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 Madisonian.net 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.

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