What Penalty for the Patriots?

It seems pretty clear that the New England Patriots violated the NFL's rules governing the use of video cameras in Sunday's game against the New York Jets. Patriots coach Bill Belichick apologized for something today, but he did not say for what. He deferred giving any specifics until after NFL announces any potential sanctions. Among the possible penalties are the loss of one or more draft picks and a suspension for Belichick. Interestingly enough, it seems that the Patriots' rule violation did not affect the outcome of Sunday's game, as the offending video tape was confiscated when the malfeasance was discovered during the first quarter.

Meanwhile, here is some of what folks are saying:

ESPN's Howard Bryant:

It is currently unclear what is on the confiscated tape. Belichick apologized Wednesday but did not say exactly for what he was sorry. But the practice of stealing signals in football does not fall under the rubric of gamesmanship, as it does in baseball. Baseball teams don't have 700-page playbooks, as does Washington associate head coach Al Saunders. Nor do baseball players use parts of their offseason to devise game plans for opponents, and their teams aren't threatened with the loss of draft picks for relaying back to the hitter the next pitch will be a curveball. Technological espionage, however, is unacceptable in both sports. . . .

Violence is clearly more visceral, and certainly in the outside society violent behavior cannot be equated to breaking the rules of a game. Inside the sport is another matter, where punishment is based on negatively affecting the health and welfare of the sport. Belichick and the Patriots apparently violated a league rule in place to ensure fair contest, the root of the sport.

If Goodell does not act decisively, he will only confirm a basic truth about the commissioner-player relationship in all professional sports -- that he works for management. Of course, it has always been this way, the fiction is that the commissioner is anything but the collective employee of 32 owners.

Sports Law Blog's Geoffrey Rapp:
The NFL rules do give the Commissioner broad powers to sanction unfair acts, but only where those acts have a "major effect on the outcome of the game." Can it be said that sign-stealing has such an effect? In this particular game? Generally? If the Commissioner drops the hammer on the Patriots, we could see a legal challenge. At least in the context of other leagues, (hometown) courts have not always looked favorably on sanctions involving stripped draft picks. See [Braves] v. Kuhn, 432 F. Supp. 1213 (N.D. Ga. 1977).

The other thing that comes to mind is the parralel between sign-stealing and corporate espionage. Suppose that the Patriots and Jets weren't bound by league rules to have the commissioner resolve disputes amongst and between the teams, but could resort instead to courts of law. Have the Patriots run afoul of the Economic Espionage Act of 1996? Is a football sign (or, more precisely, the correlation between a particular sign and a play on the field) a "trade secret"? The statute contemplates a pretty broad understanding of "trade secret": any "business information," tangible or intangible, that has independent value by virtue of "not being generally known" and with respect to which the owner has "taken reasonable measures to keep such information secret." On the one hand, it might be hard to argue that a team which uses signs has a real expectation of privacy, since such signs are certainly regularly visible not just to other teams, but also to the public at large. On the other hand, so long as a coach attempts to "shield" his signs, wouldn't that amount to reasonable efforts aimed at secrecy?

I should add that the Act includes criminal penalties. Perhaps the U.S. Attorney for the District of New Jersey is interested?

Related Posts (on one page):

  1. No Suspension for Belichick:
  2. What Penalty for the Patriots?