to what the NFL espouses at, say, their website.

        From this perspective, Goodell has weak footing for the stance he has taken.

        Perhaps the key to understanding this is to be found in the phrase “collective bargaining”. Perhaps Goodell anticipates a negotiated outcome.

  17. Skiphil
    Posted Jul 30, 2015 at 7:34 PM | Permalink

    Q&A by an attorney

    • chuckrr
      Posted Jul 30, 2015 at 11:28 PM | Permalink

      Probably the best analysis I’ve read. Everyone that has any interest in this case should read this and Steve’s critique of Exponent Unfortunately only a small fraction.

      • chuckrr
        Posted Jul 30, 2015 at 11:30 PM | Permalink

        Only a small fractiom will

      • bernie1815
        Posted Aug 1, 2015 at 12:50 AM | Permalink

        I agree. Very clear and pretty objective. She does have a low opinion of how the NFL does business.

  18. Neville
    Posted Jul 30, 2015 at 8:24 PM | Permalink

    Some good new research highlighted by Dr Roy Spencer showing that climate sensitivity is much lower than claimed by the IPCC alarmists. Big response from the commenters to his blog.

  19. Steve McIntyre
    Posted Jul 31, 2015 at 8:41 AM | Permalink

    Saw an interesting comment about the League’s preemptive going to court in New York – hailed by some commenters as clever tactics. The commenter observed:

    Is it possible that the league’s curious decision to go to court first could come back to haunt them? It would seem to me hard for the NFL to turn around in a few weeks and argue the court shouldn’t provide meaningful review of the league’s actions when it was the league itself that first went to court.

    The argument seems logical to me, though presumably there’s an argument on the other side.

  20. Danley Wolfe
    Posted Jul 31, 2015 at 12:43 PM | Permalink

    Brady cannot win an appeal based on “science.” The courts have demonstrated that they will not decide detailed “science” instead ruling on the legal and jurisdictional merits.

    • mpainter
      Posted Jul 31, 2015 at 1:39 PM | Permalink

      Danley Wolfe:

      I disagree. Scientific testimony is standard fare. That is how Exponent makes its millions: by furnishing scientific studies for issues at law.

    • Steve McIntyre
      Posted Jul 31, 2015 at 4:02 PM | Permalink

      A wise lawyer once told me that judges like to decide things on technical grounds if available to them, but also want to be fair. Even if J Berman ultimately decided on procedural grounds, I’m sure that he’d want to avoid being foolish on the science. I expect both sciences to brief on the science even if it is ultimately decided on some other ground.

      • Howard
        Posted Jul 31, 2015 at 7:57 PM | Permalink

        Judges like to accept science from authority. Since the Brady camp did not meaningfully dispute the exponent science, a judge is likely to accept it. Then, procedure and rules will dominate and a bone will be throwed to appear fair. The most important factor: Is the Judge a Jets Fan?

  21. Neville
    Posted Jul 31, 2015 at 5:51 PM | Permalink

    Has mathematician Mike Jonas at least helped to solve how much human co2 increases drive our current temp.
    Even Nick Stokes seems to concede ( in comments) that our co2 increases are not a major driver.
    So what part does co2 play, perhaps one sixth?

  22. lloydr56
    Posted Aug 1, 2015 at 8:00 AM | Permalink

    I’m still mainly interested in the possible connections to the climate controversies. Brady is a rich guy married to a supermodel. I assume he can take care of himself.

    Professional athletes are in a situation similar to people in the military (obviously with better pay). They have signed their asses away to the organization–ultimately the NFL. The organization makes huge money, and is always trying to find a way to make even more. Will they sacrifice one player for what they perceive to be the good of the organization? Of course. As with any profit-making company, the leaders are expected to be caught up in group think; it’s their job. Building on what Gary said above: why would the NFL cook up a witch hunt, and proceed on bogus arguments about contracts and rules, and crap evidence? The league is proud of “parity,” it’s good for keeping up TV ratings in various cities, and the Pats threaten parity by their excellence. That’s a start anyway.

    The analogy to climate is the willingness of so many to believe, based on evidence that is skimpy at best and turns out (thanks to Steve) to be nonsense. Whatever happened to the old expression “I don’t know,” with the addition in this case “the NFL is probably up to something; when are they not?”

  23. Henry
    Posted Aug 1, 2015 at 8:47 AM | Permalink

    Yes, yes lets debate how many angels or refs can dance on the head of a football.

    But that would be a silly endeavor unless we use true skill with advanced statistics!!!!!!

    Yes, now that will turn this quixotic quest truly meaningful…..

    Now where is that differential equation I had on how many angels can be supported per PSI…..

  24. John Connor
    Posted Aug 3, 2015 at 5:59 PM | Permalink

    Steve. What is your view of NOAAs latest temp adjustments?

  25. Neville
    Posted Aug 4, 2015 at 5:56 PM | Permalink

    There has been a big drop in July for UAH, from 0.33c to 0.18c. Mostly in the extratropics, SH etc, but some el nino warming in the tropics.

  26. Chris
    Posted Aug 4, 2015 at 8:18 PM | Permalink

    I’m sure everyone has seen the appeal transcript:

    Click to access goodell_arbitration.pdf

    One of the more interesting parts – for me – is the text messages from Jastremski to his fiancé after the Jets game. He says:

    “Ugh … Tom was right”
    “I just measured some of the balls. They are supposed to be 13.They were, like, 16, felt like bricks.”

    so, unless he is lying to his fiance, he was either directed – or assumed – to have them at 13. This is like 2 months before the game – way after the Gronk radio interview etc. I find it weird that Tom would use legals balls his whole career and then suddenly want them illegally inflated, rather than his explanation that he then looked up the number and instructed the referees to 12.5 psi.

    • MikeN
      Posted Aug 5, 2015 at 12:19 PM | Permalink

      The witness from Exponent spent more time talking about Anderson’s switching gauges in pregame than Brady’s witnesses.

  27. MikeN
    Posted Aug 5, 2015 at 12:05 AM | Permalink

    Around page 400, Kessler goes into a big back and forth about the gloving process and how it would affect the PSI. This gloving could explain how Anderson used the Logo gauge while the Patriots used an accurate gauge. Then Kessler drops the questioning just as he was getting to the point.

    Steve: Yup. He missed a short putt, that’s for sure.

  28. Posted Aug 5, 2015 at 6:48 PM | Permalink

    Chris, Good point re: Jastremski texts after the jets game. Since Wells points to “deflator” text in May 2014 (in the offseason after 2013 season) as proof McNally and Jastremski were deflating balls after ref check, it would follow that they were doing it during the 2014 season. the text from Jamenski to his fiance saying “they are supposed to be 13” confirms what he testified to – before the jets game he would set the balls at 12.8 or 12.9 because that’s what they had always done for years (from before brady was the starter), until after the jets game, when brady inquired about what the rule was and instructed him to set them at 12.6 and to have McNally give the ref a copy of the rule saying they can be 12.5.

    If you believe Wells – they were deflating balls for all of 2014 – and if this were true, you would think Jastremski would have texted his fiance that the balls were supposed to be at 12 (or some # below 12).

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