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The Patriots, Belichick and Circumvention

Today, NFL Commissioner Roger Goodell fined New England Patriots head coach Bill Belichick the league maximum of $500,000 for having a staff member videotape the New York Jets’ defensive signals in violation of league rules.  The NFL further fined the Patriots $250,000 and confiscated a first round draft pick (assuming they make the playoffs, which they probably will).

Now people will begin debating the appropriateness of the penalties paid by Belichick and the Patriots.  One argument will be that deciphering signs is part of sports and perfectly legal, so Belichick’s objective was not a terrible thing.  And, if deciphering signs is ok, why make such a big deal of using a video camera to accomplish it?

There’s a curious parallel between this argument and one about circumvention of DRM in copyright.  Both the Patriots and some circumventers have a “legal” objective.  The Patriots want to decipher the opponent’s defensive signals, and some circumventers want to make fair use of a copyrighted work.  The only “offense” is using technology to accomplish otherwise legal ends.  So, if we think (as some do) that penalties for circumvention should be lenient or nonexistent when fair use is the purpose, shouldn’t the Patriots and Belichick get off with less severe punishment?

I admit this argument has some appeal, and it made me reconsider my initial reaction that the Patriots and Belichick got what they deserved.  However, there’s a difference between the two scenarios.  The Patriots and Belichick are not relatively innocent first time offenders.  The Packers caught them at it last year.  More important, this fall the NFL specifically reminded coaches not to do the very thing the Patriots did.  Thus, it seems that the NFL did not punish the Patriots and Belichick simply for breaking a rule.  Rather, the NFL punished them for thumbing their noses at the league’s authority to regulate competition.  It’s as if a circumventer had deliberately violated a preliminary injunction against circumvention.  A court’s severe response in such a situation would be for flouting the court’s authority, not simply the illegality of circumvention.

With this in mind, I think the league has treated the Patriots and Belichick quite fairly.  They have been taught that disobeying the commissioner is painful.  Although I might have suspended Belichick if I were the commissioner, I can understand that Goodell didn’t want to upset competitive balance on the field in such a direct way when the Patriots themselves did not actually alter a competitive outcome (they were caught in the first quarter and the videotape was confiscated, so they never got the benefits of their misbehavior).

8 thoughts on “The Patriots, Belichick and Circumvention”

  1. It reminds me also of the tension between “real secrecy” and trade secrecy. Teams could get around Belichick’s tactics by constantly changing signals…but who wants to be forced to do that? They might end up hiring card counters from Vegas to train the players.

  2. Fred,

    I’ll play devil’s advocate here.

    Should the Patriots (including Belichik) have been punished at all? I understand your argument to be based on an analogy to legal authority; the team is in contempt of court.

    But illegitimate authority is illegitimate authority, whether or not it’s “legal.” I’m not suggesting that the NFL or its authority is illegitimate, and I’m not suggesting that abuses of authority should ordinarily be remedied via disobedience, civil or otherwise. But the rule itself is a questionable one, it seems to me. Why ban “stealing” signals with recording equipment, but permit it via “natural” memory devices — brains? What kind of incentives, investment decisions and opportunism result from the rule? One, the distinction does encourage developing a kind of “card counting” skill set. Two, surreptitious recording is encouraged! Maybe, as the New York Times suggests, the Patriots deserve to be punished because they were cheap and obvious! Is that the direction that teams should be pushed in?

    The DMCA analogy here, then, isn’t just a “lawful purpose” v. “unlawful purpose” distinction. It’s the problem that the statutory language of the DMCA has a built-in bias in favor of “circumvention” accomplished by certain means, and against circumvention accomplished by others. For illustration, consider cases (Lexmark, Chamberlain) in which the decisions are informed by the purpose of the circumvention, but the language of the statute requires courts to wade through the technical mechanism by which the “circumvention” is accomplished.


  3. I like the puzzle you raise: why are we concerned about use of video technology to prevent sign-stealing when all agree that it’s fair to do it with the naked eye? One reason for the distinction emerges from the self-help literature (that is, the self-help legal literature). Doug Lichtman’s article “How the Law Responds to Self-Help” suggests that the law often prevents self-help where it might lead to a counterproductive “arms race”. So when the Chicago Cubs sought to prevent owners of buildings on Waveland Avenue from selling tickets to allow people onto their rooftops to peer into the stadiums, one reason courts prevented these outside ticket sales was to prevent the Cubs from what it would have done in the absence of a legal remedy: build a huge, unsightly screen around the edge of Wrigley Field that would have prevented seeing in.

    So here, if the NFL didn’t draw the line at video self-help but allowed sign-stealing by any means possible, teams might focus their resources on attempting to out-compete one another with more and more elaborate ways to steal or hide signs. This might simply make for a less appealing NFL, distracting focus from on-field play. Imagine if, in the interest of total security, coaches opted to communicate only in secure, hidden sideline booths to assure total secrecy. Banning sophisticated sign-stealing avoids the whole arms-race issue.

    This is the best argument I’ve heard for banning steroids in baseball, too. If they were legal, SportsCenter might become dominated by debates over whether Andro is better than Deca, etc., which just isn’t an appealing place for the sport to go (cycling is almost there, for example).

  4. Dave,

    You’re absolutely right to worry about an arms race here; we’d rather have teams compete on the field than at Fry’s Electronics.

    But in this case (unlike others), there is an obvious and currently available end game; the arms race concern is available in theory, but perhaps not in practice. Specifically, if the league permitted “stealing” of signs via recording technology (and I’ll continue to put that word in quotation marks, because I don’t think that the word really applies), then teams would have an obvious incentive to supply the defense with the same technology that they currently supply to the offense: secure wireless communications between coach and on-field play caller. In theory, the arms race could continue; teams could try to hack the wireless frequency. To my knowledge, however, that hasn’t been a problem in the NFL. I don’t know why NFL owners have not authorized use of this technology.

    Moreover, if “stealing” were permitted by any means at all, there is an obvious, cheap, no-tech solution. Let the players on the field make the calls. Old-style football. I’ll admit my bias; I like that option. So here’s an interesting game-theoretic question (get it?): What set of “stealing” rules and conditions would have to apply to make “let the players call the plays” the optimal strategy?


  5. Mike,

    Doesn’t your desired end-state arise if the league mandates a shorter play clock? If plays had to be run in 35 seconds v. 45 seconds, wouldn’t it get hard for the sideline to call the play and have the recipient of the sign tell his teammates?


  6. Two points, one about football, the other about arms races. I never thought about why defenses don’t use wireless technology to communicate with defenses, but the reason might be that play calling doesn’t flow through one player (quarterback in the huddle) but has to go to all 11 players simultaneously. If that’s right, having them all wired up raises the risk of miscommunication so you’re more likely to have one guy randomly blitzing because he misheard the signals (though this could be solved relatively easily by appointing an on-field defensive play caller who’s mic-ed up).

    About arms races, I’m not as sanguine about the natural limits of the process. I suspect that if the NFL changed to a rule that said “steal signs by any means you can dream up”, teams would definitely hack into wireless frequencies to steal plays, and armed races would ensue (with ESPN talking about encryption as well as the merits of the 3-4 defensive scheme. It’s relatively cheap and easy, and the advantage gained would be enormous. It’s hard for me to see why teams wouldn’t do it, if permitted.


    Where I come from, calling someone a cheater is effeminate. It could get you seriously beat up.

    Here’s a lttle education for you who hide behind your blogs:

    VIDEO TAPING IN THE NFL IS PERFECTLY LEGAL AND PERMITTED IN DESIGNATED AREAS. NFL rules state “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.” They also say all video for coaching purposes must be shot from locations “enclosed on all sides with a roof overhead.”

    Straight out of the NFL handbook. What does it mean? Video taping IS ALLOWED, but only in designated areas: Belichik’s man was in a nondesignated area. Every other team tapes for signals and formations from the booth. That’s Bill’s only crime: camera location. Sure, hemay have been pushing, the envelope–and he knew it–but is reral crime was not realizing what a tub punk Mangini is. That fat weeble should be fined for being a rat.

  8. Fred: That’s probably right (the impact of a shorter play clock, I mean), which raises the following question: What’s the real purpose of the no-cameras rule? Is it mostly ethical (“no cheating”), or mostly instrumental (avoid wasteful investment in resources of marginal competitive benefit)?

    Ari: As for the likelihood of hacking into wireless signals, that’s an empirical question. I wouldn’t advocate a rule that urged sign-appropriating. What would happen if the NFL simply repealed the prohibition on cameras? I’m sure that there is a bit of skullduggery around the edges of offensive signals today, but has that been a real problem?


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