ESPN Is Gutless, Chris Mortenson Has Tiny Deflated Balls and Other Deflategate Trash Talk

Hi there! Been a while, hope this account still works and State Secrets or something has not overcome due process on this here blog.

So, here we are in the waning days of summer. I would have written more about the Formula One Circus but, frankly, it has mostly bored the heck out of me this year. The, still, best driver in F1 is stuck in a crappy underperforming McLaren and has to drive his ass off and hope for attrition to even score a point. That would be Fernando Alonso if you haven’t guessed. While lesser drivers, with far better machinery, you know, those like the two insolent crybabies at Mercedes, have such superior equipment that they wrongfully think they are kings. It is all enough to make an old school fan like me puke. Well, enough about the circus, let’s get to the real meat and potatoes of this blog’s sports coverage, the NFL.

As you may have heard, there is a little kerfuffle called #Deflategate that has been going on since before the last SuperBowl. On one side, we have an arrogant all powerful giant human jackass (no, not Dick Cheney this time) named Roger Goodell, and on the other, we have the epitome of bright and light, the All American Hero, and lover of supermodels, Tom Brady. If you think this is not a fair fight, and Brady is the clear winner, advance and collect your winnings.

Okay, back to Chris Mortensen’s apparently shriveled journalistic balls. Let me be clear, this is just opinion (even if putatively well founded opinion), but what kind of “balls” does a man who is spoon fed lying ass bullshit by “NFL Sources” in the form of a tweet that said:

The NFL found 11 of the Patriots’ 12 game balls for Sunday’s 45-7 AFC Championship Game win over the Indianapolis Colts were under-inflated by two pounds per square inch each, league sources told ESPN’s Chris Mortensen on Tuesday.

Obviously, as the actual testing (not to mention the late great “Wells’ Report) confirmed, that was an outright giant flaming LIE. Call it what it is, it was not a minor discrepancy, it was an outright flaming lie. A lie that led directly to the public outcry that begat what we now know as the multi-million dollar boondoggle bullshit “#Deflategate”.

Peter King (no, not the militant chickenhawk moron from Long Island, the other one from Sports Illustrated) was fed the same blatant inflammatory lie by what appear to be NFL officials, but King had the balls, and intellectual integrity, to apologize.

Did Chris Mortensen or THE WORLDWIDE LEADER, ESPN, have the intellectual and moral integrity to apologize? No, of course the craven bastards did not. In fact, Mortensen silently deleted his original tweet. What a gutless and tiny balled coward. And ESPN has proved itself to be an oppressive behemoth that is willing to put itself, and its allegiance to the NFL, above their journalistic ethics. How pathetic.

That blatantly false report germinated the entire waste of time that is now #Deflategate. Seriously, without Mortensen’s and ESPN’s relentlessly trumped up and featured false report, tagged on by King and SI, there would simply never have been #Deflategate. But it was clearly something the NFL wanted pushed, and they got their want, one way or another. Oh, by the way, is there further evidence that ESPN and Chris Mortensen may be dishonest news sources without a shred of credibility? Yes, yes there is. Mortensen reported that the Kraft family and Patriots had apologized to him. Was that true? No, according to the Krafts on behalf of the Patriots, that was blatantly false.

Here is the thing: #Deflategate is a house of cards built on a pile of dung. If you have an iota of concern for fundamental fairness and due process, you ought be offended – even if this is only a civil labor law mess involving millionaires against billionaires. It all matters, and the labor law principles in play here are beyond critical to all union workers and collective bargaining agreements, not just those of rich athletes. So, yeah, don’t kid yourself, this matters. A lot. If Tom Freaking Brady cannot get fundamental fairness and due process on a collectively bargained agreement, how the hell do you think a UAW, Teamster, teacher, or any other union member will? If you haven’t noticed, labor in this country is under direct attack. Don’t be the guy (or girl!) that aids that attack just because this iteration of the conflict involves Tom Brady and/or rich athletes. This matters, both in general as to all workers under labor agreements, and to your hometown sports teams and players too.

So, there you have Chris Mortensen and his tiny disingenuous balls, but what about some overall facts and law on #Deflategate? Got you kind of covered. And this is especially timely since the last big actual live court day is coming up on Monday, August 31st. So, here we go with some various background resources for you. If you are interested, please read them, you will be better informed. If not, that is cool too, but understand there are very good reasons I take the stances I have on #Deflategate. Off we go!

Soooo….where to start? How about a prediction, you want a prediction?? Sorry, don’t have one. BUT, I will say this, I have read most of the transcripts and filings, and I do not subscribe to the thought that Judge Richard Berman’s clearly antagonistic position to the NFL/Goodell side is all posturing trying to force a settlement. Is there some of that going on? Trust me, almost certainly. By the same token, by my experience, and I have a little, there is simply no way Berman is being as consistently pointed and dubious of one side, the NFL/Goodell, as he has been without being convinced their argument is lame. Yes, judges often play “devil’s advocate”, but what Berman has engaged in strikes me as well beyond that.

So, while I won’t make a prediction, the Brady/NFLPA side must feel pretty positive about how it has gone so far. I am understating that a little.

So, on what grounds do I think Brady and the NFLPA may win on? Two grounds – 1) Notice and 2) Process denial regarding evidence and witnesses by the NFL, to wit, Jeff Pash and related evidence.

First off, the “Notice” argument. A new net friend I have met in this process, but one I greatly respect, Dan Werly, has summarized “Notice” quite well here.

Then there is the “Pash preclusion”. Jeff Pash is the General Counsel to the NFL. He is also its Executive Vice President. Those are not necessarily copascetic if a corporate entity wants to maintain even the reduced semblance of “attorney/client privilege” of having a “corporate counsel”. Seriously, this kind of privilege comes close to vapor when you commingle your attorney with corporate leadership. But that is exactly what the NFL has done here, and much more. And that is peanuts compared to the fact that the NFL made Pash the effective, really de facto, co-independent “investigator” (they even stated it in a press release) along with Ted Wells and then gave Pash editorial control over the so called “Independent Wells Report”. then Goodell refused to make Pash available for testimony, stating that he was irrelevant and privileged.

Ooops, did the arrogant Goodell and the NFL bugger their own ruse beyond belief as to Pash? Yes, and it is crystal clear. Even Judge Berman was incredulous.

pic-5

Then, later…

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Yes, arbitration decisions are given “great deference” by courts, and generally are not disturbed. But they can be when they present genuine issues of fairness and partiality. #Deflategate may be a silly case to most of the lay public, but these are serious and critical issues in labor law, and if the exacerbated issues in the Brady case cannot be addressed by a court, then pretty much no labor arbitration can ever be. For a far more detailed explication of the Pash problem, see this outstanding piece by Ian Gunn.

I invent the wheel only when I need to (and mostly when clients pay me to); I try to not do so when it has already been done by worthy people before me. Dan Werly, Dan Wallach, Michael McCann, Brian Holland, Alan Milstein, Raffi Melkonian and Ian Gunn are folks that did the hard lifting while I was, mostly, away frolicking at the beach in La Jolla when the most critical filings came out. All fantastic people that I came to know because of Roger Goodell’s #Deflategate folly. Hat’s off to them, as well as Stephanie Stradley with some fantastic early scene setting. These are all serious people that you should follow, not just for #Deflategate, but for any sports related law and thought. I think all, including me, feel Brady and the Players Association have the far better hand, in both posture and presentation, than Goodell and the NFL. Really, it is not even close, though there is no telling what Berman will do in the end. By this time next week, we will know.

Welp, I may have focused on #Deflategate more than I intended. Or not. This post was meant as an acerbic discussion point, not a full on explication, which would have consumed thousands of additional words. F1, and sports in general have just been boring lately, as you can tell by how often I have bothered to write about them. But the legal machinations in #Deflategate have been fascinating, at least to me. The All American boy Brady, the Boris Badanov evil Goodell, the flamboyant crusading Player’s Association lawyer Jeffrey Kessler, the Snidely Whiplash Ted Wells to the calm but annoyed judge Richard Berman. The characters are all there.

So, that’s it. Rock on lug nuts. Trash talk like you are Michael Jordan. Do it up. But, if you don’t agree with my #Deflategate thoughts, you can send some Dead Flowers. By the US Mail. And don’t forget the roses…

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
43 replies
  1. emptywheel says:

    A TRASH thread?

     

    It doesn’t matter anyway. Donald Trump has cursed Tom Brady with his love which means Garop is simply going to earn the starting job over the next week or so.

  2. Ed Walker says:

    Good point about the way this case relates to labor law issues generally. Also a good point about the Judge’s hammering on the NFL’s position. I frequently saw judges who wanted a settlement beat the party with the better side harder than the party with the weaker position, but this is way past that kind of imbalance and over into judicial WTF.

    • bmaz says:

      Yep, that is exactly how I see it too. It is beyond needling the stronger party, Berman is just killing the NFL. I have no idea how he will rule, but it is pretty evident what he thinks of the respective parties here.

      • emptywheel says:

        I suspect 2 things.

        He thought the sound settlement position was a smaller penalty (maybe just a fine) for lack of cooperation. And Brady showed he could live with that (though maybe not a suspension), with that potentially overly large admission he could have cooperated more.

        But then NFL didn’t budge on that front. Which is when Berman and NFLPA started ratcheting it up.

        I also think that Berman told Brady and Goodell not to show up for the last hearing suggests this is not just about embarrassing NFL, because if it were then you want superstart Brady in his shiny suit to attract more of the mainstream press.

        Enough people have described how he can rule against the NFL, which I suspect will make it easier for him to do so. That doesn’t help the Pats, as it doesn’t necessarily end this.

        • bmaz says:

          Naw, I think he has been targeting the NFL from the get go as a result of the initial filings, even before the parties came before him personally. Though think you are right that Goodell/NFL did themselves no favors with their intransigent idiotic position of demanding, literally, that Brady admit to perjury in sworn testimony below. That was a chump position, and Berman knew it.

          As to Berman telling Goodell and Brady they didn’t have to show up, I just think he knew he didn’t need to hear from them that day and gave them an out. I don’t read much into that. Though, will say, as I have before, if Brady were my client, I would have had him there just for show so that Berman understood he cares deeply. Most of the time, I do not bring clients unless there is some reason they need to be there. But, every now and then, I do just so the judge sees them and knows there is a live person who cares. Berman knows that about Brady, but I still would have quietly had him attend because I would have thought Goodell would not.

  3. bloopie2 says:

    So putting the best driver in the fastest car makes for exciting viewing? Maybe, if you define excitement as fast driving. (How much faster are they, by the way – a few seconds out of a half hour? Gee, that sure is special.) Others might argue that seeing a highly skilled driver staying competitive in a lesser car would make for better viewing. And “they wrongfully think they are kings”? Well, under the rules, they are kings, if they win – it’s a manufacturer’s championship, after all, not a driver’s championship. You want the latter, go watch a different sport.

    • bmaz says:

      Well, when the (okay, arguably, but by my eye) most skilled and fastest driver is NOT competitive then there is unbalance. Both McLaren drivers, Alonso and Button, are superb pilots and previous world champions, and they still struggle to even score a point. If Alonso was driving a Mercedes, he would kill Lewis Hamilton. So, when you say they are “competitive” currently, then you are not paying attention. Even the Ferraris are not currently “competitive” and they are the closest ones to the Mercedes. Secondly, it is NOT just a “manufacturer’s championship”, thought there is that title too, the biggest crown in F1 is now, has always been, and always will be, the Drivers’ Championship. I’ve been around, and watching, F1 since the mid to late 60’s. Appreciate your viewpoint, but I will watch, and view the sport, as I wish.

      • bloopie2 says:

        Mea culpa; as you suspect, I am not a follower to any great degree. If the worst cars are so bad that they are uncompetitive regardless of who is driving, then that’s not a good situation. Why does that happen” And more to the point, how can one avoid that happening? Maybe it can’t; think of the Browns or Jets, after all. I think I’m basing my position on having seen some IROC competitions in which they all drove (supposedly) identical Camaros or Porsches or whatevers. That setup at least promised (even if it didn’t deliver) driver competition per se. Can-Am, of course, was the best ever. Unlimited horsepower (1000+) and engine configurations, even the Chaparral 2J sucker car (bastards banned it after one season). Anyhow, I’m still looking for an affordable street car that handles like the slot cars of my youth – any suggestions?

        • bmaz says:

          Naw no mea culpa, this is all fertile ground for argument. But, yes, there is that discrepancy in F1. Frankly, there has always been a discrepancy between the big money teams and the smaller ones in the back half of the field. That is one thing, but for a while now it has been one team at the top (first Red Bull and now Mercedes) and then the rest as also rans. That is disappointing. Sure the big factory money teams will always usually be in the front half of the pack, but it is much more interesting when there is somewhat even competition among them.
          .
          As to cars, it all depends on price range and where you live and drive. There are a lot of used Porsche 911’s available pretty reasonably. You wouldn’t want it necessarily as your daily driver, but they really do handle a bit like slot cars, even the older ones.

  4. bloopie2 says:

    So if the NFL is so full of shit and arrogant and overbearing and too powerful, why hasn’t the union done anything about it in the past? One might think they have an obligation to speak up if they want things to change. Instead, they go along year after year after decade, enshrine the Commissioner’s power in the CBA they sign, then suddenly when one case hits the limelight they say “Oh Poor Me I Have Been Had!”

    • bmaz says:

      They have, although they have probably conceded too much in labor rights for larger shares of the money the league generates. So, yes, to an extent, that is biting them in the butt. By the same token, Goodell (and thus the NFL) relentlessly goes WAY outside, and in excess of, the CBA that was negotiated. It is not for nothing that Goodell and the league keeps getting their ass kicked on every case that goes to a court. And that is exactly what has been happening, from Saints Bountygate, to Vilma (offshoot of Bountygate), to Ray Rice, to Adrian Peterson to now.

  5. bloopie2 says:

    The world is full of people who will do whatever the f**k they want even if it means getting cudgeled in court once in a while. Thugs, cops, journalists, lawyers, clients, you name it. Always has been, always will be. Seriously, though, how do you prevent that from poisoning a CBA – specify an outside arbiter for all disputes that go beyond a certain point? Does the NFLPA have enough pull to get that through next time around? Will this case help?

  6. dakine01 says:

    Now bmaz, why you ragging on ESPN for being arrogant, lyin’ f*cks? Why didn’t you hear about how they have apologized to the Patriots about a false story they aired? Spygate seven years after the fact? In a late night Sportscenter of course so they are still burying things…

  7. bloopie2 says:

    Late night TV sucks. All that hair care and body building crap, Jets reruns – fuck it. What we need is stuff like this. 1. Car video system – a bunch of cameras (à la Nest?) built into your car, activate when you’re stopped by a cop, record everything, send it off into the ether for safekeeping. Got to believe MSFT or GOOG could brainstorm that into a commercial product for $10 in a day or two. 2. Ranks of Ferguson protesters (see Rorke’s Drift) showing up in armored Hummers, arrayed in full body armor, carrying weaponry to the extent allowed legally; wonder how the St. Louis County filth would react to that? With an NRA endorsement, they’d be okay, I think. 3. Self-destructing drone. Fly it wherever, have it do whatever you want to whoever you want, then it vaporizes itself to destroy the evidence of your dirty deed. Neat, eh? Certainly not a mission impossible.
    .
    Just pushing the old envelope a bit.

  8. APB says:

    BMAZ, we’ve disagreed before as to HAM’s skills and personality. While I agree that Alonso is a driving talent of the first water I will point out that a key skill of F1 drivers is maneuvering to have the best machinery. HAM was laughed at when he left McLaren for Merc. I note Alonso has not made the most of his teams over the years. HAM may be immature sometimes, although I thought he was justified in complaining about Rosberg creeping up on him during VSC at Spa, but one doesn’t get to be world champ with two different teams by whinging.

    We are in complete agreement re Motenson and Goodell et al.

    All best

    • bmaz says:

      Oh, hey, Alonso can be a first rate jerk too, and that’s long been the case. He is not my favorite driver, but, by my eye, is probably the most skilled currently in the field (and maybe for a while now). If I had to pick the guy I like the most, it would probably be Massa, Button or Ricciardo at present. And, yeah, the VSC at Spa thing was actually legit gripe, though not all that significant as Rosberg was never going to overcome Hamilton that day. What a gorgeous weekend the Belgian was this year, I so badly want to go there one of these years.

  9. JohnT says:

    Watch out! Miguel Sano is gonna give everyone else a run for ROY
    .
    https://www.youtube.com/watch?v=5e843T1Np8c
    .
    12 HRs in 45 games. He would have 13, but he hit the roof in Tampa the other night so it was ruled a ground rule double. The only other rookies with similar numbers are Orlando Cepada and Albert Pujols. Small sample size so far, but he’s comparable to Ginacarlo Stanton
    http://www.beyondtheboxscore.com/2015/8/23/9191183/miguel-sano-twins-giancarlo-stanton-lite

    • bmaz says:

      Cepeda was not a rookie in the current sense. Back then even budding superstars put their time in in the minors. But, yeah.

    • Jim White says:

      .
      Yeah, I was watching that game when Sano hit the roof. Kid really looks like the real deal. He’s huge (like 6’4″ and over 240 IIRC) but was initially signed as a shortstop. He killed the ball during the entire 3 game series.

  10. JohnT says:

    I think I said this last year too, but Cal’s gonna scare a lot of people.
    .
    While last year all they did is stay competitive in close games, this year they’re gonna win some of those. But it all depends on how much the defense can step it up, because the offense is gonna be flying Air Goff again
    .
    http://bleacherreport.com/articles/2530702-jared-goff-this-homegrown-heisman-hopeful-plans-to-make-cal-relevant-again
    .
    They still have a long way to go to catch Oregon and Stanford … but there’s always a chance

  11. JohnT says:

    OT
    .
    Meet The Donald’s future Secretary of Defense

    An assistant professor in the law department of the US Military Academy at West Point has argued that legal scholars critical of the war on terrorism represent a “treasonous” fifth column that should be attacked as enemy combatants.

    In a lengthy academic paper, the professor, William C Bradford, proposes to threaten “Islamic holy sites” as part of a war against undifferentiated Islamic radicalism. That war ought to be prosecuted vigorously, he wrote, “even if it means great destruction, innumerable enemy casualties, and civilian collateral damage”.

    http://www.theguardian.com/us-news/2015/aug/29/west-point-professor-target-legal-critics-war-on-terror

  12. bloopie2 says:

    Boston Globe: “NFL discipline process needs an overhaul to be truly independent”. Gee, who’da thunk it?

    • scribe says:

      Anyone want to try setting the line on what discipline, if any, will be coming out of tonight’s bush-league tackling exhibition by the Redskins on Ravens, and subsequent fights?
      .
      Can King Roger’s Rule of Whimsy survive Steve Smith getting a standing O for fighting on behalf of his teammate?
      .
      Any bets on the Harbaugh-Gruden bout? Will King Roger the Clown save RG3’s career by suspending Gruden? Will Harbaugh’s and Gruden’s brothers show up to staff a Harbaugh-Gruden family tag-team match?
      .
      Inquiring minds want to know.
      .
      Meanwhile, King Roger is luxuriating in hot-and-cold running lobster rolls at his Summer Palace.

  13. emptywheel says:

    So here’s a really dumb article that appears to show the owners are getting worried.

    It pretty much blows over the evidence and Berman’s repeated thumping of the NFL but includes this.

    The NFL clearly is not happy with the negative publicity surrounding the case, especially as the season approaches without a resolution. Even Giants president and co-owner John Mara, who has supported Goodell’s decision to uphold Brady’s suspension, has acknowledged that he is “sick” of the attention on the case.

    Then says Brady should take half the punishment including agreeing he was generally guilty.

    • bmaz says:

      People saying that are idiots. Brady cannot do it, he would be placing himself in a perjury posture because of his sworn testimony to the contrary.

      • emptywheel says:

        Yes.

        I take the story to be a product of Mara beginning to get worried. Yet still believing they can force Brady to give the owners an easy way to back down.

        • bmaz says:

          Gotta say, the Cardinals look rather crappy on SNF. Lotta people here expecting a great year, think they need to dial that back. Not only do they look bad, their schedule is just murder, maybe the toughest in the league. Looking bleak.

  14. pdaly says:

    That NFL-approved false leak “The NFL found 11 of the Patriots’ 12 game balls for Sunday’s 45-7 AFC Championship Game win over the Indianapolis Colts were under-inflated by two pounds per square inch each, league sources told ESPN’s Chris Mortensen on Tuesday.” makes me think of police/FBI ops that hope to flush out the bad actors. GO public with false info hoping to get the [Patriots] to “sing.”
    .
    I recall someone in the NFL security team had FBI background.

    • bmaz says:

      NFL Security has long been filled with former FBI and Secret Service guys. Many teams security too. They are not as stupid as they often look, and this is exactly why I said from day one that the thought NFL and Ravens’ Security offices just didn’t think of and/or couldn’t get the Ray Rice video is freaking idiotic. If you have ever dealt with them, they are ruthlessly efficient when they want to be.

      • pdaly says:

        Yes, so it is not beyond conceivable that the NFL officials, thinking the Patriots were cheating, pulled the text messages of the Patriots game day employees BEFORE the AFC Championship Game, saw the term “deflator” and just “KNEW” that here was proof of cheating?
        .
        How else to explain the lame ‘the Patriots ball that D’Qwell Johnson intercepted was tested by the Colts’ equipment manager who found it under inflated’. Only later was it found to be at pressure predicted by the ideal gas equation, taking into account the drop in temperature from being taken outside of the warmer locker room.
        .
        NESN early on: “Sources told Lynch that after D’Qwell Jackson picked off a Brady pass in the second quarter, he returned to the sideline and told an equipment manager the ball felt underflowed.”
        .
        http://nesn.com/2015/01/reports-dqwell-jacksons-interception-sparked-deflated-ball-controversy/
        .
        Of course, D’Qwell, to his credit, said no such thing and corrected the record on his own.
        .
        You would think these smart ex-FBI/CIA types would have checked the science of decreased ball pressures with their former science colleagues before announcing an investigation.
        .
        Curiouser and curiouser…

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