E-Discovery in League Sports (Part 4 of 4)

E-Discovery in League Sports: The League and its Teams.

By Daniel B. Garrie the  Senior Managing Partner  at Law & Forensics LLC. He focuses on e-discovery, digital forensics, cyber security and warfare, data privacy, and predictive coding working with law firms, governments, companies, and non-profits globally.

Part 4 of 4: In the final installment of this blog series on e-discovery in league sports, we look at the larger picture of the league in relationship to the teams that comprise it.

The relationship between the League and its individual franchises is fiduciary in nature and is based on economic interdependence. There may be situations where the League, in exercising its power to enforce League rules, becomes responsible for preserving and producing information it receives from its member teams or players. For example in 2007 Coach Bill Belichick and the New England Patriots were caught violating league rules by videotaping defensive plays called by other teams, including the New York Jets.  As part of the NFL’s internal investigation of the scandal, the NFL demanded and obtained from the Patriots all copies of the tapes the Patriots had made of other teams’ defensive calls over the seven years of videotaping activity, including 2002, 2004 and 2005, when the Patriots won Super Bowls. Whatever was in those tapes was enough for NFL Commissioner Roger Goodell to fine Coach Belichick $500,000, the maximum amount permitted by NFL rules, and dock the Patriots $250,000 and a first-round draft pick, the first time a team had ever been penalized by losing its first-round pick. After reviewing those tapes the NFL destroyed them, thus preventing anyone else from ever being able to examine their contents to determine how large an improper advantage the Patriots had gained over their adversaries.

The NFL’s decision to first demand and then destroy the videotapes unquestionably raised the possibility of severe consequences for both the Patriots and the NFL. If litigation is reasonably anticipated, there exists an obligation to preserve evidence that is potentially relevant. Here, it is hard to argue that the NFL did not know that there would likely be litigation of some kind as a result of the Patriots’ actions.

Indeed, less than two weeks after the NFL destroyed the tapes and related materials, a putative class action lawsuit was filed against Bill Belichick and the New England Patriots on behalf of all New York Jets season ticket holders. That lawsuit, Mayer v. Bill Belichick et al., brought claims under the federal Racketeering and Corrupt Organizations Act, various New Jersey statutes forbidding racketeering activity, consumer fraud, deceptive acts and practices, and the common-law doctrines of fraud and tortuous interference with contractual relations, and requested $184 million in compensatory damages plus punitive damages on behalf of the plaintiff class. The Mayer plaintiffs also included a direct contract claim against the NFL for destroying the videotapes.

Luckily for the NFL, the New Jersey District Court dismissed all claims, holding that ticketholders had no actionable claim against Belichick, the Patriots or the NFL because, so long as they got to watch a football game, they suffered no injury, even if the quality or “honesty” of the game was less than anticipated.

Had the case gone to discovery and trial, the NFL would likely be in an unwinnable situation. In demanding that the Patriots turn over the tapes, the NFL assumed responsibility for those tapes, including the duty to preserve evidence responsive to anticipated litigation. Moreover, because the NFL destroyed all copies of the tapes, and the tapes were so fundamental to any related lawsuit, a judge would have little choice but to sanction all the defendants for the “spoliation” of evidence, particularly if Commissioner Goodell’s decision to destroy the tapes violated the NFL’s written record retention policies or past practices.

As these blogs have attempted to show, the duty to preserve and produce documents and ESI extends beyond those in your possession and custody, but to those under your control. Agents, team players, owners, and league representatives are all responsible for ensuring electronically stored information is properly managed in the event of pending litigation.

This is the last post in the series explores three specific scenarios involving e-discovery and sports, and provides some practice insights. In the next installment I will discuss the legal relationship between players and agents and how this impacts e-discovery.