What a Punishment May Look Like for the Patriots Following the NFL's Investigation

There was reportedly no evidence tying New England's coaching staff to the videotaping of the Bengals' sideline on Dec. 8. So how will the NFL proceed?
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As is often the case with sequels, Spygate II is a mere shell of the original.

According to a new report by Washington Post writer Mark Maske, the controversy involving a Patriots.com videographer and his unauthorized videotaping of the Cincinnati Bengals’ sideline doesn’t appear to implicate any Patriots coaches or anyone in Patriots football operations. The league’s investigation is nearly complete, too.

The report is hardly surprising. While published facts about the incident invited far-reaching speculation and conjecture about Bill Belichick, those same facts pointed to an unsensational explanation: an inadequately trained videographer erred and, after getting caught, he panicked.

The videographer’s blunder and dread were clear in an eight-minute video obtained by Fox’s Jay Glazer. The video showed an interaction between a Bengals security official who observed and confronted the videographer at the Dec. 8 game between the Bengals and Cleveland Browns at FirstEnergy Stadium. The official bluntly let the videographer know that the NFL Game Operations Manual forbids videographers from recording coaches’ signals from the press box. The videographer was in the wrong and admitted as much. He explained he was taping the Bengals sideline from the press box as part of a “behind the scenes” feature on a Patriots advanced scout for the web series, Do Your Job.

The videographer nonetheless pleaded that he had made an innocent, if careless, mistake. He insisted that he wasn’t aware of the applicable rule. The videographer then anxiously offered to delete the video—an offer which clearly “looked bad” but also reflected how many people in that situation would probably react. After all, he had done something that, if it got out, could lead to his firing and possibly ruin his name in the industry. Public disclosure of the incident would certainly embarrass the Patriots and get them in trouble with commissioner Roger Goodell.

The Patriots swiftly apologized and both suspended the videographer and fired the producer of the web series. The team explained that while the Do Your Job staff had obtained permission from the Browns, the same staff—who rely on independent contractors to shoot video—forgot to inform the Bengals. The Patriots stressed that the video, which appears to capture imagery already captured on the game broadcast, supplied no competitive advantage to Patriots coaches, particularly since those coaches neither requested the recording nor saw the video.

It’s fair to assume that if Patriots coaches intended to conduct a covert spying operation on the Bengals—who were 1-12 at the time—they wouldn’t have scripted a plan that resembled what occurred. Remember, the Patriots.com production staff asked for permission from the Browns to record the video in plain sight, in front of security and journalists. The videographer was also visibly credentialed as with Patriots.com. He wasn’t in disguise or incognito. This was hardly a secret recording.

The fact that the recorded video reportedly captured little of value was also more consistent with a careless mistake than a conspiratorial plot. If a team was going to take a big chance by spying on another team, why would it record what is already broadcast on TV?

The NFL is still inclined to punish the Patriots. Even if the franchise’s mistake lacked ill intent and supplied no competitive benefit, the mistake still happened and reflects carelessness. This is a league that often stresses integrity of the game and fair play. To that point, the NFL has adopted numerous rules that authorize the punishment of teams for attempting to gain unfair advantages. Article VIII, Section 8.13 of the league constitution empowers Goodell to punish teams for endangering competition—even accidental and inconsequential endangerments. Goodell can strip a team of draft choices, lower the order of those choices, and/or impose both fines and suspensions.

Goodell could justify a punishment by concluding that the Patriots had failed to fully internalize the consequences of Spygate. In 2007, a Patriots video assistant had positioned himself in a location within the Jets stadium where videotaping another team’s defensive coaches was not authorized. The recording was obviously intended to help the Patriots scout the Jets—it was not about developing content for a web series. The NFL stripped the Patriots of a first-round pick and imposed fines. Goodell could reason that of all NFL teams to use videographers for a web series, the Patriots should have been the most cautious in overseeing how that series is produced.

The most likely punishment for the Patriots is a fine. The NFL has previously reserved the stripping of draft picks for misconduct related to football operations—whether it be alleged interference with equipment, negotiating with players who are under contract to other teams, salary cap circumvention and side payments, non-disclosure of player injuries or exceeding limits on player physical contact during offseason workout programs. All of those transgressions concerned supplying a team with a competitive advantage over its rivals. Considering that the draft is about helping teams compete, a draft pick penalty made sense. With the Bengals video, in contrast, the misconduct concerns creating content for a web series run by non-football operations staff. It is more of a “business” mistake than a “football” mistake and thus a fine is arguably more appropriate.

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.