Tuesday, May 12, 2015

Cheating, Loyalty, and Willful Blindness

by Neil H. Buchanan

Yesterday, the National Football League announced its decision regarding how to punish various members of the New England Patriots organization, who had been found "more likely than not" to have engaged in a scheme to break an obscure (but surprisingly important) rule regarding the air pressure in footballs.  Because this is the NFL we are talking about, it was big news.  It also meant that the entire affair was being handled on all sides by some of the highest-priced legal talent on offer in this country.

Is there anything interesting to say about the whole affair?  Maybe.  My take on this story, for what it is worth, is that it provides especially interesting insights into people's unwillingness to face reality, even when doing so need not cost them anything.

For those readers who have been only minimally following this admittedly trivial story (or, as sometimes happens, if you find yourself reading this blog post a few years from now, when so-called Deflategate will be but a vague memory), here is the basic story arc: After the conference championship game, won 45-7 by the Patriots and thus qualifying them for this year's Super Bowl (which they won), news broke that the Patriots had been using under-inflated footballs when they were on offense.  The other team in that game (the Indianapolis Colts) had complained to the referees, and sure enough, the balls were too squishy.

Although I am no longer in the habit of watching sports news in the morning, I happened to turn on ESPN the day the story made news.  Everyone's first question was: Wait, what do you mean the Patriots -- and only the Patriots -- were gaining an advantage from under-inflated footballs?  Don't the refs just have an inventory of balls and put them in play, changing the ball only when it needs to be wiped off in wet weather and so on?  It turns out that, in fact, the NFL allows each team to use its own set of balls while on offense, and the quarterback is allowed to prepare the balls in various ways (eliminating slickness by rubbing the ball with oil, for example), and setting the air pressure within a narrow range.  This means that, if the balls are doctored in ways not allowed by the rules, one team truly can get an advantage.  The NFL thus created a strong incentive to cheat.

Next question: Can this really matter all that much?  Most people in the U.S. have at least held a regulation-sized football, and they know that the balls need to be inflated in order to be kick-able, and to be aerodynamic when thrown.  During the first hour of ESPN's coverage of the story, people wondered if there was truly an advantage to having a ball inflated to 11.0 or 10.5 pounds per square inch (psi), as some of the Patriots' balls were, as opposed to the league minimum of 12.5 psi.  After all, balls that look to be unusable are obviously severely under-inflated, but does a pound or two matter?

ESPN brought in Mark Brunell, a retired NFL quarterback who played for 19 seasons in the league.  They handed him a properly inflated ball.  He grabbed it in his big hands, and he said something like, "Yeah, that feels normal."  Then they handed him an under-inflated ball.  It looked the same, but the moment he touched it, he said, "Whoa!  I'd love to play with this ball," or words very much to that effect.  The look on his face said it all.  This was not a minor detail.  Before the day was over, no one was questioning whether deflated balls were advantageous to the Patriots.

The NFL went into its hyper-corporate damage-control mode, hiring a BigLaw partner to conduct an investigation into whether there was any way that the deflation was non-deliberate, and if it was deliberate, whether there was a way to prove who did what, and when.  The big questions were whether the Patriots quarterback, Tom Brady, was behind it.  Or maybe the coach, Bill Belichick.  Or was it merely a bunch of underlings?

That report was issued last week.  As the Associated Press put it, the report "stopped barely short of calling the Patriots star quarterback a cheater."  The report concluded that he had been "at least generally aware" that the balls were being doctored.  The report exonerated the coach(es), finding evidence of only two employees having engaged in wrongdoing.  Some of Brady's claims were labeled "implausible," and all of the scientific explanations were rejected by the report.  The investigator noted that he "was hindered by the quarterback's refusal to provide his own emails, texts or phone records."

In short, this was big.  The cheating happened in an important game (and the evidence shows that this might have been happening for a year or more before that game), it was deliberate, and the quarterback either directed it or made it clear what he wanted, while the underlings provided plausible deniability.  The league agrees that it was big.  They have announced a four-game suspension at the begining of next season for Brady, as well as rather severe punishments (including lost high-round draft picks) for the team.  Brady will appeal.

What makes all of this interesting, of course, is that it brings the world back to the familiar overlap between law and sports, where regular people are suddenly confronted with the terms and standards that lawyers work with all the time.  People are now apparently confused about "more probable than not," for example, somehow imagining that this is a new or different category of not-really-culpable culpability.

It also puts front and center the notion of proportionality in sentencing, where people are debating the relative punishments of the Patriots compared to other examples of cheating in the NFL, as well as the much more serious cases of spousal abuse (Ray Rice of the Ravens) and child abuse (Adrian Peterson of the Vikings) that tarnished the NFL's image last season.

How does one compare punching one's fiancee in the face (and knocking her unconscious) to cheating in a championship game, in terms of the number of games that the offender should be suspended?  How do legislatures decide the relative punishments for battery versus fraud, or attempted murder versus identity theft?  Lawmakers are usually adrift when debating these matters, and so are football fans.

It should hardly be surprising that Patriots' fans immediately defended Brady.  If a reporter could find female Ravens fans willing to defend Rice after the horrifying video emerged of him punching his then-fiancee (with those fans relying on what amounted to an intuitive aversion to double jeopardy), it was not going to be difficult to find Patriots fans who would stand with Brady.  Jerry Seinfeld famously said that rooting interests in sports boil down to "cheering for laundry," where the guy who is wearing your team's laundry is a hero, even if he was a villain two games ago, when he wore the rival team's laundry.  I have a friend who absolutely hated Deion Sanders until Sanders played briefly for the 49ers, at which point Sanders became "actually not that bad a guy."  (No, he really is that bad.)

For some reason, I am not able to summon the blind loyalty that makes people "real fans."  Perhaps I am too embarrassed from having, in my youth, defended the infamous Ohio State coach Woody Hayes through thick and thin.  A few years after Hayes was gone, an academic scandal at Ohio State was so upsetting to me that I actually did the unthinkable, changing rooting interests from Ohio State to Michigan.

Which is why this whole Tom Brady thing is especially interesting to me.  Here is how much I like Tom Brady: He has caused me to root for a Boston-based team.  Brady's Michigan diploma (after what was, in fact, a rather average playing career for the Wolverines) caused me to love Tom Brady, and to love him so much that I was able to ignore the reality that his fan base is a bunch of people who love the Red Sox.

So, does that mean that I should (or, at least, would) deny that Brady did anything wrong?  Why not try a little Nixonian "Everyone does it, but he got caught" logic?  After all, in full pander mode, New Jersey governor Chris Christie has defended Brady, on the theory that people like to go after glamorous, rich people.  Yes, Christie's defense of Brady is uniquely delicious, because both he and Brady are guilty of -- at the very least -- setting up underlings to do their dirty work.  Surely, however, there are other ways to minimize what happened here.

At the beginning of this post, I referred to "people's unwillingness to face reality, even when doing so need not cost them anything."  In some sense, the Patriots fans who are defending Brady have something to lose by admitting that their hero is a cheater.  NFL fans (and sports fans in general) are known to find their identities in their loyalties to their teams, such that admitting anything bad is a personal betrayal.  That I happen no longer to be capable of empathizing with that type of emotional commitment does not make it any less important to those fans.

This, however, brings me to my major question: Why does the Patriots organization, in particular its owner Robert Kraft, not take this as an opportunity to finesse the public relations, so that they can take responsibility and come out looking like winners?  Initially, it looked like that was their plan.  When the punishments were announced, however, Kraft went nuts, saying (among other ridiculous things) that the "one-sided investigation" resulted in a punishment that "was based completely on circumstantial rather than hard or conclusive evidence."  Such circumstantial evidence involved, among other things, one of the low-level Patriots employees walking into a bathroom with the footballs, after they had been inspected, and then emerging only after enough time had elapsed to deflate the footballs.

Surely, Kraft (or his lawyers) understand that circumstantial evidence can be damning.  Therefore, they must have consciously decided to respond to the punishment by saying things that are, by design, pure bluster.  But why?  To mollify their fans?  There is no way the fans will abandon the team.  To mollify Brady?  Why not just say, "The Patriots organization has great affection and loyalty to Tom Brady.  We believe him when he tells us that he is innocent, but the league's processes have played out, and we all agree to move forward together.  The important thing is to rededicate ourselves to the greatness that is the Patriots' tradition."  This is not rocket science.

There is surely a way to play this out publicly, in a way that does not make the Patriots look worse than they already look.  There have to be ways to say, "For the good of the game, we are taking our lumps and moving forward."  Kraft, instead, is going with the approach that guarantees that the Patriots' legacy will be tainted, and he is going to all but guarantee greater scrutiny and (should future cases of cheating arise) harsher penalties in the future.

Of course, in the recent past I have questioned the business prowess of NFL owners, so maybe I should not be surprised.  But while one expects willful blindness from fans, I would not have thought that public displays of loyalty from an NFL team and its owner would need to be so absurd.