605 F.3d 223 (3rd Cir. 2010)
This highly unusual case was filed by a disappointed football fan and season ticket-holder in response to the so-called “Spygate” scandal. This scandal arose when it was discovered that the Patriots were surreptitiously videotaping the signals of their opponents.
[Carl Mayer alleges that] Bill Belichick, during a game with the New York Jets on September 9, 2007, instructed an agent of the New England Patriots to surreptitiously videotape the New York Jets coaches and players on the field with the purpose of illegally recording, capturing and stealing the New York Jets signals and visual coaching instructions. The Patriots were in fact subsequently found by the National Football League (NFL) to have improperly engaged in such conduct. This violated the contractual expectations and rights of New York Jets ticket-holders who fully anticipated and contracted for a ticket to observe an honest match played in compliance with all laws, regulations and NFL rules.
Mayer, a New York Jets season ticket holder, contends that in purchasing tickets to watch the New York Jets that, as a matter of contract, the tickets imply that each game will be played in accordance with NFL rules and regulations as well as all applicable federal and state laws. Mayer [and others] contend that the Patriots tortuously [sic] interfered with their contractual relations with the New York Jets in purchasing the tickets. They further claim that the Patriots violated the New Jersey Consumer Fraud Act and the New Jersey Deceptive Business Practices Act. They also claim that the Patriots violated federal and state racketeering laws by using the NFL as an enterprise to carry out their illegal scheme. Because the Patriots have been found in other games to have illegally used video equipment, Mayer sought damages for New York Jets ticket-holders for all games played in Giants stadium between the New York Jets and the New England Patriots since Bill Belichick became head coach in 2000.
At their most fundamental level, the various claims alleged here arose out of the repeated and surreptitious violations of a specific NFL rule. This rule provides 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’” and that “all video for coaching purposes must be shot from locations ‘enclosed on all sides with a roof overhead.’” In a September 6, 2007, memorandum, Ray Anderson, the NFL’s executive vice president of football operations, stated that “'[v]ideotaping of any type, including but not limited to taping of an opponent’s offensive or defensive signals, is prohibited on the sidelines, in the coaches’ booth, in the locker room, or at any other locations accessible to club staff members during the game.’”
On September 9, 2007, the Jets and the Patriots played the season opener in Giants Stadium, East Rutherford, New Jersey. Mayer possessed tickets and parking passes to this game, and the Patriots ultimately won, 38–14. ESPN.com then reported that the NFL was investigating accusations that an employee of the Patriots was actually videotaping the signals given by Jets coaches at this game. Specifically, NFL security reportedly confiscated a video camera and videotape from an employee during the course of the game, and this employee was accused of aiming his camera at the Jets’ defensive coaches while they were sending signals out to the team’s players on the field.
This was not the first time a public accusation of cheating or dishonesty had been made against the Patriots. A man wearing a Patriots credential was found carrying a video camera on the sidelines at the home field of the Green Bay Packers in November 2006. Admittedly, “[t]eams are allowed to have a limited number of their own videographers on the sideline during the game, but they must have a credential that authorizes them to shoot video, and wear a yellow vest.” However, this particular individual evidently lacked the proper credential and attire and was accordingly escorted out of the stadium by Packers security.
With respect to the 2007 incident, the Patriots denied that there was any violation of the NFL’s rules. A Patriots cornerback named Ellis Hobbs told the press that he was unwilling to believe that his team had cheated and that he was standing by the team and its coaches. However, he also admitted that, “[i]f it’s true, obviously, we’re in the wrong.” Belichick apologized to everyone affected following the confiscation of the videotape. But, at a weekly press conference on September 12, 2007, he refused to take questions from reporters about the NFL investigation and stormed out of the room.
On September 13, 2007, “the NFL found the [Patriots] guilty of violating all applicable NFL rules by engaging in a surreptitious videotaping program.” It imposed the following sanctions: (1) the Patriots were fined $250,000.00; (2) Belichick was personally fined $500,000.00; and (3) the Patriots would be stripped of any first-round draft pick for the next year if the team reached the playoffs in the 2007-2008 season and, if not so successful, the team would otherwise lose its second-and third-round picks. Roger Goodell, the commissioner of the NFL, characterized the whole episode as “‘a calculated and deliberate attempt to avoid longstanding rules designed to encourage fair play and promote honest competition on the playing field.’” He further justified the penalties imposed on the team on the grounds that “’Coach Belichick not only serves as the head coach but also has substantial control over all aspects of New England’s football operations” and therefore “‘his actions and decisions are properly attributed to the club.’”
The owner of the Patriots, Robert Kraft, refused to comment on the NFL’s sanctions, and the New York Jets issued a statement supporting the commissioner and his findings. On September 13, 2007, Belichick stated the following: “‘Once again, I apologize to the Kraft family and every person directly or indirectly associated with the New England Patriots for the embarrassment, distraction and penalty my mistake caused. I also apologize to Patriots fans and would like to thank them for their support during the past few days and throughout my career.’” However, he then “bizarrely…attempted to deny responsibility, stating: ‘We have never used sideline video to obtain a competitive advantage while the game was in progress…[.] With tonight’s resolution, I will not be offering any further comments on this matter. We are moving on with our preparations for Sunday’s game.’ “But, at least according to Mayer, Jets ticket-holders have refused to “move on.”
The Patriots and Belichick deployed their surreptitious videotaping program during all eight games played against the Jets in Giants Stadium from 2000 through 2007. Beginning in 2000 when Belichick became head coach, they commenced an ongoing scheme to acquire the signals of their adversaries and then match such signals to the plays on the field, in alleged violation of the “NFL rules that are part of the ticketholders’ contractual and/or quasi contractual rights.” On the other hand, Jets fans collectively spent more than $61 million on tickets to watch these purportedly honest and competitive games between the two teams.
In 2000, Matt Walsh, an employee in the team’s videography department, was hired by the team to videotape the signals of opponents. Relying specifically on statements made by Walsh to the New York Times and United States Senator Arlen Specter, Mayer made a series of allegations with respect to this Patriots employee. Walsh claimed that he received his videotaping instructions directly from Ernie Adams, Belichick’s own special assistant. The purpose of the videotaping program was to capture signals for use in games against the same opponent later in the season, and the program was later expanded to include teams that the Patriots could encounter in the playoffs. The first instance of taping occurred in a 2000 preseason game against the Tampa Bay Buccaneers. When the two teams played again in the regular season opener, the Patriots appeared to use the acquired signals. Walsh specifically asserted “that this was the first time he had seen quarterback Drew Bledsoe operate a ‘no huddle’ [offense] ‘when not in a two-minute or hurry situation’” and that, when he asked an unnamed quarterback if the taped signals were helpful, the player replied that, “’probably 75 percent of the time, Tampa Bay ran the defense we thought they were going to run.’” Although Walsh left the videotaping program after the 2002 Super Bowl, “he [as a Patriots season ticketholder] witnessed Patriots employee Steve Scarnecchia continue the same taping practices in multiple games in the 2003, 2004, and 2005 seasons.” Walsh was further instructed by the Patriots organization to conceal his actions and misrepresent his activities if challenged on the field by: (1) intentionally breaking the red operating light on the video camera, (2) telling any person questioning “the use of a third video camera on the field” that he was filming tight shots or highlights, and (3) “if asked why he was not filming action on the field, he was to say he was filming the down marker.” Finally, at the 2002 American Football Conference championship game against the Pittsburgh Steelers, Walsh was instructed not to wear a team logo while filming.
Walsh’s attorney, Michael Levy, likewise released a statement describing the team’s method “of securing and tying coaching signals to plays.” As reported in the New York Post, the lawyer provided the following description of a videotape made during an October 7, 2001, game against the Miami Dolphins:
“[It] contains shots of Miami’s offensive coaches signaling Miami’s offensive players, followed by a shot from the end-zone camera of Miami’s offensive play, followed by a shot of Miami’s offensive coaches signaling Miami’s offensive players for the next play, then edited to be followed by a shot of the subsequent Miami offensive play,” Levy told ESPN.com. “And that pattern repeats throughout the entire tape, with occasional cuts to the scoreboard.”
Citing again to the New York Post, Mayer further alleged that the NFL wrongfully destroyed the illicit videotapes themselves:
Other tapes produced to the NFL (and later destroyed by order of Commissioner Roger Goodell) include defensive signals from Miami coaches in a game on Sept. 24, 2000, signals from Bills coaches from a Nov. 11, 2001, game, signals from Browns coaches from a game on Dec. 9, 2001, two tapes of signals from Steelers coaches from the 2001 AFC Championship game on Jan. 27, 2002, and signals from Chargers coaches from a game Sept. 29, 2002.
Walsh provided at least eight videotapes to the NFL, while the Patriots likewise furnished at least six tapes to the league. The commissioner claimed that he ordered the destruction of the videotapes to prevent their use by the Patriots, even though the NFL allegedly had a legal duty to preserve these items pursuant, inter alia, to the Sarbanes-Oxley Act and the NFL’s own antitrust exemption.
Here, Mayer undeniably saw football games played by two NFL teams. This therefore is not a case where, for example, the game or games were cancelled, strike replacement players were used, or the professional football teams themselves did something nonsensical or absurd, such as deciding to play basketball.
Nevertheless, there are any number of often complicated rules and standards applicable to a variety of sports, including professional football. It appears uncontested that players often commit intentional rule infractions in order to obtain an advantage over the course of the game. For instance, a football player may purposefully commit pass interference or a “delay of game.” Such infractions, if not called by the referees, may even change the outcome of the game itself. There are also rules governing the off-field conduct of the football team, such as salary “caps” and the prohibition against “tampering” with the employer-employee relationships between another team and its players and coaches. A team is apparently free to take advantage of the knowledge that a newly hired player or coach takes with him after leaving his former team, and it may even have personnel on the sidelines who try to pick up the opposing team’s signals with the assistance of lip-reading, binoculars, note-taking, and other devices. In addition, even Mayer acknowledge[s] that “[t]eams are allowed to have a limited number of their own videographers on the sideline during the game.”
In fact, the NFL’s own commissioner did ultimately take action here. He found that the Patriots and Belichick were guilty of violating the applicable NFL rules, imposed sanctions in the form of fines and the loss of draft picks, and rather harshly characterized the whole episode as a calculated attempt to avoid well-established rules designed to encourage fair play and honest competition. At the very least, a ruling in favor of Mayer could lead to other disappointed fans filing lawsuits because of “a blown call” that apparently caused their team to lose or any number of allegedly improper acts committed by teams, coaches, players, referees and umpires, and others.
Professional football, like other professional sports, is a multibillion dollar business. In turn, ticket-holders and other fans may have legitimate issues with the manner in which they are treated. (“It is common knowledge that professional sports franchisees have a sordid history of arrogant disdain for the consumers of the product.”) Fans could speak out against the Patriots, their coach, and the NFL itself. In fact, they could even go so far as to refuse to purchase tickets or NFL-related merchandise. However, the one thing they cannot do is bring a legal action in a court of law.
Source: Reprinted from Westlaw with permission of Thomson Reuters
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