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Friday, September 14, 2007
Professor Alfred Yen on the NFL's Punishment of the Patriots and Bill Belichick

Professor Alfred Yen of Boston College Law School, a nationally recognized expert on sports law and copyright law, has authored a thoughtful and engaging reaction on to the NFL's punishment of the New England Patriots for having a video assistant tape the Jets coaches and players on the sidelines. The NFL has fined Bill Belichick $500,000 and the Patriots $250,000 and also confiscated the team's 2008 first round pick (assuming they make the playoffs; in the improbable event that they do not, the Pats will instead relinquish their second and third round picks--but note that their possession of San Francisco's 2008 first round pick, which was obtained in a draft day deal last April, is unaffected by this ruling). Here is Professor Yen's reaction:
Now people will begin debating the appropriateness of the penalties paid by Belichick and the Patriots. One argument will be that deciphering signs is part of sports and perfectly legal, so Belichick’s objective was not a terrible thing. And, if deciphering signs is ok, why make such a big deal of using a video camera to accomplish it?

There’s a curious parallel between this argument and one about circumvention of DRM in copyright. Both the Patriots and some circumventers have a “legal” objective. The Patriots want to decipher the opponent’s defensive signals, and some circumventers want to make fair use of a copyrighted work. The only “offense” is using technology to accomplish otherwise legal ends. So, if we think (as some do) that penalties for circumvention should be lenient or nonexistent when fair use is the purpose, shouldn’t the Patriots and Belichick get off with less severe punishment?

I admit this argument has some appeal, and it made me reconsider my initial reaction that the Patriots and Belichick got what they deserved. However, there’s a difference between the two scenarios. The Patriots and Belichick are not relatively innocent first time offenders. The Packers caught them at it last year. More important, this fall the NFL specifically reminded coaches not to do the very thing the Patriots did. Thus, it seems that the NFL did not punish the Patriots and Belichick simply for breaking a rule. Rather, the NFL punished them for thumbing their noses at the league’s authority to regulate competition. It’s as if a circumventer had deliberately violated a preliminary injunction against circumvention. A court’s severe response in such a situation would be for flouting the court’s authority, not simply the illegality of circumvention.

With this in mind, I think the league has treated the Patriots and Belichick quite fairly. They have been taught that disobeying the commissioner is painful. Although I might have suspended Belichick if I were the commissioner, I can understand that Goodell didn’t want to upset competitive balance on the field in such a direct way when the Patriots themselves did not actually alter a competitive outcome (they were caught in the first quarter and the videotape was confiscated, so they never got the benefits of their misbehavior).

I agree with Professor Yen that what makes the Patriots behavior particularly reprehensible is not the underlying action (covert videotaping), since many other teams apparently do the same thing and it's unclear to what extent the videotapes are beneficial to the culprits; what makes it reprehensible is to disregard league warnings, perhaps repeated warnings, to stop doing it. That's why this issue really isn't about the Patriots "cheating," but rather about them being arrogant/disrespectful toward the league.

Still, I agree with Geoff Rapp's excellent post and subsequent comments, and particularly his wonderment as to why the videotaping rule never made its way into the official rulebook, but instead into the (arguably) less authoritative "Game Operations Manual," which also regulates such momentous events as how many towels and soft drinks to provide visiting teams.


It's not true that the game operations manual is less authoritative than the NFL rulebook. The rulebook covers the game as it is played on the field. The game operations manual covers off-the-field issues. The chief difference is that field officials enforce the rules contained in the rulebook, while officials in the NFL's front office enforce the rules in the game operations manual.
All major sports that I know of operate this way. For example, major league baseball has rules about pre-game fielding practice and batting practice and many other issues that are not in the official rulebook.
There's also another completely different set of NFL rules pertaining to what a team can and cannot do between games and in the off-season.
There are reasons for having different sets of rules in different documents. The official rulebooks applies primarily to players and, to a lesser extent, to coaches in the course of the game.
The game operations manual applies primarily to ancillary personnel (although, as in the Belichick case, the coaching staff may also be involved).
The third set of rules applies primarily to front office personnel such as the general manager, player personnel director, et al.

Blogger rhickok1109 -- 9/14/2007 9:28 AM  

I have to disagree with that previous post. The game operations manual IS less authoritative than the NFL rulebook because it concerns trivial in-game issues like the number of footballs the home team must provide, the number of towels and gatorade coolers they have to provide for the visiting team, and other miniscule matters of the like. The NFL rulebook is interpretted exactly for what it is, a rulebook. It's the same premise as the Federal Rules of Civil Procedure are used to guide civil lawsuits in the federal court system. Yet the NFL apparently does not see it that way. Nevertheless, that is the way it should be and I can't imagine many courts interpretting it the same way that the league does. Most judges or arbitrators would probably see the rulebook as analogous to a statute body or something similar to the Federal Rules of Evidence, Civil Procedure, Appellate Procedure, etc. I simply think that the amount of deference being given to this "game operations manual" is way too strong and makes the actual NFL rulebook seem somewhat trite and meaningless.

Blogger John Biggs -- 9/14/2007 12:20 PM  

I think the difference between the two is more like the difference between a city's traffic code and a city's building code.
The rulebook calls for rather minor penalties--mostly 5 yards or 10 yards of field possession--that are levied immediately by officials who are on the spot.
The game operations manual calls for penalties ranging from minor to major that are levied after the fact by the league's very highest official, the commissioner (or his staff, with his imprimatur).
The rules pertaining to what can be done between games and during the off-season call for mostly major penalties (i.e., large fines) that are levied after the fact by the commissioner. For example, the Denver Broncos lost draft choices and were fined about $1.25 million for salary cap violations that took place in the late 1990s, although the penalties weren't assessed until after 2000.
I don't see how "authoritative" enters into it. They are rules that cover different types of situations.

Blogger rhickok1109 -- 9/14/2007 3:47 PM  

I am puzzled by the comment that the Operations Manual is less authoritative. The issue of whether one is more "authoritative" than the other only arises if one conflicts with the other.

Absent any conflict, the rule is the rule, and it matters little where it happens to be codified.

Anonymous Hoover -- 9/14/2007 5:08 PM  

I'll have to agree with Mr. Biggs here on the rulebook vs manual issue. I do however think Belichick got off fairly easily. Compared to Wade Wilson's suspension for 5 games for HGH and roids, he got a pretty fair punishment (we all know he won't have to pay the fine). He could be watching the next couple of games from his couch. Also, Belichick gave us a rather Giambi or McGwire type apology where he didn't truly apologize for "cheating," but just stated that a rule was misinterpreted. He knew what was going on was cheating, especially with the memo sent out to all teams. I think Goodell just had to draw the line here, but he could have gone further with a suspension in my opinion (especially since it wasn't the first time NE had done this). Hopefully for NE, this incident won't be a stigma on them.

Anonymous Jason Canterbury -- 9/14/2007 5:12 PM  

Jason, what makes you think Belichick won't have to pay that fine? My understanding is that the team is not allowed to pay the fine for him, and there's no appeals process that I'm aware of that might reverse the penalty.

And hey, if the team does pay Belichick's fine, does that amount to $500k in taxable income to him?

Blogger Matthew Saunders -- 9/14/2007 6:28 PM  

Because just about anytime anyone gets fined there's someone with a pocketbook ready to pay off the fine. I'm sure someone will take care of Belichick. It may not be the team per se, but I would predict that someone will fork up the money.

Anonymous Jason Canterbury -- 9/15/2007 5:21 PM  

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