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?
NYC58 (mail):
Regardless of what quarter it was, if they were able to interpret just one signal, it may have affected the game.
9.13.2007 12:51am
wb (mail):
In the midst of serious issues, this is a yawn.
9.13.2007 12:51am
Dilan Esper (mail) (www):
Let's go with no penalty. Let the Jets figure out ways to change and conceal their signals.
9.13.2007 1:18am
MMarty (mail):
I don't understand this issue. Don't all teams have access to game film? Doesn't the NFL, itself, film all games and then sell the film to all comers?
The TV broadcasts often show coaches covering their mouths so as not to be lip read. Can't some coach just watch and record on a clipboard, resulting in a record that demonstrates that when the Offensive Coordinator pulls his right ear, the QB throws deep?
Of course, every team will utilize technology to gain an edge. So what? The same technology can be used to defend against spying and, a clever coach can use the knowledge that the other coach is spying to transmit false information that will mislead. What's the problem?
9.13.2007 1:51am
What I don't get is why this is a surprise, except for the fact that it was a stupid way to do it. Surely a better way would be to have some people placed in the stands watching the calls, or some benched players.

But maybe I just don't know much about football.
9.13.2007 2:09am
Two words: dispersal draft.
9.13.2007 2:30am
Daniel Chapman (mail):
And that would have been perfectly legal, too. I say the patriots should be punished by kicking Moss out of the league. That seems appropriate. Or maybe they should punish them some other way and still kick Moss out. Anything to keep him from getting a super bowl ring.
9.13.2007 2:56am
jgshapiro (mail):
What do draft picks have to do with stealing plays?

If you are going to penalize the Pats, the sensible penalty would be to decree that the Pats had forfeited the game through cheating, and the game -- which was a loss for the Jets -- would henceforth be considered a win for the Jets and a loss for the Pats. True, the stolen plays would not have made a difference, but you would err on the side of looking at things from the light most favorable to the Jets as the aggrieved team.

Suspension works too, in the sense of at least being related to the crime, but then the Pats still get the benefit of their cheating.
9.13.2007 3:55am
andy (mail) (www):
I wonder if they were stealing signs during their Super Bowl victories. If they were, the league should give some serious consideration to revoking those championships.
9.13.2007 5:06am
andy (mail) (www):
also, at a minimum, their victory from last week should be changed to a loss, assuming that it is in fact proven that they were stealing signals during the first quarter and the information was relayed to the Pats.

-andy grewal
9.13.2007 5:09am
Anonymouseducator (mail) (www):
I don't understand where the forfeit idea is coming from. That is totally without precedent. I also have a very hard time believing that other teams wouldn't be aware of the fact that their opponents might be trying to figure out their signs. That's not to excuse what the Patriots did, but I am very skeptical as to how much difference it could make.

That said, why would the Patriots bother videotaping if it didn't help? My guess is that the more complicated you force another team to be in regards to play-calling, the lower the margin for error. Still, how much difference did it make? Did Mangini sit there and keep his signs the same in the 2nd half? No fucking way.

And LDT, following up on his whining from last year (to be fair, the Chargers should have won that gane), calling the Pats out for cheating when Merriman had to sit for 'roids.
9.13.2007 6:49am
fishbane (mail):
The other thing that comes to mind is the parralel between sign-stealing and corporate espionage.

Sure, this might be interesting if it ends up in court. But really, the question goes back a long way, and to general rules of libertarian voluntary cooperation.

When you were seven (or whatever) and playing hide and seek, and agreed to keep your eyes closed for a count of 10, would it have been proper to videotape those 10 seconds and review them?

This is a game. It is amusing (to some) because it has fairly rigid rules. Removing those rules makes it less amusing, modulo the random crisis, like this, which gets me commenting even though I could care less about the sport. If you'd like to revise rules to allow this, go for it. Basketball, as I recall, revised rules a while back. No problem with that. But this is similar to the drug issue - either let professional performers use steroids, or don't. Making excuses for some of them isn't advancing the sport.
9.13.2007 7:57am
Anonymouseducator (mail) (www):
Making excuses for some of them isn't advancing the sport.

Agreed. But when you think about punishment, the excuses - at least some of them - become valid. How severe was the crime? how much did the Patriots benefit?
9.13.2007 8:35am
jgshapiro: There are two problems with forfeiture as punishment for this sort of thing, both of which I noted in a comment on the Sports Law Blog page. One, it's only meaningful if the cheating team wins in the first place. Two, and more importantly, it is essentially a gift to the team that couldn't win the game on the field. If the Jets had been declared winners by forfeit here, I'd have no sympathy for the Patriots, but I would have tons of sympathy for any other team whom the Jets end up acing out of, say, the last AFC playoff spot because of the extra win they were basically handed on a silver platter.
9.13.2007 9:25am
Chiefs Fan:
Couple quick points: 1) The Patriots only had 2 draft choices make their team this year. Taking away draft choices will have no impact on them and is akin to a slap on the wrist.

2) Goodell must treat blatant cheating - which this case clearly is - as harshly as he would treat any violation that undermines the integrity of the game. The only acceptable solution is to suspend Belicheck for 1 or more games. When he's suspended, just like a player, he is banned from the Patriot facilities and from communicating with the team. That type of punishment would guarantee this type of thing never happens again.
9.13.2007 10:23am
Kristian (mail):

1) The Patriots only had 2 draft choices make their team this year.

Well, they did trade a 4th round choice (2nd day) for Randy Moss on or about draft day. If they didn't have the 4th rounder, they would have had to throw in a player or better choice (perhaps even the one of the ones that made the team...)

As for the appropriate punishment, organizational malfeasance requires organizational penalties.
Perhaps a $10 Million fine?
A $5 Million charge against the Salary Cap? (not actually taking the money, but essentially preventing the Patriots from changing their roster when the inevitable injuries happen during the season.)
Suspending the GM &Coach for 4 Weeks?
Draft Choices loss (analogous to Scholarship losses in College) would be a longer term penalty, but only if they were meaningful quality or quantity.
9.13.2007 11:07am
Duffy Pratt (mail):
Does it bother anyone that this is one of the stupidest rules ever?

There's no reason to treat the punishment as a forfeiture or an actual game. Instead, a team that gets caught gets one win removed from its record and one loss added to its record. So if a 3-6 team is caught cheating in a game that they lose, their record would become 2-8. That's pretty simple.
9.13.2007 11:07am
Tom952 (mail):
At issue here is the integrity of the game and whether any activity in pursuit of a victory on the field will be restricted by the league. If this is allowed by way of a slap on the wrist, then what about other forms of espionage? A strong penalty in response to this incident will establish that cheating will not be part of professional football. I vote to suspend and fine the coach.
9.13.2007 11:59am
jgshapiro (mail):
Suspending the coach (unless it is for the season) is not really punishment for the Pats -- as opposed to for Belichick -- if the Pats get to keep the win. It is an individual punishment not a team punishment, and yet it was the team that presumably benefited from the cheating, not so much Belichick personally.

Changing the win to a forfeit guarantees that the Pats get no benefit from the cheating. It is a team penalty for a team violation. Taking away draft picks is also a team penalty, but it seems far removed from the violation - because this action would not have an impact until after the season, and draft picks are already quite speculative as to how they help a team. Also, how much is one stolen win worth? A first round draft pick? A ninth round draft pick? Taking away the win that (may have) resulted from the cheating is exactly proportional to the crime.

If the Pats lose out on a playoff spot because of the forfeit, so much the better for future deterrance. And if the Jets get a playoff spot because of the forfeit, that would only be because they were otherwise on the playoff bubble. They would only benefit if they were legitimately in the running for a playoff spot. This is not really unfair to the other team(s) competing for that spot. It is entirely possible that without the videotaping, the Jets might have won: you never know how the momentum of the game might have changed had the Pats not had access to their plays.
9.13.2007 12:21pm
Jon J. (mail):
Do we consider the time at which they were caught (early enough, it seems, they would have been unable to make any use of the signals they had taped)? The game turned into a blowout only in the second half, at which point the videographer had been removed (and, in response to the potential "But what if they did this before, particularly in the Super Bowl," see the Simmons-Schatz dialogue at Cheating Discussion). So wouldn't forfeiting the game (while perhaps effective from a deterrence perspective) be too extreme? It seems to me that the suspension of Belichick, aka the Hoodie Wizard, might have equally viable consequences, without causing the potential end of season nightmares an adjustment of records might induce. It strikes me that the cheating for which they are being punished was more attempt than concluded act, but I suppose that goes to the question of when the videotaping becomes cheating. When you tape it (which the NFL already does)? When you decode it (which anyone with access to NFL film could do)? When you use your ill-gotten knowledge (this seems to be the rub, as the concern appears to be that the Patriots could have used the videotape BEFORE the end of the game, negating any changes the Jets might have made from week to week)?

If you want to stop the behavior, punish the responsible person (in this case, Belichick). If there's really a concern that's not harsh enough, suspend the head coach and both coordinators and force the team to play with a jv coaching staff.

Incidentally, there is zero chance the Jets were winning that game, whether or not the Patriots cheated (barring a flu epidemic or a team-wide case of food poisoning).
9.13.2007 1:26pm
Tom952 (mail):
The Patriots victory was not a result of the cheating; therefore a forfeit is not an appropriate response. The NFL response should be crafted to establish that cheating is unacceptable. Punishing the head coach will establish responsibility for the behavior and deter future occurrences.
9.13.2007 1:50pm
Kristian (mail):
Someone referred to Bill Simmons discussion earlier...there was a suggestion from a third party that an appropriate penalty would be to suspend Belichick from the next Pats/Jets game, if only to cut down on the nonsense in the media about the Belichick/Mangini post game handshake (or lack thereof). That seems eminently reasonable to me as well.
9.13.2007 2:16pm
Sol (mail):
It seems to me that a forfeit is an appropriate response to cheating, whether or not that cheating affected the outcome of the game. For instance, in high school ball, if it was determined that you had an ineligible player was playing, you forfeit the game. They don't try to analyze and determine if that player made a difference to the game's outcome. The punishment may be harsh, but the goal isn't social justice, the goal is to deter cheating.

That said, I admit I am mystified by the entire situation. Why would the Patriots bother cheating when playing the Jets? Isn't trying to steal your opponent's signals part of the game? (I seem to recall a college game this season where one team had three different people on the sidelines sending in signals, and only the quarterback knew which one was "real".) How does videotaping really help matters with the game being played? It seems like some sort of video transmission would be more useful in real time. Could they have been planning to exchange the tape with another team for a signal book more useful for the Patriots? And given that seemingly every other electronic gizmo these days can record video, how do you stop everyone from recording the signs?
9.13.2007 2:58pm
Dilan Esper (mail) (www):
any activity in pursuit of a victory on the field

Not any activity. I am sure we all agree, for instance, that the rule that says you can't come off the bench and tackle someone en route to a touchdown is a good rule.

But this particular activity is an issue of strategy, not cheating. Allowing sign stealing puts the onus on players and coaches to create countermeasures, and rewards smart teams while punishing dumb ones. Thus, it's perfectly consistent with the spirit of the game.
9.13.2007 3:01pm
jgshapiro (mail):
The Patriots victory was not a result of the cheating; therefore a forfeit is not an appropriate response.

There is no way to know that. In any event, I think that the risk of forfeit is a good deterrant to cheating, much more so than suspending the coach. The whole point of cheating is to win; a rule that you automatically take away the win (even if the win would not have necessarily resulted from the cheating) and you take away the incentive to cheat.

Similar in some respects to the exclusionary rule for illegally seized evidence. Why bother taking evidence in violation of the constitution if you can't use it or its fruits? A much better deterrant than throwing the seizing officer in jail for a week. When the officer gets out, he is a hero because he collared the criminal and was willing to pay the price personally. Not so if his actions resulted in the criminal going free. Then he is the bonehead responsible for screwing up the investigation.

To deter Bellichick with a suspension, it would have to be most of the season. And the team would still get the benefit of the cheating for the game in which it occurred.
9.13.2007 3:29pm
Tom952 (mail):
And the team would still get the benefit of the cheating for the game in which it occurred
What was the benefit to the team in this game? My problem with the league declaring a forfeit is that it would be arbitrary since there is no such penalty in the rule book or precedent.

But this particular activity is an issue of strategy, not cheating.
I think that is the question the league needs to consider and decide.
9.13.2007 3:59pm
Chiefs Fan:
The NFL has plenty of precedent on how to deal with players who cheat. Use drugs - get suspended for future games. A member of the coaching staff cheats so the Head Coach should be suspended for future games. This is the first time he's been caught (though not the first time accused) so a short suspension would be in order. If he does it or something similar again, a year suspension would certainly make sense.

I don't think you can reasonably argue that the Jets deserve a win so turning it into a forfeit is a bad idea. Although, I kind of like the idea of just taking the win from the Patriots, but not giving one to the Jets.

Fines are meaningless, but they do have a precedent. I wouldn't be surprised to see something like that from the NFL.

The league has a definite dilemma on its hands. If it does not adequately punish the Pats, the rest of the league will have an incentive to cheat. However, over punish them and they are taking money out of their own pockets, this isn't the Raiders we're talking about.

The rule on not using video tape to steal your opponents signs is a good rule and one that should be enforced. Yes, you could use a coach or multiple coaches with notepads to attempt to steal the signs, but a video camera and a computer would be much more effective. Limiting the use of technology to maintain a competitive balance is a reasonable limitation on NFL teams. They agree to abide by the rules and should be punished when they do not. Besides, none of this would be an issue if the NFL would simply let the defense use headsets like the offense does.
9.13.2007 4:25pm