Intellectual Property Law

Many of you will recall the earlier posts here and here on Spygate II - the allegations that the New England Patriots taped a walk-through practice of the St. Louis Rams prior to SuperBowl XXXVI. We discussed the potential trade secret implications of the allegations and the stonewalling that the NFL was doing to Arlen Specter. It appeared that Matt Walsh, an ex-employee of the Patriots, may have been the individual who taped the walk-through but he wasn’t talking and it seemed the NFL didn’t want him to–until now. According to ESPN, the NFL has reached an agreement with Walsh. The article is here. You can read the full text of the agreement here in .pdf.

Key Graph: “Commissioner Goodell will meet with Mr. Walsh … on May 13, the earliest date that Mr. Walsh, who lives in Hawaii, will be available on the East Coast,” the NFL said in a statement released Wednesday. “The agreement also requires Mr. Walsh to return any tapes and other items in his possession that belong to the Patriots. In return, the NFL and the Patriots have promised not to sue Mr. Walsh. They also will indemnify him for any expenses, including legal fees that he incurs in connection with the interview.”

Looks like Mr. Walsh got what he was asking for–total indemnity. We’ll see how this one continues to develop–either Walsh knows something and this could get real interesting real fast, or what he knows is not terribly consequential and all this will have been much ado about nothing. Of course, there is still the hurdle of finding out what he tells the NFL, or what is on the tapes he turns over to the NFL. If the NFL continues to stonewall, it will be pretty evident that Walsh’s information was pretty damaging.

Arlen Specter, the Senator pursuing this issue, says he will not be backing down.

When asked if he wanted to see the materials, Specter said, “I sure do,” adding that he would ask the league to allow him access to whatever videotapes and notes Walsh turns over.

“To whatever extent the league’s approval is necessary, I will ask them for it in a formal way,” Specter said.

Specter will not be part of the NFL’s interview of Walsh but confirmed he expected to be meeting with Walsh in Washington also on May 13.

As for what he wants to learn from Walsh in their conversation, Specter said: “I want to know everything. I would begin chronologically. When did the first taping occur? Who directed it? And who knew about it? Who participated in it, and what use was made of it? And what effect did it have on the game, as best he could tell? Was there ever any disagreement about using it?”

What he learns from Walsh, as well as the materials the former video assistant turns over, will determine whether Specter will ask the judiciary committee to look into the matter.

As I said, this could get messy for the NFL if Walsh has the goods on the Patriots. As for the trade secrets implications of all this, I will post on that should it appear that Walsh really has what he says he has.