Probing Spygate: Will the NFL Indemnify Key Witness?

by Thomas Paschalis April 23 2008, 12:59

I.    Introduction

From the moment of its initial disclosure, the National Football League's (NFL's) so-called Spygate incident had the potential to be one of the more notorious sports scandals in recent memory.  During the first game of the 2007 season, a videographer on the New England Patriots sideline was caught taping the hand signals of New York Jets offensive coaches, a violation of Article 9 of the NFL Constitution and Bylaws.[1]  The intrigue was apparent: the league's modern-day dynasty had been caught red-handed, begging the question of whether the Patriots had broken league rules at any other times during its championship era.  The NFL's first-year commissioner, Roger Goodell, addressed the issue quickly, fining the team and head coach Bill Belichick a combined $750,000 and taking away a first-round draft pick.[2]  Despite its rapid action, the NFL's handling of the situation added to the mystery.  After announcing the penalty, the league destroyed the tapes it confiscated from the Patriots.[3]  Further fueling the controversy, U.S. Senator Arlen Specter publicly rebuked the Patriots, accusing the team of "stonewalling" his own investigation into the matter.[4]

The questions followed the then-undefeated Patriots to Super Bowl XLII, when the Boston Herald reported that Matt Walsh, a former Patriots employee, allegedly taped the St. Louis Rams walk-through practice the day before New England's surprise upset of the Rams in Super Bowl XXXVI.[5]  Since that report, the NFL has expressed a desire to speak with Walsh regarding his knowledge of any potential wrongdoing by the team.[6]  Walsh, for his part, has suggested he has damaging information, but his legal representation is demanding full indemnity before revealing his knowledge or role in any malfeasance.[7]  The negotiations over the scope of an indemnity agreement have lasted for months, keeping the league in the dark as to what Walsh really knows.[8]

II.    The Negotiations

Matt Walsh worked for the New England Patriots from 1996 to 2003, primarily shooting football video.[9]  He claims he is willing, though reticent, to speak with NFL officials for fear that the Patriots will retaliate by suing him.[10]  Walsh's attorney says that even if he were to prevail in a court action regarding the accuracy of his statements, the cost of engaging in a legal battle against and NFL franchise would be substantial.[11]  Walsh has also expressed concern that the league could take away his 401k retirement plan.[12]

As a result, Walsh's attorney is seeking full indemnity from the league to immunize him from potential legal action.[13]  Goodell has consistently stated that he is willing to provide indemnity in exchange for Walsh's cooperation, but talks between attorneys for each side have dragged on for months without an agreement on the scope.[14]  NFL spokesman Greg Aiello says the league has offered Walsh full immunity on two conditions: that he is truthful and he hands over any materials he took from the Patriots.[15]  Walsh's attorney, Michael Levy, claims that this offer falls short of full immunity.[16]  Levy asserts that a standard indemnification agreement protects against untruthfulness as long as there is no bad faith.[17]  In essence, Walsh wants to ensure that he cannot be sued even if mistakenly makes false statements.  The NFL's indemnity offer would maintain the prospect of litigation if there is any want of truthfulness whatsoever.

III.    Further Attempts at the Truth

In addition to the NFL's Spygate probe, there have been additional notable attempts to uncover more information.  The aforementioned Senator Specter has commenced his own Spygate investigation, but claims his staff has been rebuffed in its attempts to speak with personnel from the Patriots and Jets, who employ several coaches who formerly worked under Belichick.[18]  Specter says he suspects that the NFL is only offering conditional immunity in an attempt to discourage Walsh from speaking out.[19]

A former member of the St. Louis Rams tried a different strategy.  Willie Gary, who played on the 2002 Super Bowl team, brought a federal lawsuit against the Patriots in February 2008.[20]  Gary filed suit in New Orleans, the site of Super Bowl XXXVI, and accused New England of fraud, unfair trade practices, and engaging in a pattern of racketeering.[21]  The claim was withdrawn in March, however, after Gary's lawyers acknowledged that the suit was intended to illicit testimony from Walsh.[22]  Eventually, they determined the strategy to be futile because Walsh would be able to exercise his 5th Amendment right against self-incrimination in any legal proceeding.[23]

IV.   Conclusion

The prolonged indemnification negotiations involving the NFL and Matt Walsh call into question the intentions of both parties. The longer the NFL goes without accommodating Walsh, the more it appears they do not want his information to become public.  For his part, Walsh's insistence that he be indemnified from good faith mistakes could reinforce speculation that his insinuations are empty.

In this instance, however, it is the NFL that should consider compromising for the long-term good of its product.  Though it is reasonable to demand utter truthfulness, the prospect of defending a lawsuit against a multi-billion dollar entity would sufficiently deter many people from speaking out.  Regardless of what Walsh may say, the integrity of the league was brought into issue by the conduct of the Patriots, not Walsh.  Thus, the NFL's real targets should be those within its ranks whose actions may tarnish the league's competitive reputation.  Suing Walsh would serve little remedial purpose for the NFL, and by enabling his cooperation, all of his claims would be subject to extensive public scrutiny.  If Walsh is found to be untruthful on any matter, the NFL would not necessarily need to resort to litigation to rehabilitate its image or seek redress against Walsh.  The league would be vindicated in the all-important court of public opinion, while Walsh would forever be branded a prevaricator. 

The league's failure to offer Walsh full indemnity may, rightly or wrongly, perpetuate Senator Specter's notion that the NFL does not want Walsh to speak out.  Though the league would like to hold the threat of litigation over anyone who speaks falsely of it, the NFL's own handling of Spygate has contributed to the ongoing questions over the initial investigation.  The destruction of the tapes, along with the apparent closing of ranks within the league establishment has exacerbated the situation.  Enabling the testimony of Matt Walsh would give the league the opportunity to tackle the integrity issues raised by Spygate and potentially bring a measure of closure to this prolonged saga.

Sources

[1] ESPN News Service, Belichick Denies Patriots Taped Rams' 2002 Super Bowl Walk-Through, ESPN, Feb. 18, 2008, http://sports.espn.go.com/nfl/news/story?id=3251081 (last visited Apr. 23, 2008).

[2] ESPN News Service, Kraft, Belichick Address Owners, Apologize for Spygate, ESPN, Apr. 1, 2008, http://sports.espn.go.com/nfl/news/story?id=3323437 (last visited Apr. 19, 2008).

[3] Jeffri Chadiha, Goodell Learns Lessons From Smoldering Spygate, ESPN, Apr. 1, 2008, http://sports.espn.go.com/nfl/columns/story?columnist=chadiha_jeff&id=3323565 (last visited Apr. 19, 2008).

[4] Mike Fish, Specter Irked By Uncooperative Pats, League in Spygate Probe, ESPN, Feb. 22, 2008, http://sports.espn.go.com/nfl/news/story?id=3259486 (last visited Apr. 23, 2008).

[5] ESPN News Service, Report: Source Claims Patriots Taped Rams Before Super Bowl, ESPN, Feb. 2, 2008, http://sports.espn.go.com/nfl/playoffs07/news/story?id=3227245 (last visited Apr. 23, 2008).

[6] Fish, supra note 4.

[7] Id.

[8] John Clayton, Walsh, NFL Still Haven't Worked Out Deal for Spygate Testimony, ESPN, Apr. 1, 2008, http://sports.espn.go.com/nfl/news/story?id=3322568 (last visited Apr. 19, 2008).

[9] Mike Fish, Former Patriots Video Assistant Hints at Team's Spying History, ESPN, Feb. 1, 2008, http://sports.espn.go.com/nfl/news/story?id=3226465 (last visited Apr. 19, 2008).

[10] Mike Fish, Walsh's Attorney Says NFL Indemnification Offer Falls Short, ESPN, Feb. 15, 2008, http://sports.espn.go.com/nfl/news/story?id=3248267 (last visited Apr. 19, 2008).

[11] Id.

[12] Fish, supra note 9.

[13] Fish, supra note 10.

[14] Chadiha, supra note 3.

[15] Fish, supra note 10.

[16] Id.

[17] Id.

[18] Fish, supra note 4.

[19] Id.

[20] Associated Press, Rams Player, Fans to Withdraw Lawsuit Regarding Pats Taping, ESPN, Mar. 10, 2008, http://sports.espn.go.com/nfl/news/story?id=3286852 (last visited Apr. 19, 2008).

[21] Id.

[22] Id.

[23] Id.

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