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?

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