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DeflateGate: Here's how the AFL-CIO, Kenneth Feinberg, Patriots, and science professors amicus briefs help QB Tom Brady

These four filings could have a major impact on Patriots quarterback Tom Brady and whether or not he can play at the start of 2016.

What a whirlwind, eh? We now have four amicus briefs (pronounced uh-mee-kuhs) in support of New England Patriots quarterback Tom Brady receiving a rehearing in the Second Circuit, and a couple of them hold some serious clout.

We have filings from physics and engineering professors around the country, from one of the most important union federations in the United States, from one of the nation's most influential experts on arbitration processes, and even from the Patriots franchise.

You can read all of them here, thanks to the Sports Esquires twitter feed.

I've gone through and broken down the arguments and stances from these filings to see how they could help the Patriots, and added a "tl;dr" at the bottom of this article.

Let's jump in.

21 Professors of Physics and Engineering

Read it here.

Who? A consortium of 21 professors of physics and engineering from MIT, UC Berkeley, Michigan, USC, Stanford, Boston College, Delaware, Purdue, Johns Hopkins, UPenn, and Minnesota.

What is their reasoning for supporting Brady? "They have an interest in ensuring that laws of physics are applied with scientific integrity in legal proceedings."

This is their key argument: "We provide this analysis to explain what the "science" used by the league is not. It most assuredly is not scientific proof that the Patriots' footballs lost pressure beyond the drop caused naturally by the Ideal Gas Law. Rather it is a malleable and subjective analysis based on a host of assumptions - selected to some degree by league counsel (JA297) - that if varied in any number of reasonable ways, lead to the conclusion that all deflation occurred naturally. There is no scientific proof of tampering."

The professors go on to prove that 61% of outdoor games in NFL history have featured footballs below the lower limit of 12.5 PSIG, if every football started at the middle 13.0 PSIG level.

They argue that the NFL's "findings" are that the Patriots footballs were as low as 0.14 PSIG below the expected level, and that difference is easily explained in the margin of error generated by the NFL's own assumptions in the calculations.

In fact, the professors point to a quiet change in assumped locker room temperature by the NFL/Exponent from 71 degrees to 67 degrees in the middle of the analysis. If the calculations were performed with the 71 degrees starting point, "the alleged deflation becomes non-existent."

New England Patriots LLC

Read it here.

Who? Some football team or something.

What is their reasoning for supporting Brady? "The Patriots stand to lose their All-Pro quarterback for 25% of the upcoming regular season based on a severely flawed process."

This is their key argument: "From the outset of this matter the League's conduct reflects less a search for the truth than pursuit of a pre-determined result and defense of a report which, despite no direct evidence of tampering or Mr. Brady's involvement, was relied on to impose penalties with no precedent or correlation to the alleged offense.

"In addition, at the very outset of the investigation the League leaked materially incorrect PSI information and refused to correct it for months, allowing public misperceptions to fester. At the AFC Championship Game itself, and despite having no knowledge of the impact of weather on PSI (as admitted under oath, JA1007 at 231:6), League personnel were already accusing the Patriots of cheating. The League made a "preliminary finding" of wrongdoing by Patriots' employees less than 24 hours after the Game. JA1195.

"Penalties were imposed only three business days after receipt of the 139 page Wells Report and the 82 page Exponent Report and obviously without any critical assessment of either. The Commissioner publicly praised the Wells Report, imposed penalties based on it, and then insisted on hearing and deciding Mr. Brady's appeal himself despite the authority to appoint an independent person to do so. When evidence at that hearing did not provide support for enhanced findings against Mr. Brady (to go beyond "general awareness" of violations by others), the Commissioner made new findings and changed the basis on which Mr. Brady was being penalized."

While this is a long quote, and it stems from a footnote, it shows everything that Patriots fans have thought about DeflateGate from the very beginning are also supported by the team. The investigation was a self-affirming sham by an organization and commissioner that needed to get the owners back on his side after an awful year with Ray Rice, Adrian Peterson, and others.

The Patriots are saying that the NFL had already deemed the franchise guilty in the middle of the game, and that all subsequent actions were in attempt to validate that original sentiment. The league, of course, found zero proof that anything every happened and the Patriots want to highlight that lack of information- and how the commissioner changed the charges upon the appeal. This fact is important, thanks to these next filings.


Read it here.

Who? "The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) is a federation of 57 national and international labor organizations representing approximately 12.2 million working men and women."

What is their reasoning for supporting Brady? The NFL Players Association, which represents Brady, is a part of this union federation, and the federation will support its members.

This is their key argument: "The Supreme Court has made clear that 'elementary requirements of impartiality taken for granted in every judicial proceeding' are not 'suspended when the parties agree to resolve a dispute through arbitration.' Commonwealth Coatings Corp. v. Cont'l Casualty Co., 393 U.S. 145, 145 (1968). Even a cursory review of the Commissioner's decision makes clear that he acted in the self-serving role of an employer justifying his own disciplinary decision rather than as a neutral arbitrator considering an appeal."

This filing is key for Brady because it provides precedent (prior court cases) that go against the Second Circuit's ruling. The two judges that ruled in favor of the NFL argued that since the NFLPA agreed to the Collective Bargaining Agreement that gave control to the commissioner, that the arbitration process should give great deference to however the commissioner wanted to deal with the matter at hand.

The AFL-CIO counters that the Supreme Court has said that an agreed upon arbitration process should be rooted in fairness, regardless of whether or not the arbitrator has an initial bias. There's no question that this was not a fair process.

The standard in arbitration is for the appealing party to gather a defense against the charges at hand. If the arbitrator changes the charges at the time of the appeal, then the appealing party did not have a fair process because they can't defend against a moving target.

The AFL-CIO concludes that the Commissioner's act of constantly changing the reason for Brady's suspension "serves as strong evidence that the Commissioner was not acting as a neutral arbitrator considering an appeal at all, but rather as an employer seeking to justify his own initial disciplinary decision. The panel majority therefore erred in extending deference to the Commissioner's decision."

Sounds a lot like the Patriots argument.

Kenneth Feinberg

Read it here.

Who? Feinberg "has over 35 years of alternative dispute resolution experience, including as special master of the September 11th Victim Compensation Fund. He is an experienced arbitrator and leader within the dispute resolution community."

What is their reasoning for supporting Brady? "Mr. Feinberg has a strong interest in this case because it raises fundamental questions bearing on the legitimacy of arbitration as a means of alternative dispute resolution, including: the notice and opportunity to respond that must be afforded to parties, arbitrators' power to disregard contractual language and past practice, and arbitrators' ability to advance partisan interests."

This is their key argument: "So too the procedures the Commissioner utilized were not an exercise in arbitral discretion, but instead so one-sided as to reflect a clear intent to advantage one side. He appointed his own in-house counsel as co-lead investigator, then ruled that individuals that did not cooperate with or obstructed his investigation could be sanctioned. (See JA 1198.)

"Indeed, Brady's refusal to cooperate was cited as a major factor in the four-game suspension. (See SPA 52-54.) Although the NFL had full access to the results of the investigation, Brady's team was denied access to the materials. (See SPA 64-66.) In sum, Commissioner Goodell utilized his purported procedural authority to grant unilateral discovery to one side (accompanied by a threat of sanction), while affirmatively denying the other side's request to the same materials.

"The notion that only one side would be entitled to the materials of the independent investigator is so egregious that it cannot be the result of good faith mistake—there is no provision in the CBA that could be construed to even contemplate this type of one-sided access. It is instead yet another clear indicia of the bias that permeated this proceeding."

Feinberg has some serious clout in the legal community, and his brief has sparked a response similar to Randy Moss making a one-handed grab over Darrelle Revis. Everyone's geeking out.

For Feinberg, arbitration processes are supposed to function as a "parallel component of our justice system" and that if Goodell's decision is "upheld, the public should- and will- lose faith in the system." Feinberg notes that the Second Circuit's decision to rule in favor of the NFL dismantles the "baseline level of process" expected for parties entering arbitration, and as a result could affect the public faith in such a process.

Feinberg notes that Goodell exceeded the authority allowed in the CBA, but it's important to note that the NFL's argument is that everything Goodell did was permitted. Therefore, Feinberg needed to show that Goodell went above and beyond the allowed powers of an arbitrator.

So Feinberg takes a two-pronged approach, to portray Goodell as a biased party (pretty easy), and to show that bias impacted the fairness of the trial. Like the AFL-CIO brief, Feinberg notes that "shifting rationales [for Brady's punishment] raise an inference of bias." He also cites precedence from the Second Circuit itself (this is key) that punishment rooted in Goodell's moving goalposts "is unenforceable."

Feinberg packs a ton of information into his brief, but the money quote (presented above), which distinguishes his brief from the AFL-CIO's, brings up a separate point in the lack of fairness and how one-sided the entire process played out.

Goodell essentially created a process where he would be privy to all of the information generated during the investigation, and where Brady and the NFLPA would not be allowed to see any of the results. Feinberg notes that "the Commissioner attempts to justify his ruling by classifying these materials as an independent assessment within the arbitral process...[but] once he decided to appoint his own counsel to the investigation, thereby granting one part access, he was obliged to give equal access to opposing parties."

"The notion that only one side would be entitled to the materials of the independent investigator is so egregious," Feinberg writes, "that it cannot be the result of good faith mistake- there is no provision in the CBA that could be construed to even contemplate this type of one-sided access."

For these reasons, Feinberg says that Goodell "exceeded the scope of his authority in this matter."



So this is a whole bunch of information, but here's the tl;dr version:

While the court proceedings have devolved into a mudfight of is this or isn't this permitted by law?, the professors raise their hands and remind everyone that Brady never actually did anything in the first place.

The Patriots point out how the NFL was trying to railroad Brady and the Patriots from the onset.

The AFL-CIO says that Goodell's act of changing the grounds for punishment shows a bias that represents a lack of fairness and eliminates the need for arbitrator deference.

Feinberg adds to the "lack of fairness" by saying that Goodell overstepped the power granted in the CBA by withholding information from Brady and the NFLPA, and that the court's support of the NFL could jeopardize arbitration processes around the country.

Most importantly, the AFL-CIO and Feinberg show how the decision in the case could have an impact outside the world of football- and this transcendence is necessary for the Second Circuit to rehear the case.


Before these filings, many legal practitioners placed the odds of Brady receiving a rehearing in the single digits. Now some are thinking "it's more probable than not" that the rehearing will be granted.

These filings put forth at the deadline definitely help Brady when it comes to getting a day in court, but it's also important to note that they're not out of the woods just yet.

But, as always, never count out Touchdown Tom.