Should viewers of the Week 7 Monday Night Football game between the New York Jets and the New England Patriots been able to hear and watch Jets quarterback Sam Darnold say that he was “seeing ghosts”?
The answer is arguably no, and the reason stems from a seldom discussed section of the collective bargaining agreement.
Unpacking the Mystery of Article 51
Darnold, like other NFL players, is contractually obligated to wear a microphone at certain times during the regular season. This obligation is found in Article 51 of the CBA, which contains a bevy of rules for on-field microphones and sensors. These rules apply to NFL Films, a production company owned by the NFL, as well as to the league’s five broadcast networks (NBC, CBS, Fox, ESPN and the NFL-owned NFL Network).
To that end, NFL Films is authorized to “put microphones on any players that NFL Films selects,” but the rules are more specific for quarterbacks. During the regular season, each starting QB is “required” to wear a microphone at least once, but no player—quarterback or otherwise—is required to wear a mic more than four times.
During the preseason or postseason, it’s a different story: there is “no limitation” on the number of times any player can be required to wear a mic at the behest of NFL Films.
At least one starting quarterback insists that he has successfully refused to wear a mic, without apparent repercussions. Earlier this week, Green Bay Packers QB Aaron Rodgers was asked by Dan Patrick if he has refused to wear a mic. Rodgers responded, “Oh yeah, definitely. I do all the time ... I haven’t been mic’d up in a while.”
Recordings used for NFL programing—as opposed to those used in live television broadcasts—offer players privacy safeguards. Article 51 instructs that sound captured for purposes of NFL programming can’t be used during the game in which the player is mic’d without his prior permission. In addition, the player (or his selected team representative) has the right to “embargo” any sound that the player views as “extremely sensitive or inappropriate.” Players can also embargo sound that reflects confidential communications or discussions that could place the player or his team at a competitive disadvantage. Players have 24 hours upon receipt of the sound to issue an embargo. If they do so, the objection would be directed towards NFL Films.
This arrangement likely works well for documentaries, films and other non-live broadcasts produced by NFL Films. Players can be sure that they, or someone on their behalf, has an opportunity to review sound captured in games before the public hears it. Along those lines, they can embargo recorded comments that might embarrass the player or his team.
It’s a different story for live broadcasts. Obviously, there are logistical and commonsensical reasons that make it more difficult to review sound in real time. Those producing games want to present the most compelling product to viewers. Producers might have only seconds to make decisions before a particular clip becomes contextually irrelevant or replaced by more compelling content.
Also, NFL football is fundamentally an entertainment product. The league, along with its broadcast networks and the companies that pay millions to air commercials during games, want to maximize viewers, which in turn maximizes revenue.
NFL players themselves gain when more fans tune in and don’t turn the channel—nearly half of the NFL’s TV revenue is shared with players, and more revenue translates into higher salary caps and higher player salaries. Players also don’t want to be involved with TV sound questions while they play. Take Darnold, for example. When he made his comment about seeing ghosts, he was focused on trying to defeat the Patriots. It would have been unreasonable to expect him to answer questions about sound clips during the game. His job is to play football, not act as a production assistant.
NFL broadcasting partners also have a duty to “use best efforts to refrain from broadcasting any captured audio that contains inappropriate or sensitive content.” If the NFL concludes that a broadcasting partner fails to live up to that duty, the league can deny that partner the ability to broadcast player audio in the future.
In addition to requests by NFL Films to players to wear mics, the league’s network TV partners can require offensive linemen to wear mics embedded in their shoulder pads. The purpose of these mics is to “capture ambient sound from the playing field.” The mics only open after the offense breaks the huddle. They are supposed to be closed a few seconds after the snap. Also, any player conversations or comments transmittable on these mics while the players are standing or seated in the bench areas, or in the locker room, are supposed to be encrypted and not made available.
Lastly, the league has the right to require players to wear sensors and “other nonobtrusive tracking devices” during games. Such equipment can only be used for limited purposes, such as to collect information on players’ performances and movements. With the NFLPA’s blessing, the NFL can also demand that such equipment be worn to acquire health and player safety-related data.
Telling Ghost Stories and Editorial Choices
As New York Daily News’s Manish Mehta noted, this comprehensive system of mics and recordings appeared to break down during Monday night’s broadcast. According to Mehta, an on-site NFL Films representative cleared the “seeing ghosts” comment for use by ESPN, and the network then opted to use it. While Article 51’s rules make clear that Darnold had an obligation to wear a mic, the broadcasting of “seeing ghosts” arguably defies the “spirit” of those rules.
For one, NFL Films is not expected to clear, and ESPN is not expected to broadcast, content that is “inappropriate” or “sensitive.” Whether a particular sound clip ought to be classified as “appropriate” or “inappropriate” is a matter of subjective interpretation—there is no bright-line rule. That said, there’s a good argument that sound that would clearly humiliate a player falls on the wrong side of the equation.
In the football world, the expression “seeing ghosts” has a number of meanings. With a quarterback, it usually describes a player confused or tricked by the defense. Darnold uttered the comment while seated on the Jets bench in MetLife stadium. He appeared to be talking to no one in particular. He uttered the remark while briefly putting his head up before putting it back down. He seemed totally defeated. ESPN aired the recorded video and sound clip with three minutes to go in the second quarter. It was not aired live, as Darnold was already back on the field by that point. Regardless, it didn’t offer much hope for Jets fans or for bettors who thought the Jets wouldn’t lose by more than nine points (the final point spread was 9.5). The score at the time was 24-0; the game would end 33-0.
There is no question that Darnold played disastrously and seemed confused. The No. 3 overall pick from the 2018 NFL draft threw four interceptions and completed just 11 of 32 passes. From a TV production standpoint, Darnold saying that he saw ghosts succinctly captured his inability to complete passes against the NFL’s top defense. It made for compelling TV and instantly became a hot topic on social media.
At the same time, many viewers were unaware that the expression “seeing ghosts” has a meaning within the football community. To them, the statement may have suggested that Darnold was so shell-shocked that he would invoke supernatural jargon. The visual also mattered. Darnold seemed almost helpless as he stared ahead while putting his head up and down; noticeably, the camera angle did not show him speaking to another person.
The sequence was arguably gratuitous, too. Viewers of the game didn’t need Darnold’s verbal comments to know that he was overwhelmed. All they had to do was watch him repeatedly throw off his back foot and see Stephon Gilmore, Devin McCourty, Duron Harmon and Terrence Brooks pick off his passes.
Although Darnold knew that he was mic’d, he may not have expected that things said while speaking aloud on the bench, talking to no one in particular, would be used in the broadcast. The former USC star didn’t make the comment following a play or while speaking with one of his coaches. Darnold might assert that he should have been afforded a reasonable expectation of privacy in that particular situation and that NFL Films and ESPN breached it. Although the “ghost” controversy will likely fade over time, Darnold and his agent might worry that it could negatively impact his marketability with endorsement deals in the short-term.
It’s clear that the Jets are irate with NFL Films and ESPN. Jets coach Adam Gase told media, "I don’t know how we can allow our franchise quarterback to be put out there like that.” Gase suggested the team will rethink the extent to which it cooperates with mic requests. The fact that Jets coaches are upset is hardly a surprise. Darnold “seeing ghosts” implies he was unprepared to play the Patriots, and a lack of preparation goes to coaching.
Darnold’s running back, Le’Veon Bell, was blunter in his criticism of NFL Films and ESPN. He opined that Darnold was “screwed” by what occurred. Bell suggested Darnold was being cruelly picked on unlike other quarterbacks and that Darnold was not on fair notice that his comment would be used. “There’s not one player in the NFL who’s cool with with having every sideline convo broadcasted to millions,” Bell tweeted. “There’s a reason we’ve never heard other QB’s frustrated on the sideline like that before. That’s crazy, @NFL did Sam dirty as hell."
The NFL is an entertainment product and “seeing ghosts” entertained the viewers
As mentioned above, the clip with Darnold saying that he was “seeing ghosts” made for great TV. It was clearly newsworthy as it became an instant source of news. The clip was arguably illuminating, too. It humanized a young quarterback who was struggling against too high a level of competition. Most viewers obviously can’t relate to playing in the NFL, but they can relate to athletic, school or work experiences where they are in over their head. We’ve all been there.
Strictly from a TV ratings standpoint, airing the clip also seemed appropriate. The game was not at all competitive and, other than for Patriots fans and certain bettors, not particularly interesting. Commercial sponsors who pay millions to air advertisements during NFL games don’t want a blow out on Monday Night Football. The drama of Darnold trying (and failing) to overcome the “ghosts” may have kept viewers watching a little longer. And, as detailed above, the NFL and its players earn more money when TV revenue is higher.
Darnold is also at a stage of his career where he should realize that any of his public statements can be newsworthy. Although he’s only 22 years old, Darnold’s been in the headlines for several years, first as the star QB for the Trojans in Los Angeles, then as a top QB in the 2018 NFL draft and now in his second season with the Jets—while playing in the largest media market in the world. Fair or not, celebrities give up expectations of privacy that the rest of us enjoy. Darnold, who was born in 1997, also grew up with social media part of his existence. He should know how social media runs with certain narratives (before abruptly moving on).
Darnold also knew that he was wearing a mic. While he had legitimate reason to believe under Article 51 that “inappropriate” and “sensitive” comments would not be aired, that kind of ambiguous protection is hardly a safeguard. A live mic is a live mic.
None of this is to say NFL Films and ESPN should have opted to use the video and sound—or that there won’t be repercussions for it. The NFL does not want its young franchise quarterbacks unnecessarily humiliated on national TV. There was no need to pile on Darnold with embarrassing audio, the game itself was brutal enough. Although the clip may have helped with TV ratings, the NFL and the NFLPA could decide that more protections are needed in Article 51. With the current CBA expiring after the 2020 season, perhaps the league and union will consider adding protections in the next CBA.
Michael McCann is SI’s Legal Analyst. He is also an attorney and the Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.
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