It ain’t over til it’s over.
And with the Patriots’ release of the nearly 20,000 word website “The Wells Report in Context’’ Thursday in response to the Deflategate controversy, the Patriots made it clear that they aren’t going down without a fight.
On wellsreportcontext.com, attorney Daniel L. Goldberg goes through portions of the Wells report and tries to debunk them. Below are the things the Patriots say the Wells report got wrong.
1. Nobel Prize winning professor Roderick MacKinnon rebuts the science presented in the Wells report.
From the MacKinnon letter: “In summary I believe the data available on ball pressures can be explained on the basis of physical law, without manipulation. The scientific analysis in the Wells Report was a good attempt to seek the truth, however, it was based on data that are simply insufficient. In experimental science to reach a meaningful conclusion we make measurements multiple times under well-defined physical conditions. This is how we deal with the error or ‘spread’ of measured values. In the pressure measurements physical conditions were not very well-defined and major uncertainties, such as which gauge was used in pre-game measurements, affect conclusions. Finally, the claim of a statistically significant difference in pressure drop between the two team balls regardless of which gauge was used did not account for the fact that the Colts balls were apparently measured at the end of halftime since the officials ran out of time and made only four measurements – in other words, the Colts balls were measured after the Patriots balls and had warmed up more. For the above reasons, the Wells Report conclusion that physical law cannot explain the pressures is incorrect.’’
2. The increased level of communication between Tom Brady and John Jastremski can be easily explained
From the Patriots’ site: “There were several readily understandable reasons for increased communications between Mr. Brady and Mr. Jastremski in the days following the AFC Championship Game… Mr. Brady is used to the limelight and to critics; Mr. Jastremski is not. Since Mr. Jastremski prepared the footballs, it was reasonable to expect that this media attention would focus on him… Mr. Brady’s reaching out to Mr. Jastremski to see how he was holding up in these circumstances is not only understandable, but commendable… Since this was Mr. Jastremski’s first Super Bowl experience since assuming the role as game football preparer, it is not surprising he and Mr. Brady spoke a lot about football preparation during the days after the AFC Championship Game… In short, increased Brady-Jastremski communications in the days following the AFC Championship Game do not make it more likely than not that there was any wrongdoing or knowledge of wrongdoing. They are totally consistent with complete innocence.’’
3. The autographs and gifts Brady gave to Jastremski have nothing to do with any wrongdoing
From the Patriots’ site: “If receiving an autograph from Mr. Brady is evidence that you are being rewarded by him for nefarious conduct, then hundreds or even thousands of people must be part of a scheme of wrongdoing… What is not disputed is that Mr. Brady, other than signing three items that Mr. McNally handed to him, has never gifted anything to Mr. McNally. That fact cuts against the existence of the scheme the report hypothesizes.’’
4. There were good reasons Brady didn’t turn over his phone messages to Wells report investigators
From the Patriots’ site: “The investigators already had all of Mr. Jastremski’s texts with Mr. Brady… They also had Mr. McNally’s phone records for a period prior to and including the AFC Championship Game… Given the fact that Mr. Jastremski and Mr. McNally had both turned over their phone records, no adverse inferences should be drawn from the fact that Mr. Brady did not make his phone or its contents available.’’
5. There are no text messages which refer to a plan to deflate footballs after the referee’s inspection
From the Patriots’ site: “It is pure surmise and speculation that every deflation reference in a text is to improper deflation of footballs after the referee inspected them. In short, there is simply no evidentiary support for the conclusion that Mr. Brady was aware of any actual or even attempted effort to improperly release air from the footballs. All the evidence — as well as logic — is to the contrary…
“Mr. Jastremski and Mr. McNally were obviously uninhibited texters, sending communications with no thought that anyone else would ever see them. They certainly would not have cursed at the team’s quarterback if they thought their texts would ever see the light of day. Perhaps most revealing, then, is that not a single text states that: (i) Brady wanted footballs set below 12.5 psi; (ii) there was a plan to deflate footballs after the referee inspected them; or (iii) there was any actual such deflation.’’
6. McNally took the balls into the bathroom… so he could go to the bathroom
From the Patriots’ site: “The report does not address whether one minute and 40 is consistent with the time that it takes a gentleman to enter a bathroom, relieve himself, wash his hands, and leave. In fact, it is… There was simply no need to rush were he engaged in releasing air from footballs — a process one would suspect would have to be done very carefully so as not to release too much air from any football. The one minute and 40 seconds in the bathroom was far more likely to have been for exactly the reason Mr. McNally gave…
“There is no indication in the report of the size, agility or age of those who raced to complete the [deflation] task as quickly as possible — and hence no real assessment of whether a person of Mr. McNally’s age and physical characteristics could have accomplished this task, which would involve taking the footballs out of the bag, putting them on the floor (which happens to be sloped, increasing the level of difficulty if footballs were laid out on the floor), carefully controlling them to be sure not to deflate any football twice, returning them to the bag, unlocking the door and leaving. In all events, there was good reason for Mr. McNally to stop in the bathroom, since his sideline duties require he be on the field the entire first half.’’
7. The term “deflator’’ in McNally’s text message was a term used to refer to weight loss.
From the Patriots’ site: “[McNally and Jastremski] would have learned from either gentleman one of the ways they used the deflation/deflator term. Mr. Jastremski would sometimes work out and bulk up — he is a slender guy and his goal was to get to 200 pounds. Mr. McNally is a big fellow and had the opposite goal: to lose weight. ‘Deflate’ was a term they used to refer to losing weight. One can specifically see this use of the term in a Nov. 30, 2014 text from Mr. McNally to Mr. Jastremski: ‘deflate and give somebody that jacket.’ (p. 87). This banter, and Mr. McNally’s goal of losing weight, meant Mr. McNally was the ‘deflator.’ There was nothing complicated or sinister about it.’’
8. The line “not going to espn’’ in McNally’s text message related to getting new sneakers.
From the Patriots’ site: “The ‘espn’ reference in this string of jocular texts was part of their banter and related to the ‘new kicks.’ Mr. Jastremski had made it clear to Mr. McNally over time that his (Jastremski’s) boss would not be happy with him were he to give away sneakers to Mr. McNally. That fact is quite explicit in a number of their texts. (p. 82 — after texting about possibly getting Mr. McNally sneakers and apparel, Mr. Jastremski writes: ‘unless Dave [his boss, Dave Schoenfeld] leaves the room tomorrow then it’ll wait till next week’.’). Getting sneakers or apparel for his friend Mr. McNally, in short, meant Mr. Jastremski would have to do so behind his boss’s back. They teased each other about whether Mr. Jastremski would get in trouble for giving him sneakers. The May 2014 McNally text reference to ‘not going to espn’ follows his request for “new kicks,’’ and was Mr. McNally’s way of saying, in substance: ‘Hey, don’t worry about whether giving me those sneakers will get you in trouble — I’ll never tell.’ The Wells investigators had this text long before their interviews with Mr. McNally and Mr. Jastremski. Had they asked Mr. McNally or Mr. Jastremski about this text when they interviewed each for a full day using four lawyers, they would have learned this.’’
9. The content of texts between McNally and Jastremski are obviously are jokes, exaggerations and sarcasm.
From the Patriots’ site: “Mr. Brady’s sideline outbursts about the footballs (he readily acknowledged he was a bit ‘over the top’ in his remarks) at the Jets game led both Mr. Jastremski and Mr. McNally to be quite upset. There was nothing they had done to overinflate footballs and nothing they could do in response to Mr. Brady’s complaints. Each felt he was being attacked unfairly by Mr. Brady. Their texting is a reflection of their distress over Mr. Brady’s strong reactions and feeling unfairly attacked. The content of texts obviously are jokes, exaggerations and sarcasm. One thing they are not are statements of reality. For example, Mr. McNally states he would make the next football a ‘balloon.’ Even the investigators do not conclude (or even speculate) that Mr. McNally could or would do so — or even that he actually somehow planned to do so or had the means to do so. So: when Mr. McNally talks about overinflating footballs, no rational interpretation would be that he was really going to do so. Yet the report concludes he actually was engaging in deflating footballs – and doing so after the referee’s inspection – although he never states that even in jest.’’
10. Jastremski’s reply of “Talked to him last night. He actually brought you up…’’ to McNally’s text stating “Tom sucks’’ could have been referring to someone other than Brady.
From the Patriots’ site: “This single text and the reference to ‘him’ and ‘he,’ which the investigators concluded must refer to Mr. Brady, is the lynchpin of the investigator’s conclusion that Mr. Brady was probably ‘generally aware’ of a scheme to release air from the footballs. (pg. 78). There are two levels of speculation here. First is the speculation that the references are in fact a conversation Mr. Jastremski had with Mr. Brady and not with someone else. Second is the speculation that, even if it does refer to a conversation with Mr. Brady, any expressions of concern about Mr. McNally’s level of ‘stress’ had to do with Mr. McNally’s improper deflation of footballs. Neither the sender nor the recipient of this text supported the report’s interpretation…
“The ‘him’ and ‘he’ was in fact Mr. Jastremski’s friend, as the investigators were told, and the conversation involved issues relating to Mr. McNally’s stress relating to reselling family tickets. As Mr. McNally explained, his sister is in charge of the family’s long-held Patriots seasons tickets, and she has developing health issues. Keeping track of what was being done with the tickets when not being used by the family was getting stressful. Using the team’s Ticket Exchange program provides no opportunity for reselling tickets at a profit, but using services like StubHub can result in season ticket revocations. These issues had been discussed by Mr. McNally with Mr. Jastremski and shared with Mr. Jastremski’s friend, who stayed over at Mr. Jastremski’s house the night of the Jets game and knew of Mr. McNally’s family issues with his tickets. In conversation that evening, he expressed concern to Mr. Jastremski about Mr. McNally’s situation and shared information about another friend who had similar stress about reselling tickets. That was the conversation that Mr. Jastremski explained the text was referring to. After the conversation with Mr. Jastremski’s friend was explained by Mr. Jastremski, the investigators did not request the opportunity to interview the Mr. Jastremski friend to determine whether any such conversation had in fact happened. The Patriots tracked down Mr. Jastremski’s friend, who is a professional fraud investigator and whose livelihood depends on his honesty. They arranged for a telephone interview with the investigators in which the individual explained in great detail the timing (the night of the Jets game), place (Mr. Jastremski’s house) and content of the conversation (dealing with Mr. McNally’s sister, suffering some early onset memory loss, trying to sell the family game tickets). The investigators, rather than take further steps to check out this information, simply chose to disbelieve input that did not square with their conclusions.’’
11. The reference to “needle’’ in a Jastremski text to McNally was referring to a standard practice of pre-game preparation
From the Patriots’ site: “Sometimes, Mr. McNally was provided with a gauge and pump with only one of them having a needle in it. This would lead Officials relying on the Patriots equipment for their pre-game inspection to have to take out the needle and move it back and forth between the gauge and pump during. (pg. 80). Officials would, on those occasions, often send Mr. McNally back to the equipment room to get a second needle that they could use. Mr. McNally had to ask Mr. Jastremski for any needles requested by an official. This became a running joke between the two of them. Whatever needles Mr. McNally got in that context went to the officials and were kept in the Officials’ Locker Room and then returned to the equipment room after the game. Not a shred of evidence in the report shows Mr. McNally using a needle or even transporting one other than to the Officials’ Locker Room. Not a single witness ever saw Mr. McNally handling the footballs as he carried them to the field in two large bags, let alone handling a football with a needle in his hand. There is simply no basis to conclude, as the report does, that every reference to a needle refers to a needle to be used for the purpose of deflating footballs after the referee’s inspection.’’
12. References to “Tom’’ in a number of texts detailing McNally’s unhappiness with Brady do not prove Brady was central to the deflation discussion or was a catalyst for offers of sneakers and clothing.
From the Patriots’ site: “There is nothing in these texts which identifies Mr. Brady as a “catalyst’’ for provision of anything of value to Mr. McNally, let alone that anything was actually provided to Mr. McNally — or that Mr. McNally was to be rewarded for improper deflation. Construing texts in this fashion is another demonstration that all information was filtered through the assumption that there was wrongdoing. Texts are interpreted to fit the conclusion. They do not drive the conclusion.’’
13. Jastremski refuting Brady’s claim that he didn’t know McNally was misinterpreted.
From the Patriots’ site: “Mr. Jastremski recounted to whom he thought Mr. Brady directed his outbursts on the sideline during the Jets game. He and Mr. McNally took offense at Mr. Brady’s complaints, so not surprisingly he included both himself and Mr. McNally as those Mr. Brady was referring to. Not a single witness ever observed a substantive conversation between Mr. Brady and Mr. McNally although there are numerous people in the areas they both were on game days, which are the only times Mr. McNally is at the stadium. There are thousands of game day employees at Gillette Stadium, hundreds who have duties in the areas where the players are. Players see hundreds of game day employees on game days, but with no substantive interaction or knowledge of who they are. Mr. McNally was one of them…
“When asked about Mr. McNally’s nickname, Mr. Brady insisted that it was “Burt’’ not “Bird’’ — that was how little he knew about him even by the time of his interview. Other than pleasantries that might have been exchanged in passing in the locker room or equipment room area (Mr. Brady exchanges those pleasantries with most people he comes in contact with, as could have been readily confirmed by the investigators) and Mr. McNally’s recollection of asking Mr. Brady to sign some autographs, there is not even a single communication between them — oral, written, text, email, etc. — which exists or which a single witness identified. Indeed, Mr. McNally felt he needed to ask for permission to get the autographs on the day he thought could be Mr. Brady’s last game of the season — that is how non-existent any relationship with Mr. Brady was.’’
14. There was a good reason the Patriots would not make McNally available to the Wells team for a followup interview
From the Patriots’ site: “By the time Mr. Wells was retained by the League, the League had all of Mr. Jastremski’s texts, Mr. McNally had already been interviewed three times, and Mr. Jastremski had been interviewed twice. The first of Mr. McNally’s interviews happened the evening of the AFC Championship, when Mr. McNally volunteered to stay at the stadium for an interview since he would not be back for his game-day responsibilities until August. Patriots management had not yet been advised that an investigation had started, but Mr. McNally, having nothing to hide, talked freely to the League personnel without even asking if someone from the team should be there with him. The second and third interviews happened within the next several days. Again, Mr. McNally gave these interviews without any Patriots representative with him. His phone was offered to League personnel for imaging, but they advised that they did not need his phone. (His phone data was later provided to the Wells investigators upon their request and prior to their interview with him.) At his third interview with League Security personnel, he was subjected to very aggressive questioning and demeaning assertions that he was lying when he denied any knowledge of improper football deflation…
“Thus, when subsequently asked for what would have been a fifth interview of Mr. McNally, Patriots counsel wanted to understand what unanticipated circumstances warranted this, including whether the interview would be limited to matters that were simply not available to the investigators during Mr. McNally’s prior interview. The Patriots advised the investigators of their reluctance to have Mr. McNally back yet again, particularly given the media harassment he and his family had suffered as a result of prior leaks of Mr. McNally’s name and hometown. The distress to him and his family caused by the ensuing media attention was described in detail to the investigators. With this background, there was a high hurdle before the Patriots would ask Mr. McNally to appear yet again for what would be his fifth interview, and a particular desire to be sure that the standard for another interview — unanticipated circumstances — was met.’’
15. Referee Walt Anderson’s recollections of using the Logo gauge to measure the PSI should have been in the Wells report
From the Patriots’ site: “The most fundamental issue in this matter is: DOES SCIENCE EXPLAIN THE LOSS OF PSI IN THE PATRIOTS FOOTBALLS? That issue turns on what psi numbers are used for the psi levels pre-game and at halftime… Given the gauges varied from each other, the only relevant halftime psi measurements are those shown by the gauge that was used pre-game… when assessing the Patriots footballs, the investigators reject Anderson’s best recollection that he used the Logo gauge pre-game, and instead look to the larger psi drop that is shown by the lower psi, non-Logo gauge… What is the consequence of rejecting Anderson’s statement that he used the Logo gauge pre-game? The Ideal Gas Law, according to the League’s consultants, establishes that the psi of the Patriots footballs at halftime would have been 11.32 to 11.52 due solely to the temperature impact on the footballs… THAT IS, RELYING ON MR. ANDERSON’S BEST RECOLLECTIONS, BASIC SCIENCE FULLY EXPLAINS THE DROP IN PSI OF THE PATRIOTS FOOTBALLS DURING THE FIRST HALF.’’
Timeline of Deflategate