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RUSH: The Tom Brady circumstance. Let me find the place to start here with the audio sound bites. I guess that’s number eight, as I set these aside. Okay, we’ve got four games. A lot of people are focusing on a phrase in the Ted Wells report, and I fear that they are not understanding its meaning legally. The Wells report does not say conclusively that anything happened. In fact, they made a point on page… Oh, I forget the page number, but they admit that they don’t have any specific incontrovertible evidence.

It’s all circumstantial.

So there’s this phrase, “A greater than likelihood or probability than not” that X, Y, or Z happened. People who are not familiar with that phrase are zeroing in on it, and they are applying the same meaning to it that they would if it was the US criminal justice system. Nobody would be convicted in the criminal justice system with that as the basis forming the evidence, but this is not the criminal justice system.

There’s another area I think a lot of people are right about this: The excessive aspects of the penalty: $1 million for the Patriots as a fine, and maybe even the four games to Brady, and the loss two of draft picks. There’s a bunch of facets of this investigation, and I think the fact that Brady did not fully cooperate and McNally, the locker room attendant, the ball boy, did not fully cooperate. The investigators made one final request of him.

The Patriots would not produce him, and I think a lot of this penalty contains anger at that and with the league attempting to send the message that, “Look, if we’re gonna investigate, you help us. If we’re gonna investigate, you participate. Because what we want to do is get to the bottom of these things. If you stonewall us, then we’re gonna tack on penalties for that.” Others think that there are lingering aspects of Spygate.

In other words, there are some who say that the commissioner and the league regret that the penalties in Spygate were not greater. Belichick got a $500,000 fine, draft choice losses or whatever, and some in the sportswriter community are saying the league knows that they didn’t go far enough on Spygate, and so this is making up for that. Now, that’s a stretch, if you ask me, combining two separate and distinct investigations, even though the same theme may be running through both of them (i.e., cheating).

But there’s a lot of rumors. You know, people also curious. “If Sean Payton got a full year as coach of the New Orleans Saints for not knowing about the bounty program in his locker room, well, then how did Belichick escape any penalty here for not knowing about Deflategate?” You want to hear the scuttle about the rumor for that? The scuttlebutt rumor for that is that the reason the NFL destroyed all the videotapes that the Patriots produced after Spygate was because the tapes and Belichick demonstrated to the league:

“Hey, it’s not just us doing this stuff. There’s all kinds of teams in this league doing all kinds of illegal stuff. And if you come after me, I’m gonna blow the whistle on everybody instead of just taking this.” That’s what Belichick is rumored to have said to the league after the Spygate penalties. So the theory is they leave him alone here so that he doesn’t launch. I don’t think that plays because this is enough to make him launch anyway.


RUSH: This is Jim Gray, a well-known sports journalist, on CBS This Morning, and he’s talking with Norah O’Donnell, well-known football expert at CBS This Morning. She said, “Okay, I read through Troy Vincent’s letter to the Patriots. He points out that it’s significant that none of the key witnesses — Mr. Brady, Mr. Jastremski and Mr. McNally — were not fully candid during the investigation. If they didn’t have anything to hide, why do you think they didn’t cooperate with the NFL? I mean, this is the organization that they’re a part of.”

GRAY: There was no jurisdiction here. There was no civil suit. There was no deposition. There was no criminal activity. So does that just mean that any employer, at anytime, because they’re having an investigation, can now demand your cell phone? I mean, Tom and his wife are major superstars. She’s a model, the top model in the world. Do you really want somebody going through your cell phone and sifting through it, no matter what the circumstances are? I don’t think that’s the standard that any American wants for their employer to be able to do.

RUSH: Central question here. It is a central question. Now, the usual constitutional rights to privacy do not present here. There’s nothing here that the government’s involved in doing and that Brady is protected from by virtue of the Fourth Amendment or anything else in the Constitution. There is a collective bargaining agreement between the players and the league, and the rules are spelled out. The rules for the employees are spelled out in the collective bargaining agreement. I don’t know what they are in a circumstance like this.

But I have heard that the players union really leaned on Brady not to turn over his phone no matter what guarantees he was given. Even if it was his lawyer and only his team permitted to vet his cell phone and only find things relevant and keep from everybody else things that were irrelevant. I’m told that the players association really leaned on Brady to fight this and not set the precedent. Other people are saying that the collective bargaining agreement allows the league to get to the bottom — they’re employees.

Okay, wherever you work, let’s turn this around. Your job is at the XYZ Widget company, you’re there right now and your employer is conducting an investigation because something has been going on below board, and it’s cheating, and the league, your boss wants to get to the bottom of it to limit any further damage. He calls you in and says, “I need whatever is pertinent and relevant on your cell phone, any e-mails or texts, to gauge your involvement in this. And you can have your lawyer go through your cell phone for me and find out what’s relevant and only turn that over to me.”

Does your boss in your mind have the right to demand that of you? If you are involved in something at the company that might give it a black eye or might be illegal, according to the rules of the company. There is no government Constitutional liberty or freedom involved here because Brady doesn’t work for the government and the government’s not regulating this in a way. So this is clearly up to the NFL and the CBA, the collective bargaining agreement and so forth.

Now, I don’t think it’s that unreasonable a request from the NFL, and I think the refusal — see, there’s no Fifth Amendment, the NFL doesn’t have subpoena power. All that stuff that Jim Gray’s talking about would be applicable if the government were involved in pursuing Brady, if there were a local prosecutor trying to convict him of something. But this is just a business trying to get to the bottom of something that happened that they think is a direct assault on the integrity of the game and the product, and they want to get to the bottom of it and they want to find out what really happened.

They need the assistance of the employees involved to find out what happened. And if the employee involved will not cooperate with every request for information — well, you got people on both sides of this. You got people supporting Brady and his right to privacy, which there is no constitutional right to privacy period, and there certainly isn’t one here, not in terms of US statutory law. And then you have other people who say this company has every right. They’re paying these people, they’re employees, they have every right to get to the bottom of something that might be doing damage.

What if Brady were fired because of this? Folks, I’ll take you back. Nobody will remember this. Back in the early days of my TV show, an activist woman employed at Microsoft was fired for using her Microsoft computer to plant spam and character defamation stuff about me in the early days of the Internet, back in CompuServ and this kind of stuff. We found out who it was and she was fired. She refused to participate, they found out who she was. It’s not unprecedented here is the point. It’s just that Brady is the highest profile player in this league ever, ever to come under such scrutiny and action.


RUSH: We start Oxford, North Carolina. Hi, Zack. Great to have you, sir. Hello.

CALLER: How you doing, Rush?

RUSH: Very well. Thank you, sir.

CALLER: So I got to thinking. I’m a big New England fan, and I got to thinking. Tom Brady probably knew what was wrong with those footballs. I mean, I can go with that, he probably knew. Well, what if we applied the same logic and passed the same judgment upon Hillary Clinton? She probably knew she was lying when she was talking about some video that had to do with Benghazi. Or Eric Holder, he probably knew what was in those documents that he didn’t want to turn over. I just got to thinking, I mean —

RUSH: Okay, I’m glad you called with this, because a lot of people are focusing on this word “probably” and “greater probability than not.” That is a specific legal term that means “we’re sure.” The whole phrase, “there is a greater probably than not” means we think he did it. It’s not gray. The league does not mean this is gray. I think the league should explain this to people. This is legalese. It is a phrase that has been concocted for specific purposes by the league and its various law firms, and it has a much more specific meaning that what it just appears to mean when you read it.

You can put a number to it, it’s 51%, 55%, certainty, whatever, but it leaves some vagueness. All it means is the preponderance of the evidence is circumstantial, yeah, but we got it. It’s just short. It’s not vague. It’s not gray at all. It’s just short of ontological certitude. Okay, if that helps anybody. The league is damn certain that this all happened, but they don’t have 100% truth or what have you. And that’s because nobody’s admitted it. And the witnesses aren’t talking. It’s not a court of law.

Trump had an interesting tweet last night. I turned on CNN — I’m sorry. Slap me. I turned on ESPN for the first time since the Super Bowl yesterday. I hadn’t had ESPN on since, man. That’s its own topic, and I’m gonna stay away from it. But they were putting up a bunch of tweets from people, and there was a tweet from Trump. I know if you saw it, hear about it, you’re gonna glom on to it, go, “Yep, right on.”

“If Brady has to produce his e-mails, why doesn’t Hillary have to produce hers?” Mrs. Clinton destroyed 32,000 e-mails that were on a server, a private, personal server of hers that she was using against government regulations. She was undoubtedly trying to shield her e-mail from any federal investigators or other people in the State Department who monitor what’s going on for all the obvious reasons. She was shielding it and when it became known that she was doing this, there were official requests, and she destroyed e-mails.


RUSH: More probably/likely than not is simply the language of civil law, folks, as opposed to criminal law where you have “beyond a reasonable doubt.” I remember I read… I forget the page number, and I don’t have this front of me, but there was a summation, short little program. In sum, the report said that they were relying only on assumptions here. I mean, they made it clear they didn’t have any hard, cold evidence.

All they’ve got is a very, very strong circumstantial case.

And people are saying, “How in the world can you suspend the guy, fine him $2 million bucks…? That’s total game checks for four games. How can you do that without knowing for sure?” He’s the employee and they’re the boss, is how you can do it — and we’re not in a court of law here. I don’t think… Getting hung up on that is… Clearly they can do it, folks. Now, there’s gonna be an appeal, too, and the whole thing may be thrown out on the appeal.

It could well be that Brady and his agent did a rope-a-dope here. It could well be that Brady wasn’t forthcoming not because he had some to hide, but because there’s a bombshell they’ve got that will nuke this whole thing that they will reveal in the appeal process. Who knows? Anything is still possible here. People are finding it difficult to believe that the league would even do this to their No. 1 star marquee player. Others are thinking…

Keyshawn Johnson said (summarized), “This is a slap on the wrist compared to what he did. This is nothing.” There’s a lot of players, folks… Make no mistake about something. I haven’t yet… Now, I’m sure there are, so I’m not denying this. Just in what I’ve seen and read, I haven’t seen a single player other than Patriots teammates say this is too much. Most NFL players are saying it’s right on or not enough. Some are saying, “This should have been eight games. This should have been eight, 10 games.

This is obviously throughout this league. If you listen and if you know how to listen between the lines, it is obvious throughout this league there is resentment for this team and dislike for this team based on Spygate, and there are a lot of people… This league is highly competitive. People think of the NFL as a fraternity where you’re all in the same business. “You’re just at different locations, different teams, but there’s a camaraderie here.” Do not fall for that!

There is competition all the way up to owner level. You ought to see some of the owners suites for the visiting team in some of these stadiums. They’re like closets. I mean, it’s vicious out there in this league, and the player competition is the same. There are a lot of people who think the Patriots have cheated their way to all of these Super Bowls and think that they didn’t get pushed enough in Spygate, and so this is justice based on that.

I mean, it’s all over the place out there.

I’ve heard all of this expressed by any number of people.

I’ve read it. None of what I’ve said’s an original thought-of-mine. I don’t think there’s an original thought to be had because everybody has had something to say about it. Here’s more from Jim Gray back on CBS This Morning with noted NFL expert Gayle King who said, “Many people saw the event last Thursday when you talked to Tom Brady for the first time and he was clearly reluctant to get into the report. At one point you said to him, ‘What are you, a slow reader?’ which got a laugh from everybody. How do you think he’ll respond now, Jim, and have you talked to him since this latest ruling has come down?”

GRAY: The Patriots and Tom Brady will now go to war. Uh, they will not let this continue in this fashion. They will appeal this. Uh, they will come out guns a’blazing. I think this is the seventh round of a 12-round fight. Uh, it’s just the beginning. The NFL could have done away with this within 36 to 48 hours. Uh, instead the commissioner went down this path where he hired a special investigator. You know, they’re bringing on their own trouble once again to themselves; it’s gonna cause a tremendous, tremendous fraction amongst ownership and — and Mr. Kraft.

RUSH: Okay. Let’s look at that. “The NFL could have done away with this within 36 to 48 hours.” They could have issued some immediate ruling, a slap on the wrist and everybody move on. Well, they didn’t. Why didn’t they? Why did they spend so much time and have so many investigators to try to get to the bottom of this? Which does not make their league look good! Go back to the original point that I made.

The league allowed a championship game to be played — knowingly — with improperly inflated footballs, which is not insignificant. Why did they do that? If they would have just gotten hold of those footballs and tested them, even though the referee said he couldn’t find them. For the first time in his career they weren’t where they were supposed to be. They eventually found them.

Bring them back on the field. Bring ’em back in and measure them. If they’re below regulation make them legal and play the game and we’re not even here. And they could say what happened. You could take care of this the day of the game and be done with it, but they didn’t. They let this play out. That’s why some are calling this a sting, because it’s been alleged the Patriots have been doing this for more than just this game.

The NFL, as Gray says, could have wiped this out real soon but didn’t. Why? Why are they…? I think it’s incredible, and it’s the obvious answer to the question is that they — somebody in this league is really, really worried about the integrity of the game — or somebody in the league office really, really, really has had it out for the Patriots and was gonna do anything they could to harm them.

By the same token, Jim Gray here says that the league could have gotten rid of this in 36 to 48 hours. So could have Brady! Let’s not leave the Patriots out of that equation. What do you think would happen if Brady would have early on in this thing owned it? If he’d said, “Yeah, you know, I didn’t know any of that. I like footballs the way they feel to me. my hands are such, I like footballs inflated to a certain level. I didn’t know.

“But all this? Yeah, these guys wouldn’t have run around and done that without me. I told them to do it, but I had no idea any of this.” It would have been over with. There wouldn’t have been any deception. There wouldn’t have been any hiding. There wouldn’t have been any smugness. and the NFL could not have meted out this kind of discipline. Instead, Brady didn’t do that. He acted aloof and didn’t address it, and some have said that he even appeared smug in that thing at Salem University last week with Jim Gray.

Which, if people in the league office interpreted it that way, just ratchets ’em up even more. If you’re gonna have one of your employees act with open disrespect for what you’re trying to do — and if what you’re trying to do is shore up the integrity of the game — that’s gonna inspire people on the penalty side to ratchet things up. But there’s any number of things that could have been done to make sure this didn’t happen, including — first and foremost — grab those footballs of uninflated and fix ’em, before kickoff.


No problem.

Nobody would have even known.

It probably would have never even been reported. Nobody would have had the slightest idea that those balls were underinflated — except the Colts, who brought the original allegation. But if the balls could have been fixed pregame, the Colts’ complaint would have been satisfied, and that’s that. None of that happened. So the league wasn’t interested in ending this thing in 36 or 48 hours or whatever it was. There’s something going on.

I’ve always believed that there’s something even now we don’t know what’s going. I don’t know how big or small it is. Bob Costas, noted gun-control expert, is next on the Today show today. Matt Lauer said, “Tom Brady is one of the marquee players in the league. He’s out four games, $1 million fine and two draft picks. And, look, nobody can accuse Roger Goodell of going on soft on a friend in Robert Kraft or going soft on a superstar. Does the punishment fit the crime here,” Rapping Roberto?”

COSTAS: The context in which it happens is important. It’s been a bad couple of years with the NFL, with Bountygate, with the bullying scandal, with domestic violence, with child abuse. And the way the NFL has ruled in each of these cases was sometimes perceived as random and sometimes perceived even as incompetent, and Roger Goodell wanted to make sure that he got this right.

RUSH: Back on NBC, NBC Nightly News the bespectacled Lester Holt said to Costas, “Walk me through what happens here if he serves the full four games.” What do you mean walk me through? Let’s listen to the answer.

COSTAS: If he serves the four games, the Patriots happen to have their bye early in the season, and so the fifth game for them would be week six, and he would return on a Sunday night against the Indianapolis Colts, the very team that blew the whistle on him in that AFC championship game. The very team that started the whole Deflategate thing.

RUSH: Well, that’s true, the Colts did do that, but they did it long before the championship game. I think they complained back in October, sometime in November, some team did. I think it was the Colts. Look, this is kind of what I was talking about in the first hour of the program. Look at this list that Costas cites. It’s been a bad couple of years for the NFL, Bountygate — that’s the Saints thing — the bullying scandal — that’s at the Miami Dolphins — domestic violence. That’s everywhere. Child abuse. That’s Adrian Peterson. And the way the NFL has ruled on each of these cases was sometimes perceived as random.

My point is during all of those I think the sports media ate this stuff up. They loved reporting on all of this ’cause it fits the leftist agenda of how imperfect and flawed people are and how we need a central authority to rein ’em in and control ’em and punish them and so forth. And so the Drive-Bys were highlighting all this stuff, and when Goodell was not properly punishing, when he wasn’t tough enough, oh, did they come down. And all the while it’s the league taking the hit on this stuff. Cannot be helpful. Just cannot.


RUSH: Here’s the noted sports agent, “show me the money,” Leigh Steinberg, the model for the movie Jerry Maguire on CNN earlier today with noted sports legal expert Ashleigh Banfield. She said, “Leigh, do you think ultimately that a lot of this punishment for Tom Brady is for his intransigence for failing to turn over some of his devices and for not helping the investigation?”

STEINBERG: Had Tom Brady simply said back at Super Bowl time: “I like to throw balls which are a little underinflated. I’m a competitor, I push the staff to give me that type of ball. If that broke some rule, I’m very sorry.” This thing would have ended. Appealing would be the worst last thing I would ever suggest to a client. Every single time this issue’s brought up it’s gonna conflate Brady cheated, Brady cheated.

RUSH: Interesting. Steinberg says exactly what you just heard from your host. That if Brady had owned this in an entirely innocent manner way back at the outset, would have been done with it, and it’s true, by the way. I really believe that. It’s another one of these things where the cover-up has done more damage than the original crime. I use the word “crime” loosely here.

But what about this idea that Steinberg, if he were the agent, would not let Brady appeal, just take it and move on? You appeal this thing, and you just keep opening doors for more to be learned, and for more data to be forthcoming. And if you don’t control all of it and some of it’s negative, it could even more negatively impact your reputation than what has happened so far.

Here’s Alan in New Iberia, Louisiana, great to have you, sir, on the EIB Network. Hello.

CALLER: Quite an honor, Rush.

RUSH: Thank you, sir.

CALLER: I just think that the fines and sanctions against the Patriots will pale in comparison to the Bountygate that was handed down to the New Orleans Saints after their Super Bowl run. And, you know, they had a team in place that could have been in that Super Bowl the next year again. You take coaches and players out, it deflated the whole team, it deflated the community. You know, why isn’t Coach Belichick, why aren’t sanctions held against him or any members of the staff that were involved in this —

RUSH: You see, that’s an interesting question, too, because — and again, I hate to be redundant, folks, but I’ve cited this fact before. Alan, thanks for the call. The coach — and, by the way, the bounty gate penalties did destroy that team. They destroyed that team. They ended prematurely a couple careers, Jonathan Vilma and Scott Fujita, and maybe some others. Sean Payton, the coach, was suspended for a whole season, purely because of ignorance. They had this big Bountygate program going on in his locker room, he didn’t know.

So his question here as a Saints fan, well, Belichick said he didn’t know anything about the deflating of the footballs. How come he’s not punished here? Well, he wasn’t personally but the league did hand out a million dollar fine to these guys. But this is what’s given rise. Folks, I’m not associating myself with any of these conspiracy theories, but I’ll give you an example of the answer to this guy’s question. The reason that Belichick didn’t get any punishment was because he’s got something on the league from Spygate.

There’s one thing that happened in Spygate that people still don’t understand. All of the videotapes that the Patriots had were destroyed. Commissioner demands all of the videotapes that the Patriots were using constituted cheating. And after reviewing what was on the tapes and handing out decision, he ordered the evidence destroyed, and nobody has ever understood that. It happened fairly soon after the investigation was completed and the punishment handed out.

Why would you destroy it? Well, the conspiracy theorists filled the vacuum. Conspiracy theory is that Belichick told the league, “Hey, pal, it ain’t just us. There are all kinds of teams and coaches doing this and more, and I’ve got the goods on ’em, and if you ever come back at me again, I’m gonna go public with everything.” Now, it sounds a little bit baseless to me, but it’s the kind of conspiracy theory that small minds will concoct, because it seems to me that this is one of those episodes where Belichick, if he had threatened the league previously, “Hey, you come back at me, and I’m gonna blow the whistle on everybody that I know of cheating.”

Well, here’s an opportunity to do it. They just sat down his team, his star quarterback for the first four games, they have find his team a million bucks, and they’ve taken away two key draft choices. It seems to me that would be enough to trigger Belichick going public with all these facts that he has, that he, according to the conspiracy theory, threatened to reveal if they came after him again. I think that’s kind of out there. But it’s an example of what happens when answers to questions are not known. The void will be filled.


RUSH: Leigh Steinberg may have had a point. There has been a recent development in the Tom Brady case. Ted Wells, the investigator who has had his integrity attacked and impugned, said (paraphrasing), “Hey, you know, he works for the law firm that works for the NFL, of course he’s biased, of course he’s gonna be in favor of the NFL.” He is so ticked off at Brady’s agent, Don Yee, he just concluded a 30-minute conference call with Sports Drive-By reporters, and he just ripped into Don Yee and everybody else criticizing his report based on the fact that it might not be independent, based on it wasn’t fair. In other words, the Brady camp is doing to Ted Wells what the Clintons did to Ken Starr. And in this case, Ken Starr is not sitting there and taking it.

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