Tom Brady probably isn't innocent in deflate-gate, but Wells Report fails to prove he's guilty

Dan WetzelColumnist
Yahoo Sports

The conclusion in the NFL's "Investigative Report Concerning Footballs Used During the AFC Championship Game on January 18, 2015" is damning for Tom Brady, very damning.

"Based on the evidence, it also is our view that it is more probable than not that Tom Brady was at least generally aware of the inappropriate activities of [two New England employees] involving the release of air from Patriots game balls," the Ted Wells Report reads.

In other words: we're positive he cheated but we can't quite prove it.

For Brady, as much as he will be raked over the coals following the release of this report and be doubted by many forever, it actually could've been worse. The Wells Report is an opinion. While it's an opinion based on some strong evidence, some of the other evidence is a reach, more than enough for Brady to argue his innocence if/when he addresses it.

He has a real defense here (which is different than being innocent) even if most of the members of the Court of Public Opinion have immediately ruled against him.

(Getty Images)
(Getty Images)

Before getting to that, it's worth noting that the conclusion of the report, led by prominent New York attorney Ted Wells, was expected. The conclusion of the 243-page report, one that included an exhaustive 67 interviews and myriad scientific experiments, was so easy to predict that many did way back when the story first broke in the days after New England's 45-7 victory over the Indianapolis Colts.

The most likely scenario of what happened was always that a locker room attendant/equipment guy doctored the balls to the preference of the star quarterback. It was going to be an unspoken thing, or a long-time thing, maybe even a once innocent thing that got out of hand.

It was, however, the most plausible thing.

This didn't need to be a grand and vast conspiracy involving Bill Belichick. It needed just a guy or, in this case, two. It certainly didn't need to go past the QB, but it had to involve the QB. No equipment man in the NFL would ever go rogue and do anything the quarterback didn't want, especially against the wishes of Tom Brady, the (now) four-time Super Bowl champion and greatest player in franchise history who was about to take the field in the AFC title game.

This wasn't the only theory advanced of course.

Belichick later went with a detailed account of how the science of air pressure caused the balls to deflate. Others brought up chain of custody concerns, essentially accusing the Colts of rigging the evidence. Some reminded to not rule out the concept of referee failure. All sorts of unnamed sources repeated things that don't appear to have panned out as true.

There are plenty of Patriots fans, and apparently team owner Robert Kraft, who will continue to believe an alternative theory. Wells isn't one of them. His report offers the belief that two Pats equipment guys – Jim McNally and John Jastremski – worked with Brady to get the footballs to the quarterback's optimal liking, in this case below the allowable minimum of 12.5 pounds per square inch.

This includes evidence such as text messages throughout the season between McNally and Jastremski discussing how Brady is particular about the football's inflation level.

There is one of Jastremski saying he'd get McNally a "needle" and another where McNally calls himself "the deflator" and jokes that he "hasn't gone to ESPN … yet" (presumably to blow up the story).

There was video evidence from just prior to the AFC title game that showed McNally, in violation of NFL policy, taking the pregame footballs out of the referees' room at Gillette Stadium and carrying them toward the field. The balls had just been checked and even a couple inflated to meet league specifications.

The Patriots' victory in January vs. the Colts is where deflate-gate started. (AP)
The Patriots' victory in January vs. the Colts is where deflate-gate started. (AP)

McNally then ignores two close-by bathrooms – including one in the referees' locker room – and instead, while carrying the bag of footballs, ducks into another bathroom directly by the entrance to the field. That bathroom had a lock on the door. He stays 1:40, long enough, the Wells Report tests show, to stick a needle in each football and let some air out.

He then left the bathroom and headed out to field.

The report notes that prior to the game the Colts notified the NFL that they "suspected the Patriots might be deflating game balls below the minimum level permissable." Head referee Walt Anderson was notified of the concern during a pregame conversation. 

At halftime, after the Colts complained about one of New England's footballs feeling soft, two separate refs each checked the PSI levels of the 11 remaining Patriots balls. Each came in below 12.5 – a range running from 12.3 to 10.5 (avg.: 11.29). None of the four Colts footballs tested showed appreciable deflation.

The 11 footballs are inflated to proper standards and the game continues … New England actually takes a 17-7 lead and blows the game open with four-second half touchdowns, showing how unnecessary this probably was.

After the game, McNally is questioned by NFL security about whether pregame he took the footballs from the referees' room to the field. He acknowledges he did but does not cop to going into the bathroom. In subsequent interviews, the report states, McNally "provided varying explanations for the bathroom stop."

Brady did himself no favors when he told investigators he didn't know McNally's name or what his game-day responsibilities were. Both Jastremski and McNally refuted that. McNally has also been employed by the Pats for all 15 seasons of Brady's career. This felt like Brady pretending to know less than he did or in the parlance of the Wells Report, "not plausible and contradicted by other evidence."

Other than attempts to debunk the Patriots' claims that the way they prepare a football with Jastremski – rubbing it with a towel, thus heating up the air inside – and other atmospheric tests, that's the bulk of the report.

These two guys probably did it, Wells concluded, based on circumstantial, but incredibly suspect, behavior. Brady probably knew they were doing it based on common sense. And there is neither evidence nor much logic to believe Belichick, Kraft or anyone else had a clue what was going on.

There's more, including additional evidence that Wells believes links Brady to the controversy. But some of that, after just one reading of the non-scientific evidence, appears to be the weaker parts of the conclusion.

For instance, Wells makes a big deal about how until the morning of Jan. 19, 2015, Brady hadn't called or texted Jastremski for six months. Then suddenly he did.

Team owner Robert Kraft and coach Bill Belichick were unscathed in the Wells Report. (AP)
Team owner Robert Kraft and coach Bill Belichick were unscathed in the Wells Report. (AP)

That was the day after the AFC title game and after the story that the NFL was investigating the Patriots was first reported by Bob Kravitz of WTHR-TV in Indianapolis. Brady and Jastremski spoke on the phone that morning and the next two, twice for over 13 minutes. The two even had a meeting inside the quarterbacks room for the first time. Brady also sent some texts, basically saying, "You doing good?"

Is this incrimination, the idea that Brady is orchestrating a cover-up or going through what they plotted or anything else nefarious? Perhaps. Wells certainly believes so, writing that "the increase in the frequency of text and telephone communications between Jastremski and Brady post-game" was part of the "sum" of evidence that led to his opinion.

It could also be completely reasonable behavior.

If Brady had nothing to do with this and suddenly the whole world was calling him a cheat for the air pressure inside the footballs, it is perfectly reasonable to assume he'd call Jastremski to try to find out what happened. Especially when Jastremski texted him first, asking Brady to call him. While these may be the actions of a guilty person, it may also be the actions of an innocent one. Expect Brady or Brady's attorney to make that point eventually.

Second, are text message conversations between McNally and Jastremski about Brady handing over valuable memorabilia or signing other items for them evidence that Brady was doing this as payment for deflating the footballs and/or buying loyalty and silence? The Wells Report implies they are.

Most intriguing is a text from McNally to Jastremski that the "needle" should be hidden in a bag surrounded by "cash and newkicks [sic] … or its rugby sunday," a joke/threat that without payment, the ball would wind up overinflated. It seems unlikely, however, that McNally would have the guts to do that to Brady … and if he did, he would likely be terminated for trying to sabotage the QB by over inflating the footballs. Wells, though, appears to take this mostly at face value.

It's also worth noting that memorabilia and autographs are how locker room attendants, equipment men and other staffers in professional sports make extra money. This is commonplace. It stands to reason Brady has signed and given away tons of stuff to all sorts of people through the years.

Was some of this particularly valuable? Absolutely. The most notable is a picture on Jastremski's phone of a football bearing Brady's autograph and "50,000 yards" written on it.

In a text message to "mom's cell," Jastremski claims the ball was the exact one used when Brady passed that number of career passing yards – "Told him I took it for myself and asked him to sign it for me."

That could be worth a lot, however, there is no authentication of that item. The Patriots claim they have the actual ball and later in interviews with investigators, Jastremski admits it wasn't the actual game ball and he had Brady sign another one. Brady said he would've signed "50,000 yards" on any ball if anyone – friend or stranger – requested it. This may have been a practice ball for all anyone knows.

So was this really proof of a payout or just what Brady does? And if Jastremski is acknowledging he lied in an act of bravado to his own mother in text messages, what value are the other texts?

Again, this seems like easy stuff for a lawyer to blow apart.

Finally, the Wells Report makes repeated note about Brady not turning over his cell phone or other electronic communication, but really, who, let alone an internationally famous individual with an even more internationally famous spouse, would do that voluntarily? We're talking about the inflation levels of a football.

As Brady once noted about the entire scandal: "This isn't ISIS. No one's dying."

While the NFL can sanction Brady for not fully cooperating, this is a weak charge to imply guilt.

In the end, the Wells Report has texts between two low-level Patriots employees, a mountain of circumstantial arguments and some fine work that debunks many of the other theories. Which gets everyone back to square one: the most plausible scenario of all, but still little more than plausibility.

It makes perfect sense to theorize that in an effort to gain an advantage, Patriots equipment men took a little air out of the football to get the ball to Brady's preferred softness. He knew they were doing it and has known for years, if only because these two aren't messing with Tom Brady's footballs just before the kickoff of the AFC championship game.

This time – maybe because the referees' locker room was too crowded and McNally couldn't get at the footballs, requiring that suspicious trip to the bathroom – they just happened to get caught.

"We believe it is unlikely that an equipment assistant and a locker room attendant would deflate game balls without Brady's knowledge and approval," the report states. "Based on our interviews and assessment of McNally and Jastremski, we also do not believe that they would personally and unilaterally engage in such conduct in the absence of Brady's awareness and consent."

Agreed. This is a very poignant argument.

That's about all it is. Even the report acknowledges that.

"The evidence does not allow us to reach conclusions as to when McNally and Jastremski began their efforts to release air from Patriots game balls on game day … exactly how long those efforts have been ongoing, how frequently they occurred, how the idea originated or the full scope of communications related to those efforts.

"We also note that there is less direct evidence linking Brady to tampering activities than either McNally or Jastremski," the report reads.

Those who want to make a sweeping conclusion based on common sense will likely agree with Wells on what happened. Again, this is an extremely plausible conclusion to make.

Brady can certainly argue otherwise, that what looks one way is not in fact proof of anything.

If this thing ever winds up in some kind of court of law, Brady has a real defense, even if that isn't the same as being innocent. For Brady, that may be too late to get anyone outside of New England to believe him.

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