#DFG: Canceling the Noise

[OnWisc]

For someone who's exposure to the legal profession is limited to a few Grisham novels and Intruder in the Dust, it's starting to seem possible that the person most likely to be damaged from the fallout here is Wells. The perception of Brady- as GOAT or cheater- is unlikely to change much in the minds of anyone who already has an opinion. The loss of a pick stings, but the Patriots have overcome that in the past. The NFL has survived worse, and probably won't suffer long-term even if it's revealed that this was a bumbled Keystone Kops sting. Goodell has already made so many missteps that such a revelation would be just another drop in the bucket as opposed to an inexplicable blunder that brought down an otherwise stellar career. And ultimately we're talking about a small psi discrepancy that not only had no discernible impact, but had no discernible impact on the ability of a bunch of guys to run around on field and play a game.

But it's looking more and more like an attorney who did have a previously stellar career and sterling reputation may have blundered into producing a half-baked document that's already been picked apart to the point where those actually in the legal profession are expressing incredulity over how it was put together. Amazing that something so irrelevant could have material fallout extend beyond the inane NFL machinations of forfeited draft picks and suspensions.

 

[DJnVa]

"OMG, all the media is harping on is the deflator thing" --says a thread overwhelmingly commenting on the deflator thing

 

[snowmanny]

Yeah, the deflator bit can be spun derisively, but there was going to be something for the detractors to pick at for sure.  On the other hand, there are going to be some people (lawyers, a few sportswriters, some football executives)  who actually read the rebuttal in it's totality with an open mind, and those are the people they are targeting. The short-term popular vote PR battle, as E5 Yaz has reminded us 5,311 times, was lost a long time ago.  But creating a perception that the league screwed this up so badly that nobody knows who did what and what the numbers really were and showing that the actual evidence is pretty thin so some of the penalties get reduced would be a relative victory.

 

[Mooch]

The Pats were told to do so by the league.

I must have missed that. Is that fact in any of the reports on the punishment handed down by Vincent?

 

[Average Reds]

If Jastremski and McNally were innocent in all of this, why did the Pats suspend them? I think the Patriots lose a TON of credibility defending them and explaining their texts and actions today.

 
I don't believe they had a choice in the matter.

 

[dcmissle]

<p>
Mark Daniels ‏@MarkDanielsPJ  42s42
link to tweet seconds ago
"Why are all of Exponents reports, relied on in the report issued May 6, dated May 6?"

That is a bullshit point which only demonstrates that either the lawyer is cynical or has no experience practicing law.

There are many iterations of these documents. It is not at all unusual to have them dated and issued at the same time.

Good Christ they are reaching.

 

[RIFan]

 
Yup. Big big mistake there. Just leave that out and the rebuttal might have some momentum.

They had to address the "deflator" nickname.  It's as close as a smoking gun as the NFL has.  Doing that detailed of a rebuttal and not specifically addressing that means they go no other plausible reason.  It does sound so ridiculous that if they were going to make something up would they go with that?  Hell, if I knew he was guilty I'd come up with something like he accidentally punctured one of those big blow up helmets and only him and Jastremski knew he did it.

 

[Silverdude2167]

"OMG, all the media is harping on is the deflator thing" --says a thread overwhelmingly commenting on the deflator thing

"OMG, all the media is harping on is the deflator thing (they should have left it out since it is all people are going to talk about)..."

 

[lexrageorge]

Thursday morning, finally, we see a rebuttal from the Patriots.  This is at least a day too late, maybe two.  In today's 24-hour news cycle, anything more than a day or two after the suspension is almost worthless -- everyone's opinions have already formed by now.  No way will this address any of the damage done.
 
http://espn.go.com/boston/nfl/story/_/id/12885305/new-england-patriots-offer-rebuttal-wells-report

They were probably willing to hold off initially.  Until Goodell told Wells to go nuclear against Brady and the Pats during yesterday's press conference. At this point, the Pats must have felt they have nothing more to lose.  

 

[cornwalls@6]

The possible double-entendre/inside jokey thing others have mentioned seems at least somewhat plausible to me. The guys role with the Pats is in part, attending to the air-pressure in the game day footballs. He's also a heavy-set guy who is probably constantly trying to drop weight. Not that big a reach.

 

[Shelterdog]

 
B.S.  The first thing that they were doing is running a search string for "deflat!" on whatever documents and texts they got.  No way they didn't know they had those texts in their back pocket.  That's how investigations are done. Try and box people into their testimony, and then hit them with their inconsistent prior statements, which they thought that they had.  The problem is (a) they didn't get a second bite at the apple on the terms they wanted it; and (b) maybe those prior inconsistents weren't so inconsistent.

 
Sometimes people do a good job on document review and sometimes they don't.  Everybody pushes down work at those firms so maybe junior associate X was supposed to review the documents but was swamped doing witness outlines for like 60 witnesses so s/he  just let a temporary attorney or paralegal do it.  Big firms fuck this stuff all the time. 
 
Or they had it in their back pocket.  No way to know for sure.

 

[nighthob]

That's technically incorrect.  The Patriots can appeal the punishment....to Roger Goodell.

Well, yes, technically they could ask Goodell to reconsider his punishment, but that was a losing proposition from the start.

 

[RIFan]

I thought something was said today that those texts were found before the first interview.
 

Right.  They had the texts but didn't bring them up during any of his previous interviews.

 
 
While the report states that certain of Mr. Jastremski’s texts were not “discovered” until after this interview (pg. 75, footnote 47), there is no question that the investigators had all such texts in their possession and available for the questioning.  They apparently just overlooked them,  identifying them now as a matter they wanted to cover in yet another interview. (pg. 75) Although asked numerous times for the reason for their request for yet another interview with Mr. McNally, the Wells investigators never stated the reason that now appears evident from the Report:  They had overlooked texts in their earlier interviews and wanted the opportunity to ask about them. This information would have confirmed what is now clear. The request was inconsistent with the interview protocol agreed to at the outset.

 

[Van Everyman]

The Deflator nickname works in the broad context of the texts, tho it takes a little squinting to understand. If I'm reading it right, Jastremski (aka, "Dorito Sink") is cheating on his wife, and McNally is asking/ribbing him about it (I have no idea what the "pong party" references).

By the end of it, JM is saying, "Ok, you're getting some. So how about helping the guy who's losing weight by getting him a pair of sneakers?"

That's how I read it anyway based on the explanation the rebuttal provides.

 

[RetractableRoof]

If Jastremski and McNally were innocent in all of this, why did the Pats suspend them? I think the Patriots lose a TON of credibility defending them and explaining their texts and actions today.

Maybe because Kraft had a conversation with RG before the punishments were handed down and Goddell told him to?

 

[BroodsSexton]

 
Sometimes people do a good job on document review and sometimes they don't.  Everybody pushes down work at those firms so maybe junior associate X was supposed to review the documents but was swamped doing witness outlines for like 60 witnesses so s/he  just let a temporary attorney or paralegal do it.  Big firms fuck this stuff all the time. 
 
Or they had it in their back pocket.  No way to know for sure.

 
Well, let's just say it's more probable than not, based on standard law firm practices, and the centrality of these texts and the subjects, and the manner in which investigations are typically conducted, that they had them in their back pocket.
 
Also, this is a juicy assignment for a junior lawyer.  This is not document review on a big commercial case, looking for for earlier drafts of a key document.  Whoever did this review almost certainly took a lot of pride and interest in it.

 

[Stitch01]

Yup the deflator thing was a misstep.  The muppets are all over that one, should have let that lie.

 

[Revkeith]

If Jastremski and McNally were innocent in all of this, why did the Pats suspend them? I think the Patriots lose a TON of credibility defending them and explaining their texts and actions today.

 
Wasn't it the NFL that suspended them?

 

[PeaceSignMoose]

The Deflator nickname works in the broad context of the texts, tho it takes a little squinting to understand. If I'm reading it right, Jastremski (aka, "Dorito Sink") is cheating on his wife, and McNally is asking/ribbing him about it (I have no idea what the "pong party" references).

By the end of it, JM is saying, "Ok, you're getting some. So how about helping the guy who's losing weight by getting him a pair of sneakers?"

That's how I read it anyway based on the explanation the rebuttal provides.

 
Completely irrelevant, but imagine being Mrs. Jastremski and finding out your husband is cheating on you that way.  

 

[Stitch01]

Wait till ROG takes the '17 and '18 picks for conduct detrimental to the league.

 

[TomRicardo]

Goodell is going to make the team fine worse for leaking these documents, at which point Kraft will go to court. Is that what's going to happen? 

 
You mean if Goodell survives the league meetings next week.

 

[Van Everyman]

Another good point the rebuttal raises, this is the only time that the term "deflator" was used at any point during the investigation or the hundreds of texts.

 

[CaptainLaddie]

If they don't address it, they have people asking WHY WAS THAT HIS NICKNAME.
If they do address it, this happens.
 
No-win situation.
 
Meanwhile, this:
 

 

[DJnVa]

"OMG, all the media is harping on is the deflator thing (they should have left it out since it is all people are going to talk about)..."

 
So play to the media? Because if the Patriots had some convincing rebuttal this would all go away?
 
This isn't the appeal. This has no bearing on what will happen.

 

[Gambler7]

https://wellsreportcontext.files.wordpress.com/2015/05/3427_0011.pdf
This letter to me says it all about the "independent investigation. This is really all that is needed. 

 

[soxhop411]

 

[DJnVa]

At Brady's appeal next week, exhibit A will be a list of texts from McNally on his personal phone showing that he called himself deflator in the exact context this rebuttal says.
 
BOOM.
 
Game. Set. Match.
 
I hope.

 

[soxhop411]

ONE text

 

[BroodsSexton]

There is some irony to the inevitable that once again the Patriots are going to be victorious as a result of being better prepared and more professional than their opponents.

 

[Silverdude2167]

 
So play to the media? Because if the Patriots had some convincing rebuttal this would all go away?
 
This isn't the appeal. This has no bearing on what will happen.

You are right, there is no way to win in the court of public approval. Hopefully the owners are willing to move past it.

 

[dcmissle]

See -- that's the point .... that will be lost in the chortling.

 

[bluefenderstrat]

They provided context for the use of the term "deflate" by McNally as reference to weight loss. IDGAF what the Berrys and Sodens of the world think--that's what it meant.

 

[TomRicardo]

Any chance Goodell throws Wells under the bus saying that he relied on the independent report that was subsequently disproven on several levels?

 
Why the hell do you think he spent 5 million on the dude?  For his reporting accuracy?  The report is awful.  
 
The real question is why Wells was dumb enough to take the work

 

[Silverdude2167]

Any chance Goodell throws Wells under the bus saying that he relied on the independent report that was subsequently disproven on several levels?

[SIZE=10.5pt]Would that save him though? Any owner worth his salt would say, these issues are obvious why did you not disregard the report when making decisions.[/SIZE]

 

[Gambler7]

Mr. McNally, a physically big man, hoisted two large bags of footballs and lumbered past all these League officials and out the door of the Officials’ Locker Room. As is clear from the report, no one objected; no one told him to stop; no one requested that he wait to be accompanied by a League official; no one told him that a League official had to carry the footballs to the field. After he walked past all of these League officials and out the door of the Officials’ Locker Room to the hallway, he then walked past James Daniel, an NFL official and one of the people who had been alerted to the Colts psi concerns pre-game (pg. 45). Mr. Daniel, as seen on the security video, looked at Mr. McNally carrying the bags of footballs toward the field unaccompanied by any League or game official, and made no objection to Mr. McNally continuing unaccompanied to the field. In short, if officials lost track of the location of game footballs, it was not because Mr. McNally stealthily removed them. (Omitted from the investigation were interviews with all those League officials whom Mr. McNally walked past with the bags of footballs on his shoulders.) Even after halftime, when obvious attention was being paid to game footballs and psi issues by League and game officials, who took control of the footballs at halftime, the security video shows Mr. McNally, with no objection, taking the footballs from the Officials’ Locker Room back to the field totally unaccompanied by any League or Game official. Mr. McNally’s removal of the footballs from the Officials’ Locker Room before the game began was simply not unauthorized, unknown, unusual, or in violation of some protocol or instruction. The report nonetheless portrays Mr. McNally’s departure from the Officials’ Locker Room before the game as a step in secretly taking the footballs for nefarious reasons.
 

 

[dcmissle]

Any chance Goodell throws Wells under the bus saying that he relied on the independent report that was subsequently disproven on several levels?

Zero ....

Meanwhile this from Kevin Seifert of ESPN is right. Told you guys to channel your inner Raider fan --

"Read through Patriots rebuttal. Merit aside, its the most direct challenge by a team to the league on this side of Al Davis. Civil War. 29m"

 

[joe dokes]

Goldberg's letter: conduct "of certain League officials."  That's Kensil, right?

 

[snowmanny]

I think it's odd that Goodell did not give the team an opportunity to review the report and offer a defense before issuing the punishment.  What is the cost to the league in extending that extra step for the member teams?

 

[Ed Hillel]

They provided context for the use of the term "deflate" by McNally as reference to weight loss. IDGAF what the Berrys and Sodens of the world think--that's what it meant.

 
It's possible to read it many ways still, but I'm not sure how Wells can claim to be truly objective and leave the second deflate text out of the report completely. It's pretty clear he's referring to weight loss in that other text; at least put both sides of the argument before making the conclusion.

 

[NortheasternPJ]

 
It's possible to read it many ways still, but I'm not sure how Wells can claim to be truly objective and leave the second deflate text out of the report completely. It's pretty clear he's referring to weight loss in that other text, at least put both sides of the argument before making the conclusion.

 
Edit: looks like it was included.

 

[simplyeric]

I'm not sure why anyone cares if it was a sting. A sting may be bad form by the NFL, but that has nothing to do with guilt or innocence. They either did it or not. If guilty, how they were caught is irrelevant.

It's not like the sting was the NFL having the refs tell McNally they were adding a little "extra" air, handing him a needle and leaving him alone with the balls.

I think you're partially right here but: if the issue is the integrity of the game, and possible competitive advantage, and if the previous precedent is to simply tell the team to not do it, the the 'sting' shows that the actions of the NFL were not actually about integrity or fairness or consistency.
Which then leads to questions of bias and motive to skew the 'evidence' and the report.

 

[Super Nomario]

 
It's possible to read it many ways still, but I'm not sure how Wells can claim to be truly objective and leave the second deflate text out of the report completely. It's pretty clear he's referring to weight loss in that other text; at least put both sides of the argument before making the conclusion.

The "Deflate and give somebody that jkt" one? That's in there, page 87. Wells does not provide explanation, saying only that they would have asked McNally if granted another interview.

 

[OnWisc]

Any chance Goodell throws Wells under the bus saying that he relied on the independent report that was subsequently disproven on several levels?

Could the reverse happen? Where Wells claims he relied on assertions from his client that were later shown to be incomplete or inaccurate or that he was instructed that certain things now appearing as relevant were beyond the scope of the investigation? From the criticisms of the report I'm reading, this wouldn't seem to be the case, but still wondering.

 

[bsj]

If they didn't mention "The Deflator" then everyone would be saying...
 
"Yeah this may all be true, but what about those TEXTS??? They never even mentioned "Deflator"?! There is a reason they ignored that."
 
It sucks the way the media is spinning that, but they had to do this IMO. IMO this rebuttal is not about public opinion in so far as their own guilt. That is NEVER coming back. It is about creating possible alternatives in as many avenues as possible as early as possible so that as the appeals process evolves, a theoretically independent arbitrator will be put in a position to have to make SO many assumptions to get to "guilt" that he/she has no choice but to decide otherwise (at least insofar as Brady).

 

[dcmissle]

Goldberg's letter: conduct "of certain League officials."  That's Kensil, right?

Alright, so where is the Kensil stuff in this dump? That's what I was looking for.

It was rumored for weeks. It's obliquely referred to the first Yee statement.

Where is it, or do they not know any more than we do?

 

[Rusty13]

The "Deflate and give somebody that jkt" one? That's in there, page 87. Wells does not provide explanation, saying only that they would have asked McNally if granted another interview.

 
The Wells Report also said this text took place during half-time of a game.  However, the report doesn't provide any transcript of texts immediately before or after that text, so, of course, it's difficult to gauge the exact context - which of course is the problem with weighing and/or relying upon this from of evidence.  That's why I'm convinced the Pats have other texts in their back pocket that they are waiting to unload.

 

[PBDWake]

Could the reverse happen? Where Wells claims he relied on assertions from his client that were later shown to be incomplete or inaccurate or that he was instructed that certain things now appearing as relevant were beyond the scope of the investigation? From the criticisms of the report I'm reading, this wouldn't seem to be the case, but still wondering.

Never in a million years in public. Wells might never work for the NFL again, and might have questions raised about Goodell throwing him under the bus, but those are questions answered privately and quietly as reassurances to clients that he will deliver what was requested.
 
On the other hand, outing client baggage and requests like that because you're under fire would end a non-insignificant amount of business before it ever begins.

 

[Todd Benzinger]

Isn't the endgame here for Kraft to put pounds of pressure (pun intended) on Goodell to appoint a neutral arbitrator to hear the Pats internal appeal to the NFL? Also, tearing the report apart might at least give Goodell cover to reduce the punishment and make nice-nice with Kraft.
 
If they can make a strong enough case that the NFL & Wells were in on a narrow, biased, unfair investigation, and they get an outside arbitrator to review it all, they have a chance of getting not just the punishment but the Wells report overturned.
 
 
edit:

 It is about creating possible alternatives in as many avenues as possible as early as possible so that as the appeals process evolves, a theoretically independent arbitrator will be put in a position to have to make SO many assumptions to get to "guilt" that he/she has no choice but to decide otherwise (at least insofar as Brady).

 

 
I guess bsj agrees...

 

[dcmissle]

If they didn't mention "The Deflator" then everyone would be saying...
 
"Yeah this may all be true, but what about those TEXTS??? They never even mentioned "Deflator"?! There is a reason they ignored that."
 
It sucks the way the media is spinning that, but they had to do this IMO. IMO this rebuttal is not about public opinion in so far as their own guilt. That is NEVER coming back. It is about creating possible alternatives in as many avenues as possible as early as possible so that as the appeals process evolves, a theoretically independent arbitrator will be put in a position to have to make SO many assumptions to get to "guilt" that he/she has no choice but to decide otherwise (at least insofar as Brady).

If you are referring to influencing the TB matter, sure. Whatever chance the Pats had of getting their sanctions overturned or reduced were just burned this morning. Maybe they feel on balance this is worth it.

 

[notfar]

This whole thing is because nobody in the NFL office knew what the ideal gas law is and can't admit this all started on a mistake. The rest of it is just covering up for that initial fuck up.