THE BLOG

Understanding the Deflate-gate Report

05/07/2015 02:17 pm ET | Updated May 07, 2016
Jamie Squire via Getty Images

The National Football League is now faced with the challenge of understanding the importance of the Ted Wells Report on the primary pro football scandal of last season. No, it was not the abuse suffered by women and children at the hands of NFL players. Neither was it the sickening reality that football players continue to risk their body and their minds in order to entertain us each fall and winter. The scandal du jour is the capital crime of letting some hot air out of a dozen or so footballs before an important playoff game last winter. At risk? Some money and perhaps some playing time, but for Tom Brady, the golden boy of the American football pitch, the Wells Report risks besmirching a squeaky clean reputation and a brilliant decade and a half of yeoman service to the entertainment needs of the American sport-watching public.

Ted Wells is a great trial lawyer. His criminal defense work has been first rate and his law firm is filled with bright young associates who likely did the leg work on his investigation for the NFL. Although some have accused the New York-based lawyer as having an anti-Patriot bias, that seems most unlikely. Wells and his team reported what they found which was not very much despite numerous billable hours. They found no direct evidence of tampering with the inflation of the footballs in question. They then drew conclusions from the circumstantial evidence.

Many have commented on the report's repeated use of the phrase "more probable than not" and other similar formulation. As I describe the "quantum of proof" issue to my class, I explain that preponderance of the evidence means 51 percent as compared with 49 percent for the contrary inference. The public is likely more familiar with the criminal standard of "beyond a reasonable doubt," but that is not applicable here under the NFL rules.

If we recall when Deflate-gate arose right after the Patriots destroyed the Colts for the AFC Championship, there were many commentators and footballers who were quick to condemn the Patriots as "guilty as charged." Of course, it was the same folks who had "charged" them with guilt as the NFL deferred the matter to the independent investigator. The Patriots are football's version of the club people love to hate, I guess because neither of the New York teams are good enough to hate and coach Belichick is not a personable glad-hander like Pete Carroll. After the remarkable conclusion of the 2015 Super Bowl, Deflate-gate lost its headline value. Now it has recaptured the attention of the nay-sayers with a vengeance.

We can understand the Wells Report better by comparing it to a criminal indictment. Admittedly, no one is going to jail -- at least that has not been suggested yet -- but the implications that will be drawn from the report will create a stain on #12 and his team. Before a criminally accused defendant can be sentenced, there must be a trial where the facts can be tested by confronting accusers and cross-examining the stories of witnesses. None of these bothersome due process requirements have been followed.

The Wells Report relies on text messages between two lower-level staff members of the Patriots to implicate the MVP of the Super Bowl. It might be best to withhold judgment. We have not heard the end of this.