Co-authored by Ryan M. Rodenberg, Special to SI.com
“On the totality of the available evidence and the potential unknown evidence, the Commissioner's investigation has been fatally flawed. The lack of candor, the piecemeal disclosures, the changes in position on material matters, the failure to be proactive in seeking out other key witnesses, and responding only when unavoidable when evidence is thrust upon the NFL leads to the judgment that an impartial investigation is mandatory.
“There is an unmistakable atmosphere of conflict of interest or potential conflict of interest between what is in the public's interest and what is in the NFL's interest. The NFL has good reason to disclose as little as possible in its effort to convince the public that what was done wasn't so bad, had no significant effect on the games and, in any event, has all been cleaned up. Enormous financial interests are involved and the owners have a mutual self-interest in sticking together. Evidence of winning by cheating would have the inevitable effect of undercutting public confidence in the game and reducing, perhaps drastically, attendance and TV revenues.
“The public interest is enormous. Sports personalities are role models for all of us, especially youngsters. ... The Congress has granted the NFL a most significant business advantage, an antitrust exemption, highly unusual in the commercial world. That largesse can continue only if the NFL can prove itself worthy. Beyond the issues of role models and antitrust, America has a love affair with sports. Professional football has topped all other sporting events in fan interest. Americans have a right to be guaranteed that their favorite sport is honestly competitive.”
Should the U.S. Congress decide to probe the NFL’s handling of the Ray Rice investigation, the legislators won’t have to look far for a post-inquiry statement. The Senators and Representatives will need only to walk a few blocks down Pennsylvania Avenue to the National Archives, where they will find the above, Sen. Arlen Specter’s June 5, 2008 statement on the floor of the U.S. Senate.
Specter delivered this statement following his investigation into Spygate, the first “gate” to sully the Roger Goodell commissionership. At the time, Goodell had recently succeeded Paul Tagliabue as the NFL’s top executive. How he handled Spygate is, well, revealing vis-à-vis the league’s current crisis. Most obviously: in Spygate, Goodell opted to destroy the videotapes his deputies obtained. This provokes the obvious question -- What would the NFL have done if it did obtain the Rice elevator tape from a law enforcement or Revel casino source? If an NFL executive did come into possession of the tape, as reported last week, what happened to it?
Here’s a quick refresher on Spygate.
The scandal involving Bill Belichick’s secret videotaping of opposing teams in violation of league rules sometimes still grabs headlines. Earlier this year, in advance of the New England Patriots-Indianapolis Colts playoff game, Indianapolis offensive coordinator Pep Hamilton alluded to how the Patriots “always tend to find ways to figure out some of your signals.” Immediately after a December 2013 regular-season loss against the Patriots, Houston Texans defensive end Antonio Smith expressed his own suspicions, opining that “either teams are spying on us or scouting us.” In 2012, Baltimore Ravens coach John Harbaugh described Spygate as an asterisk-deserving “stain.”
The scandal broke Sept. 9, 2007 when Eric Mangini turned whistleblower during a regular-season home game against the Patriots. Mangini, the then-second-year coach of the New York Jets and a former New England assistant coach under Bill Belichick, notified the league about how the Patriots’ clandestine in-game videotaping violated Article IX, Section 9.1(c)(14) of the NFL constitution and bylaws. League security officials swooped in to confiscate the camera and videotape of Matt Estrella. Four days after Mangini’s revelations, Goodell meted out his punishment -- a total of $750,000 in fines and the loss of at least one draft pick. Goodell described the scandal as a “calculated and deliberate attempt to avoid longstanding rules designed to encourage fair play and promote honest competition on the playing field.” This was prior to NFL executives traveling to Boston on Sept. 17 to actually review the tapes and notes provided by the Patriots.
The league was almost certainly aware of the Patriots’ activities a full year before Mangini leveled his charge. NFL executive Ray Anderson, who recently left the league for a position at Arizona State University, penned a two-page memo on Sept. 6, 2006. A copy of the memo has been obtained by Sports Illustrated. The memo was for all head coaches and general managers. In relevant part, the memo stated:
Videotaping 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 Nov. 19, 2006, Doug Collins, the Green Bay Packers’ security chief removed Patriots film guy Matt Estrella after Estrella was caught taping the Packers’ defensive signals.
Spygate proved to be quite a career bookend for Pennsylvania’s Arlen Specter, a junior staffer on the Warren Commission investigation into the assassination of President Kennedy in 1963. Senator Specter, who passed away in 2012, wrote a letter to Roger Goodell on Nov. 15, 2007. Receiving no response, he wrote another letter on Dec. 19, 2007. Goodell eventually replied on Jan. 31, 2008. The exchange of letters foreshadowed a Feb. 13, 2008 meeting between Sen. Specter and Goodell in Room 711 of the Hart Senate Building in Washington, DC. NFL lawyer Jeff Pash accompanied Goodell. A source in attendance at the meeting recently spoke with Sports Illustrated on the condition of anonymity and provided details of the NFL’s investigation.
According to the source, the meeting was cordial and professional. The commissioner was asked about reports of the Patriots taping the St. Louis Rams’ pre-Super Bowl walk-through in 2002, an event that has lingered with both Marshall Faulk and Kurt Warner. Goodell said the NFL looked into it and found no credible evidence. None of the destroyed tapes included footage of the Rams. Sen. Specter also asked about the decision to destroy the tapes generally and found “no plausible explanation as to why Commissioner Goodell imposed the penalty on Sept. 13, 2007, before the NFL examined the tapes on Sept. 17, 2007.” The source said Goodell was “defensive” in connection with this issue. Also, while in Foxborough on Sept. 17, Pash spoke with long-time Belichick confidant Ernie Adams and explained that the publicity-shy Adams was the only person to receive the tapes from the video crew and was the one who did the analytical work in connection with the tapes. The notes accompanying the tapes, which were also destroyed on Sept. 17, were overwhelmingly about signals used by the Patriots’ AFC East rivals, with very little about NFC teams.
After the meeting, Sen. Specter’s investigation included reaching out to NFL quarterbacks and team officials, including a former member of the league’s competition committee. Some spoke. Others clammed up. Those that agreed to talk described how the clandestine taping system could lend itself to a competitive advantage for the Patriots. A former starting quarterback told a member of Sen. Specter’s staff that being tipped off to an opposing team’s defensive signals would probably result in a play-calling success rate north of 70 percent.
As part of the NFL’s Spygate “clean up” (the less charitable may say, “cover up”), the NFL entered into an April 23, 2008 agreement with Matt Walsh, a staff-level videographer who worked for Belichick during the coach’s early years with the Patriots. A copy of the agreement has been obtained by Sports Illustrated. The tapes Matt Walsh retained post-employment served as the subject of the dense eight page single-spaced agreement. Full of legalese and numerous sub-paragraphs, the heart of the agreement is Section 3’s indemnification clause. By indemnifying Walsh prior to any discussions about the content of the videos in his possession, Walsh’s attorney secured legal protection for his client against any possible lawsuits in the future. The Walsh-NFL agreement also included a five-year term partially limiting Walsh’s ability to pursue any “commercial advantage” connected with his previous work for the Patriots. On May 13, 2008, Walsh had separate meetings with both Goodell and Sen. Specter.
Like Eric Mangini, Carl Mayer was frustrated. A New Jersey-based attorney specializing in consumer protection and corruption cases, Mayer was also a New York Jets season-ticket holder. On Sept. 28, 2007, he filed a federal lawsuit “on behalf of himself and all others similarly situated” alleging fraud and a variety of other claims against Belichick, the New England Patriots and the NFL in connection with the Spygate revelations. U.S. District Court Judge Garrett Brown dismissed the lawsuit. The U.S Court of Appeals for the Third Circuit took up the case next. Judge Robert Cowan, writing for a unanimous three-judge appellate panel, affirmed the dismissal, but closed by throwing a proverbial bone to the disappointed plaintiffs:
Again, it bears repeating that our reasoning here is limited to the unusual and even unique circumstances presented by this appeal. We do not condone the conduct on the part of the Patriots and the team’s head coach, and we likewise refrain from assessing whether the NFL’s sanctions (and its alleged destruction of the videotapes themselves) were otherwise appropriate.
In a move that may have infuriated hard-core New York Jets fans, the Jets franchise filed a “friend of court” amicus brief in the Mayer litigation. The brief, also obtained by Sports Illustrated, was three pages long and carefully worded:
The Jets understand and appreciate the concern of the team’s loyal fans. However, as a member team of the NFL, the Jets have agreed that certain League rules and procedures will apply when an infraction of NFL rules occurs by any member club, whether on or off the field. These rules and procedures were applied properly in this matter. Violations of NFL rules are appropriately addressed through internal League investigation, procedure, and discipline of an offending team where appropriate. Our fans’ disappointment in the discipline should not be the basis for a lawsuit.
Both the court’s decision and the Jets’ brief show the degree of deference paid to the NFL decision-making. Such deference is fully at issue now.
Both incidents involved videotapes. In Spygate, Goodell instructed trusted deputy Jeff Pash to destroy the tapes on location in Foxborough. Goodell never reviewed the tapes himself prior to meting out his punishment. Goodell’s allergy to videotapes resurfaced again last week in connection with the Ray Rice elevator footage and the league has now taken to hiring former FBI director Robert Mueller.
The result gives rise to two questions:
1) Does Goodell’s inability or unwillingness to obtain and secure evidence result from a deliberate attempt to maintain plausible deniability in connection with the scandals?
2) Does Goodell’s willful blindness result from a blend of incompetence and negligence?
We know what Sen. Specter concluded following his Spygate investigation. The ensuing months, which will undoubtedly include trickles of new information and the occasional mea culpa, will shed light on the NFL’s Ray Rice investigation, a study in opacity to this point.