Deflation-gate

I think the concern is that if, say, Brady texted McNally, and if McNally deleted that text, then since Brady destroyed his cell phone there would be no record.The counterargument is that if McNally and Jastremski had gone through their texts and deleted the incriminating ones then they would have deleted all the incriminating texts and not just the ones with Brady.--Percy

Brady was testifying under oath at the NFL arbitration hearing, so I assume he would have answered questions truthfully. And I think events pretty much bear out the prudence of Brady's actions. The Wells Report describes Brady's refusal to turn over his cell phone:

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Similarly, although Tom Brady appeared for a requested interview and answered questions voluntarily, he declined to make available any documents or electronic information (including text messages and emails) that we requested, even though those requests were limited to the subject matter of our investigation (such as messages concerning the preparation of game balls, air pressure of balls, inflation of balls or deflation of balls) and we offered to allow Brady?s counsel to screen and control the production so that it would be limited strictly to responsive materials and would not involve our taking possession of Brady?s telephone or other electronic devices.

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Yet Goodell didn't make a significant issue of this refusal in his original ruling. Only after learning before the arbitration hearing that the cell phone had been destroyed instead of merely withheld did he become outraged (and still is - so much for managerial temperament). Why would that be, unless he realized it meant he couldn't subpoena it. With the Wells Report and the Exponent analysis discredited and a court fight likely looming, he obviously felt he needed a smoking gun, and what better place than on Brady's cell phone obtained through a subpoena. But with the phone destroyed that option was gone, so to justify his 4-game suspension he falsely claimed the Wells Report proved things it didn't, things beyond the assertions of the Wells Report itself (this was where the charge was elevated, with no additional evidence or revelations, from "generally aware" to something far beyond that), and then added the destruction of the cell phone itself.Do you think the appeals court would, like Goodell, have viewed withholding the cellphone much less negatively than destroying it? If so, why? For the same reason?From the transcript of the NFL arbitration appeal hearing before Roger Goodell, here is Brady in his own words explaining why he wanted to keep the cell phone secure:

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I think whenever I'm done with the phone, I don't want anybody ever to see the content of the phone, photos. Obviously there is a log with the smart phones of all my e-mail communications. So in those folders, there is player contracts. There's, you know, endorsement deals. There's -- along with photos of my family and so forth that I just don't want anyone to ever come in contact with those. A lot of people's private information that, had that phone -- if it shows up somewhere, then, you know, all the contacts in my phone, you know, wouldn't want that to happen. So I have always told the guy who swaps them out for me, make sure you get rid of the phone.

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And what I mean is destroy the phone so that no one can ever, you know, reset it or do something where I feel like the information is available to anybody.

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I didn't mean that Brady was concerned that during the NFL appeals hearing his cellphone could get subpoenaed. I meant that looking forward he could see a court fight brewing and his cellphone being subpoenaed. If the NFL knew the phone still existed, couldn't they have sought a subpoena before Judge Berman's court? I don't think the courts have any particularly greater expertise at Internet security than any of the other government agencies that have been hacked.--Percy

Yes. Of course they could have done so. That's how the legal system works. Again, we have a fundamental disagreement about what Brady should have done given that knowledge. What makes you think that the phone contents have ended up on the Internet or on a computer connected to the internet? Generally speaking if records are sealed, then they are not made available electronically. What I would expect is that the parties would agree that only the relevant information from the phone would become of record in the case.I've heard of occasional mistakes, but they are extremely rare. If Brady is correct in thinking he can win despite destroying the evidence then he has made the correct decision.

If the court finds that Brady destroyed evidence would this move from being a civil case to possibly a criminal case?

No. I don't see any way to make a criminal case out destroying evidence in a civil case. In particular, the destroying happened before the case got to court, so I don't think there is any chance of civil contempt escalating to criminal content (something I don't fully understand). I think the only repercussion in this case would be some negative effect on the outcome of the case.Edited by NoNukes, : No reason given.

As you might have been able to tell, I draw a distinction between the law and justice. The difference between the two is why there are appeals and ultimately gubernatorial and presidential pardons. The number of cases being overturned on DNA evidence tells us that there is a difference between the way the legal system works and the way we wish it would work. But the reason we disagree is based upon a key point: you believe the cellphone's contents could be kept secure, and I don't. Anybody and anything can be hacked. All that's needed is motivation. Did you mean to say, "...could have ended up...?" Answering that question instead, people aren't robots following rules in exquisite perfection. The more relevant question is why you seem so confident that the contents of Brady's phone couldn't have ended on a device vulnerable to hacking? And then there's just simple accident. An Apple employee once left an iPad prototype in a taxi, and another once left an iPhone prototype in a bar. There's probably rules against putting case information on a laptop and taking it home, but I bet it happens all the time anyway. Perhaps they take it home in a taxi, and perhaps to a home where as soon as the laptop opens it connects to the neighbor's router that has no password. And then there's the possibility of an inside job. Data security is a myth (though Apple seems on the right track). And beyond the concerns about security, there's still the problem of reviewing each item on the phone to determine if it's relevant. Won't the NFL, the one with leaks the size of a fire hose, insist on a representative being present during the review?--Percy

Yes. Of course in doing so, you are making that call on the outcome of the case. I am not doing that here. I suspect it also helps that I don't care one way or the other about the New England Patriots. I have absolutely no investment in the outcome of the case.But beyond that, I understand the reasons why the court system works the way it does, and allowing litigants to flaunt court orders does not lead to a court system that is likely to be able to dispense justice or law. I don't see any real reason why Brady cannot follow the same law everyone else has to follow. Civil courts handle secrets far more valuable than those of Brady's and the secrets don't get out despite their tremendous value. Is the risk zero? No. But does is it dwarfed by the risk of getting sanctioned in court? Possibly. It's also possible that the evidence on the phone was exculpatory. Was destroying case winning evidence worth flaunting a court order? That seems unlikely to me. You talked about hacking via the internet, so that's what I addressed. The problem is that there should not be a target for hacking. Of course mistakes are possible, but courts routinely deal with sealed evidence, and it is extremely rare that such evidence would ever make it onto an internet accessible computer. And only then would it be hacked. No the risks are not zero, but they are small enough that every other litigant can work within the system with secrets more valuable than the ones we are talking about here. If that was how things worked in civil cases, wouldn't litigants always see the other sides trade secrets despite the fact that they are being sealed so they won't see them. No Percy, that is not how things work.But couldn't the powerful NFL simply rig things so that they got their own man on the inside? Yeah, in a movie.Edited by NoNukes, : No reason given.Edited by NoNukes, : No reason given.Edited by NoNukes, : No reason given.

Where do you get this stuff from?

I have to guess that you don't read much of the media coverage about Deflategate. If it isn't outrage blinding Goodell's judgement then something certainly is. Maybe it's not outrage, maybe it's just par for the course for Goodell. From Roger Goodell Appeared To Peddle More Deflategate Lies In ESPN Interview:

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Goodell also manipulated Brady’s arbitration testimony when he issued his statement that upheld the quarterback’s draconian Deflategate punishment.

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This kind of behavior is par for the course for Goodell. In her written decision last year that vacated Ray Rice’s indefinite suspension, independent arbitrator Barbara S. Jones says the commissioner lied about conversations he had with the running back. Goodell said Rice originally misled him about whether he struck his then-fiancee Janay inside of the Atlantic City elevator, but Jones determined that wasn’t the case, and thus ruled the NFL didn’t have grounds to change Rice’s original suspension.

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But this article thinks it goes beyond lying, that Goodell is obsessed, NFL commissioner Roger Goodell is biggest loser in DeflateGate debacle:

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Only you should know this stopped being about deflated footballs a long time ago. This is a fight about the collective bargaining agreement in the NFL, the power that DeMaurice Smith and the NFLPA ceded to Goodell, power that Goodell refuses to give up, no matter how much it damages the brand and shield he says he is protecting.
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And Goodell, obsessed as ever with the way things look and the way he looks, pressed forward when he didn't think Brady was being a team player.
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The NFL has officially taken a misdemeanor and turned it into Biogenesis. Or, as Bob Costas said the other day, they've taken a misdemeanor and literally turned it into a federal case,...
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Now the court will have to decide if Goodell, even exercising all the power he won in collective bargaining, abused it in the Brady case, trampled due process in the process, and set down an unprecedented penalty for the crime Ted Wells says Brady, well, may or may not have committed. As people continue to lose their minds over a cellphone that doesn't matter here and never did.

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And some articles describe Goodell's state of mind the same way I do, Deflategate: The Wreck That Could Have Been Avoided says:

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Goodell's own conduct-policing fury fanned the flames...

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And some headlines just state the obvious: A Furious Roger Goodell After Federal Judge Overturned Brady's 4 Game SuspensionWhat causes someone to behave so irrationally that he hurts his own best interests? Outrage, fury, apoplexy, that's my conclusion, but maybe it's just ruthless and vindictive power-mongering. Whatever is behind Goodell's relentless pursuit of Brady, it's hurting the NFL, it's hurting Brady, and all over something that never happened.--Percy

Right, maybe it's not outrage. I believe that the fight is primarily about the collective bargaining agreement, and in particular, the commissioner's powers to regulate things including player conduct. I think we can agree that this case is a major test of that section of the agreement that we've debated so often. I suggest that this section of the agreement was purposefully negotiated by the NFL in order to increase management's power. I think my suggestion makes some sense in light of the controversy over the NFL commissioner limits under the previous agreement.But yeah, I'm sure I don't read as much of the media coverage as you do. But I also suspect that we do view differently what we read. Your statements regarding the judges folly are a prime example of that.

Right, maybe it isn't, but you asked, "Where do you get this stuff from?" as if my opinion was unfounded and shared by no one else. My reply strived for balance by quoting several sources indicating a variety of opinion, including ones pretty much the same as mine. Yes, of course, though those aren't my words but are from one of the articles I quoted. Well, we shall see what happens with the appeals court. Looking back, Brady's hearing before Goodell *was* arbitration, and Brady *did* prevail in Berman's court because of issues related to impartiality and fairness, so maybe questions about cell phones *will* turn out to have been off the mark.--Percy

My personal opinion is that your conclusion of outrage (outraged to the point of not having managerial temperment) was unfounded. I suppose I could have expressed myself in stronger terms, because apparently, choosing to accept your expression that outrage might not be the only answer just opened me up to more criticism. Well, at least I tried... I don't see why, given other possibilities that don't require it, you have to make denigrating remarks about one party or the other. Is that better?Beyond that, I think asking for sources is always legit. Yes, that might happen.Edited by NoNukes, : No reason given.Edited by NoNukes, : No reason given.

He is, as many in the media have commented, tarnishing and embarrassing the NFL brand and destroying the reputation of one of the best quarterbacks in the history of the league, as well as one of the most upstanding representatives of the league. One would have to be blind not to see such behavior as tainted with vindictiveness and anger. Oh, don't worry, you've been expressing yourself in plenty strong enough terms. Stuff like "You should be telling us what you mean before," and "Where do you get this stuff from?" are stinging criticisms that you pursued relentlessly. Don't chastise yourself for holding back, because it sure doesn't feel like it from this end. When did I claim, when does anyone claim, or even imply, that their opinions are the only alternative? Sure, perhaps Goodell is just coldly and logically pursuing NFL policy. It's possible. The reason I don't accept that alternative is because someone who is calm and rational wouldn't engage in actions so damaging to the organization they head and their own reputation, and it isn't just Deflategate. There's a reason Goodell gets booed at the NFL draft every year, one of the few times he appears before informed fans. If to you it seems that I don't fill in a lot of the blanks, to me it seems that you're often badly uninformed considering your active participation level. Disagreement can be misinterpreted as criticism and then taken personally. I mean you no ill. I'm just defending my position.--Percy

I don't think there is any need to tarnish or embarrass the NFL brand when the players and managers are already doing such a good job of that already. When players are always in the news for fights, beating up on their girlfriends, shooting folk in cars and all the other ways they seem to be able to get into the news "Deflation Gate" is at best just a small side-show.

Endorsing Trump should be added to your list.