The only thing worse than our system of public justice is …

|The Volokh Conspiracy |

The NFL, I have come to believe, exists in large part so that, should we fall into despair over our system of public justice (which I find myself doing from time to time), we are reminded that it could be worse.

Sally Jenkins—for my money, one of the best working sportswriters around—has a devastating critique in this morning's Washington Post of the Deflategate nonsense (the NFL's "lame attempt to right its own wrongs") and of the NFL approach to justice: "If you crack down hard enough on the little things, no one will notice the real scoundreling."

I won't repeat her many, many criticisms, every one of which is spot on, but one point she makes bears repeating:

[Here is] what is so peculiar about this entire deal. The Ted Wells report commissioned by the league is perfectly clear on this point: No one is sure which of two gauges were used to check the pressurization of the balls. The gauges gave significantly different readings; one read much higher than the other and showed the balls were legally inflated. The referee in charge of checking the footballs, Walt Anderson, is pretty sure he used this gauge. Yet the NFL disregarded this critical point—and the testimony of their own official. Nevertheless the NFL decided the "preponderance of the evidence" showed Brady and the Patriots manipulated the game balls. That's how eager they are to find wrongdoing.

Really, you have to read Jenkins' piece (and perhaps even the Report itself, with all of its 139 pages (plus Appendices) of mind-numbing prose) to appreciate the astonishing weakness of the NFL's case. A million dollar fine and a 4-game suspension for Brady?? Please.

Tom Brady is being punished, of course, for punching his fiancee in the elevator, and for hitting his kids, and for any number of assaults, sexual and otherwise, that he committed over the last year or so—putting aside the fact that of course he didn't do any of that—so that the NFL can show how tough it can be on malefactors.

[And he's also being punished—the NFL itself even admits this—in part for being "uncooperative." Just like Barry Bonds! When you don't have any evidence of wrongdoing, at least you can always charge people with obstructing your pursuit of evidence of wrongdoing … I can't imagine why Tom Brady didn't want to turn over all of his email and cellphone records to Wells' law firm—can you?]

One point about Deflategate that has, I think, escaped notice. Ted Wells, the NFL investigator, says, at the very beginning of the Report (in footnote 1), that

[u]nder the NFL Policy, the "standard of proof required to find that a violation of the competitive rules has occurred" is a "Preponderance of the Evidence," meaning that "as a whole, the fact sought to be proved is more probable than not."

Actually, that's not correct. It ignores the "of the evidence" part. The preponderance standard involves weighing the evidence, to see which side tips the balance. Many things can be "more probable than not" that do not satisfy the preponderance of the evidence standard. An illustration:

Brady Anderson, a slightly built (6'1″, 170 lbs) outfielder for the Baltimore Orioles having a solid but unspectacular career in the big leagues in the 1990s, hit 50 home runs in 1996 (after having hit 16, 12, and 13 in the previous three seasons). It was an Orioles record—and this on a team that had featured sluggers like Boog Powell, Frank and Brooks Robinson, and other big hitters.

It is perfectly rational to say that it is "more probable than not" that Brady Anderson was using performing enhancing drugs in 1996—even if there is no evidence (let alone a preponderance of it) that he actually did so.

Or this:

Jurors are not permitted to find someone liable under the "preponderance of the evidence" standard based upon information they may bring with them into the courtroom—even if that information is completely accurate. I may believe that 72.6% of all corporate executives trade on inside information; that's enough, without more, for me to say it is more probable than not that any randomly chosen corporate executive has traded on inside information. It is not enough, without more, to satisfy the preponderance of the evidence standard.

[UPDATE: Shortly after posting this, I was listening, as I often do, to the Tony Kornheiser sports talk radio show. His guest was Mike Freeman of BleacherReport.com, who thinks the NFL did the right thing by Tom Brady here. Freeman said something like: "I find it very difficult to believe that the Patriots had these two yokels working for them who were doing this and that Tom Brady didn't know exactly what was going on." But that's precisely my point: in your mind, it may be "more probable than not" that Brady knew of the rules violation. But that's not the standard Wells or the NFL is supposed to be applying. There is not a shred of actual evidence (and, therefore, not a preponderance of the evidence) that he knew of the violation. It's a very big difference.]

It is, I think, telling that after footnote 1 (quoted above), Wells never again uses the "preponderance of the evidence" formulation. It is always "more probable than not":

For the reasons described in this Report, and after a comprehensive investigation, we have concluded that, in connection with the AFC Championship Game, it is more probable than not that New England Patriots personnel participated in violations of the Playing Rules and were involved in a deliberate effort to circumvent the rules. … [I]t is more probable than not that Jim McNally (the Officials Locker Room attendant for the Patriots) and John Jastremski (an equipment assistant for the Patriots) participated in a deliberate effort to release air from Patriots game balls after the balls were examined by the referee. [And] it also is our view that it is more probable than not that Tom Brady (the quarterback for the Patriots) was at least generally aware of the inappropriate activities of McNally and Jastremski involving the release of air from Patriots game balls.given no evidence,

Its as though Wells couldn't even bring himself to say it: "The preponderance of the evidence demonstrates that …" Because the evidence is so preposterously weak.

[And Memo to NFL: you might want to think about not having your "investigators" decide your cases for you, eh? It smacks a little of Soviet-style justice. Especially when your investigators' ability to get more multi-million dollar engagements in the future depends on pleasing the client (i.e., you). Not exactly a good design for reaching the right result, I would say.]