Appearing in this week’s Legal Times, an article by K&L Gates partner Thomas J. Smith entitled: Now Watch the Lawyers Blitz — The NFL destroyed the tapes. But it still hasn’t escaped the sack. (Free registration required to view.)
In the game of football, the greatest quarterbacks share some common traits. Perhaps chief among them is an uncanny ability to anticipate the blitz. Sensing the onrush of defenders, the savvy quarterback will sometimes throw the ball away to avoid a loss of yardage.
When legal counsel anticipate a blitz, in the form of a lawsuit or an investigation, “throwing the ball away” is not an option. To the contrary, the destruction of potential evidence may constitute the improper act of spoliation.
Now football fans, including one U.S. senator, are asking whether the National Football League has done exactly that. Did the NFL destroy evidence of cheating by the New England Patriots to avoid a bigger blitz on the game?
On Super Bowl Sunday, Feb. 3, the Patriots nearly completed only the second perfect season in NFL history, losing by three points to the New York Giants. The Patriots’ season also had a less-than-perfect beginning, when the team was caught violating league rules by videotaping the New York Jets’ calling of defensive plays in a scandal dubbed “Spygate.”
The NFL demanded, and reportedly obtained, all tapes the Patriots still had of other teams’ defensive signals, including any that may have been made over the last seven years, during which time the Patriots won three Super Bowls. The league required the team to “certify” that it had produced all such tapes and retained no copies. After receiving the tapes and other materials, the NFL reviewed and then destroyed them, thereby eliminating the opportunity for any third party to examine the extent to which the tapes may have helped the Patriots to win games.
Read a copy of the full article here, reprinted with permission from Legal Times.