A couple of moves Thursday by the NFL Players Association and the New England Patriots will keep the Deflategate discussion front and center for the league and fans for some time. Late Thursday afternoon, quarterback Tom Brady and the NFLPA filed an appeal of a four-game suspension handed down by the league after an investigator concluded Brady had a role in deflating footballs used in the AFC Championship Game against the Indianapolis Colts. A few hours earlier, the Patriots issued a point-by-point rebuttal of the NFL's findings.
The actions raise significant questions about the investigation, the team's reaction, the possibility of litigation and Brady's attempt to preserve his legacy:
Q: Can Brady win a reduction in the suspension or eliminate the suspension entirely?
A: No. The evidence gathered by attorney Ted Wells for the NFL's investigation is clear and convincing. The text messages between Brady and two Patriots staffers, the disappearance of the Patriots' footballs in the moments before kickoff, the history of similar incidents involving Brady and Brady's stonewalling of the NFL investigators lead to only one conclusion: Brady was clearly involved in an effort to underinflate the footballs to give him a competitive edge.
As Wells stated in his report, adopting "a contrary conclusion requires the acceptance of an implausible number of communications and events as benign coincidences." If Brady and the union attorneys argue the penalty is too stiff for a minor violation, they face a challenge that Brady's refusals to turn over his text messages and emails with staffers who had access to the footballs prior to the game were a clear obstruction of the investigation. And, as NFL executive Troy Vincent said in his letter to Brady announcing the suspension, Brady failed in his statement to the investigators "to cooperate fully and candidly."
Vincent added that Brady provided "testimony that the report concludes was not plausible and contradicted by other evidence." The situation before the arbitrator who will hear the appeal is: Brady did it; he was caught; he tried to cover it up; and he lied about it. That's plenty for a four-game suspension.
Q: Who will decide Brady's appeal?
A: Under the collective bargaining agreement between the players and the owners, commissioner Roger Goodell has the power to hear and to decide the appeal. The players gave Goodell this authority in the bargaining process. Goodell also has the authority to name an arbitrator.
He could appoint Harold Henderson, a former NFL executive generally viewed as favoring the commissioner and the owners. Or Goodell could name an independent arbitrator, as he did in the Ray Rice domestic violence arbitration. The Rice arbitration was a humiliating defeat for Goodell and his staff, and he might be reluctant to appoint a similarly independent arbitrator.
But the work on the Brady investigation is vastly superior to the work the NFL staff did in the Rice probe. If Goodell wants to avoid another fiasco, he should show his confidence in the Wells investigation and appoint an independent arbitrator. (Update: Goodell will hear the appeal.)
Q: Is it possible the appeal will backfire on Brady?
A: Yes. Brady refused to turn over his text messages and emails during the Wells investigation. In the arbitration process, he will be compelled to give the NFL the material he did not want the NFL to see. When Brady's emails and texts are added to the texts from John Jastremski, the assistant equipment manager, and James McNally, the locker room attendant who took the footballs into the bathroom moments before kickoff, the case against Brady could easily become stronger and more difficult for Brady to answer.
Brady and his attorneys obviously know he must turn over this material to the arbitrator. They will try to present it in a way that shows Brady is innocent. But if the evidence shows innocence, then why didn't Brady turn over the material earlier?
Q: How will Brady and his attorneys explain the text messages that indicate Brady was involved in deflating the footballs?
A: They will attempt to persuade the arbitrator that the messages were attempts at humor and were not based on reality. It will be a tough sell.
After the Patriots played the Jets on Oct. 17, Brady was furious about the inflation level of the footballs and complained to Jastremski. Jastremski and McNally, who was upset with Brady's criticism, then exchanged the following text messages during the three days after the game:
McNally: Tom sucks. I'm going to make the next ball a f---ing balloon.
Jastremski: Talked to him last night. He actually brought you up and said you must have a lot of stress trying to get them done. ... The refs f----d us. A few of them were at almost 16 [pounds per square inch, well above the required 12.5 to 13.5 psi].
McNally: Make sure you blow up the ball to look like a rugby ball so Tom can get used to it before Sunday.
Jastremski: Can't wait to give you your needle this week.
McNally: F--- Tom. Make sure the pump is attached to the needle. F-----g watermelons coming.
Jastremski: So angry.
It will be difficult for Brady and his lawyers to paint these text messages as locker room banter. Brady's name, and the notions of inflation and deflation, are all obvious in the messages. There is some humor in the messages, but it is not humor that will be of benefit to Brady.
At another point in the exchange of messages on the inflation level of footballs, McNally states that he "is not going to ESPN yet." Brady has some terrific lawyers, including the estimable Jeff Kessler, but it will be difficult to persuade an arbitrator that a threat to blow the whistle is an attempt at humor.
Q: The Patriots' rebuttal Thursday was aggressive and detailed. What was the purpose of this attack on Goodell and the investigation?
A: It is possible the Patriots' rebuttal will become the foundation for a lawsuit against Goodell and the league. But it is more likely that the purpose of the rebuttal was a form of damage control. It offers material for the Patriots' true-believer fans to use as they continue to support their beloved team.
It might diminish the effect of the investigation's assault upon the team's reputation in its market. But it's highly unlikely owner Bob Kraft will file any litigation against the NFL. If he filed a lawsuit, he would join the late Al Davis and Donald Sterling as the only sports team owners to sue their fellow owners. Kraft does not want to be in any group that includes Davis and Sterling.
Q: What advantages, if any, does Brady enjoy in this appeal?
A: In reality, just the notion that it cannot get any worse for him.
Whether the arbitrator is Goodell, Henderson or an independent person, the arbitrator cannot increase the suspension. If the arbitrator looks at all the evidence and concludes that Brady was guilty of a form of cheating that affected the integrity of the competition in the most successful sports enterprise in America, the arbitrator could not suspend Brady for more than four games. If the arbitrator had the power to actually increase a penalty, well, Brady and the NFLPA might not have filed an appeal.