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Opinion Sally Jenkins: For want of a phone, an appeal was lost –...

Sally Jenkins: For want of a phone, an appeal was lost – or was it?

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About that exploding cell phone. You know, the one that NFL commissioner Roger Goodell seems to think belonged to Machine Gun Kelly and was used in the kidnapping of the Lindberg baby, as well as the Krupp diamond theft. The one that Ted Wells said he didn’t want or need in order to complete his investigation into DeflateGate. The one the NFL’s own investigator said wasn’t necessary to the case.

That one.

Wells never asked for Tom Brady’s cell phone, and didn’t require it. “Keep the phone,” Wells told Brady and his agent. He insisted that his investigation was thorough without it. “I don’t think it undermines in any way the conclusions of the report,” he said. Those were his exact words. So were these, after interrogating Brady for more than five hours: “Totally cooperative,” Wells said of Brady’s testimony.

Yet somehow Goodell found Brady guilty of lack of cooperation and willful destruction of evidence on appeal, all because he upgraded to an iPhone 6?

There are two separate issues here. One is whether Brady and the Patriots knowingly softened game balls in the AFC Championship – and it seems clear from the league’s own recent rule changes that it doesn’t have enough evidence one way or the other on that, given its sloppy procedures and the fact that it treated ball inflation as not worth monitoring. The second larger matter is that of the league’s basic due process.

Watching this case closely and curiously is John Dowd, the special counsel who conducted Major League Baseball’s investigation into Pete Rose and got him banned from the game. As a neutral observer, Dowd finds the abuse of process in DeflateGate to be the real scandal.

“I still don’t know what this is about. . . . Like Seinfeld, this is about nothing,” Dowd said in an email. He called Goodell’s ruling against Brady based on a sudden issue over Brady’s cell phone “an ambush,” and added, “The entire NFL disciplinary process lacks integrity and fairness.”

Goodell’s rulings are always so much livelier than the man himself. One reason they’re so entertaining is because he always doubles back. It’s like watching a kid do a Spirograph. First he gave Ray Rice a two-game suspension for slugging his wife, when he thought no one was watching. When it turned out the world was watching, he suddenly accused Rice of lying to him and declared an indefinite suspension. A federal judge overturned him, finding Goodell not credible.

You see the same pattern here. Brady’s phone was unimportant – until it was important, because Goodell needed it to be, to rescue his prestige.

Back on Feb. 28, the Wells team sent an email to Brady and his agent Don Yee requesting his cell phone records. Not the phone itself, just the records. Yee responded that he wasn’t willing to turn over Brady’s private cell information, on precedent. While it was reasonable for Wells to collect information from work cell phones issued by the Patriots – Wells already had possession of five phones from Pats employees and examined their communications with Brady – Brady’s private phone was simply not necessary, Yee said. Wells wasn’t thrilled, but he accepted it.

“They knew and had no quarrel with the non-production of the phone,” Dowd points out.

Neither Wells nor Goodell ever notified Brady that not producing his phone would mean discipline for non-cooperation. On Wednesday, the NFL Players Association filed a 54-page lawsuit on Brady’s behalf making that point. The issue Brady and his team thought they were addressing in his Wells interview and appeal was the inflation of game balls. According to Dowd, this compromises the whole matter: Goodell moved the finish line.

“The NFL commissioner has denied Tom Brady the fundamental right to a notice of charge and the right to defend against it,” Dowd says.

There is another pattern here – a very unseemly pattern of unethical behavior by the league office under Goodell’s leadership. First, there is always a leak from the league that commands a big headline and gins up public indignation. Next comes a disciplinary hammer from Goodell that makes him look like a hero-protector. But when the excitement dies down and actual facts emerge, it all turns out to be a souped-up overreach.

It happened with the leak of a false report from the league office that 11 of 12 Patriots balls were underinflated by two full pounds of PSI. It happened with the science of the Wells report that would later be shredded. And it’s happened again over the phone. It’s only when you go back and examine the Wells report, and study Goodell’s written decision more closely, that you discover the phone was never demanded as evidence. You also discover Footnote Number 11.

Goodell’s own buried footnote says that during the appeal before him, Brady and his agents furnished comprehensive cell phone records, including records of 10,000 text messages, and offered to help find and reconstruct all relevant communications.

Goodell rejected the offer as “not practical.” Actually nothing would have been easier. Brady’s phone records showed that he communicated with just 28 league-affiliated people. It was clear from the phone numbers which of them were Patriots employees in a position to manipulate game balls. It should have been a simple matter to discern if Brady destroyed relevant communications with them.

“My question to Wells is: Do you have information that there were communications missing?” Dowd asks. “And didn’t you conclude you had enough?”

Goodell chose to ignore Brady’s offer and put it in a footnote. Why? Because he has been badly embarrassed this year and wanted a big headline case, instead of admitting that the league had once again made mistakes?

There is no doubt that Brady expressed his preference for a softer ball to the Patriots equipment people. All quarterbacks are neurotics on that score, and equipment managers would feel obliged to please. But that is quite different from an orchestrated criminal-level “scheme.” And it’s a salient fact that none of this affected the outcome of a 45-7 game in which virtually all of the scoring came in the second half with new balls. “I still don’t know what this is about,” Dowd says. “Where is the advantage?”

The first instinct on hearing Brady “destroyed” his cell is to blast him for arrogance and stupidity and call him guilty. But then, because it’s Goodell in charge, the questions creep in. Wasn’t it Brady himself who voluntarily disclosed he got rid of his old cell and upgraded? Does it really make sense that Brady would intentionally destroy a phone it was agreed he wasn’t obliged to turn over?

In fact, none of it has ever made sense.

Fort Worth native Sally Jenkins is a sports columnist for The Washington Post. Contact her at sally.jenkins@washpost.com

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