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Take Your First Indefensible Punishment And Run

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Dan Wetzel — who has been consistently excellent on the story — has the definitive Ballghazi analysis:

Oh, Roger had it all in his hands back in May. Kraft magnanimously/foolishly dropped the threat of litigation for the good of the NFL. He accepted the Wells report as fact, indefinitely suspended two locker room attendants and was just going to hope time heals all reputations. It was a terrible move; one Kraft himself has admitted was a mistake and even apologized for.

All Goodell had to do was the gentlemanly thing, the thing Kraft expected, and that was make a global settlement offer that included dropping Brady’s conclusion of guilt and four-game suspension. It would have quickly and effectively ended the quarterback’s appeal and further discovery into the NFL’s conduct in the case.

The NFL machine had won, beaten even the mighty Patriots in a battle that was more about public relations than the actual facts around whether the footballs were tampered with during the AFC championship game. Public perception had been flooded by false, yet highly prejudicial stories that the NFL refused to correct, a narrative that made it almost impossible for the Patriots to fight back.

The Wells report was still believed to be “independent” because at that point no one knew that the NFL’s general counsel had actually edited it, meaning it wasn’t independent at all. Rival owners, fans and players were united.

[…]

That belief framed everything else. New England was running a scheme and the NFL gumshoes would prove it.

Only once they learned otherwise, once they found out that a ball can, quite naturally, be measured at 11.5, or that protocol after that game had two pumps with varying measurements that made the entire experiment worthless, or noted that no one ever cared about ball inflation levels before this and the rulebook was indifferent, or thought hard after none of the equipment guys cracked, or when no firm evidence was uncovered, or when there was nothing tying Brady to the possible deflations that night, they should’ve backed down.

[…]

From the start, almost anyone who was paying attention, anyone who was reading through all the documents and considering all the actions of the league, saw the duplicity involved here was astounding.

You could always keep going back to Square One: Forget about reports of 11 of 12 footballs, the truth was and always has been that the league has no idea if the footballs were even unnaturally deflated in a scandal about unnaturally deflated footballs. Even the Wells report – buried deep, but still – essentially says as much.

The league first decided there was a scandal when there may not have been, then determined there was guilt in said scandal when there may not have been and then worked backward by any means necessary until that work caused a judge to call out the league.

For instance, there is no written notice, or precedent of any kind, that a player can be suspended for being “generally aware” of someone else’s actions. And Goodell couldn’t just arbitrarily make up the corollary that being generally aware of someone else’s equipment violation was akin to getting busted for performance-enhancing drugs.

Per NFL rules, even if Brady was guilty he should have only faced a $5,512 fine, the judge said, not a quarter-season suspension.

[…]

If you paid close enough attention, deflate-gate was a giant circle of nonsense. The NFL banked on almost no one paying close attention.

Yet Goodell, by taking on Brady, all but assured it would wind up on the desk of someone paying extremely close attention: a learned, intelligent, federal judge.

Those interested should definitely read the whole etc.

As Wetzel says, Goodell’s refusal to take far more than he should have gotten is remarkable. Robert Kraft gave him a huge gift by refusing to take Goodell’s massive over-punishment of the Patriots to court. Like Wetzel, I assume that Kraft believed that sacrificing money and the draft pick would lead to Brady’s suspension being eliminated or at least substantially reduced. If he had done that, his use of media lickspittles to create a false narrative at the beginning would, alas, have worked. The voices of people pointing out the lack of evidence that the footballs were underinflated and the contemporaneous triviality of the offense would have been drowned out. Goodell’s maximalist interpretation of his own majestic authoritah would have escaped judicial review until the next time he screwed something up (which, admittedly, probably would have been soon enough.)

But — like Adler and Cannon convincing themselves that the Moops invaded Spain and the evidence for this would surely emerge — Goodell apparently thought that he could snow a federal judge like he could snow Chris Mortensen or Peter King. The leeway the FAA gives arbitrators could have allowed him to get away with it — but he didn’t. Even on his own authoritarian terms, the fact that he thought this risk was worth taking even after he got the Pats to concede far more than they should have was foolish.

It also seems that, even as we approach the 120th anniversary of The Path of the Law, the lessons of legal realism have still not been widely absorbed as they should be. It’s easy to tell yourself a civics-textbook story about how the facts that the NFL’s evidence against Brady was complete shit and the punishment for the offense absurdly disproportionate were technically irrelevant to whether Goodell had the authority to impose the punishment and uphold it on appeal. But, in practice, judges notice this kind of thing, and it matters. To be clear, I’m not saying that Berman would have vacated the punishment if he thought there was no legal basis for it. But normally, the law does give judges some discretion, and this is true here — the deference judges owe arbitrators under the FAA is considerable but not absolute. Moreover, the NFL blundering forward even after its assumptions collapsed gave a judge whose instinct would probably be to throw out a plainly unjust punishment plenty of ammunition. The procedural irregularities that were practically necessitated by the NFL’s lack of any actual case against Brady — Goodell having to hear the appeal of his own ruling because any remotely independent arbitrator would have overturned it with hails of derisive laughter, and Goodell having to limit Brady’s notice, discovery and confrontation rights to minimize publicity about the NFL’s thoroughly malicious and incompetent investigatory and disciplinary processes — gave Berman a sound legal basis for vacating the punishment.

The last piece of the puzzle is trying to figure out why the NFL failed to read the non-exactly-subtle signals Berman was sending them and cut a deal with Brady. Part of this is the rabbit hole problem — someone rationally assessing the strength of their own case would have cut their losses earlier. In a sense, Brady ultimately benefited from Goodell’s arrogant incompetence. Sometimes blundering authoritarianism is something you get away with, and sometimes it’s self-defeating. It’s always gratifying when it turns out to be the latter.

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