Deflategate: What did Tom Brady know?

New England Patriots’ Tom Brady
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Most of the attention on the NFL report on "deflategate," about the New England Patriots' use of under-pressurized footballs in the AFC Championship game against the Indianapolis Colts in January, has been trained on the answer to a question that has a historically familiar ring to it: What did the quarterback know and when did he know it?

The answer the report gives is: "[I]t is more probable than not that Tom Brady (the quarterback for the Patriots) was at least generally aware of the inappropriate activities" of Patriots locker-room attendant Jim McNally and equipment assistant John Jastremski "involving the release of air from Patriots game balls."

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That conclusion is not nearly enough to warrant disciplining Brady for the deflation of the footballs or to taint his legacy as one of the greatest quarterbacks of all time, a four-time Super Bowl winner and three-time Super Bowl MVP.

Tom Brady of the New England Patriotsagainst the Indianapolis Colts at Gillette Stadium on January 18, 2015 in Foxboro, Massachusetts.
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Tom Brady of the New England Patriotsagainst the Indianapolis Colts at Gillette Stadium on January 18, 2015 in Foxboro, Massachusetts.

That concedes the validity of the report's thoroughly investigated and substantiated factual findings. The report was carefully drafted, reading in places like a good true-life mystery. So why are no disciplinary or reputational consequences appropriate for Brady?

It is important to focus on what the accusatory sentence doesn't say. The sentence does not say that Brady knew that McNally deflated the footballs below the minimum pressure of 12.5 pounds per square inch. It says that Brady probably was aware of the inappropriate conduct. That is more than maybe, but far from absolute certainty.

The sentence also does not say that Brady specifically knew about McNally deflating the footballs below the minimum pressure in what the report acknowledges was an unusual setting: a locked single-toilet bathroom after officials had inspected the balls, but before the balls were brought onto the field. The most investigators could say was that Brady was "at least generally aware" of "the inappropriate activities" of McNally and Jastremski. The investigators also imply that Brady expressed his approval of such activities by giving the self-described "deflator," McNally, autographed gear in the locker room around the time Brady was selecting game balls for the January 10, 2015 divisional playoff game against the Baltimore Ravens, eight days before the Colts game.

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Brady's probable general awareness and approval of "inappropriate activities" is not equivalent to Brady's direct participation in the specific scheme that was the subject of the report. There is no finding that Brady broke the rules, ordered that the rules be broken, helped to plan the bizarrely executed deed, or rewarded the rules violation after the fact.

Where is the basis for punishment in all of that? How does that merit an asterisk on this quarterback for this game, this championship, this career?

It must be added that that Brady gained no evident competitive advantage from the use of the deflated balls in the Patriots' 45-7 win over the Colts. In footnote 73 of the report, the investigators note they were not asked to investigate or evaluate the competitive impact of the deflated balls. They nevertheless add that, in the first half, when the balls were under-inflated, Brady completed barely half of his passes (11/21) for one touchdown. In the second half, when the balls were re-inflated, Brady completed over 85 percent of his passes (12/14) for two touchdowns.

In matters ethical, means and intent matter regardless of the consequences of an act. Knute Rockne: "Win or lose, do it fairly." The cheater is subject to censure even if his methods do not have the intended effect. But the report does not support a conclusion that Brady was in on the means or shared the intent to break the rules the day of the AFC Championship game.

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I am no card-carrying member of Patriots nation — quite the opposite. I wanted Seattle to beat New England in the Super Bowl. I am a native New Yorker who is old enough to have happy early childhood memories of Joe Namath's fulfilled promise of a Jets victory in Super Bowl III. And I still like the Jets, though my allegiance is now shared with the San Diego Chargers.

This is a matter of allegiance to the principle of fairness, not allegiance to a particular team or player. This goes beyond one quarterback, one game, even one sport. It is unfair to punish any athlete in any sport for his probable general awareness of a rules violation he did not commit, did not plan, did not reward, and that did not at the end of the day help him win. Let the guilty parties, but only the guilty parties, be punished. Tom Brady is not one of them.

Commentary by Dan Eaton, a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is a professor at the San Diego State University College of Business Administration where he teaches classes in business ethics and employment law. Follow him on Twitter @DanEatonlaw.