Bill Belichick's Interpretation

I continue to wait for one of the many commentators who love to call Patriots' coach Bill Belichick a "cheater" to explain how his conduct differs from the common "cheating" evident during every sports contest. Is intentional breaking of the rules "cheating"? If it is, then here's a story describing how the New York Jets cheated last week against the Ravens. Last night I witnessed members of the Washington Redskins cheat, trying to draw movement out of the Eagles' offensive line. (TSLP is ready to testify in the commissioner's hearing.) I also saw another cheater this past weekend: a wide receiver for the Colts tried to convince the referees he had caught a pass when clearly he had not. What is the world coming to? How quickly will next year's first round of the NFL Draft go, now that the Colts and Redskins will join the Patriots in forfeiting their picks? Or, maybe "cheating" is the wrong word to use to describe these violations?

In his answer to the NFL's accusation, Belichick spoke about "my interpretation of the rules." Reading as much as we can into this reference, Belichick implied that the league rule prohibiting videotaping was a matter of some ambiguity, and implied further that his transgression, far from being willful, was more a matter of reasonable difference and misinterpretation. Some commentators, seeing no possibility for ambiguity or interpretation in the rule, have become so worked up over Belichick's conduct that they think the Commissioner's unprecedented punishment is too lenient. Even the usually reliable Gregg Easterbrook has overheated, "imagining" that this event (along with Belichick's failure to get as worked up over it as Easterbrook is) might lead to the coach's lifetime banishment.

This is what happens when people practice law without a license. Let's take a look at the rule and see if Belichick has a point. Does he?

Yes. Whoever wrote this rule left a few matters in doubt. Should Belichick be banned just because someone working at the NFL lacks a command of the language?

1. The NFL's "Game Operations Manual" states (according to the NFL press release; I couldn't find a copy of the Manual) that "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" and that all video shooting locations for club coaching purposes "must be enclosed on all sides with a roof overhead."

2. Start with the second clause of the sentence, after the "and." This statement implies, clearly to me, that some in-game video will be allowed for "club coaching purposes," and that video taken for this purpose, that is, for in-game use, must be video that originates from locations enclosed on all sides with a roof. Indeed, often we see players and coaches on the sidelines during NFL games examining photographs of formations and plays taken from vantage points presumably high in the stadium, from enclosed places.

3. Now look at the first clause. It says no video recording devices are permitted to be "in use" during the game. But we already know that some video recording devices (those from certain enclosed locations) may be used during the game for "coaching purposes." So, for in-game coaching, a coach may only use the "enclosed location" videos.

4. What about for "out-of game" coaching, like during the practice week? The rule says "no video recording" may be "in use" "during the game": they may not be used, as the rule says, "in the coaches' booth, on the field, or in the locker room," at least not "during the game." The rule implies, fairly if not unambiguously, that teams may in fact make video recordings from locations other than the "enclosures" as long as those video recordings are not used "during the game."

5. Indeed, that's the better interpretation of this rule. If the rule were "no video recordings allowed except those from the designated enclosures," then why do we need all the language concerning "in-game" use? Why the words about "the coaches' booth," "the field," and so forth? Under standards of legal construction, all words must be given a plausible meaning, if one is available. In other words, we are to try to avoid surplusage (wasted words). With respect to the NFL, the better interpretation of this mess of a rule is that some video recordings (those from enclosures) may be used during games, while other video recordings (from outside these enclosures) may not be used during games, but may be made and used otherwise.

6. Now, I realize that other, plausible interpretations of this rule are available. The rule may be intended to mean "no video recording except from enclosures" (if so, the rule has a lot of surplusage), or could mean "no video at all during games, but photographs are not video" (if so, even more surplusage), or perhaps "use" of video means "not only not watching video, but also not even making the video" (if so, then we need a lot more words defining "use"). I'm not saying Belichick didn't interpret the rules aggressively and in his favor. I'm also not saying taxpayers, lawyers and regulators don't do the same, every day. When one is dealing with a rule, what's not prohibited is impliedly permitted. Belichick took an aggressive position and paid the penalty for his interpretation. He admitted as much, and said he was punished for his interpretation. But please don't say the man had no leg to stand on here. Don't call him a cheater for adopting a plausible interpretation of a very ambiguous rule.

7. Now here's the rub: the NFL, apparently just before the season began, sent a memo from Executive Vice President of Football Operations Ray Anderson to the teams that "reminded" them that, “videotaping of any type, including but not limited to taping of an opponent’s offensive or defensive signals, is prohibited on the sidelines, in the coaches’ booth, in the locker room, or at any other locations accessible to club staff members during the game.” Here's where all the overheated commentators get their "prohibition" idea, and conclude that Belichick violated a clear prohibition and thus is a cheater making up lame excuses about misinterpretation. Not so fast, please.

8. First, just what is the effect or significance of a memo from a league vice president? I can't find out, but I would imagine the NFL employs quite a few people who have the title of vice president. Does a memo from a league VP have the effect of law? Is it equivalent in significance to the NFL's "Game Operations Manual" quoted above? Can the NFL, through some memo from a VP, simply amend the Manual just like that? No committees, no notice, no deliberations: just a memo that adds words and gives the rule a particular meaning, and it's done? Can a memo create a new rule that is instantly binding on all teams?

9. But, you say, the memo didn't announce a new rule. By its own terms it was just "reminding" the teams of the present rule. So it's just a reminder, not an amendment, and if so then the rule itself (the one in the Game Operations Manual) hasn't changed. Just because Mr. Ray Anderson, Vice President for Football Operations, characterizes the rule as a "prohibition" doesn't make it so. Indeed, even interpreting the rule as a prohibition, Anderson's memo mischaracterizes it. The memo says "videotaping of any type," including an opponent's signals, is prohibited from certain locations, namely from "the sidelines, from the coaches' booth, in the locker room, or from other points accessible to club staff members during the game." In other words, a team may, legally, videotape another team's signals: they just can't do it from these certain locations, or any location "accessible during the game." How is that a prohibition?

10. Now the memo's rule that permits videotaping of signals but prohibits those videotapes from being made from the sidelines may be a good idea, and maybe that should be the rule, but that's certainly not the Game Operations Manual Rule that the memo merely purports to "remind" everyone about in the week prior to the start of the season. In other words, the memo seriously misstates the rule, because the rule prohibits the in-game use (but not the making) of videotapes, or at least that's one plausible interpretation of it.

11. Now which was the rule, the Manual or the Memo? If you're an employee at your job and a memo comes down from a company VP reminding you of a company rule, a rule that you already had in mind and had parsed through pretty carefully, and the memo's re-statement of the rule was at variance with what you had a right to believe the rule actually stated, which rule (the one in the authoritative document or the one in the memorandum) would you put your finger on as being the correct, binding rule? Which one would you follow? What if your job were a competitive one and money (or wins) was to be made by interpreting the rules in a plausible yet aggressive and self-interested way? Would you be a "cheater" for going by the rule in the official company policy manual instead of the inexact repetition by the company vice president? Would you choose to follow the Manual particularly when the VP's memo made it clear he was merely "reminding" you of the rule, not changing it? Isn't one entitled to think the rule hasn't changed when one sees the word "reminder"?

12. I'm not saying Bill Belichick didn't deserve a sanction. The league is entitled to interpret its rules, and even to do so after the fact, at a hearing in which discipline is the outcome. Courts do it all the time, especially in civil cases. My point is that the rule, the real one in the Manual, contains a lot of room for ambiguity and interpretation. My other point is that, no matter how one chooses to interpret the rule, there is no plausible interpretation consistent with the one given in the Memorandum issued pre-season. My final point is that our football commentators need to get off their high horse for a while and realize that people, be they taxpayers, lawyers, journalists or football coaches, need at times to interpret rules. That they do so in an aggressive way is actually a good thing, on balance: it makes us write better rules.

The Patriots Did Not Cheat

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.