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If sportswriter Sally Jenkins has her facts right, the NFL’s handling of the allegations about underinflated AFC Championship game balls seems to have fallen short of even the most rudimentary standards of justice:


The evidence is thoroughly equivocal and the competitive advantage is nowhere to be found, yet the NFL is punishing Tom Brady and the New England Patriots as if they belong in Sing Sing. This case, perhaps more than all the others in the past year, sums up the NFL approach to justice: If you crack down hard enough on the little things, no one will notice the real scoundreling.


DeflateGate would be more of a ‘Gate’ if the league had proven that the balls were in fact deflated. But it hasn’t. That’s what is so peculiar about this entire deal. The Ted Wells report commissioned by the league is perfectly clear on this point: No one is sure which of two gauges were used to check the pressurization of the balls. The gauges gave significantly different readings; one read much higher than the other and showed the balls were legally inflated. The referee in charge of checking the footballs, Walt Anderson, is pretty sure he used this gauge. Yet the NFL disregarded this critical point — and the testimony of their own official. Nevertheless the NFL decided the "preponderance of the evidence" showed Brady and the Patriots manipulated the game balls. That’s how eager they are to find wrongdoing. 


My attention was drawn to the Jenkins article by David Post’s interesting discussion, at the Volokh Conspiracy, of the preponderance of evidence standard, which should have been, but was not, applied in this case. Post says:


The NFL, I have come to believe, exists in large part so that, should we fall into despair over our system of public justice (which I find myself doing from time to time), we are reminded that it could be worse.


Speaking of Public justice:


In last week’s newsletter, I mentioned North Carolina businessman Lyndon McLellan’s fight to recover $107,000 that had been unjustly seized under federal asset forfeiture law. Now I’m happy to report good news in the case. According to the Institute for Justice:


Just two weeks after the Institute for Justice took on the case and brought it to the attention of the nation, the IRS and Department of Justice moved to voluntarily dismiss the case and give Lyndon back 100% of his hard-earned money.


But that doesn’t mean justice has been done.


Even after he recovers his bank account, Lyndon is still out tens of thousands of dollars, thanks to the government’s actions. Lyndon paid a $3,000 retainer to a private attorney before IJ took the case on pro bono, and he also paid approximately $19,000 for an accountant to audit his business and to provide other services to help convince the government he did nothing wrong. The government is refusing to pay those expenses. And the government also is refusing to pay interest on the money.




The government pursued Lyndon’s case despite a change in policy, announced by the IRS in November 2014 and adopted by the DOJ in March 2015, that was intended to shield property owners just like Lyndon.


"The government in this case had to have its arm twisted to follow its commitment to property owners like Lyndon," said IJ Attorney Scott Bullock. "That shows reform of the civil forfeiture laws cannot be entrusted to voluntary policy changes from the government. What is truly needed is binding reform from Congress."


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