New England Patriots Take Competitive Intelligence Too Far

Recent NFL headlines have been filled with the tactics employed by the New England Patriots. Apparently, the Patriots have been filming the opposing team’s defensive coordinator, recording their hand signals, analyzing them against actual field play to break the code and, subsequently, feeding their offense with the defense’s anticipated points of attack and weaknesses.

Some might wonder what the problem is. I have heard some say that “every team can do it,” and others have mentioned that the Patriots are certainly not the only team engaging in this activity.

And, the truth is that if the Patriots had employed a method of using binoculars, a pad of paper and a pencil to steal signals, they would not be in any trouble at all. Those methods are legal (if not ethical) in the NFL system. But, the NFL strictly prohibits the use of video capture of the opposing team’s signals.

What is the penalty for this “indiscretion?”

Head Coach, Bill Belichick was fined 10% of his salary this year ($500K), the Patriots were fined an additional $250K and the team loses a first round pick in next year’s draft. These are some of the heaviest fines handed down.

Is it possible that everyone else is engaging in this type of behavior? Football at the NFL level is hypercompetitive. While there is no evidence of anyone else doing this, there is no reason to believe that other teams haven’t engaged in this activity, assuming (just like the Patriots) that they won’t be caught or that the penalty would be outweighed by the positive benefit. In either case, the NFL has sent the message firmly that cheating will not be tolerated. I suspect that many teams had to examine their own operations this last week in light of the heavy judgment handed down to the Patriots.

For you in your company, take this lesson to heart. Know the law and stay away from the edge of the darkness. Grey areas still carry risk and the people that break or bend the laws suffer the consequences as much or more painfully than do the companies in which they are employed.

Just to jog your memory, you might consult the actual text of the Economic Espionage Act of 1996:

(a) Whoever, with intent to convert a trade secret, that is related to or included in a product that is produced for or placed in interstate or foreign commerce, to the economic benefit of anyone other than the owner thereof, and intending or knowing that the offense will, injure any owner of that trade secret, knowingly—
(1) steals, or without authorization appropriates, takes, carries away, or conceals, or by fraud, artifice, or deception obtains such information;
(2) without authorization copies, duplicates, sketches, draws, photographs, downloads, uploads, alters, destroys, photocopies, replicates, transmits, delivers, sends, mails, communicates, or conveys such information;
(3) receives, buys, or possesses such information, knowing the same to have been stolen or appropriated, obtained, or converted without authorization;
(4) attempts to commit any offense described in paragraphs (1) through (3); or
(5) conspires with one or more other persons to commit any offense described in paragraphs (1) through (3), and one or more of such persons do any act to effect the object of the conspiracy,
shall, except as provided in subsection (b), be fined under this title or imprisoned not more than 10 years, or both.
(b) Any organization that commits any offense described in subsection (a) shall be fined not more than $5,000,000.