From Watergate to videogate

Internet attorney Eric J. Sinrod says the proliferation of cheap and available technology adds a dimension to recent Patriots spy controversy.

4 min read
You may have read about the recent controversy involving the New England Patriots after a team official was caught videotaping opposing team defensive signals.

The National Football League fined Coach Bill Belichick $500,000 while the Patriots were ordered to pay $250,000. The league also ruled that 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 it fails to make the playoffs.

Did justice prevail? Even more, does the result hold up as a matter of law? Let's first peel back the legal layers to explore those questions in more detail.

A Patriots' assistant was apprehended for operating a video camera on the sidelines of the opposing team, the New York Jets, during the first game of this season. The camera contained footage of the Jets' defensive signals.

NFL rules prohibit video-recording devices in the coaches' possession both on the field or in a locker room during the course of any game. The rules also state that video for coaching reasons must emanate from places enclosed on all sides with an overhead roof.

The NFL's executive vice president for football operations has since sent a memorandum to head coaches and general managers to clarify the rules. The message was unambiguous: 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.

But there's more to the story.

While 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 this instance, 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 the 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.

There certainly are arguments in favor of the penalties levied on 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 league is governed by certain rules, which are contractually agreed upon by member teams. Violation of those rules is tantamount to a breach of contract.

Furthermore, our society has come to accept prohibition of videotaping in certain circumscribed settings. For example, videotaping occurs in department stores to monitor shoplifting. But stores still cannot tape what goes on in the changing rooms and restrooms. 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 counterargument could be that the signals truly are not secrets, as they are publicly viewable.

Ultimately, Belichick and the Patriots agreed to the penalties imposed by the NFL. The irony is that the Patriots very well may be the most powerful team in the NFL. Yet despite its abundance of playing and coaching talent, it was this same well-positioned team that wound up taken to task for breaking the rules.

I was struck by a flashback from the 1972 race for the presidency. At the time, there was hardly any chance that George McGovern would stop President Richard Nixon's quest for a second term. But despite the odds in their favor, Nixon campaign officials still instructed the Watergate burglars to break into the offices of the Democratic National Committee.

Could it be the powerful do indeed get used to wielding power, and not always as they should?