The NFLPA has filed their suit against the NFL over Tom Brady’s four-game suspension in New York federal court today, after their gambit to have the suit heard in Minnesota was rejected. Judge Richard Berman declined to allow the parties to confidentially submit supporting materials under seal, and as a result we have over 200 exhibits and attachments to comb through.
Perhaps the most important of these documents is the full transcript from the NFL’s June 23 hearing of Brady’s appeal. It’s a huge document, but instead of having to rely on leaked portions of it or the interpretations of various parties—like we’ve had to do for the past week—we can instead just read the entire thing.
In the opening statement, NFLPA lawyer Jeffrey Kessler states that Goodell based his suspension almost entirely on the Wells Report’s conclusion that Brady was “generally aware” of the cheating by Patriots employees, and that this is bullshit:
It is our position that there is no policy, no precedent, no notice that has ever been given to any player in the NFL that they could be subject to any type of discipline, whether it’s conduct detrimental discipline or whether it is under the policy that has been invoked here for being generally aware of something.
It would be the equivalent if a player knew or was generally aware that another player was taking steroids, okay, and had nothing to do with it, but had some general awareness of that. The only person who was punished under the Steroid Policy is the person who was taking the steroids. You don’t get punished for being generally aware that somebody else is liable.
Kessler also makes the point that it wouldn’t make sense for Brady to be involved in the inflation of footballs, as what he cares about is how they feel in his hand, not how they are inflated:
And, in fact, he will testify and explain that his concern about footballs has to do with the touch and feel of the football. You will remember in 2006, there was a movement byall the quarterbacks to prepare their footballs. None of that had to do with ball pressure, and he will explain that.
And, in fact, it will be clear in the evidence it had to do with the same way a baseball player works in his glove to a right feel to soften the leather to make it feel right for that quarterback. He’s never been particularly concerned about pressure at all except in one game, and there are — things happen that create appearances that are not correct, which was the Jets game in 2014.
Kessler closes out his statement by attacking the Integrity of the Game policy under which Brady was suspended, arguing that it clearly does not apply to players:
The second thing was the policy that was invoked, which is the integrity of the game policy as you know, is directed, and this is in evidence — is directed only at owners, head coaches, general managers, the club. It’s never given to the player. And, in fact, it’s clear on its face who its given to.
You probably know, Commissioner, every year, the players are given certain policies. For example, they are given the Personal Conduct Policy. They are given team rules, okay. They even sign acknowledgements as to which policies they get. One policy they’ve never been given is this integrity of the game policy which talks about the balls.
I’ll be updating this post as I go through the transcript, which you can see in full below.
Update (6:29 p.m.): Glad that Brady’s lawyer made sure this was entered for the record:
Q. And how many Super Bowls have you led the Patriots to during your career?
Q. Now, how many did you go to?
Q. I know you are focused on how many did you win?
Q. Okay. Has anybody won anymore?
A. Same, Montana.
Update (6:39 p.m.): After stating that the inflation level of the balls never comes up in his discussions about their preparations, Brady unequivocally denies that he has ever asked anybody to change their inflation levels after he has approved of them, and furthermore, that doing so would mess with the balls in a negative manner:
Q. Okay. Now, have you ever specifically, so again, very specific question, have you ever told anyone on the Patriots after you’ve given to them that they should change the inflation level of the footballs after you approved them or do anything about the inflation level after you approved them?
Q. Now, what would be your reaction if Mr. Jastremski or anyone else in the Patriots was doing something to the footballs after you’ve approved it? How would you feel about that?
A. I would disapprove of that.
Q. Why? Why would it matter to you?
A. Because I go through, like I said, this extensive process to pick out the balls for the game, and that’s the ball ultimately that I want on the field that I play with. So once I pick the ball out, then I don’t want anything other than that ball to be the one that I am on the field playing with.
Update (6:56 p.m.): Kessler questions Brady for a long time about a 2014 game against the Jets, before which the usual ball preparation procedures were changed. The game was expected to be rainy, so instead of using balls newly conditioned with leather conditioner, the Patriots used old balls from training camp. While the leather on the balls felt great, they were rock hard, and Brady yelled at equipment assistant John Jastremski during the game about them. Afterward, he found out why they were so hard:
Q. Sometime after the Jets game, what did Mr. Jastremski tell you he learned about the ball?
A. That the balls were, you know, inflated to, you know, much higher than what they were agreed upon before the game.
Q. Do you recall what number he used?
Q. 16 psi? Okay. And how did you react to that? First of all, before he mentioned that, at that time, did you have any prior knowledge as to what the exact psi levels were set for in this NFL rule from 1920?
Q. No knowledge at all until then?
Afterwards, Brady asked Patriots equipment manager Dave Schoenfeld what it said in the rule book about how the balls should be inflated, and learned that it specified between 12.5 and 13.5 pounds per square inch. Brady says he directed Schoenfeld to inform the referees of the rules regarding inflation to ensure the footballs were never that hard again, and that was the last time he spoke to anybody about inflation:
Q. Other than that comment, have you ever, after that time, told Mr. Jastremski or anybody else in the Patriots anything else about the pressure of footballs? Was there any comments at all that you make to them —
Q. — until this happened?
Update (7:08 p.m.): Brady explains that, because there was supposed to be inclement weather for the AFC Championship game, he and Jastremski once again changed their normal ball preparation procedure. Wary of what happened during the Jets game, Brady asked Jastremski to prepare 24 news balls, but without the use of leather conditioner. After he last touched the balls a few hours before the game in the equipment room, Brady says he didn’t notice anything other than properly prepared footballs on the field:
Q. They felt like they normally feel after you select them?
Q. After halftime, did the balls feel any different to you than they did in the first half of the game?
Q. Now, did you know during the game that the referees had put more air into the balls to get them to 13 psi at the halftime? Were you aware of that during the game?
Q. So could you even tell the difference between whatever the inflation was in the first half versus the second half in terms of your feel? Did you have any sense of that during the game?
Update (7:19 p.m.): Brady first learned about Ballghazi on the radio:
Q. That’s sufficient. Now what I want to do is focus on the events after the game is over. When did you first become aware after the game now that someone was making allegations that the Patriots had done something to deflate the balls during the game? How did you learn about that?
A. On the radio show the following morning.
Q. The following morning?
Update (7:29 p.m.): Brady says that he didn’t know locker room attendant Jim McNally:
Q. Okay. Now, by the way, there has been some discussion from the Wells report about Mr. McNally and whether you knew him or not, okay. Prior to all these allegations, did you know the name Jim McNally?
Q. Now, did you know who it was, even, who met with referees in their locker room when they are testing the balls? Did you even know which person physically on the Patriots was the person who went in there and did that?
Update (7:35 p.m.): Brady says that he did not turn over his emails and texts on advice of his lawyers, but if his lawyers had advised him to do so he would have. He also states that there were no emails or texts that he was worried about turning over:
Q. Now, let me turn now very briefly to the subject of electronic communications. Now, did there come a time after February 28th, so now we are well past the Super Bowl when you learned from your lawyers or your agents that there had been some request made for e-mails and texts that you might have?
Q. Okay. Now, we know that those were — nothing was turned over or the request was not responded to. How did you make the decision about that? What were you relying upon? How did you decide that?
A. Well, I was relying on their advice as my lawyers and what they basically said, There’s been a request, but we don’t think it’s proper for you to turn your phone over, so you don’t need to do that.
Q. If they had told you that you should turn over anything, would you have done so?
Q. Okay. At the time that the request was made, okay, you know what e-mails you did and what texts you did. Were there any e-mails or texts that you were worried about which showed you knew about deflating or anything like that? Was there anything you were trying to hide or conceal in your mind?
A. Absolutely not.
Q. Okay. Were there any such texts where you wrote to somebody talking about deflating footballs or other things in connection with the AFC Championship Game?
Update (7:53 p.m.): Ahh, the infamous destroyed cell phone. I particularly like where they don’t even bother to dance around the fact that Brady is very, very rich, and $600 for a new iPhone means nothing to him:
Q. Now, Mr. Brady, let me ask you about your patterns of phones, okay, because not everybody has this pattern, okay. First of all, do you have access to basically cell phones for free?
Q. So it is essentially costless to you to get another cell phone?
Q. Okay. Now, have you had a practice, and tell me when it began, how long ago, of destroying or, I guess, asking somebody to destroy or get rid of your cell phones periodically?
A. I think for as long as I have had a cell phone.
Roger Goodell pipes up to get clarification:
COMMISSIONER GOODELL: Just, Jeff, can I ask a question? How often do you normally dispose of your phone? When you say “get rid of,” does it run out of time?
THE WITNESS: Well, if it — a new version may come out of a particular phone, if I break the phone, I’ve stepped on the screen a few times, it just fell out of my bag at my locker, I’m not seeing it, I stepped on it, I think three or four times, sometimes the touch panel breaks.
COMMISSIONER GOODELL: But it’s not a very regular practice, irrespective of you breaking it, to just get rid of it or when a new version comes out? I’m trying to understand that, or is it every month you change it just for security reasons?
THE WITNESS: No, I don’t do that.
Brady stated that when he gets a new phone he doesn’t change his number, though he did so after the Wells Report came out because “a lot of people started guessing what my phone number was.”
Update (8:14 p.m.): It is now the NFL’s turn to question Brady, and they begin by aggressively asking about his cell phone use. A forensic expert was hired to examine two of Brady’s phones for any evidence of text messages referring to ball inflation. But one of the phones was active only from March 6, 2015 through April 8, 2015, while the other was active from either March 23, 2014 or May 23, 2014 (it’s unclear why this date is unknown) through November 5, 2014. Crucially, this means that Brady did not provide the phone that he was using before and after the AFC Championship game:
Q. And did you use a cell phone to make calls and send and receive text messages during this gap period of November 6, 2014, to March 5, 2015?
Q. And that gap period of November 6, 2014 to March 5, 2015, includes the day of the AFC Championship Game on January 18, 2015, correct?
Brady was able to provide text message record that show he sent or received about 9,900 text messages during this time, a not-unreasonable 83 a day. But what about the actual physical phone? Brady has no idea:
So my question is: Do you know why a phone that was active during this period was not provided to your forensic expert for review?
A. We didn’t have it.
Q. Do you know where that phone is now?
A. No idea.
Q. Are you certain that you disposed of that 1 phone?
A. I gave it to my assistant.
Q. Do you know when you provided it to your assistant?
A. I have no idea.
Q. And when you provided it to your assistant, did you provide it to your assistant for the purpose of it being disposed of?
Update (8:43 p.m.): Brady and the NFL’s lawyers go back and forth for a long time about his preferred inflation level. Brady says that, after the October 2014 Jets game, he just wanted all balls to be inflated to 12.5 PSI, which is at the bottom of the 12.5 to 13.5 PSI acceptable range. The NFL’s lawyers try multiple times to get Brady to admit that he prefers his footballs to be at the lower end of the range, while Brady maintains that the only thing he knew is that the 16 PSI the balls were inflated to during the Jets game was way too high, and that 12.5 PSI is essentially arbitrary:
And just to, I think the irony of everything is I don’t even squeeze a football. I think that’s something that’s really important to know is I grip the ball as loosely as possible. I don’t even squeeze the ball and I think that’s why it’s impossible for me to probably tell the difference between what 12.5 and 12.7 or 12.9 and 13 because I’m just gripping it like a golf club.
I’ve tried to explain it. It’s like a golf club. You don’t squeeze the golf club. You handle it very gently. And that’s the same way I hold a football.
Update (8:55 p.m.): Another contentious back-and-forth between Brady and the NFL’s lawyer, this time about his phone conversations with Jastremski. On January 19, the day after the AFC Championship game they had four phone calls totaling 25 minutes, on January 20 they had two phone calls totaling almost 10 minutes, and on January 21 they had two phone calls totaling almost 21 minutes. Brady is asked about each of those calls, as well as a meeting he had with Jastremski in the stadium’s quarterback room, and each time says he cannot recall specifically what they discussed. Generally he says he was worried about getting the footballs prepared for the Super Bowl—during the Super Bowl a new ball use used for practically every play, so the Patriots needed to prepare 100 instead of the normal 12-24—and about how Jastremski was holding up in the wake of the unfolding scandal.
This is a representative exchange:
Q. And there’s a text in the middle of the page from John Jastremski to you at 7:24 in the morning. It says, “Call me when you get a second.” Do you see that?
Q. And the report says underneath, “Brady called Jastremski within the hour and they spoke for six minutes and 21 seconds.” And this is the morning of January 20th. Do you recall what you discussed with John Jastremski during that six-minute-and-21-second call?
A. I don’t remember exactly what we talked about.
Update (9:20 p.m.): After a lunch break, the NFLPA questions one of their expert witnesses Edward Snyder, Dean of the Yale School of Management. His role was to evaluate the findings of Exponent, the company used by Ted Wells’s team for scientific and statistical analysis of the deflation of the footballs. Snyder gets straight to the point, and identifies a number of errors he says Exponent made:
Q. Okay. So let’s go, let’s start with your slide deck. The first slide shows your three key findings. And if you could just sort of walk the Commissioner through each of the three key findings that you made and that we will elaborate on.
A. So first finding is that their analysis of the difference in differences, the analysis of the pressure drops and the difference in the average pressure drops is wrong because Exponent did not include timing and the effects of timing in that analysis.
Secondly, Exponent looked at the variation and the measurements between the Patriots’ balls and the Colts’ balls at halftime. They compared the variances. And despite conceding that there was no statistically significant difference between the two, they went ahead and drew conclusions, but those conclusions are improper.
And, last, and this goes to the issue of alternative assumptions, as well as error, if the logo gauge was used to measure the Patriots’ balls before the game, then given what the framework that Exponent provides us with scientifically, and if the analysis is done correctly, eight of the eleven Patriots’ balls are above the relevant scientific threshold.
Update (9:30 p.m.): Man, Snyder absolutely lays waste to the report Exponent prepared for the Wells Report. For instance, here he is explaining how quickly the PSI of a football changes when being brought into a warm room after spending a few hours out in the cold, and how Exponent didn’t even bother to account for timing in their report:
Q. So let’s go to our Slide 12. And what is this showing?
A. This takes the earlier Figure 22, and I will refer to that again. It takes the top schedule, what Exponent calls their transient analysis, that’s their scientific framework.
It says, okay, you bring in a Colts’ ball. It was pre-game at 13. It’s brought right into the locker room. It’s going to be 11.87. This is, like, so 2:40 is, like, in locker room terms, it’s minute zero. And then 12 minutes later, it’s warmed up and it’s roughly 1.1 psi greater in 12 minutes.
Q. The same ball?
A. The same ball.
Q. What did Exponent do in its difference in difference analysis to account for time?
Q. How do you know?
A. Absolutely nothing. If you look at their difference in difference equation in their appendix and you look at Table A3, where they report their results, they have explanatory variables for their difference in difference analysis and time is not an explanatory variable.
You can read the Exponent report forwards, backwards, upside down. You see time referred to again and again and again and again. However, you have to look at what they actually did, the statistical analysis that they actually did. They left time out of the analysis that they said was the most important.
Update (9:45 p.m.): One of the issues in the halftime measurement of the footballs’s PSI is that two different pressure gauges were used, and one of them consistently came back with readings .3 to .4 PSI higher than the other. The Exponent report used a “master gauge adjustment” to be able to use readings from both gauges, and found that there was funny business going on with eight of the 11 balls. But Exponent made, according to Snyder, “a very basic mistake.” They used the master gauge adjustment for the halftime PSI readings, but not the pre-game PSI readings. If they had done so, they would’ve had very different findings:
Q. Let’s go to the next slide. And were you able to correct for that inconsistency that you described in Exponent’s master gauge conversion?
A. Yes. Now, the effective starting value is not 12.5, it’s 12.17.
Q. How do you get the 12.17?
A. You apply the master gauge conversion consistently to both halftime measurements, as well as the starting value.
Q. Okay. And let’s go to the next slide. And what is the impact of making that correction on the results?
A. Now eight of the Patriots’ balls are above the critical threshold predicted by Exponent, three are below.
Update (9:56 p.m.): Things got testy when Snyder was being cross-examined by the NFL:
Q. And your criticism is that Exponent didn’t take into account timing appropriately, right?
A. When they tested — when they did their difference in difference analysis, you look at the equations. If I could refer you to the appendix.
Q. It would be better if you could answer my question.
MR. GREENSPAN: And I would ask you to just let him answer the question.
MR. LEVY: Knock it off.
Update (10:13 p.m.): The Snyder cross-examination by the NFL goes in circle after circle for page after page, with Snyder and the NFL’s lawyer unable to even agree on basic terms and interpretations of the Exponent report. Eventually, Snyder gets fed up and basically calls the people that prepared the Exponent report morons:
Q. It says, “It is unlikely to have occurred by chance and further study is warranted.” And timing was studied, right?
A. And why not include timing in the original model? They have a list of variables that they include in their original model, but they excluded timing. Isn’t that the key thing here?
Why go to a side analysis and say timing is sufficient to explain everything? Put it in your original model. Come on. And, yes, I’m a member of the Econometrics Society in the past. Any graduate student in statistics or econometrics would know this is wrong. This is a restriction. This is saying timing is unimportant despite reading the Exponent report. It’s timing all over the place.
Q. Well, I would move to strike if this were in real court, but I won’t move to strike. But I’m sure Exponent will not describe their other work as a side analysis and would describe their work quite differently than you are describing it. And I think we will have the opportunity to hear from them.
Update (10:24 p.m.): I realize that in the grand scheme of this 457-page hearing transcript this is small potatoes, but I can’t get over how contemptuous Ted Snyder is of Exponent and, increasingly, the NFL’s lawyer:
Q. It says “timing.” It says, “To account for any time effect in our statistical analysis, we incorporated an order effect into our statistical model to determine whether any portion of the observed ball-to-ball variation in pressure was explained by the order of measurements.”
A. Are you just asking me is that what it states?
Q. Well, is that what it states?
A. It is. That’s what they’ve stated.
Q. And that incorporated the concept of timing into their statistical model, didn’t it?
A. No. Here’s what this did.
Q. That’s fine. I will just leave it right there.
A. I would like to explain. It’s an important point. It’s not timing. It’s order of ball measurement. That’s the so-called explanatory variable. And the variable that they are trying to explain, the so-called dependent variable, is not the difference in average pressure drop.
It’s not the difference in difference analysis. It’s ball-to-ball variation, which we know is subject to so much measurement error that I’m not surprised it doesn’t explain that.
Update (10:53 p.m.): We’ve now moved onto the examination of Troy Vincent, the NFL’s EVP of Football Operations. He confirms that that he was first alerted to problems with the AFC Championship game footballs by Colts GM Ryan Grigson, during the second quarter:
Q. Okay. So let me ask you first, Mr. Vincent, how did you first learn that there was any issue or allegation about the footballs that the Patriots were using in the AFC Championship Game?
A. It was first brought to my knowledge approximately six or seven minutes remaining in the second half [sic] of the AFC Championship Game. There was a knock on the door by the General Manager from the Indianapolis Colts, Ryan Grigson. He proceeded in the room and he brought to myself, and Mike Kensil was actually sitting to my left, and said, “We are playing with a small ball.” That was my first knowledge of the situation.
Q. You had never heard anything about the Colts having made allegations before the game started prior to that time?
A. No, sir.
Update (11:03 p.m.): The NFLPA’s lawyer really lays bare how unscientific the NFL’s ball pressure measuring process is during his examination of Troy Vincent. He asks question after question about whether anybody considered things like which gauge to use, whether to measure the temperature, whether to record if the balls were wet or dry, and Vincent is forced to answer “no” to practically every question. Here’s a representative sample:
Q. And is it fair to say you did not tell anybody to record the temperature in the room at the halftime testing, correct?
A. No, sir.
Q. And nobody recorded the temperature in the room at the halftime testing, correct?
A. Not to my knowledge.
Q. Right. You didn’t tell anybody to record the exact time when different balls were tested at the halftime, correct?
A. No, sir.
Q. And to your knowledge, nobody recorded that?
A. Not to my knowledge.
Q. You didn’t tell anybody to record whether or not the balls were tested on the Colts before reinflating the Patriots’ balls or after? You didn’t instruct anybody to record that anywhere, correct?
A. No, sir.
Q. And to your knowledge, it was not recorded anywhere?
A. Not to my knowledge.
Update (11:13 p.m.): It is pretty clear to everybody (except Troy Vincent, we’ll get there) that the process of testing the footballs and the communication from NFL officials about it was an absolute clusterfuck. In fact, that’s one of the core arguments Chris Mortensen made to defend his erroneous report that 11 of the 12 Patriots footballs were under inflated.
The day after the AFC Championship game, NFL Senior VP Dave Gardi sent a letter to the Patriots stating that 11 of their 12 balls were under inflated, that one of them had as low of a PSI as 10.1, and that none of the Colts balls were under inflated. But as the NFLPA lawyer shows, and Vincent agrees, that this isn’t true:
Q. Okay. Let me ask you this. If you look at this letter on the second page, it talks about the fact that one of the game balls was inflated to 10.1 psi. Do you see that?
A. Yes, sir.
Q. Now, I am going to give you another exhibit, which is NFL 14. And you will see these are notes, I believe, that were taken when the testing was done. And you signed them in several places. If you will look at page 256, I think it’s the first time your signature appears; is that correct?
A. Yes, sir.
Q. And you signed this as a witness of the halftime testing; is that correct?
A. That’s correct.
Q. Okay. And if you look at the listing of the pressures that are written down for the Patriots’ eleven balls, none of them are as low as 10.1; is that correct?
A. That’s correct.
Q. Okay. So do you know why Mr. Gardi thought that a ball was as low as 10.1 when none of those measures were here?
The NFLPA lawyer goes on to show that Gardi’s letter to the Patriots said each Colts ball was between 12.5 and 13.5 PSI, but that in reality, and according to a document Vincent signed, three of the four Colts balls measured were below 12.5 PSI. Vincent explains away these differences by saying that Gardi’s letter only referred to the readings on one of the two gauges, but admits that in the letter to the Patriots there is no mention of gauges.
Pretty confusing stuff, right? Not to Vincent:
Q. Is it fair to say, Mr. Vincent, that there was a lot of confusion about what these numbers were, that Mr. Gardi didn’t even know what the numbers were correctly at this time?
A. Not at all.
Q. You think it was very clear?
A. I think it was clear.
Q. So do you have any explanation — is Mr. Gardi a lawyer?
Q. Is he a careful lawyer?
Q. If it was so clear, do you have any explanation as to how he could have “10.1” written down as the figure and it was not one of the figures?
A. I can’t speak for David.
Q. So it wasn’t clear for Mr. Gardi at least? Would you give me that?
A. Based on his letter, no.
Update (11:58 p.m.): Ted Wells, he of the Wells Report, is questioned, and immediately the NFLPA attacks the independence of his report. When the NFL announced that Wells would be conducting an “independent” investigation, they added that NFL general counsel Jeff Pash would also be overseeing it. Wells says that he immediately called Pash and received assurances that Pash’s role would simply be help facilitate procedural issues.
A big question arises about the specific nature of the relationship between Wells and Pash. The NFL lawyers object to Wells answering some questions about Pash, and Wells says that he believed he was acting as the NFL’s attorney in this matter, and thus his conversations with Pash fall under the confidentiality of attorney-client privilege:
Q. Did you consider the NFL to be your client for purposes of the attorney-client privilege —
Q. — with respect to the preparation of this investigative report?
After some haggling, Wells does answer some questions, and admits that Pash offered comments on a draft of his report:
Q. Yes. Did he provide written or oral comments?
Q. Okay. Were they written?
A. Not to my knowledge, but the truthful answer 22 is he didn’t provide any to me, okay.
Q. Did he provide it to another member of your team?
A. I believe so.
Wells does say that Pash’s comments didn’t lead to any “substantial” changes of the report.
The NFLPA’s attorney brings up another conflict-of-interest problem, referencing the lawyer Loren Reisner, who is one Wells’s colleagues that actually prepared the first draft of the Wells Report. Yet, he also participated in the appeal hearing on the side of the NFL, and even conducted the cross examinations of Tom Brady and the statistical expert Ted Snyder:
Q. Okay. Would your principal colleague on this case be Mr. Lorin Reisner who is seated over there?
Q. Now, Mr. Reisner, you observed, was representing the NFL and cross-examining Mr. Brady and Mr. Snyder in this proceeding; is that correct?
A. That is — I saw it. You saw it.
Q. Okay. So, and Mr. Reisner was one of the principal lawyers working with you on this independent investigation, right?
A. If you read the report, it basically says that.
Q. So is it fair to say Mr. Reisner — is Paul, Weiss also being compensated for representing the NFL in this hearing, conducting cross-examination? Have they been hired as NFL counsel for that purpose?
A. As I understand it, again, if I can answer without waiving any privilege, in terms of cross-examining both the experts and cross-examining Mr. Brady since we had already examined him and done the work, everybody thought it would be more efficient —
MR. NASH: I am going to stop you right there, Mr. Wells. I don’t think this is an appropriate line of questioning and we are now getting into privilege. And I have to say it also isn’t relevant to any issue in Mr. Brady’s appeal.
MR. LEVY: Sustained.
MR. KESSLER: Okay. I would ask you to, just for the record, my observation that the statement that the Paul, Weiss firm is independent is clearly not correct. We now have testimony that they represented the NFL in this proceeding. They viewed the NFL as their client.
Update (12:15 a.m.): In case you needed a reminder that lawyers aren’t cheap:
Q. Billed, I will go with billed. How much was billed?
A. For the report, through May 6th, it’s somewhere in the area — and I’m not sure the bill was out, but it’s going to be around somewhere in the range of 2.5 to 3 million.
Q. And you would be paid additional amounts for the work that Mr. Reisner is doing today or others assisting the NFL? That would be additional bills, right?
A. I hope so.
Q. Yes. By the way, are you billing for your testimony today as a witness?
A. I don’t know. I haven’t broached that.
Update (12:25 a.m.): Ted Wells was very mad that somebody in the Columbia physics department leaked to the New York Times:
We reached out to Columbia University. Columbia has a very respected Physics Department. It was close, in close proximity to Paul, Weiss. So our hope at that time was that we could find somebody at Columbia. Mr. Reisner sent an e-mail to the Physics Department at Columbia asking if they could help us, and I think he may have also talked to somebody. And he told them this is confidential.
To our shock, after he contacted Columbia’s Physics Department, there was an article, either the next day or the day after in the New York Times that Paul, Weiss had reached out to the Columbia Physics Department. And we were, to say, the least outraged that we had reached out in what we thought was a confidential contact and then it was published in the New York Times.
Update (12:58 a.m.): There is a remarkable little bit in here where Ted Wells demonstrates how he was willing to state things with certainty based on the flimsiest of evidence. At issue is which pressure gauge referee Walt Anderson used to measure the PSI of the footballs pre-game. Anderson told Wells’s investigators that he used the gauge with a logo on it, but one of the “express findings” of the Wells Report is that Anderson used the non-logo gauge. So how could Wells be so certain that Anderson was wrong?
According to the testimonies of both Brady and Jastremski, the Patriots inflated their balls pre-game to 12.5 or 12.6 PSI, while the Colts say they inflated theirs to between 12.95 and 13.1 PSI. When Anderson measured the balls—with the logo gauge according to himself, with the non-logo gauge according to the Wells Report—”they measured Patriots 12.5, may have been a couple, two exceptions, and Colts at 13.” Therefore, according to Wells’s logic, Anderson had to have used the non-logo gauge, because the logo gauge consistently read .3 to .4 higher. If Anderson had used the logo gauge like he said, the Patriots’ balls would’ve measured around 12.9, and the Colts’ balls would’ve measured around 13.4.
This is a truly incredible leap of logic. It is abundantly clear by now that the $15 pressure gauges everybody uses are prone to significant errors: for all Wells knows, the gauge the Patriots used was consistently .3 to .4 higher, and therefore it would’ve required the faulty logo gauge to read 12.5. Maybe the officials locker room was much colder than where the Patriots or Colts prepared their balls, and so the PSI dropped a bit before Anderson measured them. All sorts of things could have happened, yet Wells replied upon the self-reported PSI values of the Patriots and Colts—rather than Anderson’s own testimony about which gauge he used—to make an “express finding.” Predictably, the NFLPA attacked this logic hard:
Q. So my question is very specific. I am going to try to be very specific. You just testified that you never found the Patriots gauge, right? You now [sic] that?
A. That is correct.
Q. You never found the Colts gauge, correct?
A. That is correct.
Q. So as you are sitting here, you have no idea whether the Patriots and the Colts gauge would read exactly like the logo gauge or the non-logo gauge? You have no basis for knowing one way other the another [sic]?
A. In terms of the actual gauge, you are absolutely correct. I had to make a judgment.
Q. So bear with me.
Q. If their gauges read like the logo gauges because they were older gauges that were given by Wilson and may have looked just like the logo gauge, then they might read like the logo gauge if that was true?
A. That’s what I mean if lightning were to strike and what you would have to have happen in terms of my analysis, you would have to have had both teams for that Championship Game had gauges that were .3 to .4 off and then that all flowed into Walt Anderson using the logo gauge which was .3 to .4 off. And I don’t think that happened and that’s what I ruled. I think what I ruled is totally — not only do I think it’s correct, I think it’s reasonable.
Update (1:02 a.m.): Assuming there was nothing incriminating in Tom Brady’s emails and text messages, it sure seems like he should’ve turned them over to Wells:
Q. You rejected the testimony of Mr. Brady that he knew nothing about the ball deflation in the AFC Championship Game, right? You rejected that?
A. I did reject it based on my assessment of his credibility and his refusal or decision not to give me what I requested in terms of responsive documents. And that decision, so we can all be clear and I will say it to Mr. Brady, in my almost 40 years of practice, I think that was one of the most ill-advised decisions I have ever seen because it hurt how I viewed his credibility.
Q. If he had given you that, you would have accepted his statement?
A. I do not know. I can’t go back in a time machine, but I will say this. It hurt my assessment of his credibility for him to begin his interview by telling me he declined to give me the documents.
And I want to say this. At that time, neither his lawyer nor Mr. Brady gave me any reason other than to say, “We respectfully.” They were respectful. They said, “We respectfully decline.” There wasn’t anything about the Union or it wasn’t anything, This was what my lawyer told me and I am going to follow my lawyer’s advice.
I was given no explanation other than, “We respectfully decline.” And I did, I walked Mr. Brady through this request in front of his agents and lawyers. So I understood that he understood what I was asking for and they were declining.
Update (1:15 a.m.): On cross-examination by the NFL, Ted Wells is adamant that his investigation was wholly independent:
Q. And what is your view of your role when you are retained in these cases to be an independent investigator?
A. It is to do the best job that I can, to collect the relevant facts, examine the facts and then render a personal opinion as to how I see the facts. And I will say one thing because Mr. Kessler suggested somewhere is there a conflict between my duty to zealously advocate, represent the client. When I’m hired in the capacity of an independent investigator, my very job in terms of the representation I’m supposed to do zealously is to be independent and look at the facts and give a candid, objective opinion. That’s what I’m supposed to do under the ethics rules.
Q. And is it fair to say that’s what you did in this matter?
A. Yes, sir.
Q. Is it correct that you were not given any instructions as to reach any particular conclusion?
A. None at all.
Q. Would you have undertaken this role as the investigator if that were the case?
A. I would not. And if anybody tried to interfere with it, I would quit.
Update (1:22 a.m.): Many media outlets (including this one) have criticized or joked about the Wells Report stating that it was “more probable than not” that Brady was aware of efforts by McNally and Jastremski to deflate the footballs. This seems to have gotten Wells’s goat, as he explained at length why he used that specific terminology:
This was our collective judgment and our personal opinion based on the standard of proof. And the standard of proof in an NFL investigation of this kind is the preponderance of the evidence. I mean, I have caught criticism because I used the words “more probable than not.” And people act like, is that wishy-washy?
It’s not wishy-washy. That’s the standard of proof that applies to most civil cases in the United States. And the NFL has made a decision to adopt that standard. In terms of the levels of proof, there are three levels. The highest is beyond a reasonable doubt. The middle one is clear and convincing, which applies in fraud cases.
But the predominant standard in most civil jury trials in the United States is preponderance of the evidence, which means more probable than not.
And when I wrote my conclusions in terms of “more probable than not,” I did it very purposefully, because I did not want any readers to think that I had perhaps made a finding of liability beyond a reasonable doubt or by clear and convincing evidence.
I wanted people to know this was the standard under the NFL rules and that’s the standard I was making my ruling on. So I was doing it so people wouldn’t get confused and think I had used some higher, higher standard.
Update (1:40 a.m.): Wells’s defense of the science in the Exponent report is pretty interesting. He cites media organizations that he says praised it (538, New York Times), and explains that he had Dr. Marlow (a Princeton physicist that acted as a consultant for Wells) and the Exponent team look at three reports that questioned the science and statistics in the Wells Report: the AEI’s findings, the report the Patriots solicited, and the findings Ted Snyder explained earlier in the hearing. Unsurprisingly, Exponent and Dr. Marlow found the reports criticizing their report to be fatally flawed:
Q. Did you consider — you heard something about the AEI report. Are you familiar with that?
Q. And I think was it Dr. MacKinnon’s report?
A. Look. To my knowledge when the report first came out, the New York Times and the guy that writes the 538 column was one of the most respected statisticians in the world. He wrote a column praising the science in this report.
And he went out and interviewed other scientists and they praised the science done by Exponent and Dr. Marlow. Following that, the Patriots issued a rebuttal that contained a three-page letter from a Dr. MacKinnon who is a Nobel Peace Prize winner in chemistry.
It’s not a physicist or a statistician. And he took issue with some of the findings in the report. And then an entity called AEI issued a report in an op-ed in the New York Times and then Dr. Snyder had his PowerPoint that we got last week.
But with respect to all three of those reports, I went to Dr. Marlow and I went to the people at Exponent and I told them I wanted them to review each of those reports criticizing their work. I wanted to know did those reports change their findings and conclusions in any way? Did it undermine their report?
Did it make them feel that they got it wrong? And both Dr. Marlow and the people at Exponent told me they reviewed each of those reports, that each of those reports were flawed and failed to show an understanding of what they had done and that their conclusions had not changed in any way, shape or form.
And that’s what I did and that’s what — and they are going to testify here so Mr. Kessler can hear it and question them.
Update (1:52 a.m.): Wells explains how he requested that Brady turnover relevant email and text messages multiple times, but was declined each time. Earlier he relayed just how devastating Brady’s refusal was: “I think that was one of the most ill-advised decisions I have ever seen because it hurt how I viewed his credibility.” Yet Wells is adamant that he didn’t tell Brady that he would be punished for refusing to turn his messages over:
Q. When you said you repeated it, you are talking about the March 6th interview?
A. The request what I asked for, I made clear I didn’t want to take access to your phone. Mr. Yee can do it. I did not, as Mr. Kessler said — I want to be clear — I did not tell Mr. Brady at any time that he would be subject to punishment for not giving — not turning over the documents. I did not say anything like that.
While I guess Brady wasn’t technically “punished” for declining to give Wells the messages, functionally he was:
Not only did it hurt him in terms of how we evaluated his credibility, but it put us in a hell of a spot because you have a person with this exemplary record and has done all these good things that people are saying, and yet they are conducting themselves in a fashion that suggests they are hiding something and may be guilty and not being forthcoming.
So it was really hard to give them credit for the good stuff when he’s basically looking you in the face and saying, I’m not going to give you my phone.
But like I said, it not only hurt Mr. Brady, it hurt the investigation because it put us in a position we didn’t want to be in because we wanted to be able to listen to him and evaluate his credibility without this cloud. That’s why I kept saying, you know, reconsider. Give me — I will take your word for it.
Update (2:09 a.m.): Earlier in the hearing Ted Wells said that his team billed the NFL somewhere between $2.5 and $3 million, not including time spent preparing for and attending Brady’s appeal hearing. Well apparently that sum of money did not include the fees for Exponent’s scientific/statistical analysis, nor Dr. Marlow’s scientific/statistical consultation:
Q. How many millions was given to Exponent and to Dr. Marlow apart from what you were paid in this case, do you know, roughly?
A. Can I? Exponent was 600,000 and I’m not sure Marlow.
Q. An additional amount for Dr. Marlow?
A. Yes, sir.
Update (2:13 a.m.): After everybody is done questioning Ted Wells, the NFLPA’s lawyer proposes publishing the transcript for the hearing as there is “great public interest” in it. His suggestion ... does not go over well:
MR. KESSLER: No, but one other thing on the 25 record, I would like the NFL to think about this: We have had this issue back and forth and we propose that there not be confidentiality in this matter and the NFL said they wanted confidentiality and we agreed to something and it was there.
I would like to propose on behalf of the Union that we can release this transcript of this today. I would like the NFL to think about that. That’s our proposal. Despite that, I’m not talking about any of the underlying things, but at least the transcript.
I think there is a great public interest in this and in the interest of transparency, that would be something that we would like to see done. So I will submit my proposal for the NFL to consider as to whether that’s possible or not.
MR. LEVY: Pending the agreement, the transcript is confidential.
MR. NASH: Yes.
MR. KESSLER: Well, we already have that agreement, which is why I have to make this proposal —
MR. NASH: Yes, we have that agreement.
MR. KESSLER: — in order to see if the NFL 24 would agree to that.
MR. LEVY: Five minutes.
(Recess taken 5:54 p.m. to 6:04 p.m.)
Update (2:43 a.m.): Next up is Robert Caligiuri, who is group vice president and principal engineer for Exponent. Caligiuri was asked by the NFL’s lawyer to explain his group’s report, and then questioned about specific criticisms from Dr. Snyder, AEI, and Dr. MacKinnon. In turn Caligiuri points out what he says are errors in those reports.
The most damning of those reports, in my mind, was from Ted Snyder. His first criticism was that Exponent’s main finding was that the change in PSI for the Patriots’ footballs was statistically significant, yet this analysis didn’t take into account the timing of when those footballs were measured. Caligiuri’s response is that Exponent was simply conducting a quick and dirty test to see if it was worth further investigation, and the statistical significant indicated to them that it was.
Which is a curious argument. If timing was so important—and Caligiuri stated that Exponent later “went back and specifically put the effect of time back into our model”—why did Exponent continue to tout the statistical significance of a model that did not include it?
And here is Caligiuri’s response to Snyder’s criticisms about how Exponent handled timing in their model:
Q. I want to direct your attention to key finding number 2 or key criticism number 2 identified by Dean Snyder, which is, “Exponent improperly draws conclusions based on the variability in halftime pressure measurements despite conceding that the variability is statistically insignificant.” Do you have a reaction or response to that criticism?
A. I believe that one is unfounded as well.
Q. And why do you believe it’s unfounded?
A. Because it’s comparison of apples and oranges here. The statistical analysis we did up front is correct. We concluded the variability, which means the variation of the measurements as you look at the data set, the average of that compared to the average of variations, I will call it the average of the mean between the two could not be determined to be statistically significant.
So you couldn’t say that the Patriots’ balls, based on that analysis, was more variable than the variability in the Colts’ balls, based on that specific statistical analysis of that data.
We came to the conclusion that part of the contributing factors, there were only four Colts’ balls that were measured, as opposed to eleven Patriots. Maybe if we had more Colts’ balls, we could have seen an effect. So that’s correct, that’s what happened.
Then we went and did all that physical testing. We saw the effect of all those other parameters, the effect or no effect of those parameters. We looked at that and then we went back and looked at the variability of the data comparing, at the same time looking at the variation of the balls, individual balls. And could we account in the difference in pressures based on other physical factors.
And the ranges and variability of factors were not predicted by the effect of, say, ball wetness and ball dryness that we saw. So we went back and said, you know, there is variability in here.
The statistical analysis you can’t conclude, but based on a review of the fluctuations in the data and looking at the physical experiments that we did, we concluded that there is a difference there and that difference is most likely the differences in starting pressure of the footballs, two different analyses.
The statistical analysis did not preclude us from going back and looking at the physical realities that we measured. And that’s what we did to come to that conclusion.
Update (3:00 a.m.): Just as Snyder snapped occasionally when being questioned by the NFL lawyer about his statistical analysis, Caligiuri is contemptuous of the NFLPA lawyer’s lack of science knowledge:
Q. Okay. Do you agree with me that the internal temperature of a football could be different from the external temperature?
A. That’s why the pressure is increasing with time.
Q. Yes. So it can be different, correct?
A. It is different.
Update (3:20): After Caligiuri was done battling it out over statistical models, Dr. Duane Steffey, director of Exponent’s statistics department, was questioned. The NFLPA’s lawyer honed in on Snyder’s criticism of Exponent’s work. The basic criticism is that their statistical model didn’t include a timing factor, even though Exponent’s research found that timing of when the football is measured is one of the most important things to affect its PSI. And the reason timing wasn’t included in the model was because Exponent concluded, in the specific case of the Patriots’ and Colts’ footballs, timing wasn’t statistically significant.
This apparent contradiction—that timing is one of the most important variables, yet isn’t statistically significant in this specific case, and therefore wasn’t included in the model—was attacked at length by the NFLPA lawyer:
Q. Okay, thank you. Now, you then said the reason you didn’t put in a timing variable is because you found it was statistically insignificant, and that’s what your Footnote 49 says, right?
A. That’s correct.
Q. Now, it’s completely the opposite of everything else you found, that timing was the most significant variable to conclude that it also is a statistically insignificant variable; is that correct or not?
A. I’m not sure I followed the last part of that.
Q. Okay, let me try again.
A. Try again.
Q. You did all this work that said timing was the most significant variable affecting ball pressure in your analysis?
A. Yeah, mm-hmm.
Q. And then you are saying the reason you didn’t put timing into the analysis is because when you tested ball order, you found it was an insignificant variable, correct? That’s what you testified? That’s what Footnote 49 says, right?
A. Yes. I think what Footnote 49 is pointing to is an inconsistency between the results that we demonstrated experimentally, which were consistent with physical theory and the observed pattern in the halftime data. They don’t match.
Q. Right. So your halftime data analysis does not match with all the other studies you did that said that timing was significant? The results are inconsistent, right?
A. That’s right. And one thing to keep in mind is that the experimental results that we generated used balls that were at the same starting pressure.
Update (3:35 a.m.): And 10 hours and 59 minutes after it began, Tom Brady’s appeal hearing ended. Dr. Daniel Marlow, who Ted Wells used as a second scientific/statistical consultant, was also questioned, but didn’t say anything radically out of step with any of the rest of the expert witnesses.
This is just the tip of the iceberg as far as what we are going to learn from this lawsuit. The NFLPA filed over 200 other documents—we have already begun going through some of the emails—and assuming this isn’t settled quickly, we’ll get some from the NFL too. For those hoping Ballghazi was over: sorry.