Tom Brady, the NFL and Burdens of Proof

As reasonable people, can we all agree that this so-called "Deflategate" thing involving Tom Brady and the New England Patriots is perhaps the stupidest sports controversy ever to exist? Not even the baseball performance-enhancing-drugs controversy has come close to this level of stupidity, though that, too, was a rather stupid controversy. Yet to listen to and read some of the stuff coverage, one would think the alleged deflation of a football was the equivalent of MLB's Black Sox gambling scandal of 1919.

But it’s not just the stupidity of this whole damn thing (and how no one has ever gotten around to convincingly explaining just how it was the Indianapolis Colts were wronged) that gets me. Instead, what really bugs me is something that’s getting to my inner lawyer. Stop saying that the NFL investigator met the civil litigation burden of proof standard. He didn't.

To win in civil litigation, one must prove one's case by a preponderance of the evidence. In football parlance, the offense starts at its one yard line and must merely cross midfield to win. Admittedly, it's a much easier standard to meet than the criminal burden of beyond a reasonable doubt. Yet it's a standard that the Wells Report didn’t reach because Ted Wells filed a report of his investigation, laying out the key pieces of the evidence as he saw them, then giving his conclusion. But just because the report was filed doesn’t mean the case was proved.

For that standard to be reached in litigation, evidence is presented by all parties before the trier of fact — usually a jury, but sometimes a judge. The trier of fact weighs all of the evidence, and if the party pursuing the case can prove its case by a preponderance of the evidence — crosses the 50 yard line — it wins the case. But first of all, parties must present their case before this conclusion can be reached.

Ted Wells is not a trier of fact. Ted Wells is a person hired by the NFL to assemble a case against the Patriots and Tom Brady. He's an attorney assembling evidence to present to a judge and jury that puts the best face on his client's case in order to convince them that his client has been wronged. But just because he produces a report does not mean that he's proved anything. What it means is that he found the evidence supporting his conclusion and provided that to the jury while leaving out anything that harms his case. That's how the legal system works.

What Ted Wells presented last week was a motion for summary judgment. That's a motion filed before trial in which the party tries to convince the judge that there are no facts in dispute and that judgment should be granted in the filing party's favor immediately. But for that to happen, the filing party has to prove that there are no facts in dispute, and for that to happen, the other party first gets to file a response outlining all of the facts that are, actually, in dispute. And yesterday, the Patriots filed that response

There's some stupidity in the Patriots' response — like the explanation for the "Deflator" nickname — but there's some stuff that legitimately puts into dispute the so-called "facts" of the Wells Report. For instance, the Patriots note that three of the four Indianapolis Colts footballs that were weighed were also deflated as to be under the proper weight, and that the officials stopped the measurements when that was discovered, and also noted that those footballs were not removed from game action. The Patriots report does not note a nefarious reason for the deflation, but the team does state that if the Patriots are to be punished, so should the Colts. The Patriots also remark as to the absurdity of a 13 footballs being removed from a bag, deflated to the specifications of Tom Brady, then returned to the bag, in under two minutes — the response notes that this is the amount of time that it takes a person to urinate and wash hands.

Then there's the Tom Brady cell phone issue. As an attorney, I'm telling you never to turn your cell phone over to another party without that person first presenting to you a subpoena or a search warrant. It doesn't matter that Brady's agent would be present or that Brady had the decision regarding what texts were relayed to Wells — never make the cell phone available to someone else, especially when that someone else is the NFL and its clown circus of a punishment system. And it was made clear to Wells that for Brady to turn this over would also set a bad precedent for other players under investigation.

The Patriots' response is long and detailed and as full of as many absurdities as Wells's report. And the Patriots, like Ted Wells, didn't meet a legal standard of proof by simply providing the response. That standard, which everyone is so convinced that Wells met, is met only after the parties have had a say, filed reports, presented evidence, and then, only then, if the trier of fact makes a ruling on the basis of a preponderance of the evidence, has that standard been met.

So believe Ted Wells and the NFL, or believe Tom Brady and the Patriots. Just remember that, without a doubt, this is the stupidest, most asinine, most nonsensical story to hit the NFL since the Oilers accused Raiders punter Ray Guy of using a helium-filled football. But whatever you decide, just know that none of these parties have met the civil litigation burden of proof, so please stop saying that they do. 
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John Royal is a native Houstonian who graduated from the University of Houston and South Texas College of Law. In his day job he is a complex litigation attorney. In his night job he writes about Houston sports for the Houston Press.
Contact: John Royal