The transcript of the Brady appeal before Goodell has been released and it’s astonishing to see how the sausage was made. It raises many issues, one of which I’ll discuss in today’s post.
In my previous commentary on the case, I’ve drawn attention to the fact that NFL officials at half-time, despite heightened scrutiny, inadvertently switched gauges between Patriot and Colt balls and pointed out that (1) it is not known that referee Anderson used the same gauge for pregame measurement of both Patriot and Colt balls; and (2) a scenario in which Anderson used the Logo gauge for measuring Patriot balls and Non-Logo gauge for Colt balls reconciles otherwise discordant information. If Anderson put the gauge back in his pocket between team measurements, then surely there would be an approximately 50% chance that he would use the same gauge and 50% that he would use a different gauge.
Reading between the lines of Goodell’s ruling, it had seemed to me that Brady’s lawyer and technical expert had badly damaged their case by overlooking or under-emphasizing this line of argument. I was particularly interested in how this scenario was handled in the hearing.
My surmise about Dean Edward Snyder, Brady’s technical expert, was entirely correct. Snyder did not mention this scenario at all.
The topic only came up in the direct examination of Caligiuri of Exponent by the NFL lawyer. The lawyer asked Caligiuri to comment on the AEI report, which had raised the possibility of Anderson switching gauges (but which did not carry the analysis of this scenario forward into analysis of the transients, as I had done at CA). The NFL lawyer asked:
Q. And with respect to the AEI report, one of
15 the criticisms or observations made by AEI was that,
16 “There was no statistically significant difference
17 between the pressure drop of the Colts’ balls versus
18 the Patriots’ balls if you assume the logo gauge was
19 used pre-game as opposed to the non-logo gauge.”
20 Do you have a reaction or response to that
22 A. Yes, I found that to be unfounded as well.
23 What the AEI report did is look at four possible
24 combinations pre-game. All the measurements were
25 made with the logo gauge. All the measurements were
made with the non-logo gauge.
2 And then, for some reason, which there is no
3 evidence of, Walt Anderson switched them out. He
4 measured Patriots’ balls with the logo and the
5 Colts’ balls with the non-logo and then the other
6 way around. So he looked at four possibilities.
7 Two of those possibilities just don’t make
8 sense because there’s never been any indication that
9 Walt Anderson switched the gauges in the middle of
10 his pre-game measurements. We had no indications.
11 We were actually told to assume that that did not
12 happen because there was no evidence that that
13 happened outside of AEI. We take those two
14 scenarios off the table.
15 The other two scenarios, there is one set of
16 combinations within those within which you could get
17 to the conclusion that the p-factor as we heard
18 about today was 6.7 percent, but there’s problems in
19 that analysis as well.
Although litigation lawyers tend to be very quick and Brady’s lawyer, Jeffrey Kessler, is said to be especially accomplished, Kessler did not cross-examine Caligiuri on this answer and the topic disappeared.
The question is not whether we “know” that Anderson switched gauges, but whether we know that he used the same gauge for both measurements, given that NFL officials at half-time switched gauges. There is no record of which gauge was used for which measurement even at half-time, let alone pre-game. Unless one knows that the same gauge was used, both alternatives are equally worthy of analysis and neither should be precluded.
Now watch Caligiuri’s continuation:
We were actually told to assume that that [Anderson switching gauges] did not happen because there was no evidence that that happened outside of AEI. We take those two scenarios off the table. [my bold]
This answer raises more questions than it answers. Caligiuri says that Exponent was “told” not to consider the switching scenario, but doesn’t say who told them and Kessler didn’t ask him. But it surely invites the question: who told Exponent not to consider the possibility that Anderson had switched gauges?
Presumably, the instructions came from Wells. But why would Wells preclude analysis of such an important scenario – one raised not just by AEI, but by MacKinnon and others? And what conceivable basis would Wells have for precluding analysis of this possibility? And why were such instructions not reported in Exponent’s report, together with disclosure that they had been instructed not to analyse the scenario?