Kentucky attorney sues NFL over Spygate

[the_idle_threat]

Also, they know that if the cases get thrown out (on summary judgement or even on a 14(b)(6) motion---failure to state a claim), the legal system often does little or nothing to penalize them for taking a shot.

I believe you mean FRCP Rule 12(b)(6) not 14(b)(6). I believe Rule 14 is the Rule governing third party practice, and Rule 12 is Defenses and Objections, including (b)(6) failure to state a claim upon which relief can be granted.

Yes, I meant 12(b)(6). Funny thing is, I looked it up just to be sure, and still wrote it wrong after doing that.

[the_idle_threat]

But if liability is "not likely," why make the defendant spend the time and money answering the claim, and why waste the court's time and taxpayer dollars? Courts are way overburdened with cases as it is, and some of those other cases actually have merit. Where the plaintiffs' allegations are "not likely," it's unfair to make defendants and the courts go through with handling the case.

Anyone can file a lawsuit if they can dream up a theory of liability. But lawsuits are acts of aggression---declarations of war. They're not about fact-finding---they're about winning the dispute. Once the suits are filed, the defendants have no choice but to be dragged into an expensive and time-consuming mess.

My point is that the lawsuits above don't meet the threshold: they're based upon weak arguments and are not "likely" enough to prevail that they deserve to be heard. The legal system makes judgements like this all the time.

Determining liability goes to who is responsible for the acts. If the facts are as they've been stated, then the Patriots would CLEARLY be liable for them. That too is clear.

The question here is whether the acts - if the tapes (or tape in this isolated case) prove out, and if Walsh can prove he was acting on behalf of the team and not on his own - that the Patriots clearly would have committed, and for which there is clearly a claim - actually violate the laws in question. There is no question (assuming the allegations to prove out) about liability or whether a claim has been stated.

The Patriots are denying the action or having any knowledge of it altogether. If the tape exists and/or can be proven to have existed, then that's a tough argument to hold IMO.

vince, this doesn't make sense to me. How is liability clear? There is no liability unless the defendants are liable to somebody. Who are they liable to? Who did they injure, and how? Offending someone's sense of fair play is not a compensable injury. What actual injuries were suffered? How will you calculate damages? These are the causation and damages issues I keep harping about, and you're ignoring them completely while stating, in all caps no less, that liability is clear.

[Patler]

But in any case, I don't buy what you're selling. Walsh is not defenseless---he already has a lawyer. And this case is high-profile enough that if that lawyer flies the coop, defense lawyers will be coming out of the woodwork to get their names on this case. Also, he could stand to win a lot of money in a counter suit if the NFL sues him in bad faith.

Having a lawyer for what he has done to date and having a lawyer to defend him if the NFL decides to sue him are totally different things; and I doubt very much that he would have defense lawyers (good, experienced ones anyway) beating a path to his door. There is little for him to recover in the type of action the NFL would file, so little for the lawyers to participate in on a contingency fee even if they win. His actual damages would be minimal and it is unlikely that a contract action would warrant punitive damages. The long-term notoriety from the suit would be insignificant and the costs could be quite high. Too much investment for the firm with little to be gained from it financially or otherwise.

[the_idle_threat]

Regarding the players' claim, they are claiming civil damages based upon losing the game (e.g. difference between winners' and losers' shares, value of Super Bowl rings). Therefore, they have to prove the Pats caused thoses losses---i.e. cheated them out of the win. If something else might have caused the damages (i.e. caused them to lose) then the Pats do not have to pay for the damages they did not cause. It's basic tort law.

This is incorrect, IMO. We're not talking about tort law. It's a breach of contract suit.

But they're not claiming contract damages. They're claiming damages as if they had won the game. Those are tort damages. In order to get those damages, they have to show that they would have won the game but for the Patriots' misconduct.

The cheated players have a right to claim the winnings because they were cheated out of a fair opportunity to win them by the defendants - who got them. They don't need to prove that the act caused the loss - just that the act caused an unfair "playing field," which they were guaranteed by contract. There's an important difference there, and damages would be the difference between the winner's share and the loser's share.

Where is this stated, and in what contract? If teams are really guaranteed by contract a "level playing field"---however that is defined (???)---then is the team that commits fewer penalties in the game able to enforce breach of contract? Those are violations of the rules too. It sounds like you're making this stuff up.

Two parties competed for a monetary prize, with a contract (certain rules and laws) governing the competition. One breached the contract and got the money. The cheated party then has a right to the prize.

There is no such contract. Where can you direct me to see this contract?

Whether it's with late hits to "get an edge" against the other team's quarterback, or regular run-of-the-mill signal stealing (as opposed to this way overblown video kind) teams try to get whatever edge they can. If signal stealing and the like were not so common, then why do you think coaches cover their faces with that big laminated play sheet whenever they call the play into the microphone?

Do you really think that when teams do these things, as they all do, it should result in litigation by losing teams, based on some fairness contract?

[Patler]

I am surprised that you express great concern about the potential of a frivolous action filed by fans or players against the NFL and seemingly disregard the potential of a frivolous action by the NFL against Walsh.

I am concerned about frivolous and abusive lawsuits regardless of who files them.

I addressed the concept of the NFL filing a frivolous suit in the post that you quoted. See the highlighted language above. So clearly I didn't disregard this idea. You did disregard my argument, however. I have stated that I don't believe the NFL will file a frivolous action to bully Walsh, and I made a case for why I believe that. If you disagree, then perhaps you might share why?

Either you did not understand my argument, or you are intentionally twisting this to try and substantiate your argument.

I did not say you disregarded the idea, I said you disregarded the potential of it occurring. You discussed it, but disregarded it as being unlikely. I am of the opinion you are completely wrong in this. In my opinion the potential is high, and should not be summarily dismissed as unlikely to occur. It is a practice used not infrequently, unfortunately.

[the_idle_threat]

But in any case, I don't buy what you're selling. Walsh is not defenseless---he already has a lawyer. And this case is high-profile enough that if that lawyer flies the coop, defense lawyers will be coming out of the woodwork to get their names on this case. Also, he could stand to win a lot of money in a counter suit if the NFL sues him in bad faith.

Having a lawyer for what he has done to date and having a lawyer to defend him if the NFL decides to sue him are totally different things; and I doubt very much that he would have defense lawyers (good, experienced ones anyway) beating a path to his door. There is little for him to recover in the type of action the NFL would file, so little for the lawyers to participate in on a contingency fee even if they win. His actual damages would be minimal and it is unlikely that a contract action would warrant punitive damages. The long-term notoriety from the suit would be insignificant and the costs could be quite high. Too much investment for the firm with little to be gained from it financially or otherwise.

We'll have to agree to disagree on this one then.

Even if the NFL has a lot of money to pursue the case, there are limits on how expensive they can make a simple contract case. And if they lose, and it's apparent they tried to use their heft to squash a "little guy"---there is no reason to believe punitive damages are so unlikely. Even if they're rare in contract cases, it's the conduct that matters, not the claim. This would be just the case for them. Judges are aware of what's going on in front of them.

[the_idle_threat]

I am surprised that you express great concern about the potential of a frivolous action filed by fans or players against the NFL and seemingly disregard the potential of a frivolous action by the NFL against Walsh.

I am concerned about frivolous and abusive lawsuits regardless of who files them.

I addressed the concept of the NFL filing a frivolous suit in the post that you quoted. See the highlighted language above. So clearly I didn't disregard this idea. You did disregard my argument, however. I have stated that I don't believe the NFL will file a frivolous action to bully Walsh, and I made a case for why I believe that. If you disagree, then perhaps you might share why?

Either you did not understand my argument, or you are intentionally twisting this to try and substantiate your argument.

I did not say you disregarded the idea, I said you disregarded the potential of it occurring. You discussed it, but disregarded it as being unlikely. I am of the opinion you are completely wrong in this. In my opinion the potential is high, and should not be summarily dismissed as unlikely to occur. It is a practice used not infrequently, unfortunately.

Apparently, I "didn't understand you argument." More like you didn't make an argument. And you still haven't.

In a case like this---where most of the lurid details are public and are followed intensely by the media---how could the NFL possibly get away with filing a junk lawsuit to shut Walsh up? The media would be all over it, and it would be a P.R. nightmare. For that matter, if they would be so willing or likely to file such a lawsuit, why haven't they filed one already?

[Patler]

I have little concern about a frivolous suit against the NFL. They are a huge business fully capable of defending themselves against anyone. I do worry about the power and might of the NFL stifling legitimate claims against them just by the power they can wield in court.

I can't believe you think it's OK to file illegitimate claims against the NFL, Patler. I know you have more sense than that. Now I understand that the NFL is a "big boy" and can handle it, but that doesn't make it in any way ethical. If, hypothetically, you have a fair amount of money or maybe a big umbrella insurance policy, Patler, is it OK for me to sue you for no good reason just because you can afford it?

Again, either you did not understand my argument, or you are intentionally twisting this to try and substantiate your argument.

I did not say it was OK, nor do I think any reasonable reading of what I wrote could be interpreted as a statement that I think it is "OK" to file frivolous lawsuits by anyone. I simply don't worry about well-healed defendants (or plaintiffs) in those situations because they can take care of themselves, and the good judges can weed them out and make transgressors pay. Yes there are problems because of it and it should be eliminated to the extent possible. But do I worry about the NFL having to defend itself? Absolutely not. I have better things to worry about than that.

On the other hand, I do worry about well-healed plaintiffs imposing their will on those individuals or businesses who can not much them dollar for dollar in protracted litigation. It happens more often then some would like to admit.

So yes, I do worry more about the NFL filing a frivolous suit against Walsh than vice versa. It's not a fair fight.

[Patler]

Apparently, I "didn't understand you argument." More like you didn't make an argument. And you still haven't.

In a case like this---where most of the lurid details are public and are followed intensely by the media---how could the NFL possibly get away with filing a junk lawsuit to shut Walsh up? The media would be all over it, and it would be a P.R. nightmare. For that matter, if they would be so willing or likely to file such a lawsuit, why haven't they filed one already?

It would be pretty easy for the NFL to file an action stating a claim requiring Walsh to defend based on the confidentiality agreement that has been mentioned, or what he was or was not told to do by the team. Those are facts we do not have, and would not come out, if at all until after potentially very costly discovery. Heck, it is common for confidentiality agreements themselves to be confidential, so the wording of that may never be public. How does the media or public opinion protect Walsh from that?

Why have they not filed a lawsuit yet? Because they hope to make it blow over without doing that. Sort of like the way they handled it initially. Get it out of the public eye, and hope people forget. Howver, it seems Walsh's attorneys have done a good job in raising the potential of the NFL suing him, probably making it less likely.

[the_idle_threat]

I have little concern about a frivolous suit against the NFL. They are a huge business fully capable of defending themselves against anyone. I do worry about the power and might of the NFL stifling legitimate claims against them just by the power they can wield in court.

I can't believe you think it's OK to file illegitimate claims against the NFL, Patler. I know you have more sense than that. Now I understand that the NFL is a "big boy" and can handle it, but that doesn't make it in any way ethical. If, hypothetically, you have a fair amount of money or maybe a big umbrella insurance policy, Patler, is it OK for me to sue you for no good reason just because you can afford it?

Again, either you did not understand my argument, or you are intentionally twisting this to try and substantiate your argument.

Don't make this about me, Patler. Consider the possibility that if I "don't understand" your arguments, then perhaps you aren't stating them very well.

And your accusations that I'm twisting them is self-serving and disingenuous. I read the line that you wrote: "I have little concern about a frivolous suit against the NFL," and understood you to mean that you don't care if people file frivolous suits against the NFL. Do I need to diagram the sentence? That is a reasonble understanding of your statement. If it is not what you meant, you weren't very clear at all.

I did not say it was OK, nor do I think any reasonable reading of what I wrote could be interpreted as a statement that I think it is "OK" to file frivolous lawsuits by anyone. I simply don't worry about well-healed defendants (or plaintiffs) in those situations because they can take care of themselves, and the good judges can weed them out and make transgressors pay. Yes there are problems because of it and it should be eliminated to the extent possible. But do I worry about the NFL having to defend itself? Absolutely not. I have better things to worry about than that.

I come to this site---you might notice it is a Packers site---as a fan of the NFL. I am concerned when people file garbage lawsuits against the league that I'm a fan of.

On the other hand, I do worry about well-healed plaintiffs imposing their will on those individuals or businesses who can not much them dollar for dollar in protracted litigation. It happens more often then some would like to admit.

So yes, I do worry more about the NFL filing a frivolous suit against Walsh than vice versa. It's not a fair fight.

It's not fair either way. Garbage lawsuits are garbage lawsuits. There are plenty of people who cry for the "little guy" when he gets squashed. Few people, apparently, care when a corporation's costs go up. Never mind the fact that a corporation who faces needless losses will pass on the cost to employees (fewer raises or perhaps layoffs if they're in the red) and/or to consumers (higher prices). Eiher that or they go belly up and all the jobs are lost. But never mind. They have lots of money. They can handle it.

[the_idle_threat]

Apparently, I "didn't understand you argument." More like you didn't make an argument. And you still haven't.

In a case like this---where most of the lurid details are public and are followed intensely by the media---how could the NFL possibly get away with filing a junk lawsuit to shut Walsh up? The media would be all over it, and it would be a P.R. nightmare. For that matter, if they would be so willing or likely to file such a lawsuit, why haven't they filed one already?

It would be pretty easy for the NFL to file an action stating a claim requiring Walsh to defend based on the confidentiality agreement that has been mentioned, or what he was or was not told to do by the team. Those are facts we do not have, and would not come out, if at all until after potentially very costly discovery. Heck, it is common for confidentiality agreements themselves to be confidential, so the wording of that may never be public. How does the media or public opinion protect Walsh from that?

I don't see how a breach of confidentiality claim, or a he-said/she-said suit about what he was told to do by the team could result in "very costly discovery." These are simple claims that would require simple proof. You look at a contract or interview some witnesses. It's true that some cases get bogged down in costly discovery, but the potential just isn't there here. And even if it were somehow, it's obvious to everyone involved that the NFL wants this to go away, and bogging down litigation in order to starve Walsh of money might be one very unethical way to accomplish that. The judge would be watching this like a hawk.

Why have they not filed a lawsuit yet? Because they hope to make it blow over without doing that. Sort of like the way they handled it initially. Get it out of the public eye, and hope people forget. Howver, it seems Walsh's attorneys have done a good job in raising the potential of the NFL suing him, probably making it less likely.

Walsh's attoney(s) doing "a good job" is pretty inconsistent with the idea that he's defenseless. And it's a huge stretch in logic to think the NFL would go from (a) trying to get this thing out of the public eye to (b) suing a guy who has publicly announced he has incriminating evidence toward an already-existing scandal, in order to shut him up. The fact that this would garner ridiculous publicity---all bad for the NFL---is what protects him from a frivoulous and abusive suit like this.

[vince]

vince, this doesn't make sense to me. How is liability clear? There is no liability unless the defendants are liable to somebody. Who are they liable to? Who did they injure, and how? Offending someone's sense of fair play is not a compensable injury. What actual injuries were suffered? How will you calculate damages? These are the causation and damages issues I keep harping about, and you're ignoring them completely while stating, in all caps no less, that liability is clear.

Based on the original article, it's my belief that you are founding your argument on the wrong premises. Perhaps that's why the suit doesn't seem valid to you. This case is about a breach of contract - not personal injury. Go back to the original article and it will tell you what type of suit is being put forth. Proving that an injury was caused by an action isn't even a consideration, and while liability involves responsibility for the acts in question, it's actually not technically relevant either in a breach of contract case.

There are two sides to a contract. If the contract was breached by one party, then the other party has a right to a remedy. All this ties into the next post by you also, so I'll include it here and add more below it.

But they're not claiming contract damages. They're claiming damages as if they had won the game. Those are tort damages. In order to get those damages, they have to show that they would have won the game but for the Patriots' misconduct.

...

Where is this stated, and in what contract? If teams are really guaranteed by contract a "level playing field"---however that is defined (???)---then is the team that commits fewer penalties in the game able to enforce breach of contract? Those are violations of the rules too. It sounds like you're making this stuff up.

...

There is no such contract. Where can you direct me to see this contract?

Whether it's with late hits to "get an edge" against the other team's quarterback, or regular run-of-the-mill signal stealing (as opposed to this way overblown video kind) teams try to get whatever edge they can. If signal stealing and the like were not so common, then why do you think coaches cover their faces with that big laminated play sheet whenever they call the play into the microphone?

Do you really think that when teams do these things, as they all do, it should result in litigation by losing teams, based on some fairness contract?

As to your first statement, the plaintiffs are claiming a remedy for breach of contract, not tort damages for injury.

Further, a contract does not have to be in writing, so without leafing through the NFL's constitution, bylaws, rulebook, and player agreements, which undoubtedly establish a premise for fair competition, there is a legally-biding implied contract in place between the parties. There are legally-enforceable implied contracts everywhere. If I buy a toaster, and it doesn't work as advertised, I have claim to a remedy - to get my money back. Here's a passage from Wikipedia about contracts.

There must be evidence that the parties had each from an objective perspective engaged in conduct manifesting their assent, and a contract will be formed when the parties have met such a requirement. An objective perspective means that it is only necessary that somebody gives the impression of offering or accepting contractual terms in the eyes of a reasonable person, not that they actually did want to contract.

Offer and acceptance does not always need to be expressed orally or in writing. An implied contract is one in which some of the terms are not expressed in words. This can take two forms. A contract which is implied in fact is one in which the circumstances imply that parties have reached an agreement even though they have not done so expressly. For example, by going to a doctor for a checkup, a patient agrees that he will pay a fair price for the service. If he refuses to pay after being examined, he has breached a contract implied in fact.

Say a plumber accidentally installs a sprinkler system in the lawn of the wrong house. The owner of the house had learned the previous day that his neighbor was getting new sprinklers. That morning, he sees the plumber installing them in his own lawn. Pleased at the mistake, he says nothing, and then refuses to pay when the plumber hands him the bill. Will the man be held liable for payment? Yes, if it could be proven that the man knew that the sprinklers were being installed mistakenly, the court would make him pay. If that knowledge could not be proven, he would not be liable. Such a claim is also referred to as "quantum meruit".

In the case at hand, in-game penalties - and their remedy - are also part of the implied contract. Everyone understands when they compete in or pay to attend the game that the accepted remedy for being offsides is a five-yard penalty. The accepted remedy for those transgressions is built into the contract that is accepted beforehand. Nor is anyone claiming damages for those transgressions.

Back to the implied contract... In my opinion, any "objective person" has the right to expect the game to be contested on a "fair playing field." Any objective person rightfully expects that one team won't be taping and studying the other team's practices and signals before the game in an attempt to gain an unfair advantage. That's part of the implied contract when money is exchanged and when it's won or lost as a result of the contract. For such a breach, the court then rightfully imposes a "remedy," which is a penalty for the breach.

A legal remedy is the means by which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes some other court order to impose its will.

In my view, that penalty would logically be exactly what the player class and the ticket-buyer class are asking for.

[Patler]

I don't see how a breach of confidentiality claim, or a he-said/she-said suit about what he was told to do by the team could result in "very costly discovery." These are simple claims that would require simple proof. You look at a contract or interview some witnesses. It's true that some cases get bogged down in costly discovery, but the potential just isn't there here. And even if it were somehow, it's obvious to everyone involved that the NFL wants this to go away, and bogging down litigation in order to starve Walsh of money might be one very unethical way to accomplish that. The judge would be watching this like a hawk.

Walsh's attoney(s) doing "a good job" is pretty inconsistent with the idea that he's defenseless. And it's a huge stretch in logic to think the NFL would go from (a) trying to get this thing out of the public eye to (b) suing a guy who has publicly announced he has incriminating evidence toward an already-existing scandal, in order to shut him up. The fact that this would garner ridiculous publicity---all bad for the NFL---is what protects him from a frivoulous and abusive suit like this.

From what has been said, a prominent question to answer is what Walsh was or was not instructed to do. Looking down the Packers staff listing, if this were against them it is easy to identify 20-30 potential witnesses, and potential depositions just looking at the coaching staff, video staff, etc. That alone alone could be extremely expensive for an individual to foot the bill.

Who said Walsh was "defenseless"? It is a far cry from getting some good advice now, which probably costs little, and being able to afford to wage litigation against the NFL. It may even be that the attorney advising him now is not a litigator, or from a litigating firm. If the gloves come off, things change.

If Walsh does not go away, or reveals whatever "evidence" he has, etc. the NFL's strategy could very easily change from being quietly defensive to being aggressively defensive. If one strategy does not work, changing strategy is generally in order. It is simply imposing their will by the shear weight of the litigation. There might be very little that the judge can do about it at initial stages, and that might be all the NFL needs.

The publicity is bad already. If one strategy to make it stop doesn't work, it is not a stretch to assume a different strategy will be attempted. It wouldn't be the first time a large entity has tried to force submission by litigation, and the suit does not have to be totally groundless to do it, even if it is not highly winnable if taken to the end.

We obviously disagree on the very fundamentals of this situation and will not convince the other. So rather than beating this to death and boring or stifling others who may simply want to discuss the facts and not the legalities, lets simply agree to disagree.

[the_idle_threat]

vince,

I'm aware of implied contracts, but in practice they are pretty hard to establish and prove in court. The article you quote makes it sound like winning such a case is easy or routine. Well that's not how I understand it works in the real world.

This idea of an "implied" fairness contract is exactly the kind of shaky legal theory that defines a junk lawsuit in my mind. Obviously that's my opinion. But I think it's very convenient to come up with such a concept for the purpose of litigation. Are they really interested in fairness, or just in filthy lucre?

In any case, the complaints are apparently filed, so we'll have to see what happens.

I'll be so bold as to predict the chances of success for these lawsuits at less than 5%, however. with a 100% chance of wasting judicial time and resources.


Patler,

I agree to agree to disagee.

From all appearances, neither of us are fond of junk lawsuits. We only seem to disagree, really, on the likelihood of the NFL filing one. It's another wait and see situation.

[Patler]

Patler,

I agree to agree to disagee.

I would have been surprised if you had disagreed to agree to disagree, because then we would agree.....I think!