Did a videographer assigned to the Patriots.com’s web series, Do Your Job, make an innocent mistake while filming the Bengals’ sideline during the team’s Dec. 8 game against the Browns at FirstEnergy Stadium ... or was the videographer surreptitiously attempting to supply New England with a competitive advantage ahead of the team’s game against Cincinnati in Week 15?
NFL commissioner Roger Goodell’s answer to this question will dictate the degree to which the league punishes the Patriots, who defeated the Bengals 34-13.
Earlier on Sunday, FOX’s Jay Glazer shared an eight-minute video containing audio of a person identified as the Do Your Job videographer interacting with a member of the Cincinnati security staff. The security official had detected the videographer violating the Game Operations Manual (“manual”)—a league document that contains rules designed to promote fair play and adopts policies that threaten to punish teams for undermining the competitive aspects of games. Some of the manual’s rules pertain to the use of recording devices, which are forbidden from operating in the coaches' booth, on the field or in the locker room during the game. The manual further bars recordings of signals by coaches from the press box and from other designated areas.
The Patriots fully admit that the videographer, and by extension the production crew, were in the wrong by recording the field and sideline from the press box. However, the team insists this was an innocent mistake that furnished no competitive advantage to Patriots coaches.
In a statement released on Dec. 9, the team explains that a three-person video crew for Do Your Job was tasked with capturing video of a Patriots advanced scout, and that the video would show the scout during a regular-season game. Do Your Job is a web series that illuminates the ins-and-outs of football operations, including with respect to the day-to-day activities of scouts, equipment staff, dietitians and others who work “behind the scenes.” The show is produced by a content and production team and, according to the Patriots, is completely independent of New England football operations.
The producers “sought and were granted credentialed access from the Cleveland Browns” to film the video of the scout but forgot to inform the Bengals and the league—and that led to a testy exchange between the Cincinnati security official and the videographer.
After reviewing some of the recorded video, the official asks in disbelief, “And this is a piece you’re filming on your advanced scout?” When the videographer replies, “Yeah,” the official mockingly retorts “yeah, come on guys.”
The official then points out that he “didn’t see the advanced scout in the footage.” In other words, the videographer’s explanation—that he was supposed to film the advanced scout engaged in scouting—didn’t seem to match up with the video. The videographer then acknowledges that the advanced scout wasn’t in the video, but the videographer assures that he was simply “trying to get some field perspective.” He adds, “that’s my bad.”
The official didn’t find the videographer’s second explanation convincing since the recording didn’t show the field. It instead showed the Bengals sideline and coaches.
Aware of the problem, the videographer seems to panic and plead “no no, we’ll delete that.” The offer to delete prompted the official to ask, “That’s why you were thinking you could take that?” The videographer then pleads ignorance that he “didn’t know” that he couldn’t record the sideline from the press box. The official was shocked that the videographer didn’t know that. The videographer then again offered to delete the video but that prompted the Bengals official to laugh and say, “the damage is done, my friend.”
Reasons for the league to view the recording as an innocent mistake
There are a number of reasons why the NFL could regard the recording as a fairly minor transgression.
First, the Patriots’ narrative—that the production crew made an innocent mistake—isn’t contradicted by known evidence. You might not believe the videographer whose voice is captured in Glazer’s recording. And you might not trust the Patriots’ public relations staff. That’s fine. But there isn’t actual evidence that proves they are lying. At this stage, to believe that the Patriots are using a web series to engage in clandestine recording activities requires a departure from known facts and a reliance on conjecture and guesswork.
Second, the production crew didn’t behave as if the filming was a covert operation. The crew requested permission from the Browns and recorded the video in plain sight. As far as we know, there were no secret cameras or disguised videographers. If the Patriots wanted to secretly record Bengals coaches on the sideline, there probably were far more effective strategies than using a Patriots.com Do Your Job production team to record from a very visible location, the press box.
Third, the Patriots’ statement notes that the video crew included independent contractors, rather than employees. The Patriots no doubt mentioned that point to create distance between the mistake and the organization. However, the point could also help to explain what happened. It’s possible the independent contractors were not as well versed in NFL recording rules as are full-time Patriots employees. Independent contractors can be hired for all sorts of video jobs, including for companies that operate in different industries.
Being an independent contractor is not an excuse, of course. Independent contractors should have known better or been educated by their supervisors (or not been hired in the first place). This might explain why the videographer seemed worried. To that end, the Patriots have reportedly suspended the videographer and fired producer Dave Mondillo, a longtime employee of Kraft Sports and Entertainment. Still, carelessly or unreasonably not knowing rules is generally viewed as less blameworthy than intentionally breaking rules.
Fourth, the Patriots attempted to mitigate the transgression by disclosing what happened. The game operations manual imposes a “duty to disclose” on teams to “promptly report any actual or suspected competitive violations to Troy Vincent, Executive Vice President for Football Operations.” Such a report “should include both a detailed explanation describing the violation and why it occurred, and a detailed statement of corrective action taken by the club to ensure that the violation does not occur again.” The manual stresses that a “failure to report an actual or suspected violation shall be considered conduct detrimental to the League and will subject the offending club and responsible individual(s) to appropriate discipline.”
Fifth, Glazer’s video appears to be an excerpt of a longer recording. Chances are, the clip aired by Fox is the most newsworthy excerpt—it’s the portion most likely to interest viewers and go viral on social media. However, watching the entire recording might provide a different context and understanding.
Finally, media have reported that the video taken by the Do Your Job crew didn’t share any great intel and is similar to what was shown on the broadcast. The lack of apparent damage should make it less likely the NFL imposes a substantial penalty on the Patriots.
Reasons for the league to view the recording as a big deal
There are also several reasons why the NFL might severely punish the Patriots.
First, the Patriots have already gotten into trouble for unauthorized recordings. The league could reason that the team didn’t learn its lesson the first time around and should thus be punished severely this time around.
In 2007, the Patriots were implicated in the controversy that became known as Spygate. A Patriots video assistant had videotaped New York Jets defensive coaches sending signals to players during a game. He had done so from a position within the stadium where such recordings were disallowed. The NFL imposed a severe penalty on the Patriots, stripping the franchise of a first-round pick and fining it $250,000. Patriots head coach Bill Belichick, who was the coach then and now, was fined $500,000.
Yet the NFL might regard Spygate as different and worse than the Bengals incident. Sypgate involved a video assistant who worked in football operations whereas the Bengals incident involved a videographer who, according to the Patriots, has nothing to do with football operations.
As a second reason to severely punish the Patriots, some in the NFL might find it hard to give the Patriots the benefit of the doubt. Along those lines, Goodell and Vincent clearly viewed the Patriots with distrust in a more recent controversy, Deflategate. Even though acclaimed scientists found the NFL’s air pressure tampering theory to defy basic concepts of physics, the NFL seemed convinced that the Patriots “must have” done something wrong.
Here, NFL officials could regard the videographer hastily offering to delete the video as spoliation of evidence, which refers to the unlawful act of trying to destroy evidence. To be sure, the videographer would argue that he simply panicked since he didn’t want to get in trouble with the Patriots and didn’t want to get the Patriots in trouble with the league, but the NFL could view his remarks more critically.
Third, while the Patriots have acknowledged the production crew erred, owning up to an error doesn’t extinguish the need for a punishment. Along those lines, impermissible recordings of a coaching staff could be viewed as a form of misappropriation of trade secrets. Such secrets are valuable and confidential pieces of information that help businesses, including NFL franchises, gain competitive advantages over rivals. Coaches signals are a type of trade secret.
In a different setting, the Bengals could even consider suing the Patriots for trade secrets misappropriation. However, NFL teams contractually agree to not sue one another. They also agree to resolve differences through league-governed grievance procedures.
To that end, teams assent to follow the NFL’s constitution and bylaws. Article VIII, Section 8.13, of the constitution concerns allegations of attempts to undermine competitive aspects of games. Goodell has the authority to determine whether such violations occurred and impose a range of penalties including stripping a team of draft choices, dropping a team’s draft choices, fining a team and suspending and/or fining team executives.
The MMQB will keep you updated on the latest developments in this controversy.
Michael McCann is SI’s Legal Analyst. He is also an attorney and Director of the Sports and Entertainment Law Institute at the University of New Hampshire Franklin Pierce School of Law.
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