Patriot Video-Gate: Peeling Back The Legal Layers
FindLawBy Eric Sinrod
(September 25, 2007) - Unless you live on a deserted island, you probably have learned that the New England Patriots have been embroiled in controversy with respect to videotaping opposing team defensive signals. Specifically, the NFL fined Coach Bill Belichick $500,000, the Patriots were fined $250,000, and the Patriots must forfeit a first-round draft choice next year if the team reaches the playoffs (which is highly likely) or second and third-round selections if the team fails to make the playoffs.
Is this the right result? Does the result hold up as a matter of law? Let's peel back the legal layers to explore.
The starting points is the alleged offense (pardon the pun). The subject videotaping was revealed when a video camera was apprehended from a Patriots' assistant when he was on the sidelines of the opposing team, the New York Jets, during the Patriots victory over the Jets during the first week of this NFL season. Apparently, the tape in the camera contained footage of the Jets' defensive signals.
NFL rules prohibit video recording devices in the coaches' both, on the field or in a locker room during the course of any game. These rules also state that video for coaching reasons must emanate from places enclosed on all sides with an overhead roof.
On top of that, the NFL's executive vice president for football operations sent a recent memorandum to head coaches and general managers that made clear that videotaping of any kind, including taping of an opposing team's offensive or defensive signals, is not permitted on the sidelines, in a coaches' booth, in a locker room, or from any other place available to a team's staff during a game.
End of story? Not necessarily.
While it appears that Coach Belichick and the Patriots accepted their penalties from the NFL, there are legal arguments for and against the penalties. Let's start with arguments against the penalties.
Cameras are becoming cheaper and more pervasive than ever. Video cameras are being used to monitor all sorts of activities. In London, for example, video cameras are stationed all over the city to view potential criminal and terrorist activities.
In the United States, the law recognizes the plain view doctrine. Under this doctrine, law enforcement officials are permitted to watch and record activities that are in plain public view.
In the instance at hand, the Patriots' assistant was videotaping defensive signals that were in public plain view. Should that be allowed under the plain view doctrine? Perhaps, or possibly the fact that the assistant was on the Jets' sideline brought the signals closer to the camera than general public view.
In addition, there is a First Amendment argument to be made favoring the right to record matters in public view. Indeed, there is case law that even allows photographing of private property from public places. Of course, there is a difference between governmental efforts to disallow the exercise of such First Amendment rights, and contractual agreements entered into by private parties, such as the NFL and NFL teams.
From the standpoint of fans, there actually could be some advantage to allowing the recording of offensive and defensive signals by opposing teams. Namely, if such signals from the sidelines could be videotaped readily and learned, then the effectiveness of such signals could be diminished. The end result could be play calling on the field by players, like in the old days, which could lead to more spontaneous and entertaining play.
As hinted a moment ago, there certainly are arguments in favor of the penalties levied on Coach Belichick and the Patriots. Most importantly, the coach and his team have the benefit of NFL play and all of the compensation and notoriety that comes along with NFL participation. The NFL is governed by certain rules, which are contractually agreed upon by member teams. Violation of those rules is tantamount to a breach of contract that can be enforced by the league.
Furthermore, our society has come to accept prohibition of videotaping in certain circumscribed settings. For example, while videotaping occurs in department stores to monitor shoplifting, such taping is not allowed within changing rooms and restrooms at those stores. Those places are considered private. Perhaps signals called from a team's sideline are private as well, although privacy certainly is better appreciated in the changing room and restroom context.
Another potential argument that could be made in favor of the prohibition of videotaping signals in an NFL game has to do with trade secrets. In essence, the team whose signals have been taped might be able to argue that its trade secrets have been misappropriated. The team could assert that its signals were developed as secrets, have monetary value, and are maintained as private and are not shared. Perhaps not surprisingly, the counter-argument could be that the signals truly are not secrets, as they are publicly viewable.
At the end of the day, Coach Belichick and the Patriots took their medicine by agreeing to the penalties imposed by the NFL, probably hoping the matter would blow over more quickly in so doing. Nevertheless, the foregoing shows the give and take in the law, just as the give and take in football games.
One irony must be noted. The Patriots very well might be the most powerful team in the NFL right now in terms of player personnel and coaching talent. Yet, it is was this well-positioned team that has been taken to task for allegedly breaking the rules.
This brings back memories from the early 1970s. At that time, there was hardly any chance that President Richard Nixon would be defeated in his quest for a second presidential term. Yet, during his campaign for a second term the rules were broken and the offices of the Democratic National Committee were broken into.
It appears that the powerful do indeed get used to wielding power, and not always as they should.
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP (http://www.duanemorris.com) where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is http://www.sinrodlaw.com and he can be reached at ejsinrod@duanemorris.com. To receive a weekly email link to Mr. Sinrod’s columns, please send an email to him with Subscribe in the Subject line.
This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.
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