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Tuesday, September 11, 2007
 
Sign-stealing, Trade Secrets, and Corporate Espionage


As most readers have likely heard, the New York Jets have filed a complaint with the NFL alleging that the Patriots used a video camera as part of a sign-stealing effort at this weekend's "demolition". Touchdown.org purports to have the goods on the Patriots: the posted photo (HT to Deadspin) seems to indicate a green shirted cameraman filming something happening on the Jets sideline, rather than on the field. (I'm not so sure about the site's claim, in that the green shirt worn by this particular cameraman would seem to suggest he is a Jets, rather than a Patriots, employee).

For the moment, assume the Patriots are guilty of the alleged act. Supposedly, this violates an NFL rule. I say supposedly because none of the coverage gives the language of the rule or its number: instead, we are simply told that there is a rule forbidding camera use during games, and specifically in any area in which there are coaches. The NFL official rule book is notoriously difficult to locate on line. The NFL's official site offers only a "digest" of rules, which includes assertions of commissioner authority to investigate "unfair acts" but, based on my review, says nothing about video-recording or sign-stealing. I did find what seems to be the 2006 Official Rulebook in PDF form here, but it contains no references to "camera" or "video" (other than specifying that the commissioner can review video evidence in his investigation of unfair acts). Regardless of whether there is a formal rule about this practice, some would say that it is a "dirty trick" and perhaps a violation of the standards of fair play and sportsmanship to which one expects NFL teams to conform their behavior. Others, however, disagree, arguing that sign-stealing is fine so long as there is no formal rule.

I want to mention two potential sports law implications of this dispute. Some coverage has suggested that the bad-actor Patriots might be punished by way of a loss of a draft pick. 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?





26 Comments:

Guy is actually wearing a black shirt. Not green.

Blogger 100% Injury Rate -- 9/11/2007 8:44 PM  


Geoff,

What an excellent post. There are a lot folks out there who have already convicted Bill Belichick of "something bad," but as you detail, it's not clear that any NFL rules were broken or that Commissioner Goodell has the requisite authority in this instance to remove Patriot draft picks.

Also, it's interesting how our instinct to punish apparent rule-breakers might be thwarted or at least moderated by the NFL's own rule book.

Blogger Michael McCann -- 9/11/2007 10:49 PM  


Quite a few folks on sports-related message boards I frequent, and even one of the hosts of ESPN's NFL Live show, have suggested that losing draft picks isn't strong enough because it lacks immediate impact - instead, they argue, he should make the Pats forfeit the game to the Jets.

Now, I'm not so sure about game forfeiture as punishment for rule violation. For one thing, forfeiture is a meaningful punishment only if the offending team wins the game in the first place. If the Jets had won that game in spite of the Pats' cheating, what then?

More importantly though, forfeiture amounts to a gift for the other team, the one that couldn't win its game on the field. If the Pats had to forfeit the game to the Jets and it wound up costing them a playoff spot, I would have no sympathy for the Pats. I would, however, be very sympathetic toward any other team that got aced out of a playoff spot by the Jets because of the extra win the Jets were given by the league. If forfeiture is an option, it should be treated as a loss for the Pats but a tie, or perhaps even a no-contest (i.e. the game doesn't count in the standings at all), for the Jets.

But what say you about game forfeiture as punishment for this sort of thing?

Blogger Joshua -- 9/11/2007 11:29 PM  


It's being reported that all teams were sent a memo warning them not to use video cameras or recording eqipment on the sidelines at all, and specifically not to steal signs. For instance, per cbs sportsline:

"The rule is that no video recording devices of any kind are permitted to be in use in the coaches' booth, on the field, or in the locker room during the game," the league said in a statement from spokesman Greg Aiello. "Clubs have specifically been reminded in the past that the videotaping of an opponent's offensive or defensive signals on the sidelines is prohibited.

A club employee was caught on the field taping during the game and the camera confiscated. (Reportedly, there had been a prior Patriot offense which presumably triggered the earlier warning memo.) Whether the footage on the camera actually shows Jet signals may not be material except to the level of punishment; the commissioner has wider latitude in punishing owners than players (as long as a majority of oweners support him) since there's no collective bargaining relationship.

Unless other circumstances come to light, a loss of draft choices seems appropriate. It's a deterrent to other teams, punishes the Patriots in a way that affects the team's future for an offense that also would have affected their future (sign stealing would have been useful for future games but not the current one, since the video would have to be analyzed after the game to be useful). It also doesn't reward the Jets , who weren't materially harmed by the Patriots' cheating.

Blogger Leigh -- 9/12/2007 1:52 AM  


These signs are fairly public. Most people on the stands opposite the coaches will have a view of them. Anyone with a reasonable digital camera can video them, so if you are "stealing" why put a guy with a monster camera on his back on the sidelines where everyone can see him.

Buy some tickets to matches where your opposition is playing in the weeks before, video from the stands and know all their signs before you run on the field

Blogger Jamie -- 9/12/2007 4:43 AM  


I would think that the issue here is the sign-stealing, and not the use of video, which is only a means to attain an end (and likely the best way to prove at least on the balance of probabilities - not enough for crime, enough for regulatory punishment?).

Anyone can see the signs and take notes. Does the use of video take it to another level? Do we not expect rivals to study to the level of exhaustion other teams' moves and calls?

Of course this all changes in light of Joshua's post...

Anonymous Anonymous -- 9/12/2007 5:23 AM  


I am bothered more by the allegation (that I've read a couple of places, but seen no analysis) that the Pats were using "additional radio frequencies". THIS sounds like it has at least the potential of stealing the signals given to the QB, via radio, for every play. What's the story behind the story on that???

And it actually seems easier (and more effective) than stealing signs. What safeguards are there to prevent teams from doing that? I for one would like more info.

Anonymous Anonymous -- 9/12/2007 5:42 AM  


On the argument of whether the "owners" of a sign are making reasonable efforts to keep it private, I think we must distinguish between the sign itself, and the ability to translate the sign's meaning. The meanings are carefully guarded secrets; so much so, that the sport's sanctioning body has rules specifically in place to protect them.

The argument that displaying a signal on television renders it unprotectable as a trade secret is akin to saying a sender of a messages encrypted by PGP is not making efforts to safeguard their secrets because their messages (and public key for that matter) are viewable by the public.

Anonymous Anonymous -- 9/12/2007 9:34 AM  


Let me start off by saying that I'm not a Patriots fan. However, these accusations are borderline at best and ridiculous at worst. First, there is a proof problem for the league becuase who really knows what the cameraman was videotaping unless he is actually examined in a deposition.
Second, the fact that the league is just now starting to address this is a joke. I realize that Roger Goodell has the league's image to protect due to all the recent criminal proceedings against NFL players. But does this seem like the best way to portray to the public that the league is serious about its image. The league rules concerning this videotaping are ambiguous and vague on their face and I certainly believe that the Patriots would have a fairly solid legal challenge based on that alone.
Finally, let's be real here, sign-stealing has been going on in sports for decades now. In baseball, teams steal each others' signs all the time and it is regularly accepted as a part of the game. The same thing occurs in basketball especially between teams that play each other frequently. So how hard is it to come to grips with the fact that it also occurs in football? Teams are always going to find ways to gain an edge over their opponents any way they can as long as they believe they are doing so within legal bounds. In this case I just don't believe the league has enough compelling evidence or the proper rule language to justify any penalties being levied here. But because Goodell is on a crusade to defend and protect the league's image and integrity (and I'm a Goodell supporter), he'll probably levy some sort of penalty on the Patriots and they will most likely challenge it.

Blogger John Biggs -- 9/12/2007 2:28 PM  


On another note, if the Patriots really wanted to steal signs or steal plays from a Team, one would think that they would have the resources to do so. There have been plenty of instances in sports where refs and players have been bribed to throw a game. If the Patriots really wanted to steal signs, there is probably some way to achieve their goal. On the flip side though, its probably not a very smart idea to try and steal signs when other cameras are rolling and when you could be seen by other people. I dont know if the Patriots are so concerned that they have to go steal information like Ben Stiller tries to do in Dodgeball, but I highly doubt it. The last time i checked the Patriots were one of the best teams in the league. Until the video leaks out, I am in the dark as much as anyone else.

Blogger Buddy Handey -- 9/12/2007 2:57 PM  


John Clayton as espn.com reports that:

The "Game Operations Manual" states that "no video recording devices of any kind are permitted to be in use in the coaches' booth, on the field, or in the locker room during the game." The manual states that "all video shooting locations must be enclosed on all sides with a roof overhead."

(found at http://sports.espn.go.com/nfl/columns/story?columnist=clayton_john&id=3014944)

Anonymous David -- 9/12/2007 4:30 PM  


David:

I see that the Game Operations Manual sections are now being reported. A couple of things are interesting about this. First, if there is such a clear cut rule about this, why doesn't this appear in the Rulebook? Second, why does it take three days for the actual rule violated to be quoted? Third, what is the "Game Operations Manual" anyway, and how does it differ from a rulebook? This Manual -- which again, isn't publicly available on the web, so far as I can tell -- also talks about how many towels and cases of soda to give a visiting team (http://www.repworks.com/newsletters/1204.php) and when to put a tarp on a field when it rains (http://www.cincypost.com/bengals/2001/beng010101.html). Perhaps most notably, the Game Operations Manual also spells out size limits for Super Bowl rings, a rule that players violate at will without fear of sanction (http://www.post-gazette.com/pg/05013/441330.stm).

Regardless, it does seem that the league has communicated its view to teams in the past. But does that mean teams have to follow? Where, after, does the league get its authority?

Blogger Geoffrey Rapp -- 9/12/2007 7:31 PM  


When this allegation was first reported, I was surprised that actions such as this would even be at issue. First, could signal stealing even have much of an impact on the game? With the quickness that the game moves, is it even possible to take these somewhat broken plays and signals and turn them into a valuable competitive advantage? Is it possible for the Patriots to take somewhat hard to read, unclear camera footage and use it to exploit the Jets defense? It seems to me that whatever information the Patriots might have received from this camera footage would hardly have a bearing on the game. The game moves too quickly for the footage to be analyzed, and properly implemented. The Patriots would have to first analyze the film. Then the Patriots would have to recognize the defensive scheme when used by the Jets and then structure their play calling accordingly. I do not assert that it is impossible for these actions to have not impacted the game; it just seems a bit of stretch.

Beyond this, the Patriots are arguably the best team in the NFL, and it hardly seems that they would need to steal the plays of a mediocre team like the Jets. This is not to say that they would not have taken such measures, but the incentive to do so in a game against an opponent like the Chargers or Colts would be greater. Why would the Patriots risk getting caught stealing plays from someone like the Jets when it is not as critical as against a more competitive team? (I'm not trying to take away from the Jets, nor absolve the Patriots of any wrongdoing -- it just seems that the incentives were not present for such action in this game. However, I concede that people do not weigh the costs and benefits of their actions most of the time. Therefore, I guess, my analysis is more appropriate for an economic vacuum than the real world.)

By viewing past game footage, can the same end not be accomplished? Can a team not study the game footage of an opposing team from the current or previous season, and somewhat discern the team’s defensive plays/strategy is? I concede that plays are changed from game to game and depending on the player available. However, could a team not ascertain a general strategy of an opposing team? (I'm sure there are plenty of variables that are absent here, but the idea is still the same – it is possible for a team to attain a sense of a team’s offensive/defensive strategy by analyzing past game film.)

Anonymous Matthew Courtner -- 9/12/2007 8:07 PM  


The footage doesn't give an advantage in the current game - it gives an advantage the next time the two teams play, since conference opponents play twice each season. It's sounding like this is the culmination of many incidents, and many complaints from other teams, including at least two previous incidents with the same camaraman. See, for instance http://cbs.sportsline.com/nfl/story/10348383

Blogger Leigh -- 9/12/2007 11:32 PM  


The information might also be valuable in the second half if someone is attempting to analyze the material at halftime. I am not sure how complicated the defensive signals might be. If you see that every time the coach touches his cap with his right hand they play a "cover 2," and every time he puts his open palm to his side they blitz the middle line backer, it would not be hard to have a good idea of what is going on in the second half.

Anonymous Anonymous -- 9/13/2007 12:34 PM  


One thing I don't follow, if as many posters and pundits claim that the signal stealing does not help the current game, why were most of the previous accusations from non-division foes (San Diego) and even non-conference (Green Bay)?

Blogger Elusive1 -- 9/13/2007 12:53 PM  


Regarding the Commissioner's power to sanction unfair acts, the actual language you link to refers to "major effect on the result of a game", not, as you quoted it, "the" game. That's an important distinction, particularly given the argument that the taping rule is in place not to prevent it from impacting the outcome of the game at which it takes place, but future games.

Blogger Matthew Saunders -- 9/13/2007 3:48 PM  


elusive1, given the frequency with which coaches and coordinators switch teams, I expect stolen signs are put into a one big ol' database to be called up by the team when needed. Why not compile a master list if you can?

Blogger Matthew Saunders -- 9/13/2007 3:51 PM  


The NFL handed down their punishment to the Patriots. For a list of the penalties please go to this site
http://sports.yahoo.com/nfl/news?slug=ap-nflspying&prov=ap&type=lgns

Blogger Jordan Grant -- 9/13/2007 9:15 PM  


Jets season ticket holders should file an $8 million class action suit against the NFL, New England Patriots Coach Bill Belichick and the New England Patriots for fraud.
Ticket holders paid:
$75 per ticket
$25 for parking, gas, other incidentals.
total $100 per fan.
Multiple that by about 80,000 people at the the game.
$8 million.
We fans paid to watch a fair game and we were served a game in which the Patriots cheated. The NFL acknowledged the cheating by fining Belichick $500,000 and the team $250,000, in addition to the forfeiture of draft picks.
Jets fans could subpoena the Jets for the names of season ticket holders list. (Almost all tickets are owned by season ticket holders.)
It won't be hard for lawyers to find their clients. We'll all be at the next Jets home game, Sept. 23, ready to sign up.

Anonymous Anonymous -- 9/14/2007 12:03 AM  


Geoff,
I have no idea what the Game Operations Manual is. So I can only speculate. The following is speculation:
My guess is that the rulebook focuses on the rules of the game. By that I mean things like 4 downs, ten yards for a 1st down, etc. The game operations manual is kind of like a set of by-laws to the rulebook. It covers stuff that happens outside of the field (the actual field with hashmarks on it). There is a long history of teams doing things in and around the stadium to gain advantages. Watering the field to slow down a fast team is a common one. On the college level, Iowa famously painted the visiting men's locker room pink. My guess is the manual was put into place in order to standardize team's experiences at all games and/or to reduce home field advantage so that it does not become a race into dirty tricks (for example, jamming radio frequencies so we land up with coach in the booth being unable to communicate with the sideline. Oh wait, the Pats are already accused of this.).

Again, just my speculation. And it would be interesting to know more about the Game Operations Manual.

Anonymous David -- 9/14/2007 4:31 PM  


tis tis tis

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he's got fined a lot, but then again, he makes a lot.

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