Why was our legal system even involved in Deflategate?

Dear Sports Fan,

I saw that a U.S. federal judge overturned the NFL’s suspension of Tom Brady the other day. This leads to my question: why was our legal system even involved in Deflategate? Don’t they have better stuff to do than rule on a football player’s suspension?


Dear Marcie,

You’re right to be skeptical. The government does sometimes get involved in the sports world in strange and semi-ludicrous ways. Take, for example, the College Football Playoff Act of 2011 or the spectacle of baseball sluggers in suits testifying in front of Congress about whether they stuck needles into their butts. In this case, however, despite the judge’s reluctance to rule on the matter, there is a good legal reason for him to have been involved.

Football players are unionized. Their organization, the National Football League Players Association (NFLPA) periodically negotiates with the owners of the 32 NFL teams over the terms of their employment. This is called collective bargaining. Among the terms they negotiate are the penalties for various infringements and the process by which players may be penalized. Once the two sides (owners and players association) agree, the result should be a nice little self-contained world where every potential dispute between employer and employee has a prearranged solution. The only time the real legal system should get involved is when one side claims that the other side isn’t following the rules they agreed to as part of the original collectively bargained deal. That’s exactly what Tom Brady claimed – that the NFL was not following the rules they agreed to follow the last time they collectively bargained with the players union – and that’s what Judge Richard Berman of the United States District Court ruled.

Throughout the time the case was in Judge Berman’s court, he pushed the two sides to agree on a settlement rather than rely on him to make a judgement. To some extent, that’s probably a normal practice in contract disputes such as this, but another motivation may have been that he, like you, felt a little sheepish about a U.S. federal judge ruling on a football player’s suspension. Don’t let the football fool you though, if you ignore what Brady does for a living, you’re left with an employee claiming that his employer tried to unfairly and unlawfully punish him in a way which would not only damage his professional reputation but also cost him $1,882,352. That’s worth dealing with in court, isn’t it?

Thanks for your question,
Ezra Fischer


Deflategate: How Brady and the NFL have already won

Today or tomorrow, U.S. District Court Judge Richard M. Berman will rule in the legal case between quarterback Tom Brady of the New England Patriots and the National Football League which wants to suspend him for four games for participating in or having knowledge of the illicit deflation of some of the footballs the Patriots played offense with during the AFC Championship game last spring or at least of not having cooperated fully in the NFL’s investigation of the incident. When Judge Berman rules, he will effectively write the ending of a saga that has lasted throughout the NFL’s offseason. There may be appeals after this, but because the new season starts in a week, they probably won’t last long or be hotly followed. Judge Berman can rule in any of three ways. He could uphold the NFL’s suspension of Brady, he could eliminate the suspension, or he could reduce the penalty to a shorter suspension or even just a fine.

In days past, this second paragraph would have been a bulleted list of the outcomes with a short explanation of what to say about each possible outcome. This is still a practical way to think about preparing for the Deflategate ruling, but not the most meaningful one. That’s because, with the ruling (finally) approaching, it seems clear that regardless of the legal outcome, the outcome in popular opinion has already settled inextricably into a simple mold: both sides have won.

Tom Brady and the Patriots have won the battle of public opinion. When the Deflategate controversy first broke, most people believed that Brady or the Patriots had doctored the footballs. This was partially because the NFL and some media outlets were telling the public that this was true but also just because it seemed like something the Patriots and Brady would do. Everyone knows the Patriots are shady! Believing that they would be shady in this particular way was a small leap for most non-Patriot fan football fans. Throughout the spring and summer, the Patriots waged a fairly impressive war for public opinion, starting with Bellichick’s mildly bizarre foray into the science of gasses and continuing as Brady appealed the NFL’s decision and then took the league to court. In court, Judge Berman has been publicly quite critical of the NFL’s handling of the situation. By now, most people either believe that the balls were never deflated, or that if they were, Brady had nothing to do with it, or at least that the NFL’s investigation and ruling on the matter has been so out of proportion to the crime as to render the crime itself insignificant. People on the other side of the issue are either biased fans of rival teams or moralizing, holier-than-thou teetotalers.

The NFL has lost in the court of public opinion, so how can they also have won? Back in February, I asked whether the entire Deflategate controversy was a clever piece of misdirection on the NFL’s part to keep the football world talking about balls instead of brain injuries. Perhaps Deflategate was something the NFL was using to keep football fans and media from writing about the far more disturbing and threatening twin issues of brain injury and domestic violence that should have dominated the football conversation in the fallow period leading up to the Super Bowl. I was wrong — we were going to keep talking about Deflategate all through the offseason, but maybe I was also right. The NFL is in a tight spot when it comes to brain injuries. After years (maybe decades) of denying their impact on players, the league now needs to find a way to address the causes and consequences of brain injury and concussion before it robs them of their workforce and consumer base in any meaningful way. The NFL has not yet come up with any realistic solutions to address the problem (maybe they should read my proposed solution!) The football world would have been focused completely on brain injuries, especially when as amazing a focal point as the retirement of 24 year-old linebacker Chris Borland appeared, but instead it talked about deflated balls and morality all summer. Regardless of how bad the NFL looks on those topics, they are not a threat to football in the way that brain injuries are. By keeping the Deflategate “scandal” going all summer, the NFL has won another season to solve the concussion crisis. That’s a victory for them too.

Judge Berman’s ruling will be announced soon and what it is will seem like a referendum on who “won” the Deflategate scandal. If the suspension is upheld, it will seem like the NFL won. If it is eliminated, it will seem like Brady and the Patriots won. If Brady’s penalty is reduced but not eliminated, it may seem like the two sides fought to a draw. This will be an illusion. Regardless of the Judge’s ruling, both sides have already won.

What to say if you have to talk about Deflategate

You remember Deflategate, right? The controversy before this year’s Super Bowl that revolved around whether or not the New England Patriots and their quarterback, Tom Brady, intentionally deflated the footballs they were using on offense beyond the NFL’s regulations. The hubbub died down for almost three months while the NFL’s investigation was ongoing. Then, this past week, it exploded again as the results of the report and then the NFL’s decision about how to penalize the Patriots and Brady were made public. The report focused on Brady and stopped just short of saying that he definitely ordered Patriots personnel to illegally deflate the footballs. Whether you think this is the best hot topic since sliced bread or the dullest subject since the weather in Singapore, you’re likely to take part in at least a few conversations about Deflategate over the next few days. Here’s a few common comments and how to respond to them.

This penalty is great! Cheating is terrible and should always be punished with righteous fury!

I guess that’s true, but there’s also a very strong sense within sports that some types of cheating is permitted or even admired. Have you ever heard the phrase, “if you’re not cheating, you’re not trying?” That’s a sports phrase and it could easily be applied to minor cheating that’s accepted in sports. Here are some examples of acceptable cheating, just in football: wide receivers who put a little bit of sticky substance on their hands or gloves, offensive linemen who hold defensive players to keep them away from the quarterback, or even defenders who try to sound like the quarterback in order to throw the offensive line off their rhythm. All these things are officially illegal but we usually admire players who do this for being sufficiently motivated to win.

But we’re not talking about acceptable cheating, this is totally different!

I don’t think so. The NFL clearly wants quarterbacks to be able to customize the footballs they use on offense. If they didn’t, they would simply provide the footballs themselves instead of giving them to each team before the game to customize within a range of acceptable parameters. Modifying the football’s pressure is legal, the Patriots just did it too much — it’s an infraction of degree, not an original one.

Okay fine, maybe the original act wasn’t so bad, but Brady lied! He went in front of the American people and said he had nothing to do with this. Hypocrisy should be punished!

Hypocrisy is in some ways, the cardinal sin of our era. Our sense of morals has become so relative that we find it easier to condemn hypocrisy than any given act. This plays out most frequently in politics. A football playing holding a press conference may look like a politician holding a press conference but when it comes to hypocrisy, it’s entirely different. Politicians are and should be beholden to the public, we are their constituency and their employers, but football players are not. They’re under no particular job-related ethical obligation to tell the truth. Moreover, we actually expect players and coaches to lie all the time and condemn them if they don’t. For example, if Brady answered a question after a loss by saying that a teammate of his messed the game up by making a mistake and honestly sharing his frustration with that player, the sports media would come down hard on him for being a bad teammate.

How can the NFL suspend Tom Brady twice the number of games for deflating footballs than they originally tried to suspend Ray Rice for assaulting his fiancee?

For starters, it’s pretty clear the NFL acted idiotically in only originally suspending Ray Rice for two games. Two wrongs wouldn’t make a right, so why should we compare the two situations? Secondly, it is reasonable for a football league to punish players more severely for things they do that affect football than they would other infractions. Running a red light is far, far more dangerous than pass interference but that doesn’t mean the NFL should assess a larger penalty to a player who gets a traffic ticket than one who commits a foul on the field.

This penalty is a travesty. The report only concluded that Brady probably knew about the deflation, not even that he definitely knew or ordered it. How can they punish him?

Hold on there, the NFL is not a court of law and Brady is not on trial. Principles like “beyond a reasonable doubt” and “innocent till proven guilty” don’t apply here. Brady is an employee of a company (the Patriots) that is part of a confederation of similar companies (the NFL). They can basically do whatever they want and it’s perfectly legal. Brady, as well as the other players in the NFL, are part of a union that collectively negotiates for how, when, why, and how much the NFL can punish players. They will almost definitely be appealing this penalty and they have a pretty good chance of getting it reduced. There’s no real victim here, it’s a dispute between a powerful employee and a powerful employer.

What is this football deflation story about?

Dear Sports Fan,

Can you explain the big story that’s going around right now about the New England Patriots intentionally deflating footballs? What the what?


Dear Adam,

When I was a kid, my Dad taught me a joke about a lawsuit between two Russian neighbors. We’ll call them Laskutin Kvetoslav Konstantinovich and Ungern Zinoviy Georgiy (this random Russian name generation website is insane!) Anyway, Laskutin sues Ungern, claiming that Ungern borrowed a cooking pot from him and returned it with a big hole in the bottom of the pot. The case goes to trial. Ungern, who happens to be a lawyer, represents himself and wins the case after arguing that the hole was in the pot when he borrowed it, the pot was in perfect condition when he returned it, and he never even borrowed the pot!

The joke (did you laugh?) is meant to poke fun at the insanity of a legal system that, by only requiring the creation of doubt about the truth to acquit a defendant, encourages lawyers to use many different arguments, even if they contradict themselves. The biggest story in football today is a scandal being variously called, “deflate-gate” and “ball-ghazi”. Even if you don’t follow football, you’ve probably heard or seen something about this. I’ll give a quick summary of the story and then explain why it reminds me so much of my Dad’s joke.

During the New England Patriots 45-7 win over the Indianapolis Colts in the AFC Championship game, Colts linebacker D’Quell Jackson intercepted a pass from Patriots quarterback Tom Brady. After running to his own sidelines with the ball, Jackson handed the ball to a Colts equipment manager who noticed that the ball seemed under-inflated. He mentioned it to someone who mentioned it to someone else until it became a thing. What we now believe to be true, based on a leak from the NFL itself, as reported by Chris Mortensen on ESPN, is that 11 of the 12 balls the Patriots used on offense were significantly under-inflated.

That may not seem like much, but that’s basically the whole story. The NFL is investigating the incident and will surely be heard from sometime before the Super Bowl. In the meantime, sports fans and the sports media are in full-on freak out mode. Some are saying that this is the biggest cheating scandal since the last time the Patriots were punished for cheating in the 2007 Spygate scandal and that the Patriots should be both ashamed of themselves and punished by the league. Others are saying that this is totally normal and not a big deal. Shockingly, part of what’s helping people decide which side to be on is whether they root for the Patriots or not. In any event, partially because it’s an interesting story and partially because the two-week gap before the Super Bowl is hard to fill with stories, this has become the biggest thing in the sports world right now.

How could this happen? What happens to football before and during a game?

A reasonable person might assume that the NFL itself would be in charge of providing footballs for each game and that their officials would be in charge of handling the balls to ensure they are not tampered with. That’s not true. Like many things about football, the rules that govern the football used in a game are Byzantine and bizarre. Even in articles from reputable sources, there are discrepancies about how it’s supposed to work, but as far as I can gather, this is basically what is supposed to happen:

  • Before the game, each team brings 12 (24 if there is bad weather predicted) balls to the refs. These balls don’t have to be new, they can be handled, scuffed up, or conditioned by the teams.
  • 135 minutes (why? who knows?) before the game, the refs check the balls to make sure they are inflated properly — between 12.5 and 13.5 pounds per square inch. This can be done with either a pressure gauge or a scale or both. If the balls are off, the refs inflate them or deflate them themselves. When they are good, the refs initial them with a sharpie before giving them back to the teams’ equipment managers or ball-boys. Read a behind-the-scenes account of this here.
  • During the game, each team uses their own twelve (or 24) balls when they are on offense.
  • Since 1999, the league itself has provided special kicking balls to be used by both teams’ kickers and punters. These balls, sometimes called ‘K’ balls, are brand new but each team is given 45 minutes under supervision of a referee to mess with the kicking balls before the game.

As you can tell, the rules seem to be written with the intention of allowing teams (primarily quarterbacks, since they handle the ball the most during the game) to customize the balls they are going to use on offense within reason. Otherwise, why wouldn’t the league simply provide brand new balls for each game and keep them under supervision throughout the game?

Okay, now tell us why this is like that joke

Imagine that instead of two Russians, it’s the Patriots who are in court and need to come up with a defense. So far, the Patriots have not said much about this issue other than that they will cooperate with the league investigation. If they were to defend themselves and they had Ungern as their lawyer, he might argue that tampering with the balls is totally normal and everyone does it, that sure, they deflated the balls but no one really knows whether deflating the balls would provide an advantage, and that you can’t prove they did anything to the balls anyway!

Everyone does it

In most arenas, this is not the best defense against cheating but in sports it seems to fare a little bit better. Sports is a culture where rule-breaking is acceptable up to a certain point. You’ll often hear football announcers say that there is “holding on every play.” It’s true, if referees decided to apply the strict letter of the law, they could call a penalty on every play. What ends up happening is that in every game, there is a level of holding that is accepted and what really gets called is holding more blatant than normal. No one thinks a player that holds is cheating. The same thing might be true about doctoring footballs but until this scandal, it wasn’t widely known. Since this scandal has broken out, we’ve heard reports that quarterback Brad Johnson paid $7,500 before the Super Bowl in 2003 to scuff up the balls to his liking. Deadspin dug up some footage of announcers discussing a conversation they had with Green Bay quarterback Aaron Rodgers who told them that he likes to inflate his teams footballs past the legal limit and hope that the referees don’t catch him. If tampering with footballs is normal (and the NFL has certainly created rules and an enforcement plan with enough wiggle room to allow for this) than the worst we could say about the Patriots is that they tampered more blatantly than normal and got caught.

Deflating the balls didn’t help

Everyone in football seems to have strongly held beliefs about the condition of the football but what’s the truth? Does over-inflating the ball make it fly faster and straighter, easier to hold on to, and better to catch? Aaron Rodgers thinks so. Or is it under-inflating the ball that makes all of those things better? Tom Brady certainly thinks that is true. In 2011 he was quoted as saying he loved when teammate Rob Gronkowski spikes the ball, “because I like the deflated ball. But I feel bad for that football, because he puts everything he can into those spikes.” But what the heck does he know? In a 2006 New York Times article by Judy Battista, a quarterback who played with Brady mentions that Brady likes his balls, “so broken in that it looked as if he had been using them since junior high school” and that Brady insists on rubbing the balls down before using them to rid them of a substance that coats the balls when they are made. Brady was quotes as saying, “The preservative on the football, when you get it off, it’s easier to get a grip.” This is despite the fact that the maker of the balls is quoted as saying in that same article that that substance makes the balls “about as sticky as a Post-it note, and that improves the grip.”

Meanwhile, in the universe of kickers, there seems to be a similar disagreement. A Business Insider article by Tony Manfred reports that “In 1999, the NFL switched to special “K balls” for special teams plays because they were paranoid that players were manipulating regular balls to make them fly higher and straighter” and quotes from a Sports Illustrated article (now lost from posterity because they basically destroyed their online archive) saying that “New footballs are hard, unforgiving, smallish (with a correspondingly small sweet spot) and coated with a film that makes them slippery. They don’t travel as far as game-worn balls, and they can’t be “guided” as accurately as roundish, softer balls. When you see a kicker squeeze a ball, it’s because he wants to soften it and make it rounder.” But wait, but wait, now that the Patriots are accused of being cheaters, Jason La Canfora writes for CBS in this article that sources of his from the Baltimore Ravens are complaining that in their game against the Patriots, “Baltimore’s kicking and punting units were not getting their normal depth and distance, and some believed the balls they were using may have been deflated.”

So, which is it? Is a soft ball better or a hard ball? Is there a scientist in the house?

The league can’t prove anything

It’s going to be difficult for the NFL to prove wrong-doing in this case. Oh, the circumstantial evidence is pretty strong that someone did something to those balls on behalf of the Patriots but how and when, unless they were caught on video doing it, is going to be tough to prove. Were the balls under-inflated to begin with and the refs simply didn’t notice or didn’t care until the Colts complained? Were the balls properly inflated, approved, and then later doctored by a member of the Patriots? If so, who was it? Did any of the key players or coaches ask for this to happen or did a ball-boy or equipment manager do it himself?

At best, the league may be able to prove that someone tampered with the balls but not exactly who. In that case, I think that the NFL should tread somewhat lightly on this issue. It would be tough to come down hard on the Patriots, arguing that the lack of institutional control needed to prevent this type of tampering is itself worthy of serious punishment. After all, it’s still widely thought that the NFL was seriously negligent at best and totally corrupt at worst in its handling of the Ray Rice domestic abuse case in the past year.

Short-term, I can’t imagine that this story will affect the Super Bowl. The game between the Colts and Patriots will not be replayed, nor will the Patriots be barred from playing the Super Bowl. Coach Bill Belichick may be suspended but my guess is that the suspension would start after the Super Bowl is over. There will definitely be fines or draft picks that get taken away, but not organization changing ones. The rules governing balls will almost definitely be changed to prevent this from happening again and football will keep flying along, under, over, or properly inflated.

Thanks for reading,
Ezra Fischer

p.s. In case you’re looking for humor about deflate-gate that actually makes you laugh, take a look at this or this.