Home -> Law Blog Directory -> Media & Entertainment Law Blogs -> The Sports Law Professor

Media & Entertainment Law

: The Sports Law Professor

The Patriots Did Not Cheat

By Jeffrey Standen

It looks pretty clear at this point that the New England Patriots, in violation of an NFL policy, stationed a video photographer on the sidelines during last week's game against the rival New York Jets. Apparently the photographer's job was to capture the Jets' defensive signals as they were relayed from the coaches to the players on the field, all with the hope of stealing their signs. I guess mechanically this could work, although I imagine it would be very difficult to decipher the Jets' signals, relay the defensive plan to the offense, and adjust the offensive play in time to take advantage of the information. But the difficulty must not be too overwhelming; otherwise why would the Patriots bother to try?

So this is cheating, right? The Patriots need to be severely sanctioned for gaining this illicit advantage, no? No. What the Patriots did is not cheating, at least not in any meaningful sense of the word. No illicit advantage was likely gained.

1. English is such a limited language. We have so few words to describe objects or events that sometimes our inhibited vocabulary confuses our thinking. I've read about the debate over how many words the Inuit natives of Alaska have for "snow." Turns out it's pretty limitless. But for English-speakers, we have only one work for snow, and we rely on adjectives (heavy, light) to try to characterize snow more specifically. Same thing for "cheating": we have only one word for "the action of intentionally breaking a rule." So a NBA forward who nudges his opponent out of the way in order to get a rebound is "cheating," as would be the forward who injects his opponent with a tranquilizer for the same purpose? Both are cheating in this broad sense, yet the latter is so much more violative of the ethics of the game (and the former is just playing the game) that it deserves a different term. We don't have one. So we'd call both of them "cheaters" and then would expect consistency and equality in the sanction imposed in response. The single vocabulary term misleadingly suggests an equivalency in the two players' conduct.

2. News flash: Sign stealing is legal in the NFL! It's perfectly permissible. Coaches, players, interested fans, television watchers, and anyone else among the thousands of folks observing an NFL game can study the histrionics of the coaches, note the defensive alignment, and steal the signs. No rule prohibits this. I'd be disappointed in a team if it didn't at least try to steal the signs: the field is only about fifty yards wide. If some assistant coach notices that, every time the opposing team's defensive coordinator waves his hands in the air the linebackers blitz, then I'd expect him to call the blitz out to the offense the next time he sees the sign. Again, no rule prohibits this. I'm sure attempted sign-stealing has been going on for as long as signs have been given.

3. The burden is on teams giving signs to take precautions with their signals. They have to use subterfuge, change signs, employ decoys and so forth to keep their opponents from learning their communications. Even coaches in youth baseball typically employ a fairly complex set of signs that is fairly resistant to code-breaking. (Sometimes when I'm watching a youth game I'll try to figure out the signs. It's not easy. When I coached, once in a while we'd switch to voice signals just to really throw a wrench into sign-stealing.) At the pro level the signs should be variable and subtle. Lawyers have the same obligation. When we speak with our clients we have to make sure the conversation is confidential and away from listening ears. If someone overhears the conversation then that someone can testify. It's the lawyer's fault for not properly protecting the information. The same standard, by the way, applies to everybody in life: if you want some information kept private then you have to keep it tucked away. Leave it out for others to see and you've lost your privacy.

4. All the NFL rule prohibits is using a photographer to facilitate the sign stealing. Admittedly the Patriots violated the rule. But let's not assume that the Patriots benefited from the illegal photographer. Even if the Patriots' sign-stealing efforts were successful and paid off in identifiable advantages on the field, the Pats might have broken the Jets code even without the photographer. In the NFL, teams are allowed to view overhead photographs of the opponent's defensive alignment just before the snap and immediately thereafter. A knowledgeable coach with a clipboard and pencil could perform the same study of the opponent's signals, correlate them with the defensive photographs, and deduce the defensive calls. In short, the Patriots might have ended up with the same competitive advantage they (presumably) had anyway. Those people calling for the Patriots to forfeit games need to show how this videotaping produced an advantage that the Patriots wouldn't have gained legally. I doubt there was an advantage gained from the illegality.

5. In sports, it's not cheating unless you're caught. So the basketball defender who illegally nudges an opponent off his jump shot has not committed a violation unless the referee detects the nudge and calls a foul; the baseball batter who on a bunt runs on the inside of the baseline is not out unless the umpire calls obstruction; the football offensive lineman who holds the defensive end but gets away with it has done nothing wrong. Yet all these players have willfully and intentionally violated known rules of the game, and all of their violations potentially affect the competitive integrity of the game and the outcome of the contest. Does it make sense to call them "cheaters"? No, they didn't get caught, even if the replay shows their guilt, and even if the player admits to the truth after the game. So even assuming the worst, that the Patriots broke the rules against the Jets and have done likewise to opponents ever since Bill Belichick came to the team, the bottom line is that, for all those games prior to the Jets game, the violation wasn't called. The Patriots weren't caught; those games are over. As far as the Jets game is concerned, the illegal photographer was discovered in the first quarter and stopped at that time. The foul was called; the game wasn't affected. Whatever sanction the commissioner devises, he shouldn't touch any game results, from the Jets contest or otherwise.

6. So what is cheating in sports? Here's my rule: nothing done on the field of play is cheating. What happens on the field, even if it violates the rules of the game, is still the game. The game includes circumventing the rules to try to win. On the other hand, off-field activities that result in undetectable on-field advantages, and that violate the rules, is cheating. Taking performance-enhancing drugs is cheating, as is violating the salary cap or employing professionals in an amateur game. But sign-stealing? That's as much part of the game as the home crowd yelling while the opponent's quarterback calls signals at the line. Both are allowed if done one way and against the rules if done another. And what should be the penalty if a team takes steps to artificially inflate the level of crowd noise during games? Forfeiture of game, loss of draft picks, large fines (what we've been hearing with respect to the Patriots)? No, crowd noise can be loud all by itself, resulting in the same disadvantage for the opponent. This isn't cheating; it's just gamesmanship.

7. The Patriots have gone from being a terrible team (when I was a kid) to a top franchise. Envy always lurks not far beneath the surface when people criticize successful persons or institutions. Envy fuels these overzealous calls for punishment. Envy is our basest motive, and Commissioner Goodell should not pander to it. The penalty should be in the form of a fine and should be moderated to reflect the seriousness of the violation.

Full post as published by The Sports Law Professor on September 12, 2007 (boomark / email).