Its not "just sports." Sports are a business an international business at that. Both teams have an expectation of privacy in their respective dugouts during the game and a reasonable time after the game. One might argue that the scout sheet was lost property in which I would argue that it is. When one loses property it should be turned into the police (if it is found out in public) or in this case turned into the stadiums protective services but instead the reporter converted it and used it for his benefit. If no one claimed the scout sheet after the statutory period prescribed for the State of New York then the reporter could claim the sheet and use it how he sees fit.

 Anonymous -- 6/21/2007 10:19 AM  

The publication of truthful, lawfully obtained information on a matter of public concern (broadly defined) cannot be punished or proscribed absent a government interest of the highest order. Protecting privacy rights has never been held to be an interest of the highest order. There is a strong public concern about sports (especially where it involves New York and the Yankees). And there is no indication that the reporter broke any laws or rules in obtaining the scouting report.

Easy case, I think.

 Howard Wasserman -- 6/21/2007 11:16 AM  

If the series was over and the D'Backs had left town I'd say this is abandoned property, and fair game. If it had happened in the middle of the series it would be a different story.

That being said, from a "civil" standpoint, I'm not sure the D'Backs have much of a claim for damages. How much value is there in the strategy: When facing Derek Jeter, get ahead in the pitch count...?

 Pete -- 6/21/2007 11:42 AM  

Disagreeing with Anonymous here in that this should be all about sports and less about "property". Clubhouses and dugouts are opened to the press giving them incredible access and despite the fact the report was on the ground I see little difference in this and a scouting report on a bulletin or chalk board in the clubhouse.

Those "private" reports never make the paper despite numbers of reporters seeing them, reporters seeing players getting extra treatment for an undisclosed injury is almost always kept under wraps, it is a longstanding trade-off between clubs and the reporters that cover them. The club allows access and the reporter use common sense to know what is cool to publish and what isn't. This reporter, IMO, overstepped the bounds of what he could and couldn't do in exchange for his access.

One might could say miked coaches or the NBA sticking camera's in the huddle during timeouts is already invading this but baseball hasn't gone that far yet, and I personally hope they don't as it takes away from the gamesmanship.

 B Squared -- 6/21/2007 12:03 PM  

Forget the legal issue. I think this is just a great example demonstrating what the news is all about -- entertainment. What is the point of publishing this in an AP news report? This only has value to those who are going to be facing these hitters, and as Pete suggests, I'm not really sure it even has much value in that regard. The purpose in reporting this to the public is not to inform them (like the Bush report analogy used by Golen or Watergate), it's to entertain. People are reading it out of pure intrigue because it's this "secret scouting report" that nobody is supposed to be reading. It doesn't belong in an AP news release.

 Rick Karcher -- 6/21/2007 1:30 PM  

So, if JK Rowlings leaves the draft to Harry Potter 7 behind in her hotel room, it's "fair game" for me to publish it? How is JKR's intellectual property different from that of the Diamondbacks?

 Anonymous -- 6/21/2007 2:35 PM  

I agree with B squared and Rich. The issue isn't so much the legal protections involved, it's the silliness of the reporter who wants his 15 minutes of fame and his "gotcha" moment. It's almost as if he wants to show everybody "look how powerful the media is!" Personally, I hate when the media injects themselves into what they report, but that's just me.

It's a different question altogether, it seems to me, if he had leaked the information to the Yankees or another team. The damages certainly would be a different issue, since the only "damage" of publishing it in the newspaper is some public scorn.

 BFS -- 6/21/2007 2:37 PM  

The D-Backs protest too much. The report didn't contain information about their team and didn't contain information useful to them unless they meet the Yankees in post-season and even then of doubtful value because so much of it was based on current streaks by players.

 Anonymous -- 6/21/2007 2:37 PM  

The information in the scouting report most definitely "informs" the public. It gives readers a better and deeper and enhanced understanding of the games they watch and enjoy; it lets them see the game the way professionals themselves see it.

The fact that the report is not of much use to anyone (because the teams do not play again) does not suggest that it is without informational value to the public. Rather, it suggests that the D-Backs' countervailing desire to keep it private is diminished.

Unless one suggests that sports should not be reported by the mainstream media, then this is news--news about entertainment perhaps, but news nevertheless. The only reason to treat this differently than a Bush report or Watergate is if one initially adopts the idea that news about politics is subject to different legal rules than news about other, "less important" things. But since I do not want anyone telling me what is more or less important for me to learn about, I would reject that distinction.

 Howard Wasserman -- 6/21/2007 2:53 PM  

Howard,

You're stretching by saying "it gives readers a deeper and enhanced understanding of the games they watch and enjoy." Just acknowledge that you don't like that I called it what it is -- entertainment. This is what distinguishes it from the Bush and Watergate examples. The message is not about what's in the scouting report (which would then be informational); the message is simply, "look what I found, read on". You and I can disagree on whether that's entertainment or news. Or maybe you find entertainment as a component of news reporting acceptable, but I don't because entertainment and news conflict with each other.

And I don't know how you come to the broad conclusion that I'm possibly suggesting "that sports should not be reported by the mainstream media." I understand that we can't formulate a legal definition of newsworthiness. It's not a legal issue, it's about media ethics and the public demanding a higher standard from news reporting sources.

 Rick Karcher -- 6/21/2007 4:02 PM  

I used to work with the writer who did the AP piece - he's a long-time baseball guy and a good guy. (I worked with Jimmy Golen, too -- another good guy).

Basically, the Diamondbacks left behind something that they had no more use for, a writer found it and his organization published it. Since Arizona won't see the Yankees again this year (and likely for a few years to come), the scouting report was garbage. The writer picked it up and his company thought its clients would find it entertaining. Judging by the number of newspapers that printed it, the AP was correct -- fans always like to fee they're on the "inside," and the AP is always looking for more content for a clientele that can't get enough.

I'm also sure the writer and the Sports Editor (Terry Taylor) had a char or two or three with the AP's lawyers about whether these notes were fair game. Obviously, the decision was made to go ahead.

The writer and the AP did nothing wrong. He had no obligation to return it (assuming he could find someone from the Snakes to give it back to). I've been around clubhouses, locker rooms, etc., and there's always discarded papers lying around. He found a files of stuff that had no more use to the people it was prepared for/by.

 DonK -- 6/22/2007 1:51 AM  

Legal? As DonK wrote, surely. Responsible? No.

Because batting production is so fluid, the notes are almost meaningless. By the last game in the next Yankees series the notes may well read in a vastly different manner.

However, I would have taken notes from the paper and taken it to the D-Backs clubhouse and to Arizona manager, Bob Melvin. I would have given him the paper, told him I took notes and asked him if I could use the notes I took as the lede for my story because the Diamondbacks pitchers failed to heed the note's warnings.

If Melvin says, cool, I run with it. If not, I use the info from them in a creative manner without quoting anything directly.

This is a matter of ethics and having the foresight to think how whatever choice is made impacts the future of one's relationship with the team.

 DWil -- 6/22/2007 2:53 AM  

If the concern is not printing something that the D-Backs do not want to get out so as to maintain a good working relationship with the team, I do not see how "creative use" of the information (whatever that would look like) gets around that. If Bob Melvin says "don't use what you found," that means *no use* of what you found, creative or otherwise. You do not have to quote directly from the report to "use" it. And the conventions of good journalism require some attribution to the source of your information. So you either use the report's contents or you don't use them.

Note a countervailing ethical problem, by the way: Reporters do not and should not want to get into the practice of clearing their stories with the subjects of those stories in order to keep those subjects happy. One of the reasons that sports reporting long was considered journalism's poor relation was the cozy relationship between players/teams and reporters, which kept (or was viewed as keeping) reporters from being as vigorous and challenging in what they wrote.

That coziness (and thus the poor-relation perception) has diminished over the past 25 years or so. I doubt most leading writers want to go back.

We are back to trying to draw a line (ethical rather than legal perhaps) between news and entertainment, with different guidelines applying for sports reporters than "news" reporters. A sports writer should run the story by Bob Melvin to make sure it is OK; a news writer would not be expected to do the same (except maybe in stories touching on national security). I certainly would not want to see this dichotomy created or followed as accepted journalistic practice.

 Howard Wasserman -- 6/22/2007 7:32 AM  

I heard a rumor that those scouting notes were fake and left there on purpose.

hahaha.

 Alessandro Machi -- 6/22/2007 10:43 AM  

Howard,

The ethical line to be drawn between news and entertainment does not have different guidelines for sports reporters vs. news reporters. The ethical line is the same across the board, whether reporting news on sports, the president, or Paris Hilton. It's really not that complicated -- the Bush administration report found in the White House bathroom is being reported with a primary purpose to "inform" the public (the story is not being reported to entice the public on the basis of "look what I found", it's being read by the public on the basis of what's in the report).

 Rick Karcher -- 6/22/2007 10:45 AM  

How do we know the scouting report was not published with the "primary purpose" of informing the readers about something that they would be interested in? Alternatively, how do we know the Bush administration report is necessarily being reported with the "primary purpose" of informing the public of the contents of the report?

I agree with Rick that journalists should be guided by a desire to inform their audience. And in general, I think most are. And I think the reporter was in this case.

As Donk points out, the AP was correct--the public was interested in the substance of the report. Was the public also interested in the circumstances in which it was found? Sure. And was it entertained by it? Sure. But I think there are elements of information and entertainment in most stories and most reports.

 Howard Wasserman -- 6/22/2007 11:30 AM  

ppBut the more the entertainment component exists, the more the reporter is guided by different incentives (i.e. concerned about how a report is presented, concerned about attracting the attention of the reader, etc.). This then has a major influence on WHAT he decides to report.

Think of it as a huge universe of information and events that exists every day. Obviously, reporters can't report all of it, so they are going to pick and choose a small portion of it. If entertainment is a component of news reporting, then they are obviously going to report about attention grabbing stuff.

The ethical issue comes into play on a case by case basis. What we find more and more is that there is a lack of any consideration for individual dignity and respect. The attitude that "wow, this will really sell" is what takes priority -- and that's purely an ethical issue. Take this scouting report for example, was there any consideration for the interest of the Diamondbacks in publishing this to the world? -- whether that be that it would just make the Diamondbacks look really bad that they left it on the floor, or whether it actually contained proprietary information that the team would not want revealed to the public, or whether somebody might get fired for leaving it on the dugout floor (and there are other considerations as well). Does the public's interest in knowing that some scout reported that A-Rod is having trouble hitting a certain pitch outweigh all of these considerations? The interest of the public in knowing this is outweighed by the interests of the Diamondbacks in not disclosing it. Why do we have to take the attitude that, well, you made a mistake in leaving it on the dugout floor and you assume the risk that it would be disclosed to the world?

 Rick Karcher -- 6/22/2007 1:37 PM  

Rick,

I think you're on a narrow ledge when you purport to know what newspaper readers or writers are thinking. You may think the story is lowbrow, but I don't think you can assume that others see it the same way. Many fans are genuinely interested in baseball's nitty-gritty; in fact, I consider it the essence of sports writing to illuminate areas of the game fans can't see for themselves. I know that Ben Walker saw this story the same way.

I'm sorry, but I have trouble seeing this as a matter of "individual dignity and respect." If it had been an athlete's medical report, I for one would certainly have weighed the public's right to know against the loss of privacy. But only if you see the media as acting in cooperation with the teams can the publication of a scouting report violate some social code. The reality is that the relationship is adversarial.

And I second what Howard said about clearing the story with a source. No respectable journalist, sports or otherwise, would do so, except perhaps in the hopes of a bigger story down the line. (That's strategy, not ethics.) I know I wouldn't have much use for a newspaper that vetted its stories through its sources, much in the way I wouldn't want to hire a defense lawyer who cleared his strategy with the prosecution.

Jimmy Golen

P.S. DonK: Thanks. If you want to identify yourself, I'd say so in person.

 Jimmy -- 6/22/2007 2:07 PM  

While the public can certainly be interested and intrigued by this scouting report or other "inside news", I fail to see how there can be a "puclic interest" or "right of information".

The journalist (and I use that term lightly) surely knew that this was information for team use only, and the fact that he stumbled upon it, took it, and then published it does not make this an issue of right of information. It is an issue of moral and ethical obligation. This kind of behaviour of reporters and other personel allowed into the team areas as invitees will only lead to teams actually restricting media access, and thus, limiting the information available to the public.

At least thats how I look at it.

Jimmy Hallberg

 Jimmy H -- 6/22/2007 3:25 PM  

Jimmy H's point brings us full circle to the comments Jimmy Golen made to Mike for the original post:

Should we similarly criticize as unethical (and perhaps not warranting the title "journalist," in Jimmy H's view) the writer who finds the report in the Pentagon bathroom? Or (to bring us closer to sports), should we similarly criticize the two writers who reported details of the BALCO grand jury testimony (they "found" this information in the sense of having it leaked to them by someone who was not supposed to do so)?

If the answer to that question is No: Then we are, indeed, talking about different journalistic rules for different types of stories; such differential treatment must be justified. One justification is Rick's news/entertainment line. The only other justification comes back to "it's just sports."

And that is our point of departure: Sports are part of American culture and culture is as much a part of society as politics. I want the institution of the press to be equally vigorous and zealous in covering both--and I want the ethical guidelines to reflect that.

If the answer to the above question is Yes (we would be just as critical of those other journalists): Then our point of departure is about the proper role of the press.

 Howard Wasserman -- 6/22/2007 4:14 PM  

Howard,

I don't have a problem with "vigorous and zealous" coverage of sports either. The answer to your question is no with respect to those two examples you just gave. Media ethics can and should be judged on a case by case basis.

Jimmy Golen,

I didn't say half of what you said I'm suggesting. I don't purport to know what readers and writers are thinking. And I was using personal dignity and respect as an example of what journalists should consider. But just because it's a business entity (a team) and not an individual doesn't mean that it doesn't have interests at stake or that its interests shouldn't be considered.

Regarding the athlete's medical report, for some reason you believe the balancing must take place under those circumstances? What's the rationale? If the medical report showed that a player tested positive for the HIV virus, wouldn't you argue the public should have that information? What if it was a handwritten note from a player's mistress?

 Rick Karcher -- 6/22/2007 6:13 PM  

Howard,

Perhaps I was bit too critical in my previous argument. I certainly did not mean to say that sports reporters are not worthy of the title journalist, or in any otherway not qualified or entitled to do what they do for a living. My point was simply that I view what this reporter did as unethical and opportunistic.

I think that we can clearly draw a line between different stories printed or otherwise reported in the various news outlets. This has been done before when the courts have labeled certain works of expression as satire, newsworthy etc.

Is there a difference between the reporting of the pentagon papers, Paris Hilton, Balco, and the D-Back papers? Yes!

To answer your question regarding the comparison to Balco, I think that there is a difference. I in no way think that the balco reporters acted ethical. In fact I think that reporters this ethical question could be compared to that of trade secrests. If you are told a trade secret by a third party, and you know that this third party did not have the authority to disclose it, you could not use the information and at the same time hide behind the fact that you did not use illegal means to get the information. You had notice. So no, I do not think that the Balco reportes acted ethical. However, there are huge differences between Balco and and the D-backs. the Balco scandal involved the use of dangerous and illegal drugs. Drugs like these ruin many athletes every year, and the use is steadily finding their ways into the hands of younger and younger people. The Balco story therefore had an element of news important to wellfare of our society. The D-back papers included no such element. Here we have a reporter that found information gathered and assembled by one team on another team. Other than the entertainment factor that Prof. Karcher described above, what value does this bring to the public? Sure there could be an interest in information regarding batters and pitchers, D-backs vs. Yankees and so on... But in this example You have to weigh the method used to aquire the information against the interest of the public. In this case the D-backs interst outweigh the public interest in entertainment.

 Jimmy H -- 6/22/2007 6:41 PM  

Rick,
I disagree with whatever half I got right.

Seriously, though, I think the fact that the series was over distinguishes the scouting report from a medical report. (If the scouting report had been on the following series, I suspect it would have been treated differently, just as plans for an upcoming battle would routinely be protected but those for a past battle could reasonably be examined in public.)

You may be interested to know that twice in the past year in Boston alone, athletes have been "outed" after being diagnosed with cancer -- allegedly against their wishes. (I say allegedly, because in many cases of unattributed information the player or his agent or family is actually the source.) In both cases there were discussions within the media as to whether this was appropriate. I think it's a tough call and here's why: The players are public figures, like political candidates, and if their illness is going to affect their job performance, the presumption is that the public has an interest in knowing about it. When Magic Johnson contracted HIV, he was an active NBA player who failed a physical when the team tried to insure his contract. He was going to have to retire -- whether this should be the case is not the issue; it's a fact -- and he revealed his condition at a news conference. For what it's worth, it has been considered a watershed moment -- along with Arthur Ashe -- in understanding AIDS and HIV.

I can tell you that the public does not respond well when information is withheld. It expects a vigorous press to be its watchdog when covering institutions in government, business and sports. That role is best served in a vigorous marketplace of news where the public is able to decide for itself what is important. True, that's going to get us a whole lot more Paris Hilton than many of us would like. But it's also going to ensure a public confidence that the whole story is being told. To me, it's the alternative, where media members are deciding for themselves what the public should know, that's scary.

Oh, and to Jimmy H.: The media includes a wide range of people, from Don Imus to Dan Quayle's family-owned newspaper to Rush Limbaugh to People magazine to The Associated Press to the 100 people sitting in the press box at Fenway Park on a given night, about 98 of whom are merely trying to make deadline and not make a name for themselves by getting their hands on something juicy.

It also includes, believe it or not, people who comment on blogs. So before you paint the whole enterprise with a broad brush, keep this in mind: You're one of us.

Jimmy Golen

 Jimmy -- 6/24/2007 3:30 PM  

Jimmy G,

I did not in any way intend for my remarks to be reflected on the entire industry. With jornalists, same as with lawyers, there will always be those who put themselves over others and act in an unethical way in order to, as you say, make a name for themselves. My point was simply that when a reporter crosses that line (wherever you may draw it depends on your own values), reporters seem to get this free pass, hiding behind the First Amendment or the need for a "well informed public". sometimes reporters do act in an unethical manner, and that should be dealt with on a case by case basis.

 Jimmy H -- 6/25/2007 2:56 AM  

Jimmy Golen,

In the cancer and HIV examples you gave, the player disclosed the information. The ethical issue arises when the player/team has not disclosed it, or possibly inadvertently discloses it (like the scouting report or the letter from a mistress as I used as an example), or it is disclosed on a very limited basis (the blacked out names in the affidavit). The underlying concern is privacy, and you and I just disagree on how much that interest is worth.

You said in your last comment, "To me, it's the alternative, where media members are deciding for themselves what the public should know, that's scary." Well, that's exactly what's going on, and it scares me too. For some reason we need to be bombarded with press clippings that A-Rod was out with another woman; yet I needed my father who lives in Detroit be my source to inform me about all of the great charitable work that Detroit Tigers pitcher Mike Maroth is doing. Why do I need to read in major news headlines that some guy working for the Steelers inadvertently sent a mass email of a pornographic website to other NFL personnel? Here was the AP headline, "Sorry for the porn, Mr. Commissioner". Why was that chosen as a significant "news event" for the day over another event that didn't get reported? And I'm not sure why, as you suggest, that means that the public has confidence that the whole story is being told. That's typically NOT the case.

And please don't confuse me and Jimmy H. with news reporting sources. We are merely giving opinions.

 Rick Karcher -- 6/25/2007 7:36 AM  

Rick,

1. You should hear how often we in the mainstream media are told by bloggers how they are going to make traditional journalists irrelevant. I respect your modesty, but in your posts you present facts, at least one of which is wrong (see below), and try to sway opinion. At the very least, I think its fair to say that new media like blogging and other internet-based communication has entered the conversation.

2. Phil Kessel of the Boston Bruins and Jon Lester of the Red Sox both spoke about their cancer AFTER it had already been reported in the media. Ditto Magic Johnson and Arthur Ashe with HIV. So they did not disclose it, and it's not clear whether any of them would have, although I think it's likely that Johnson would not have been able to avoid it.

3. Finally, that was NOT the headline that appeared on any AP wire, but one that the Web site or newspaper you read came up with by itself. But I think your example proves my point: You clicked on the Steelers-porn story, or at least it came to your attention, because it was unusual or otherwise interesting enough to make people notice it. Maroth's charitable work was reported in Detroit, but it did not make much of a splash elsewhere because it was not unusual. We put a lot of stories on the wire each day -- some of them even about charitable work by players -- and newspapers and Web sites use the ones that they think their readers will be interested in. You see this as a top-down filtering of the news. That's not the reality of the situation. You said "For some reason ... " we were bombarded with news of A-Rod's other woman, but it's no mystery: People are interested in titillating stories; unfortunately, they get the stories they want and the media they deserve.

For the record, I would not have written the A-Rod story. But let's say I saw him out at 3 a.m. before a day game and he was a late scratch from the next day's lineup with "flu-like symptoms," I would argue that it is newsworthy that the highest-paid player in the game can't fulfill his duties.

Jimmy G.

 Jimmy -- 6/25/2007 3:18 PM  

Jimmy G,

You said it's no mystery: People are interested in titillating stories; unfortunately, they get the stories they want and the media they deserve.

Does the media proffesion not have any responsibility here?

I doubt the key demographics for CNN, MSNBC, and Fox News are interested in 20 updates a day on Pais Hilton's weight or "mental" problems, yet, we are bombarded with this every day.

I agree with you on one point in your A-rod example though, if he was seen out partying at 3 Am, and then a late scratch for flu like symtoms, that is more newsworthy and I wouldnt mind that story running. But, stories about his "other woman" or the like does not belong in the media as "news". Its entertainment.

 Jimmy H -- 6/25/2007 4:40 PM  

Jimmy G.

1. I merely misunderstood you as saying in your earlier comment that the players disclosed the cancer. I actually didn't even know who or what you were talking about in that regard so I'm not "wrong about facts that I've presented". But that's neither here nor there, because my point is that the cat's already out of the bag on that stuff and if the players are talking about the cancer and HIV, there shouldn't be any problem reporting about it from a privacy standpoint.

2. Who cares whether it was the AP that wrote that headline or not! That's not the point. And I agree with exactly what you are saying. The public is merely getting what it wants, and the news is feeding the public's desire. And I love your use of the term "titillating". The issue we are discussing then, is whether there should be some ethical standards associated with that. So if I hear you correctly, the interest of the public in titillating stories outweighs any privacy interests of the subject of the story. What interest is served by the public knowing that some Steelers coach sent a pornographic website by mistake? --That we better be careful the next time we click the send button on our email? What interest is served in knowing that A-Rod is out with another woman? -- That if we're going to be out with another woman, then we better do it secretly? Is there some other purpose of disclosure here that I am unaware of that should trump the privacy interests involved? If it's an entertainment purpose, which I think that's all it is, should that outweigh the privacy interests?

 Rick Karcher -- 6/25/2007 6:43 PM  

Rick,

My point was that Lester and Kessel had their private medical data outed by media reports. When they spoke about it subsequently, with the cat out of the bag, of course it deserved coverage. But initially they wanted to keep it secret.

The misstatement of fact I was referring to was the other point, in which you erroneously referred to the AP headline. I agree it's an exceptionally minor point, and I only mentioned it to show that as a blogger you do report factual information, with the power to inform or mislead (unintentionally, to be sure) like the mainstream media.

I also agree that the story about the Steelers porn aficionado is largely entertainment (and in that I think it's different than the scouting report that started this all). But I don't think you can properly say 'that's all it is,' and I guess that's where we part ways. A story like this, or to a larger extent the Vikings cruise or Michael Vick's dogfighting and even the A-Rod story (which, as I said,makes me queasy), helps fans understand the people they root for. It's a small part, sure, but a part of the whole picture that can correct the image of them as heroes. Some might not want to see the sausages being made, but I think we're better off removing information filters, rather than adding them.

 Jimmy -- 6/25/2007 7:49 PM  

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