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"&lt;p&gt;&lt;/p&gt;&lt;p&gt;&lt;em&gt;Get all of Michael McCann\u2019s columns as soon as they\u2019re published. Download the new Sports Illustrated app (iOS or Android) and personalize your experience by following your favorite teams and SI writers.&lt;/em&gt;\r\n\r\n&lt;/p&gt;&lt;p&gt;Tom Brady. Roger Goodell. Robert Blecker.\r\n\r\n&lt;/p&gt;&lt;p&gt;One of those names doesn\u2019t belong\u2014except when it comes to the NFL\u2019s appeal of U.S. District Judge Richard Berman\u2019s ruling for Brady in the ongoing Deflategate saga. Blecker, a law professor at New York Law School and a former New York anti-corruption prosecutor, has authored and filed the only amicus brief in the case. He hopes that Judges Robert Katzmann, Barrington Parker, Jr. and Denny Chin on the U.S. Court of Appeals for the Second Circuit consider it carefully before they render a decision. An amicus&amp;nbsp;brief (from the Latin&amp;nbsp;amicus&amp;nbsp;curiae, meaning literally \u201Cfriend of the court\u201D)&amp;nbsp;is a legal filing written by a non-party person or group that has an established interest in the case. For Blecker, his established interest is integrity of sport, a topic for which he is a leading authority and one that lies at the heart of Deflategate.\r\n\r\n&lt;/p&gt;&lt;p&gt;&lt;/p&gt;&lt;p&gt;\u200BBlecker\u2019s 33-page amicus brief, filed last December within the deadline, sharply criticizes the NFL but also pans the NFLPA. Both sides, Blecker insists, fail to \u201Cexplore the integrity of the arbitration process and its effect on the integrity of the sport.\u201D Blecker is truly the third voice in this historic case. His preferred outcome is one that neither the NFL nor NFLPA seeks: the Second Circuit remanding the case back to Judge Berman for a full-fledged hearing. Only then, Blecker posits, can Brady be vindicated and the public\u2019s confidence in sport be restored.\r\n\r\n&lt;/p&gt;&lt;p&gt;Blecker recently spoke to my students at the University of New Hampshire School of Law about his amicus brief and its core arguments. UNH Law media producer A.J. Kierstead has put together a 22-minute highlight reel of Blecker\u2019s speech, which is available here:\r\n\r\n&lt;/p&gt;&lt;p&gt;&lt;/p&gt;&lt;p&gt;\r\n\r\n&lt;/p&gt;&lt;p&gt;&lt;strong&gt;Blecker\u2019s core arguments&lt;/strong&gt;\r\n\r\n&lt;/p&gt;&lt;p&gt;Blecker\u2019s principal reason for writing the amicus brief stems from his frustration with both the NFL and NFLPA over what he considers a failure to question the honesty of the NFL\u2019s investigation and accompanying conclusions.\r\n\r\n&lt;/p&gt;&lt;p&gt;From that lens, Blecker contends that the no court should affirm Brady\u2019s four-game suspension. \u201CFrom the start,\u201D Blecker writes in his amicus brief, \u201Cthe NFL\u2019s investigation, adjudication, and punishment of Tom Brady for actively participating in a scheme to illegally tamper with ball pressure has been infected with bias, unfairness, evident partiality and occasional fraud.\u201D\r\n\r\n&lt;/p&gt;&lt;p&gt;&lt;/p&gt;&lt;p&gt;\u200BBlecker stresses how many in the scientific community have rejected the theories of Exponent, an engineering firm retained by Ted Wells to reach scientific conclusions about the footballs used in the 2015 AFC Championship Game. Blecker, in particular, highlights the research of Massachusetts Institute of Technology Professor John Leonard, who has demonstrated the PSI measurements taken at halftime were consistent with Ideal Gas Law. Others, like behavioral scientist Ben Taylor of &lt;em&gt;Back Picks&lt;/em&gt;, have authored similarly critical commentaries about the NFL\u2019s approach to data and measurement of air pressure. For Blecker, the science is essential to proving what he maintains is the fundamental truth: Brady was innocent. Keep in mind, Brady not serving a four-game suspension because he is innocent is a more morally authoritative victory for Brady than him not serving a suspension because the NFL erred.\r\n\r\n&lt;/p&gt;&lt;p&gt;With that in mind, Blecker\u2019s brief also takes sharp aim at the NFLPA, of which Brady is of course a member. In Blecker\u2019s view, the NFLPA has been interested less in vindicating Brady and more in limiting the powers of Goodell\u2014two complementary but not identical goals. Blecker contends that although U.S. Supreme Court case law allows it, the NFLPA has repeatedly \u201Cfailed to assert or explore the NFL\u2019s bias, dishonesty, or fraud in the investigation.\u201D Instead, Blecker insists, the NFLPA has dwelled on minor and technical issues, such as whether the collective bargaining agreement authorizes fines for first-time equipment violations. Blecker acknowledges the NFLPA\u2019s primary duty is to pursue the best interests of all NFL players, not just those of Brady, but Blecker nonetheless contends the NFLPA has misguidedly downplayed crucial scientific and investigative facts while amplifying narrow concerns about methodology.\r\n\r\n&lt;/p&gt;&lt;p&gt;&lt;/p&gt;&lt;p&gt;To illustrate, Blecker is deeply troubled that the NFLPA has not explained the significance of Brady being denied the NFL\u2019s investigative interview notes, which Blecker insists would reveal significant bias by the NFL. Blecker is also dispirited by the NFLPA not responding to the NFL in its Oct. 26 court filing, comparing Brady\u2019s alleged misconduct to players implicated in the Black Sox scandal during the 1919 World Series.\r\n\r\n&lt;/p&gt;&lt;p&gt;\u201CHow could the NFLPA,\u201D Blecker muses, \u201Cnot object to such an egregious and slanderous comment?\u201D\r\n\r\n&lt;/p&gt;&lt;p&gt;&lt;strong&gt;Have the judges read Blecker\u2019s amicus brief?&lt;/strong&gt;\r\n\r\n&lt;/p&gt;&lt;p&gt;In assessing the NFL\u2019s appeal, Judges Katzmann, Parker and Chin are limited in the materials from which they can draw. Those materials are restricted to the record of appeal, which includes materials that Goodell considered, transcripts of oral arguments before the judges and legal briefs filed by the parties. The record does not include the many media, legal and scientific commentaries about Deflategate. There is one exception: Blecker\u2019s formally filed brief, which incorporates many of those commentaries, &lt;em&gt;is&lt;/em&gt; part of the record. The judges, however, are not obligated to read amicus briefs or accord them any weight.\r\n\r\n&lt;/p&gt;&lt;p&gt;&lt;/p&gt;&lt;p&gt;\r\n\r\n&lt;/p&gt;&lt;p&gt;Blecker tells SI.com that he has not received official confirmation from the Second Circuit that his brief has been accepted. He is skeptical that it has been read and highly doubts that it had been when the judges&amp;nbsp;presided over oral arguments on March 5. \u201CWhen Judge Chin declared that the evidence of ball tampering was \u2018overwhelming,\u2019\u201D Blecker said. \u201CI knew he hadn\u2019t read my brief. There\u2019s absolutely no way he could have reached that conclusion if he had.\u201D\r\n\r\n&lt;/p&gt;&lt;p&gt;&lt;strong&gt;Dueling letters by Blecker and NFL counsel&lt;/strong&gt;\r\n\r\n&lt;/p&gt;&lt;p&gt;&lt;/p&gt;&lt;p&gt;As I explained in a previous column, Paul Clement, the attorney who argued on behalf of the NFL at the March 5 hearing, made several statements during that hearing that are arguably at odds with the record. The NFL\u2019s briefs similarly assert points that raise questions about whether those points are compatible with known facts.\r\n\r\n&lt;/p&gt;&lt;p&gt;Blecker, who attended the most recent hearing, took particular exception to these alleged misstatements. On March 17 he wrote a letter to Judges Katzmann, Parker and Chin warning them that the NFL aims to \u201Cmislead\u201D them. Blecker is particularly alarmed at the league\u2019s depiction of the word \u201Cdeflator\u201D appearing in text messages. While the league arguably states or implies that there were multiple such messages with this word and that they were sent over a period of time, there was in fact only one text with the word \u201Cdeflator.\u201D Patriots\u2019 locker room assistant Jim McNally sent this lone text in May 2014 to assistant equipment manager John Jastremski. From the viewpoint of Blecker and others, the NFL\u2019s brief on Oct. 26, 2015 clearly\u2014and wrongly\u2014expresses that multiple texts contained the word \u201Cdeflator.\u201D Here is the controversial sentence from that NFL brief:\r\n\r\n&lt;/p&gt;&lt;p&gt;&lt;em&gt;In messages dating back to May 2014 and continuing during the 2014-2015 season, McNally referred to himself as \u201Cthe deflator\u201D and the two discussed deflation using \u201Cneedles.\u201D&lt;/em&gt;\r\n\r\n&lt;/p&gt;&lt;p&gt;Blecker calls this statement \u201Cliterally false, contextually false and pragmatically false\u2014it puts any reader out of working touch with reality and here that reader is the court.\u201D While there were multiple messages about needles, there was only one message with \u201Cdeflator.\u201D \u201CI would venture to say,\u201D Blecker observes, \u201Cthat if you asked 100 people whether that sentence refers to more than one Deflator message, 100 would say yes.\u201D Blecker underscores that the first part of the sentence uses \u201Cmessages\u201D and he draws attention to the word \u201Cand\u201D\u2014rather than \u201Cor\u201D\u2014in the middle of the sentence.\r\n\r\n&lt;/p&gt;&lt;p&gt;\u2022 BANKS: Robert Kraft\u2019s letter wasn\u2019t just a message to Goodell\r\n\r\n&lt;/p&gt;&lt;p&gt;\u201CEvery reasonable person would interpret that sentence as being about more than one Deflator text,\u201D Blecker says. He believes such a misstatement is especially worrisome since it runs the risk of \u201Cfostering an initial impression that the evidence of football deflation was compelling.\u201D He also portrays it as only one of several key misstatements by the NFL in the appeal.\r\n\r\n&lt;/p&gt;&lt;p&gt;&lt;/p&gt;&lt;p&gt;Clement disagrees with Blecker and seems to have taken personal offense. On March 21, Clement went so far as to write a letter to Judges Katzmann, Parker and Chin in which he sharply criticized Blecker. In the letter, Clement writes that \u201CMr. Blecker\u2019s accusations are wholly unfounded as a factual matter and in all events immaterial.\u201D As to the Oct. 25 brief containing the Deflator statement, Clement writes, \u201CThat statement is accurate in all respects: Mr. McNally referred to himself as \u2018the deflator\u2019 in a text message in May 2014, and the two men discussed deflation using \u2018needles\u2019 in other text messages during the 2014-2015 season.\u201D\r\n\r\n&lt;/p&gt;&lt;p&gt;In an interview with SI.com, Blecker stresses that his letter to the court never once referred to Clement by name and he is disappointed that Clement has responded so personally. \u201CI have always said \u2018NFL counsel,\u2019 which by the way includes NFL general counsel Jeffrey Pash, the co-lead investigator, and all of the other NFL attorneys who reviewed briefs before they were filed to the court with misstatements,\u201D Blecker says. \u201CIt would be inaccurate to say \u2018Clement\u2019 when he is only part of the problem.\u201D Further, Blecker wishes to remind NFL attorneys of Rule 3.3 of the Model Rules of Professional Conduct. Rule 3.3 prohibits attorneys from knowingly making false statements of fact or law to a court or failing to correct false statements. It is unclear if NFL attorneys will respond to Blecker\u2019s admonishment.\r\n\r\n&lt;/p&gt;&lt;p&gt;&lt;strong&gt;Could Blecker\u2019s brief and game theory prevent the NFL from winning?&lt;/strong&gt;\r\n\r\n&lt;/p&gt;&lt;p&gt;It remains to be seen if Judges Katzmann, Parker and Chin incorporate the Blecker amicus brief or his letter in their decision. Blecker believes Clement has unintentionally increased the odds of Blecker\u2019s amicus brief playing a role in the decision. \u201CClement\u2019s letter,\u201D Blecker reasons, \u201Cforces the judges to review my letter, which forces them to consider what I wrote in the brief.\u201D\r\n\r\n&lt;/p&gt;&lt;p&gt;&lt;/p&gt;&lt;p&gt;\u200BBlecker maintains the amicus brief could play a pivotal role, and he uses game theory to explain why. \u201CLet\u2019s say that one of the three judges wants to affirm, one wants to reverse and one wants to reverse and remand,\u201D Blecker says. In that scenario, the NFL would seem to have won by a 2\u20131 vote. But not so fast. \u201CThe judge who wishes to affirm might strategically change his vote to support the judge wishing to remand. That way, the case goes back to district court for further proceedings and while Brady isn\u2019t the winner, the NFL isn\u2019t, either. Maybe those of us concerned with the integrity of the sport win.\u201D\r\n\r\n&lt;/p&gt;&lt;p&gt;Or maybe not. If the case were remanded, what might happen? \u201CThe last thing the NFL wants is another hearing on this case,\u201D Blecker says. \u201CI expect the NFL would quickly reach out to Brady and to try to cut a deal where he is only fined for destroying the phone.\u201D While Brady and Patriots fans would be pleased to see him available to start the 2016 season and for Deflategate to be over, Blecker wouldn\u2019t be happy with that outcome. \u201CWe still wouldn\u2019t get the full hearing that is needed and Brady would in the minds of some forever be linked to something he most probably didn\u2019t do.\u201D\r\n\r\n&lt;/p&gt;&lt;p&gt;&lt;em&gt;Michael McCann is a legal analyst and writer for Sports Illustrated. He is also a Massachusetts attorney and the founding director of the Sports and Entertainment Law Institute at the University of New Hampshire School of Law. He also created and teaches the Deflategate undergraduate course at UNH, serves as the distinguished visiting Hall of Fame Professor of Law at Mississippi College School of Law and is on the faculty of the Oregon Law Summer Sports Institute.&lt;/em&gt;\r\n&lt;/p&gt;"^^<http://www.w3.org/2001/XMLSchema#string>
<http://www.si.com/nfl/2016/03/31/deflategate-tom-brady-roger-goodell-robert-blecker-amicus-brief>