To the non-lawyer, the money quotes from the Ted Wells report suggest a mere probability that cheating occurred. But the specific terminology used by Wells actually indicates a belief that the evidence satisfies one of the most common standards used in a court of law.
“More probable than not” equates to a “preponderance of the evidence,” the standard that applies in most civil lawsuits. It means that the evidence makes it more likely than not, in the opinion of the investigator, that “New England Patriots personnel participated in violations of the Playing Rules and were involved in a deliberate effort to circumvent the rules,” and that “Tom Brady . . . was at least generally aware of the inappropriate activities.”
That’s a standard perhaps even higher than the one that applies to players accused of violating the Personal Conduct Policy, where “credible corroborating evidence” (even without cooperation from the alleged victim) can result in a significant suspension. Regardless, it’s enough proof on which the NFL can base punishment of a team.
“Too often, competitive violations have gone unpunished because conclusive proof of the violation was lacking,” Commissioner Roger Goodell wrote to the NFL’s Competition Committee in 2008, after the last game-integrity infraction involving the Patriots. “I believe we should reconsider the standard of proof to be applied in such cases, and make it easier for a competitive violation to be established.”
Although there was nothing easy about the Wells investigation, his decision that a preponderance of the evidence points to a deliberate effort to circumvent the rules gives Goodell the green light to impose discipline.
Still, the use of the term “more probable than not” takes some of the sting out of the finding by allowing non-lawyers to believe that, as Patriots owner Robert Kraft has always said, there was no hard evidence of cheating. When it comes to issues of this nature, hard evidence isn’t needed to justify a stringent punishment.