Deflated Footballs, Illinois Law and “More Probable Than Not”

FootballOn first blush, it may seem preposterous that deflated footballs in New England would have any relevance to the every day work of a Chicago personal injury law firm. Perhaps, the most common thread is that one of the attorneys at Leopold & Associates hails from New England and is a die-hard fan of all things Boston Sports. At the same time, as the media spends countless hours dissecting the conclusions made by an NFL investigation into allegations of cheating by the New England Patriots, many are asking whether there is sufficient evidence to convict the football team in a court of law? And by examining the evidence from a legal perspective, one is likely to conclude that a conviction would be “more probable than not.”

First; some background. On January 18, 2015, the New England Patriots dismantled the Indianapolis Colts in the AFC Championship game by a score of 45-7. The win earned the Patriots a spot in their sixth Super Bowl in the past fifteen years. Shortly after the win, allegations surfaced accusing the Patriots of improperly deflating the footballs used in the game to a lower level of air pressure allowed under NFL rules. Players claimed that a deflated ball is easier to grip, throw and catch and therefore provided the Patriots with a competitive advantage. After a more than four-month investigation lead by prominent attorney Ted Wells, the NFL released a report (the Wells Report) concluding that the footballs were improperly deflated. Perhaps most important, the report accused Patriot’s quarterback (and the subsequent Super Bowl MVP) Tom Brady of knowing of the scheme to deflate the balls. Ever the lawyer, Wells concluded that the allegations against Brady were “more probable than not.” Wells Report, p. 2.

The NFL’s reaction was swift (and some would argue excessive). Brady was suspended for the first four games of the 2015 season and the team was docked two draft picks and fined one million dollars. Controversy ensued. Brady’s agent, Don Yee stated, “the discipline is ridiculous and has no legitimate basis… There is no evidence that Tom directed footballs be set at pressures below the allowable limits.” Former NBA coach and ESPN basketball analyst Jeff Van Gundy lamented, “more probable than not? What kind of garbage language is that to assassinate a guy’s character? Oh my goodness.” From all corners of the sports world Brady defenders argue that “more probable than not” does not prove guilt and that the NFL needs hard evidence before handing down such a harsh punishment. NBC Sports went as far to question whether Patriots owner Robert Kraft would file a civil law suit against the league along those grounds.

Unfortunately for Patriots Nation (and one of our attorneys), if the Wells report was to be taken at face value (and to be fair, legitimate issues have been raised regarding both the report’s conclusions and fairness), attorney Wells has likely protected the league with his “more probable than not” standard. In civil litigation, a party with the burden of proof must prove their case by a “preponderance of the evidence.” This legal standard is relatively easier to prove than the legal standard used in criminal cases where the accusing party must prove their case “beyond a reasonable doubt.” In Illinois (and many other states), if a jury were to consider the conclusions of the Wells Report as evidence, a judge would define a preponderance of the evidence as follows: “you must be persuaded, considering all the evidence in the case, that the proposition on which he has the burden of proof is more probably true than not true.” 1-21.00 Illinois Pattern Jury Instructions – Civil 21.01. Sound familiar?

At the end of the day, one can argue about the severity of the penalty, how many other quarterbacks in the NFL are guilty of the same transgression, or whether this sometimes silly debate even had a noticeable effect on the game. Many can also argue that the NFL and commissioner Roger Goodell have many more serious issues more worthy of their time, attention and considerable financial resources. But if one were to merely complain about the standard of review and conclusions reached in the Wells Report in hopes that no court of law would uphold those conclusions, the complaints would likely fall flat. More probable than not is the Illinois standard in most civil lawsuits.