#DFG: Canceling the Noise

[mauf]

I didn't find Yee's statement particularly persuasive with regard to transparency. It's fine concerning precedent, because, well, it's correct there.

But it doesn't matter that you've turned over more information than anyone else ever has if the information that you withheld is the important stuff. He's spinning here, and in a way that's so unconvincing that it's worrisome.

 
I had the same reaction. Maybe Yee forgot the difference between PR and courtroom argument*, but saying "the NFL has no evidence that anything inappropriate occurred" is a hell of a lot less persuasive than saying "nothing inappropriate occurred" -- and so obviously so that one wonders if he felt ethically constrained to say the former instead of the latter.
 
 
*- The NFLPA's legal argument to the court has to be about the NFL's lack of evidence, or about bias in the process -- a court won't re-weigh evidence that has already been weighed by an impartial arbitrator.

 

[BusRaker]

Is this really happening, or just a made-for-NFL-Network movie being acted out?

And for the record, it makes me nervous when my girlfriend starts playing with my cell phone, let alone some folks bent on harming my reputation, or ever worse my employer. I'd destroy that fucker too knowing how many people were after its contents..

 

[nattysez]

 
I had the same reaction. Maybe Yee forgot the difference between PR and courtroom argument*, but saying "the NFL has no evidence that anything inappropriate occurred" is a hell of a lot less persuasive than saying "nothing inappropriate occurred" -- and so obviously so that one wonders if he felt ethically constrained to say the former instead of the latter.
 
 
*- Brady's legal argument to the court has to be about the NFL's lack of evidence, or about bias in the process -- a court won't re-weigh evidence that has already been weighed by an impartial arbitrator.

 
This has been his approach from the outset, which is really problematic.  If Brady did absolutely, positively nothing wrong, say so.
 
Edit:  I'm an idiot -- as already pointed out, Yee says explicitly this in the statement:  "Most importantly, neither Tom nor the Patriots did anything wrong. And the NFL has no evidence that anything inappropriate occurred."
 
Meanwhile, I don't see how the Pats can issue that statement of unhappiness with the league on the heels of consenting to the NFL's punishment v. the team.  Pick a lane, Bob. 

 

[djbayko]

Love the statement. RG will get his salad tossed in court.

Wait, is this suppose to be a good thing or a bad thing?

 

[pappymojo]

 
It's an emotionally reactive post. And I'm not sure why it surprises people every time it happens. It's been like this since day one. If you want a credible, rational analysis come back tomorrow. Or even in a couple of hours. In the meantime, take everyone with a grain of salt until things settle down.

What I meant was that Goodell didnt destroy evidence of spygate. He destroyed tapes that Patriots obtained in previous years under a different commissioner - before Goodell sent out his memo.

 

[johnmd20]

Wait, is this suppose to be a good thing or a bad thing?

 
Depends on who is doing the tossing.

 

[nighthob]

You are moving the goal posts.  First time was talking about destroying the phone, later it was destroying the SIM and now its talking about destroying the data on the phone.  Those are three very different things when it comes to information security.  Almost everyone I know destroy's the data on their phone (or at least attempts to) but very few people I know destroy their phone or their SIM cards.

I'm sure that people that aren't security conscious take the largely symbolic step of wiping the phone clean, but I assume that filthy rich people employ their own IT people that are security concious. I am not filthy rich, but I do IT work and am security conscious and always destroy my sim cards when I replace my phones. It's not nearly as unusual as you think. Especially when the person in question has the money to pay guys like me to work for them full time.

 

[accidentalsuccess]

Yeah, this is where I am as well. It doesn't look good that he destroyed the phone right around the time of his Wells interview. Not smart.

 
It doesn't look good that they released this a few hours before Pedro's ceremony.  Epic trolling by SOMEONE in the NFL offices.

 

[Bone Chips]

The phone business is a gut punch.  You have to pretend it does not hurt, but it does.  And if what we learned this afternoon was false in fact, Yee would have denied it in his statement.  He didn't.
 
I had hoped and expected the junk science would frame the case.  Not decide it legally, but color the entire way the judge looks at it.  Now the phone stuff.
 
There is no reason in the world to destroy that phone.  None.  Even if the stuff on it is awful, you put it in the fireproof safe.  If by some bizarre circumstance a judge orders you to produce it, you decline and lose your federal court case in the name of principle if it comes to that.  Judge is not putting TB in jail for civil contempt.
 
But you do NOT destroy it.
 
Yee should have known that a legally unsophisticated celebrity might be tempted to destroy it -- which is why he should have grabbed it and put it in the safe.
 
And I can't for the life of me understand why Kessler let this story come out in the hearing.

I've been racking my brain for the past hour trying to understand how on earth Kessler could have made such a tactical error. Is the any explanation other than sheer incompetence on his part? Do we know for a fact that the evidence of the phone being destroyed came out during the hearing?

 

[LuckyBen]

I'm sure that people that aren't security conscious take the largely symbolic step of wiping the phone clean, but I assume that filthy rich people employ their own IT people that are security concious. I am not filthy rich, but I do IT work and am security conscious and always destroy my sim cards when I replace my phones. It's not nearly as unusual as you think. Especially when the person in question has the money to pay guys like me to work for them full time.

I picture Brady getting pictures from Giselle for every win during the season like The major league poster. After the fappening, it would be ludicrous to expect him not to destroy his phone.

 

[( . ) ( . ) and (_!_)]

Right now I'm going to equate the NFL telling us that Brady destroyed the phone with the NFL leaking "that a patriots official took the game balls to a private area before the game".

We then learned that the private area was a bathroom that a guy went into for just 90 seconds to take a piss before standing on the field for a couple hours. There is a reason the NFL leaked, private area and not bathroom.

Right now the phone thing doesn't look good for Brady. But consider the source, consider the lawyers that let this come up at appeal. The other shoe has dropped so many times in this drama and I don't see why we shouldn't expect it to drop again.

 

[dcmissle]

From Eric's post above,
 
As noted above, on June 18, 2015, shortly before the hearing and nearly four months after the investigators had first requested information from his cellphones, Mr. Brady's counsel submitted correspondence and other materials indicating that the cellphone that Mr. Brady had used from November 6, 2014, through march 5 or 6, 2015, was unavilable because it had been destroyed, and that the text messages exchanged on that cellphone could not be retrieved.

 

[djbayko]

Huh, this says the NFL has all the phone records they asked for. This could get interesting.

Perhaps metadata about call/text records from the phone carrier were enough to show that there were no communications which met the narrowly defined criteria outside of what the NFL already had in their possession. Therefore, the destruction of the phone is truly a red herring because nothing would have been obtained from it.

 

[Sportsbstn]

It has to be time for Tom to talk, does it not? Anyway you slice it the phone makes him look bad. Its time for Tom to publically tell his side

 

[RedOctober3829]

https://twitter.com/TomPelissero/status/626152482817863680

 

[dcmissle]

T & A -- you can't reasonably do that.  This decision is THE key document in the case.  If the NFL is wrong on the phone, it has just committed suicide

 

[BigJimEd]

I agree Yee should keep quiet. Let Kessler and company handle things.



As for Kraft appealing, he had the right to appeal to the league but he and most felt that was a losing battle.

 

[( . ) ( . ) and (_!_)]

It has to be time for Tom to talk, does it not? Anyway you slice it the phone makes him look bad. Its time for Tom to publically tell his side

Are you dumb?

You want the guy about to go to federal court to speak publicly?

 

[santadevil]

Less than 4 hours and this thread already on page 11.
SoSH cares about Tom for sure.

 

[mauf]

 
This has been his approach from the outset, which is really problematic.  If Brady did absolutely, positively nothing wrong, say so.
 
Meanwhile, I don't see how the Pats can issue that statement of unhappiness with the league on the heels of consenting to the NFL's punishment v. the team.  Pick a lane, Bob. 

Kraft had little recourse. He made the right play -- graciously accept the punishment, while continuing to insist that the league is all wet, and hope Goodell returns the favor by going easy on Brady. The fact that it didn't work doesn't mean the strategy was wrong.

 

[accidentalsuccess]

ahem, gov't suggestions to wipe your phone:
 
http://www.consumer.ftc.gov/articles/0200-disposing-your-mobile-device
 
one of approximately 50billion posts on how factory reset doesn't really work:
 
http://www.cnet.com/news/android-factory-reset-doesnt-delete-all-data/
 
This just keeps getting crazier.

 

[natpastime162]

After all this, if it comes up that Brady indeed had knowledge of something going on, my opinion of him will take a nosedive. I mean, he'd have to be borderline sociopathic to fight this so staunchly while being guilty. 

 
I just don't see it that way.  He's made what? Two or three statements on the whole fucking subject, the rest coming from Yee and others.  I feel like Brady and Brady's side would have been silent throughout the whole suspension, appeal, and federal appeal process had the NFL handled it similar to other recent high profile suspensions.  Except that beating women and children doesn't make for great radio.
 
Then again, I'm one of those people that honestly doesn't care if Brady wants a sponge and Rogers a watermelon.

 

[dcmissle]

Florio expands on the cock punch.  He is right.  I have bolded the points I thought had been reserved for junk science.
 

 
But here’s the thing. If those are the arguments the NFLPA had previously planned to make on Brady’s behalf, why did he even testify at the appeal hearing? The points raised above could have been established via stipulation or other evidence. Having Brady admit that he destroyed the phone interjected an issue that will hamper Brady in the court of public opinion — and that could prompt a judge to conclude at a visceral level that justice requires upholding the suspension.
 
Although the destruction of the phone may not be relevant to any of the issues raised in the litigation challenging the suspension, skilled judges can find a way to get to whichever conclusion they believe is justified, even if the motivation to arrive at that destination comes from facts technically irrelevant to the specific issues presented in a given case.
 
In other words, if the presiding judge (whoever it ends up being) believes Brady’s hands are dirty, the judge will likely be able to find a way to rule accordingly, even if the written decision never mentions the destruction of the cell phone.
 

 

[cornwalls@6]

For everyone who thinks destroying the phone is some horrible mistake/set-back for Brady:  Do you mean legally or PR wise?  It wouldn't seem from reading here and elsewhere that it has much bearing on the pending legal case at all. That's really the only arena worth worrying about at this point, isn't it?     

 

[djbayko]

 
I had the same reaction. Maybe Yee forgot the difference between PR and courtroom argument*, but saying "the NFL has no evidence that anything inappropriate occurred" is a hell of a lot less persuasive than saying "nothing inappropriate occurred" -- and so obviously so that one wonders if he felt ethically constrained to say the former instead of the latter.
 
 
*- The NFLPA's legal argument to the court has to be about the NFL's lack of evidence, or about bias in the process -- a court won't re-weigh evidence that has already been weighed by an impartial arbitrator.

But that's not all he said. Right before the sentence you quoted: "Most importantly, neither Tom nor the Patriots did anything wrong."

Yee may very well have mishandled aspects of this case, but that argument feels like cherry picking when the same paragraph contains an absolute denial.

 

[Bone Chips]

IANAL, but it would seem that Kessler would rather have the cell phone destruction come out earlier rather than in court? It would have to come out during the court case, right?

 

[natpastime162]

 
I had the same reaction. Maybe Yee forgot the difference between PR and courtroom argument*, but saying "the NFL has no evidence that anything inappropriate occurred" is a hell of a lot less persuasive than saying "nothing inappropriate occurred" -- and so obviously so that one wonders if he felt ethically constrained to say the former instead of the latter.
 
 
*- The NFLPA's legal argument to the court has to be about the NFL's lack of evidence, or about bias in the process -- a court won't re-weigh evidence that has already been weighed by an impartial arbitrator.

 
Didn't he say exactly that in the preceding sentence?

 

[BusRaker]

It doesn't look good that they released this a few hours before Pedro's ceremony.  Epic trolling by SOMEONE in the NFL offices.

Pedro should totally drill RG in the ass with a fastball

 

[dcmissle]

For everyone who thinks destroying the phone is some horrible mistake/set-back for Brady:  Do you mean legally or PR wise?  It wouldn't seem from reading here and elsewhere that it has much bearing on the pending legal case at all. That's really the only arena worth worrying about at this point, isn't it?     

It quite possibly will be very legally damaging. RG drew an adverse inference from the phone' destruction. TB not merely generally aware of DF; now RG finds more probable than not he directed it.

General awareness was the weakest link in Vincent's ruling IMO. The phone creates a bridge to actual complicity.

This does not mean TB will lose, but it makes it tougher.

 

[( . ) ( . ) and (_!_)]

It quite possibly will be very legally damaging. RG drew an adverse inference from the phone' destruction. TB not merely generally aware of DF; now RG finds more probable than not he directed it.

General awareness was the weakest link in Vincent's ruling IMO. The phone creates a bridge to actual complicity.

This does not mean TB will lose, but it makes it tougher.

But would it matter at all if Goodell is judged to be something other then a neutral arbitrator? My understanding is that the judge give the most narrow ruling that they can. What trumps what? Brady's potential culpability or Goodell violating the CBA? Or is this too specific a question that will depend on the judge?

 

[dcmissle]

IANAL, but it would seem that Kessler would rather have the cell phone destruction come out earlier rather than in court? It would have to come out during the court case, right?

Not necessarily, though to be fair if a judge asked the question -- where is the phone? -- Kessler would have to answer it.

You have provided the best defense for this tactical decision. Not the phone destruction, but fessing up.

 

[TheRealness]

It quite possibly will be very legally damaging. RG drew an adverse inference from the phone' destruction. TB not merely generally aware of DF; now RG finds more probable than not he directed it.
General awareness was the weakest link in Vincent's ruling IMO. The phone creates a bridge to actual complicity.
This does not mean TB will lose, but it makes it tougher.

I didn't realize the NFL appeal process was de novo. Otherwise, it doesn't matter.

 

[BannedbyNYYFans.com]

 

[dcmissle]

But would it matter at all if Goodell is judged to be something other then a neutral arbitrator? My understanding is that the judge give the most narrow ruling that they can. What trumps what? Brady's potential culpability or Goodell violating the CBA? Or is this too specific a question that will depend on the judge?

It matters because it may well heavily Impact how the judge views the case in his or her gut. There is enough wiggle room here for a judge to plot a careful path to a result that will hold up.

 

[cornwalls@6]

Understood, and deferring to your experience, by the same logic Florio is employing, couldn't a sympathetic judge have a visceral reaction to, and be influenced by, all of the sham elements of the Wells report/leagues handling of this, that don't fall within the narrow parameters of CBA law that are supposed to decide this?   In other words, allowable discovery element or not, all aspects of this fiasco stand to have at least some bearing on the judges decision.    

 

[OnWisc]

I've been racking my brain for the past hour trying to understand how on earth Kessler could have made such a tactical error. Is the any explanation other than sheer incompetence on his part? Do we know for a fact that the evidence of the phone being destroyed came out during the hearing?

At this point I would say that there is very likely an explanation. The one take away from this whole process is that any conclusions drawn from the release of new information will be contradicted by the next release of new information.

There's always another shoe to drop in this process. Not expecting new information to emerge that will change the current optics is akin to watching Scooby Doo and being consistently surprised that it's not really a ghost.

 

[brandonchristensen]

Man, every step of the way when things are looking up and up for the Pats, it falls apart.
 
This better have a spectacular finish.
 
(EDIT)
The public opinion is done, though. Brady will forever be a cheater.

 

[dcmissle]

I didn't realize the NFL appeal process was de novo. Otherwise, it doesn't matter.

TB introduced evidence of the AEI study, did he not? If so, he opened the door, as they say.

 

[McDrew]

None of this political bullshit should matter.  The science of the Wells report is absolute bull shit.  The conclusions drawn are not supported by the data.  The "crime" that they are alleging based on that bad data is a moot point.  I have a scientific degree, and am fucking insulted by the fact that this has not been a louder issue during all of this.  The science is bull shit, and this entire atrocity should have stopped there. 

 

[soxhop411]

“@TedDanielFOX25: Legals I’ve spoken w/including Peter Ginsberg (Bounty-Gate atty) not giving me predictions I want to hear re: Brady’s chances in court”

 

[ifmanis5]

None of this political bullshit should matter.  The science of the Wells report is absolute bull shit.  The conclusions drawn are not supported by the data.  The "crime" that they are alleging based on that bad data is a moot point.  I have a scientific degree, and am fucking insulted by the fact that this has not been a louder issue during all of this.  The science is bull shit, and this entire atrocity should have stopped there. 

Bill Nye The Science Guy even disagrees with you.

 

[WayBackVazquez]

I didn't realize the NFL appeal process was de novo. Otherwise, it doesn't matter.

 
I think you're looking at it the wrong way. This is not a legal appeal. This "appeal" was really the trial. The initial suspension was pursuant to Article 46, Section 1(a). There is no evidentiary requirement there. The commissioner just takes action giving written notice.
 
The appeal or hearing under Art. 46, section 2, is where the league and the NFLPA get to present evidence. So what is being called an appeal here, is really the hearing. No standard of review at all really.

 

[McDrew]

Bill Nye The Science Guy even disagrees with you.

As a Seahawks fan, he would.  I'll side with the Cornell study the Pats commissioned. 
 
edit: Brown?  Penn?  One of the ivies.  I'll find it. 
 
edit #2: he also admitted he used relative pressure instead of absolute pressure when doing his calculations. 

 

[TheRealness]

TB introduced evidence of the AEI study, did he not? If so, he opened the door, as they say.

Thankfully, I do not know.

Still, assuming Judge Unknown finds it beyond the pale that the cell phone was destroyed, does it actually matter at all? How does that affect the NFLPA's procedural arguments that seem to be the legal thrust of their appeal?

Look, I'm fascinated by the psychology of how people process information and how that affects their absorption of testimony , exhibits, etc., but in this type of case I just don't see it swaying the balance much for the same reason I don't find the use of Exponent will get the Judge's back up in the air. They are great news stories and headlines, but I think you're really overstating how this will color a Judge's decision.

 

[DukeSox]

Man, every step of the way when things are looking up and up for the Pats, it falls apart.
 
This better have a spectacular finish.
 

 
it's going to be the biggest comeback drive of brady's career

 

[edmunddantes]

My wishcast? If we ever get to see the actual transcript or briefs from this appeal. It would be gold. 
 
Especially the part where Wells exerts privilege for any line of inquiry that Kessler, et al tried to go down.
 
This Goodell report reads just like Wells. Anytime something gets near wrong-doing on behalf of the NFL, Roger waves his hand and says "I just don't find it credible." with nothing to really support his contention.

 

[tims4wins]

I think my favorite part of the decision is the fact that JJ and TB did not exchange any text messages or phone calls for the prior 6 months to the AFCCG, which proves that TB asked JJ to deflate the balls under 12.5. That is some sound logic.

 

[86spike]

So any of the resident lawyers have a take on how easy (or hard) it will be for Brady to get a judge to issue an injunction of the suspension until his case is heard?

I've read a few takes today saying that's not a slam dunk.

 

[DeJesus Built My Hotrod]

None of this political bullshit should matter.  The science of the Wells report is absolute bull shit.  The conclusions drawn are not supported by the data.  The "crime" that they are alleging based on that bad data is a moot point.  I have a scientific degree, and am fucking insulted by the fact that this has not been a louder issue during all of this.  The science is bull shit, and this entire atrocity should have stopped there. 

 
Here is the thing though - if you buy the sting aspect to this, it suggests that the NFL knew it would find something.  We may never really know if the deflated balls in the AFCG were deliberate or via ideal gas law but the NFL checked, found what they thought was a violation and the rest is history.  
 
Given that the NFL has been so hardline on this suggests one of two things - either that the league HQ is truly staffed with people who irrationally hate the Patriots or they thought they caught Brady for something they knew he had been doing in the past and instead of admitting it, he dug in and was uncooperative, "destroying evidence" in the process.  
 
To be clear, I do not think Brady should have handed his phone over to investigators (for all the reasons already mentioned in this thread) but destroying it looks bad for him.  If you buy the latter scenario, it also makes it easier to see why the NFL appears to be ok with dragging one of its more high-profile names through the mud.  Because otherwise this looks like a pure witch-hunt without much of a rational motive. 
 
I say this as a Patriots fan but I simply cannot be sure that Brady is innocent, even if the NFL has handled this thing horribly all the way along. 

 

[ivanvamp]

DeJesus,
 
Maybe Brady, et al, have illegally tampered with footballs in the past.  The NFL is an incredibly competitive business and people as pristine as Jerry Rice have cheated.  So it wouldn't surprise me at all if the Patriots did.
 
However, in this particular case, the science is pretty solid that nobody deflated footballs.  They were right where the ideal gas law said they'd be, given the information we actually know.  
 
It's like saying that you are guilty of murder, when the person you allegedly killed is still very much alive and healthy.  Any suspicious evidence that may give the appearance that you murdered that person (like incriminating texts, etc.) mean nothing IF THE OTHER PERSON IS ALIVE.  Because, uh, that's scientific evidence that that person was not actually murdered.  
 
This is why it's so frustrating that the lawsuit Brady files cannot, apparently, address this issue.  After all, it's only the MOST IMPORTANT ASPECT OF THE ENTIRE FRIGGING CASE!!!!