Tag: Crisis Management

How Not To Talk About Drug Prices

Photo by Chris Potter, courtesy of http://www.stockmonkeys.com/. Used under Creative Commons license.
By Mike Kuczkowski

 

It was, according to Turing Pharmaceuticals CEO Martin Shkreli, “a great business decision that also benefits all of our stakeholders.”

Not so fast, buddy.

Shkreli was referring to his company’s decision to raise the price of Daraprim, a treatment for toxoplasmosis it had recently acquired, from $13.50 to $750 per pill. Some 60 million Americans carry the parasite that causes toxoplasmosis, but most people are unaffected by it. For those with suppressed immune systems, however, like pregnant women or people with AIDS, it can be life threatening.

Turing’s move sparked a rhetorical war on drug prices tailor-made for our social media age. The story, which had been simmering for a couple of weeks in the infectious disease community, was broken by a trade publication Sept. 17. USA Today picked it up on the 18th. The following Sunday, The New York Times wrote about the price increase.

As the media coverage was amplified across social media, people expressed outrage. Shkreli engaged directly in the debate, crossing swords with media and others on Twitter. The 32-year-old tweeted more than 125 messages, many of them brusque and snarky. (He called the editor of one trade publication a “moron;” asked how he slept at night, Shkreli replied “ambien.”)

By Monday, the digerati were salivating at their newfound target: Gawker called Shkreli a “greed villain”; The Daily Beast declared him “Big Pharma’s Biggest A**hole”; a Reddit thread about the story erupted with more than 4,500 comments, including several ill-advised posts from Shkreli; Hillary Clinton tweeted that the price hike was “outrageous.” The S&P biotech index fell 4 percent following Clinton’s tweet.

Describing Turing as “Big Pharma” is misleading. The company was founded in February with three products in its pipeline and one FDA approved product. In August, it acquired Daraprim. Still, the public outrage machine, stoked by Shkreli’s tweets, was in full gear. Shkreli went on Bloomberg TV and CNBC to defend his company’s actions.

Shkreli’s broadcast performance had considerably more depth than his social media outbursts. Despite the occasional uncomfortable smile and body language, Shkreli made a reasonably strong case that the additional revenues Turing would receive from the increased price would benefit patients.

  • Saving people’s lives: We’re talking about a therapy that saves peoples lives, isn’t that worth more than $13.50 per pill?
  • Comparative value: The pricing of the (in some cases) life-saving therapy was in line with other life-saving therapies, such as cancer drugs
  • High costs of doing business: The costs of running a pharmaceutical company, which include manufacturing, distribution and regulatory compliance, are high
  • Investing in new medicines: Half the profits from Turing’s price increase would be used to fund research and development
  • Unmet need: Daraprim is a fairly toxic drug, Shkreli said, meaning there’s an unmet need for new therapies (this claim was disputed by some doctors)
  • Patient assistance: Co-pay relief and patient assistance funds would ensure that patients would not go without their needed medications
  • Patients first: The company would provide additional services for patients ‘beyond the pill’

In many respects, it was a strong performance. But, it did not work. Media were not buying his rationale – the $750 pill was exactly the same as the $13.50 pill – and his earlier combative posture poisoned any chance at redemption.

That same day, in what can only be described as fortuitous timing, Clinton outlined her proposal for prescription drug price reforms, including a copay cap of $250 and moves that would allow the federal Medicare program to directly negotiate prices with pharmaceutical companies. This latter move would unquestionably alter the industry’s economics and business model, according to most experts, and runs a strong risk of reducing investment in innovation (though Clinton says it won’t).

Regardless, Turing was definitely experiencing its 15 minutes of fame. For the next two days, “Martin Shkreli” was more popular in Google searches than “Donald Trump.”

On Sept. 23, Shkreli backed down. He took his Twitter account private and announced Turing would lower the price, though he did not say what the new price would be. Clinton’s response, a one-word tweet: Good.

So exactly what went wrong?

Turing never should have raised prices that much to begin with — the business case wasn’t there. But that’s not what made Shkreli our “villain of the week.”

The issue of drug prices appears on its face to be a rational, logical issue. But it’s not. It’s an emotional issue. Specifically, it’s about the confusion, frustration and anger that patients feel at their increasing out-of-pocket costs (which is different, in most cases, from the underlying price of the drug.) This pent-up anger got a release valve with the Turing story, and Shkreli’s lack of empathy ran into that emotional vector like a buzz saw.

That’s instructive because while Turing’s moment under the microscope may be over — or not, depending on the eventual price announced for Daraprim – this won’t be the last time we hear about drug prices as an issue.


This June, at the American Society of Clinical Oncology meeting in Chicago, I saw two converging forces.

The first was rooms full of doctors, investors and executives excited by the promise of immuno-oncology treatments (Disclosure: one of my clients is a biotech focused on immunotherapy). These drugs are expensive to produce. Unlike Daraprim, they represent real scientific advances. They are often showing promise in small patient populations, and may work best in combination with other therapies.

The second was concern about the price tag of these regimens, as embodied in a keynote speech by Dr. Leonard Saltz, of Memorial Sloan Kettering Cancer Center. “These drugs cost too much,” Saltz said before a room full of oncologists and pharmaceutical industry executives. After the meeting, ASCO and MSKCC unveiled new tools aimed at reining prices in.

Those two forces are going to collide. The industry, particularly small biotechs who are betting their futures on successful regimens with small patient populations, are going to need to price their therapies at a relatively high price point in order to be successful in business. Yet payers and health systems are going to do whatever they can to keep prices down.

What should the industry do? There is a case to be made that the best strategy is to let the rhetoric pass and wait out the calls for reform. And, while the industry’s reputation will continue to suffer with such an approach, it might work.

But there’s also a significant risk that drug prices could become the one thing that Democrats and Republicans can agree on, and not in a way that favors the industry. A major policy move would be predicated on clear public support for such a move, and at the moment the industry is doing little to generate public favor. A recent poll showed that 72 percent of Americans think prescription medicines are unreasonable. Another poll says only 35 percent of Americans have a positive view of the industry. If pharma were a candidate for office, it would be out of the race already.

Here’s an alternative approach that could have worked for Shkreli, and can work for others:

Engage stakeholders: Shkreli and his leadership team should have talked to specialists in infectious disease, patient groups and payers – those “stakeholders” he could have been referring to in his quote at the top of this piece – about why the company needed to restructure pricing on the drug. See what tolerance stakeholders would have for a higher priced drug with the benefits of copay relief, patient assistance and additional research and development around toxoplasmosis.

Listen (and act accordingly): I’m fairly certain that if Turing had laid out its plans to stakeholders, it would have heard clearly that the $750 per pill price tag would spark outrage. That should have prompted a whole set of questions about the strategy itself that would drive better actions: Are we right that there’s a need for a less toxic treatment? Can we shoot for a more modest price increase? Can we show that patients need the services we are adding? What else can we do to support the infectious disease community and be a real partner? (I don’t see how you could ask those questions and not make a different move on pricing than Turing did.)

Be transparent: Don’t wait for the story to break against you. Put out information about pricing and the rationale behind it at the earliest possible stage. The several weeks delay between Daraprim’s price hike and Shkreli’s broadcast interviews explaining it cost Turing significant points in the court of public opinion. If they’d had a sound business case for the pricing, they should have put it out publicly.

Gilead Sciences issued the infographic below as a tweet explaining the pricing of Harvoni, a hepatitis C regimen that combines its existing drug Sovaldi with another compound. Harvoni, which costs more than $90,000 for a course of treatment, cures 94 percent of Hep C cases, saving the costs of liver failure and liver transplants, which can cost $600,000 per patient. It also compares favorably with other combination therapies. Still, Gilead taken heat for the price of the drug. They deserve credit for engaging in the conversation about pricing. (Note: this tweet led to a Motley Fool article titled “How Gilead Sciences Inc. Isn’t Gouging Hepatitis C Patients in 1 Simple Infographic.”)

harvoni2

Reference credible third parties: It’s hard for a pharma CEO to say, “doctors need this” and then be confronted by a journalist who says she just got off the phone with a doctor who says they don’t. No pharma executive trumps a doctor on matters of patient care. If an infectious disease specialist agreed with Shkreli, then it becomes an entirely different conversation. Specialists have a halo of credibility that commands respect and changes the conversation. Even credentialed experts within a company, such as lab scientists or chief medical officers, can serve in that kind of role, though external third parties who have no financial interest in the company are the best.

Act with empathy and compassion: I could rewrite this as “stay off Twitter,” but that’s too glib. Pharmaceutical company leaders need to demonstrate a fundamental understanding of what patients face when they have a serious health condition. That’s the starting point. Don’t start with “profits are essential.” Start with, “We’re working to give patients and physicians what they need.” And when you say that, have the research, insights and actions to back up that claim.

The world can look at what Martin Shkreli did as a cautionary tale and decide that there is no upside to talking about drug industry pricing. I say, look at what he did wrong and learn from it.

How Not to Handle a Crisis: A DeflateGate Update

Tom Brady, who is implicated in an NFL investigation into whether his team intentionally deflated footballs used in the AFC Championship Game in January. Photo by Keith Allison. Used under Creative Commons license.

By Mike Kuczkowski

In Week 7 of what was a tough 2014 NFL season, Patriots Quarterback Tom Brady was ticked off.

It was halftime, October 16. Patriots v. Jets. At home. New England was up 17-12, in a surprisingly feisty matchup. At the time, the Patriots were 4-2, having endured two tough losses in the first four games of the season. Brady had two touchdown passes in the game already, but he was annoyed at the condition of the footballs he was throwing.

He turned to John Jastremski, Patriots equipment assistant, and told him the footballs “f***g suck.”

Whether that was a flippant comment or the start of a conspiratorial effort to ensure that Patriots footballs were pressurized to below regulations, we still don’t know. We do know that four weeks later, against the Indianapolis Colts, the Colts intercepted a football from Brady that felt “squishy” in their estimation. They tucked that little insight into their proverbial back pocket, waiting to call the Patriots out on it if it ever became useful. (I’ve said it before, and I’ll say it again: this is the NFL’s Pine Tar incident.)

Fast forward to the AFC Championship Game, January 18. Patriots v. Colts again. Second Quarter, Patriots ahead 14-0. Colts linebacker D’Qwell Jackson intercepts a deep pass up the middle intended for Patriots tight end Rob Gronkowski. Jackson hands the ball over to Colts team officials, who test the ball and find it’s underinflated. They flag it to the NFL, alleging foul play.

And so, Deflategate is born.

This week, the scandal trudges on, with the release of a 243-page report from the law firm the NFL retained to investigate the Colts’ allegations. The DeflateGate crisis erupted the next day, dominated the airwaves in the two weeks before Super Bowl XLIX, and now, it’s back.

It turns out, not surprisingly, there are employees of football teams who spend a lot of time preparing footballs. Breaking in the leather, reducing or increasing the tackiness of the ball. Air pressure, at least for some, is actually a pretty big issue. Clubhouse attendants joke a lot about the fussy demands of quarterbacks. Signed game day jerseys and footballs are given out in gratitude to the men behind the scenes. It’s a big deal.

And, it’s not without drama. Among other disclosures, we can now read the text message exchanges between Jim McNally, Patriots locker room attendant, and Jastremski – the two men responsible for delivering game day footballs that Quarterback Brady would find acceptable – that are as ribald as any of the jokes about Brady’s “balls” published in the midst of the scandal.

In one exchange, October 17 – the day after the Jets game – McNally tells Jastremski that he plans to overinflate footballs, just to get back at Brady for complaining.

“Tom sucks…im going (to) make that next ball a f**in balloon.”

Whether these texts represent a “smoking gun” of conspiracy, or innocent banter between two colleagues is up for debate. (Check Twitter, the debate is happening.) But, it further cements DeflateGate as one of the more ineptly handled crises of recent years.

I opined on Deflategate back in January, and said there were a number of clear missteps by the Patriots and the NFL in their handling of the crisis. In summary, I said the Patriots (and to some degree the NFL):

  • Bungled their disclosure of facts
  • Fumbled the roll-out of information about the incident
  • Offered up extremely amateurish spokespersons
  • Failed to manage the calendar and resolve issues in a timely manner
  • Failed to provide context for the importance of the issue at hand

Let’s add “waiting until early May to release a definitive account of what actually happened” to the list. And, that goes onto the NFL’s ledger. Conveniently after the NFL Draft. They appear to have managed the calendar a bit, shall we say, too deftly.

That said, the report itself is revealing in its facts. Startling in its candor. Along the way, it raises a host of issues that spell trouble for the reigning Super Bowl Champions. Specifically:

  • Jastremski and Brady talked a lot about the condition of game day footballs, and Brady took a personal interest in virtually every aspect of how those footballs were prepared
  • Jastremski and McNally joked a lot about that process
  • McNally, who was responsible for taking the game balls that the referees had approved onto the field, left the officials’ locker room with the footballs without permission, which is a breach of standard operating procedure (Walt Anderson, the head of the officiating crew, said it was the first time in his 19 years as an NFL official that he could not locate the game balls at the start of a game.)
  • Game officials did not accompany McNally and the balls to the field, as is standard practice
  • McNally stopped along the way and took the balls into a bathroom and locked the door for 1 minute and 40 seconds

If any deflating was done, that’s when it happened. (Incidentally, McNally’s nickname, according to the report, was “The Deflator.”)

So the whole DeflateGate controversy probably was not much ado about nothing after all.

Perhaps most significantly, it makes clear that at least at some points in his career, Tom Brady has been very concerned about the issue of the amount of air pressure of his game day footballs.

And as early as 2006, according to reports, Brady was one of several quarterbacks who lobbied for a rules change that would allow visiting teams to have more autonomy in the preparation of game day footballs. In the report, as noted above, he definitely gives staff clear instructions on the condition and the pressure he wants in game day footballs.

The report also explains something I criticized back in January – and suggests a different explanation for the dynamic I observed than I expected.

In head coach Bill Belichick’s Jan. 22 press conference, he said he was “shocked” about news reports of deflated footballs and had no knowledge about the process of preparing game day footballs. He was monotone and came across curmudgeonly, as he often does. Belichick ended it by saying the media should ask Brady about the issue: “Tom’s personal preferences on his footballs are something he can talk about in much better detail and information than I could possibly provide.”

Belichick’s claims of ignorance ran against his reputation as an incredibly detail-oriented control freak. And, his “shocked” quote drew comparisons to Captain Renault’s declaration of innocence about the gambling at Rick’s Café Americain in Casablanca.

A few hours later, Brady projected innocence and even bewilderment at the issue. In response to the question “Is Tom Brady a cheater?” Brady replied, “I don’t believe so.” Asked if he knew whether anyone on the Patriots had done anything wrong, he said “I have no knowledge of any wrongdoing.” In addressing how he liked footballs prepared for game day, he said he liked them inflated to 12.5 psi, which is the lowest level permitted by the rules, but that his process in general focused on picking gameday footballs based on their grip, not their inflation level. “It’s not like I ever squeeze the football, I just grip the football.” To many observers, Brady saved the day.

So, yay for Brady and boo (again) for Belichick. Except, the NFL report concludes in fact Belichick did not know anything about the issue. He was being honest and, I think, fairly transparent. Now it looks like Brady is at least stretching the truth, according the facts outlined in the report.

What’s next? Sadly, this report – 14 weeks in the making – doesn’t bring us what we need: Closure.

The report is detailed on the facts, yet equivocal in its conclusions: “(I)t is more probable than not that New England Patriots personnel participated in violations of the Playing Rules and were involved in a deliberate effort to circumvent the rules.”

Now what?

That shouldn’t even be a question. There is no reason this report should have been released without at the same time issuing suspensions or fines. It should be a one-day story. Rip off the Bandaid. Deal with the consequences. Move on.

Instead, it’s as though the report is a trial balloon, intended to gauge the public’s reaction to the facts before the league makes its move.

This shows the biggest problem the NFL has, the lack of a disciplinary structure for issues of this nature. Commissioner Roger Goodell lacks trust, and candidly as the head of the organization he shouldn’t be the one doling out discipline. Someone else, someone credible, even-tempered and with a deep reverence for the integrity of the game needs to have the role of fining and suspending players and teams that violate the rules.

Goodell will eventually address DeflateGate. He may suspend Brady for a game or two, banned the clubhouse employees from the league or fine the team. For now, all we can do is speculate.

Which means more debate on an issue that should already be in the rear-view mirror. Meanwhile, the list of ways in which DeflateGate is a case study in how not to handle a crisis grows longer.

The Reputational Costs of Litigation: Lessons from Pao v. Kleiner Perkins

By Mike Kuczkowski

Silicon Valley is abuzz with Ellen Pao’s gender bias case against venture capital firm Kleiner, Perkins, Caufield & Byers.

A former junior partner at KPCB, Pao, 45, alleged that male partners discriminated against female junior partners. Pao, who worked at KPCB for seven and a half years, said she was sexually harassed by a former partner. She claimed the firm retaliated against her by firing her after she filed her lawsuit.

Pao lost on all counts.

Pao’s lawsuit is a case study in the importance of communications to parties in a litigation. Delivering great communications support in the courtroom requires focusing on reputation as an outcome. Depending on what’s at stake, that can be as important as the verdict.

You can see that Pao tried to claim a reputational victory. In a post-verdict news conference, Pao said “If I’ve helped to level the playing field for women and minorities in venture capital, then the battle was worth it.”

That’s a big “if.” Many commentators agree Pao opened an important debate about the treatment of women in the corporate world. But in the course of her lawsuit, she shined a spotlight on bad behavior on both sides. And she ultimately failed to persuade a jury she had been wronged.

Here are some of the more salacious claims that emerged during testimony:

Claims that Impact Reputation

Ellen Pao Various individual partners at KPCB
–       Kept a “chart of resentments” against her Kleiner colleagues –       Consciously excluded women from a private dinner with Al Gore, saying that they would “kill the buzz.”
–       Had an affair with a married partner – who claimed his wife had left him, which later turned out not to be true – for six months –       Openly discussed their favorite porn stars on a private plane, when Pao was present (that’s according to Pao; another witness disputed this claim)
–       Sent negative emails about colleagues to partners behind the colleagues’ back –       Excluded women from a business ski trip
–       Was paid $200,000 in severance over a period of six months after being fired. –       Gave Pao “The Book of Longing,” a Leonard Cohen book of erotic poetry featuring nude drawings, as a Christmas gift
–       Is married to disgraced ex-hedge fund manager Alphonse “Buddy” Fletcher, who himself has a history of discrimination legal claims. (His personal debt has been offered as a motive for Pao’s legal action.) –       The same male partner who’d had an affair with Pao showed up at the room of another female Kleiner partner wearing only a bathrobe and slippers (He was later fired for this and other harassment.)

These gossipy details will stick with both Pao and her former employer for some time, and may have far-reaching implications. Both parties have the challenge of proving that they are not the versions of themselves on display in the worst days of court.

The Role of Communications

This is why communications should play a vital role in litigation.

In a litigation as high profile as this one, media relations is front and center. A lawsuit is conflict in a capsule, a natural draw to journalists and editors. I’ve been through this dozens of times, both as a journalist and as a PR professional. The legal filings and courtroom activity provide an easy narrative for reporters to follow, as two parties seek resolution of their claims. Day in, day out, reporters will look for a news hook in legal filings, courtroom strategy, testimony and jury deliberations, even if the actual proceedings are as dull as watching paint dry.

Many lawyers use media relations as a tactic to advance their own reputations during lawsuits. I’ve been in a situation where, after a good day in court, lead counsel of a high-profile lawsuit called me to urge the Wall Street Journal to run a prominent piece about the proceedings. I had to explain to him, an accomplished jurist, that that is not how media relations works.

Keys to Good Coverage

If you want good media coverage, you need to look beyond ‘winning’ each day in the media. First, you have to take the time to help reporters understand the process. Meet with them and a member of the legal team in advance of the proceedings. That way, you can brief them on the fundamental claims, the legal issues at stake, the key players and the calendar of events.

Then you need to align with the legal team on the day-in, day-out rhythms of court activity. What’s happening each week, and what do we expect from the other side. All of these details are worked out in advance, but often they are not shared with the communications team. If you can signal to reporters what to expect, you can become a trusted resource to the press, and that in turn will drive the media coverage. Reporters must file a story. That’s what they’re paid for, and in the era of the never-ending news cycle, they are often filing 140-character stories throughout the day. And like many people in many jobs, they appreciate knowing in advance when nothing interesting is going to happen.

In litigation like Pao’s, the attorneys for both sides are seeking to give their client the best representation possible, and to win their case. This invariably involves multiple fine-point decisions about legal strategy and obscure legal arguments. Some of this can get very arcane very quickly. And at times, what is efficient in the courtroom is not effective in the media.

An Approach for Litigation Communications

Once the lawsuit is in front of a jury, the role of the communications team is distinct from the legal team, but valuable. They should:

  • Own the narrative: Distill the essential legal maneuvers and arguments into comprehensible messages and narrative points.
  • Be compelling: Why does this matter? If millions of dollars are at stake, as is often the case in complex civil litigation, there’s most likely a compelling issue of fairness or ownership in play.
  • Make it relatable: Translating the legal issues into something we can all relate to is critical. Ultimately, many disputes ultimately come down to matters of fairness, ownership or righting a wrong. Who can’t identify with that?
  • Align the narrative with the legal strategy: Words matter. You can’t say things to the media that are at odds with what the legal team will say. Mine the legal team’s approach for a narrative and key messages.
  • Be resilient: There are three sides to every lawsuit: One side, the other side and the truth. Consider what the other side is going to say and how they will characterize or rebut your claims.
  • Be a resource: Lots of things that happen in court are complicated. If you can be the person who can explain it to the media, then you can be a valuable resource. And that means, you can get the ear of the media when it matters.
  • Strive for clarity: Lawyers are usually precise about the words they use. However, legal jargon can sometimes displace clear, simple language. Get a copy of Black’s Law Dictionary. Dig in and understand what the legal issues mean, and find the simplest ways to convey them.
  • Use the facts: Lawsuits ultimately involve a set of facts assembled to support an argument. That’s a framework with which communicators should be very familiar.

Reputation v. Litigation: Focus on Outcomes

Legal disputes have an ending, but reputations are enduring. In the end, both matter.

In the wake of the verdict, Pao is casting herself as a crusader for women’s issues. It will be interesting to see if her long-term career moves and activism keep her at the center of that cause, or whether that narrative was merely expedient to justify her actions. Anyone who will bring her on board as an employee (she is currently the interim CEO of the social media site Reddit) will now be aware of her tendencies.

For their part, Kleiner faces serious questions about its culture. Several observers have speculated that the firm may need to restructure. That’s no victory. It’s hard to imagine the lawsuit will improve their recruitment efforts among junior female applicants. Female business leaders may turn elsewhere for finance support.

Now, it’s up to us to decide whether what the firm said in a post-verdict email to reporters is true: “Today’s verdict reaffirms that Ellen Pao’s claims have no legal merit. We are grateful to the jury for its careful examination of the facts. There is no question gender diversity in the workplace is an important issue. KPCB remains committed to supporting women in venture capital and technology both inside our firm and within our industry.”

The lawsuit is over, but both sides lost the battle of reputations. Now the process of rebuilding begins.

Deflategate Lessons for Crisis Managers

By Mike Kuczkowski

The two weeks between the AFC/NFC Championship games and the Super Bowl is usually devoted to celebrating the success of the two teams who have made it to the Big Game, examining their strengths and weaknesses, pulling together Super Bowl party menus and generating some excitement about one of the few remaining mass cultural events in America.

We’ve spent the past two weeks talking about, ahem, New England’s balls.

Unless you’ve been hiding under a rock, you know the core allegation: The New England Patriots used footballs that were not inflated to league specifications during their AFC Championship game against the Indianapolis Colts on January 18.

According to reports, 11 of 12 of the balls were below the lower limit of the range of approved PSI (12.5 PSI). Referees apparently checked the footballs 2.5 hours before game time, and they met the regulatory standard. At half time of the game, they did not. Why? We don’t know. But the idea, at least the assumption, is that the New England Patriots gained some tactical advantage in their 45-7 drubbing of the Colts by using underinflated footballs.

Is this a big deal? No. And yes. It is true that the discussion itself sounds trivial – and in many respects it is. But the NFL, as we’ve noted previously, is a serious business. It’s a major part of American culture. With an anticipated 113 million viewers Sunday, it is one of the few mass events in an increasingly fragmented culture. Lots of advertising and sponsorship dollars are counting on a good, scandal-free game.

Deflategate has created a circus-like atmosphere. New England Head Coach Bill Belichick, Quarterback Tom Brady and Owner Robert Kraft have each had at least one press conference to discuss the issue, essentially denying any wrongdoing. NFL Commissioner Roger Goodell has pledged to get to the bottom of the matter, though so far the NFL’s investigation has not come to any conclusions.

For communications and crisis management experts, the whole affair has been a vividly unfolding case study of what not to do and what goes wrong when an organization takes a ‘seat-of-the-pants’ approach to crisis management. In short, it’s been a disaster. The Patriots have done poorly, as has the league itself, and the consequence is a little gray cloud hanging over Sunday’s proceedings — and a sharply divided nation over whether the Patriots cheated.

It did not have to be this way. This so-called scandal should have lasted one news cycle, maybe two, if it had been managed correctly.

Here are six key issues that have allowed this incident to become ongoing national news, most of which could have been easily mitigated or resolved.

Excuses, excuses: Somehow, two weeks into this scandal, no one has been able to definitively say what happened. In his first press conference, Belichick said he did know anything about how footballs are prepared or approved for use prior to a game. And then he kept saying “I’ve told you everything I know,” to each question. Which is defensive by definition. Brady said he didn’t know what happened. The NFL seems to be leaking out details of its investigation, but overall it has not said what happened. We’re all left to wonder about the core facts, which is not a place we should be two weeks into this discussion. Of course, it’s entirely possible that the Patriots don’t know what happened, as they have said. But, then the league ought to be able to certify that footballs can, in fact, lose pressure due to other factors, such as atmospheric conditions. Takeaway: Someone, anyone, should have offered a set of definitive facts as quickly as possible, making it clear what is known and what is not.

The Roll-Out: Last Thursday morning, Belichick had a press conference in which he essentially denied all wrong-doing, and then said everyone should ask the quarterback. The six-hour pregnant pause in all of New England between the end of Belichick’s press conference and the start of Brady’s created some anticipation that Brady would take responsibility for the deflated footballs. But, then he didn’t. Brady came off as genuinely surprised and boyishly innocent about the whole thing. Still, separating those two press conferences and continuing to address it on Saturday and this week has fed the media beast on the issue far beyond what was necessary. The league issued a press release on a Friday afternoon that said nothing, other than that it was investigating the issue. Kraft was silent until Monday, leading to speculation about his views. Takeaway: The Patriots should have held one press conference, together, outlining the facts, presenting a unified image. Goodell should have addressed it sooner.

Spokespersonship: I’ve talked about this before, but there is an art to being an effective spokesperson. Either Belichick refuses to prepare properly or is uncoachable in this area. He is truculent with the media. He comes across as though he is hiding things when he is not. His eyes shift, his jaw sets, he leans back and he seems physically defensive. There is nothing reassuring about his tone or body language. Brady looked fairly open and, in my view, innocent. Goodell, like he was almost scared in his press conference. Takeaway: Each could use coaching on delivering clear, concise and direct answers to questions.

The Calendar: If there is one truth in life and in crisis, it is that the calendar does not lie. Good crisis managers know that the calendar is the backbone of almost everything they will do. Yet, we’re going to watch a major sporting event Sunday, without a resolution of this tempest. That’s bad for everyone. If the Patriots win, New England will rejoice and the rest of the nation will call them cheaters. If the Seahawks win, the nation will say that it proves the Patriots cheated to get there and when the world was watching, they could not cheat and were defeated. Both of those interpretations are wildly unfair. One cannot gather all the facts on everything in a limited time span, but it does seem like this should be the sort of thing that could be done completely and quickly. Takeaway: As soon as this was seen to be a significant issue, the organizations involved – both the Patriots and the NFL, needed to start managing the clock and looking to address questions and put the issue behind them.

Reputation and trust: The Patriots have been accused of, and in one instance found guilty of cheating. In 2007’s “SpyGate” scandal, the team was accused of videotaping the New York Jets defensive coaches during a 2007 game, . Even the completely legal, “trick” offensive formations the Patriots used against the Baltimore Ravens in their second-round playoff game, were a proof point that New England will look to bend the rules. In that context, Belichick’s repeated denials strained belief. The NFL has shown that it can barely manage a crisis, performing poorly on the Ray Rice and Adrian Peterson off-the-field domestic violence issues. And, it came up short by not dealing effectively with this one. Takeaway: Reputation matters, and needs to frame the context of the messaging around crises, and the approach to the response.

Lack of context: The one question no one appears to have addressed is, does this thing really matter? What is the punishment for using underinflated footballs during regulation play? I presume that there is no punishment, since the referees did not impose a penalty on the Patriots after the issue was discovered at halftime of the game. I’ve seen multiple demonstrations of how deflated footballs either do or don’t aid a passer or a running back. So if there is no punishment, is there a crime? Multiple quarterbacks have stated that it really doesn’t make a difference. Based on that, I’m inclined to think this is much ado about nothing, but by failing to set that context, the league has allowed the situation to get completely out of hand. Takeaway: Someone needs to address the stakes and help the general public understand what matters in an incident like this. Often best if it is a credible third party. Both organizations didn’t do that, and so we’re all left wondering what to think.

So what does this all mean? This reminds me of the famous “Pine Tar” incident in Major League Baseball. In 1983, when the New York Yankees and the Kansas City Royals were playing a not-terribly significant game, George Brett came up in a 4-3 game in the bottom of the 9th inning and hit a home run. Yankees General Manager Billy Martin protested to the umpires that Brett’s bat had an excess of pine tar that was against the regulations. On the spot, umpires inspected the bat, declared the home run nullified and called Brett out, ending the game.

It was an incredibly controversial call. Brett rushed out of the visiting dugout, looking like he was going to kill the umpire. He had to be restrained and started screaming. Soon it emerged that Martin had noticed the pine tar earlier in the season, and had waited for the right moment to raise the issue.

I’d forgotten the outcome of the incident – my most vivid recollection was the image of Brett screaming at the umpires. It turns out that the Royals appealed the umpires’ decision. The League granted their appeal and reinstated Brett’s home run. They ordered that the game be replayed from the point of Brett’s home run, later in the season.. The Yankees did not score, and the Royals won the game 5-4.

It was the right call, no question about it.

Applying this to Deflategate, the parallels are clear, and the differences are instructive. In the pine tar incident, referees made an overreaching decision on the field, and the league stepped back, evaluated the thing that mattered most – did the pine tar meaningfully impact Brett’s ability to hit the home run – and came to a clear, fair decision.

In Deflategate, it’s clear that the whole issue was not important enough to prompt the referees to take any action on the field. And yet, we now have a league that is investigating the issue and potentially meting out punishment based on what that investigation finds.

My sense is that the regulation about football inflation levels is merely meant to standardize the game, not to deny cheaters a competitive advantage. I think it’s also likely that there are conditions in which a football can lose pressure without a vast conspiracy to carry it out.

Regardless, the past two weeks have given us a lot to think about from a crisis management perspective. Deflategate has shown us how quickly a minor issue can emerge from nowhere and dominate an industry’s discussion. It’s shown us how long a crisis can persist when key questions remain unanswered. It’s shown us how poor performances by leaders can raise doubts and fuel negative speculation based on reputational issues.

More than anything, it has shown how needed a decisive arbiter is in situations that involve allegations of cheating.It would be great to hope we could have league come forth with a clear and decisive proclamation about Deflategate that will put everything into perspective and allow us to enjoy a game. Unfortunately, I wouldn’t put great odds on that happening.