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Did Bill Belichick and the Patriots' Video Guy Violate the Economic Espionage Act?

By Todd

Did any of you know that The Sporting News has a legal consultant? Well, we didn't either. His name is Mike Florio and he's just posted a fascinating idea on the blog - that the Spygate actions of New England Patriots coach Bill Belichick may have violated the Economic Espionage Act of 1996. Hmmm - maybe the hand signals of a play are a trade secret. Never thought of that. They're a compilation of information and symbols, are technical in nature and relate to technical plays, they are valuable in that they're not known by others, teams use reasonable means to protect them, and teams get the crap kicked out of them (e.g., damaged) if they are stolen or lost.

Florio suggests: "As the media, the NFL and Congress commence the process of determining whether a video employee fired five years ago can prove the Patriots' video operation went far enough to potentially compromise the outcome of an NFL championship, a possibility exists that the federal government will launch an investigation into whether the Patriots took any action that violated the Economic Espionage Act.

Signed into law by President Bill Clinton in 1996, the Economic Espionage Act makes the theft of trade secrets a federal offense. Without getting into the nuts and bolts of the applicable legal mumbo-jumbo, 18 U.S.C. § 1832 makes it a criminal act to steal, take, carry away or obtain by fraud or deception what 18 U.S.C § 1839 defines as a "trade secret."

It's a broad definition, and, as a practical matter, the question of whether a pro football team's game plan constitutes a "trade secret" under this law is something that would be sorted out after a grand jury hands up indictments.

Belichick, ex-Patriots videographer Matt Walsh and employees throughout the Patriots' organization could be required to testify under oath. And like the investigation into the Valerie Plame situation, there could be prosecutions for perjury even if there ultimately is no actual prosecution for the theft of trade secrets.

And that's the most potentially damaging aspect of any investigation that might be launched by United States Attorneys in Louisiana (site of Super Bowl 36), Texas (Super Bowl 38) and/or Florida (Super Bowl 39).

It's not that Belichick or others might face up to 10 years in prison or that the organization might have to pay up to $5 million in fines. It's that such an investigation would provide an unwelcome vehicle for the truth to come out.

An internal NFL investigation with evidence that self-destructs or a dog-and-senator show for ESPN and/or C-SPAN won't necessarily result in the general public knowing the truth, whatever that truth might be. A criminal investigation commandeered by a federal investigator very well could do just that -- and anyone who tries to obstruct that effort might want to talk to Martha Stewart or Scooter Libby before doing so.

Let's be clear. I'm not saying that such an investigation should occur. But it certainly could.
If the NFL office does a thorough and transparent investigation that is forthcoming and complete, it could satisfy the congressmen and general public. NFL commissioner Roger Goodell's tactic in the first round of Spygate -- "everything is fine, and by the way we've destroyed the evidence" -- won't suffice anymore."

Fascinating application of trade secrets law to a football game and some nefarious signal thefts.

Full post as published by Womble Trade Secrets Blog on February 05, 2008 (boomark / email).