Volume 28 Issue 2 Article 2 5-21-2021 Where to Draw the Line: The Endless Search for a Legal Competitive Edge Andrew Brandt Follow this and additional works at: https://digitalcommons.law.villanova.edu/mslj Part of the Entertainment, Arts, and Sports Law Commons Recommended Citation Andrew Brandt, Where to Draw the Line: The Endless Search for a Legal Competitive Edge, 28 Jeffrey S. Moorad Sports L.J. 319 (2021). Available at: https://digitalcommons.law.villanova.edu/mslj/vol28/iss2/2 This Article is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Jeffrey S. Moorad Sports Law Journal by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Brandt: Where to Draw the Line: The Endless Search for a Legal Competitiv ARTICLES WHERE TO DRAW THE LINE: THE ENDLESS SEARCH FOR A (LEGAL) COMPETITIVE EDGE ANDREW BRANDT I. CHEATING OR COMPETITIVE EDGE? In 2015, NFL Network’s Andrew Siciliano asked Pro Football Hall of Fame quarterback Joe Montana about rumors of cheating by the New England Patriots.1 Having already admitted that his own Super Bowl-champion San Francisco 49ers had occasionally stretched the boundaries of the rulebook, Montana’s response to Siciliano’s query drew a fair bit of attention: “They always say, ‘If you ain’t cheating, you ain’t trying.’”2 One thing is certain: there has likely been cheating in sports as long as there have been sports. Nonetheless, the introduction of ever-more sophisticated scientific and technological developments to athletics has blurred the line between cheating and competitive edge. The issue of cheating in professional athletics came to the fore again in early 2020, when the 2017 World Series-champion Hous- ton Astros were revealed to have employed a complex system of cameras, algorithmic spreadsheets, and trash cans to steal signs from opposing teams.3 While the scheme was broadly condemned, some pointed out that sign stealing, without more, was common practice in professional baseball and had never been considered cheating.4 Therefore, the question became not whether or not the 1. See Ryan Wilson, Joe Montana on Patriots: ‘If you ain’t cheating, you ain’t trying’, CBS SPORTS (Oct. 16, 2015), https://www.cbssports.com/nfl/news/joe-montana- on-patriots-if-you-aint-cheating-you-aint-trying/ [https://perma.cc/JKN6-5SXH] (recounting interview between Joe Montana and Andrew Siciliano about allega- tions of cheating in professional football). 2. See id. 3. See Jason Diamond, ‘Dark Arts’ and ‘Codebreaker’: The Origins of the Houston Astros Cheating Scheme, WALL STREET JOURNAL (Feb. 7, 2020), https://www.wsj.com/ articles/houston-astros-cheating-scheme-dark-arts-codebreaker-11581112994 ?mod=article_inline [https://perma.cc/JKN6-5SXH] (recounting in detail logis- tics of Houston Astros’ sign-stealing scheme). 4. See Jacob Bogage, What is sign stealing? Making sense of Major League Baseball’s latest scandal., WASHINGTON POST (Feb. 14, 2020), https://www.washingtonpost. com/sports/2020/01/14/what-is-sign-stealing-baseball/ [https://perma.cc/84Y3- ADLT] (noting that sign-stealing is “accepted tradition” and “as old as baseball itself”); Zach Helfand, Is Stealing Signs in Baseball Really So Bad? Bobby Valentine Has (319) Published by Villanova University Charles Widger School of Law Digital Repository, 2021 1 Jeffrey S. Moorad Sports Law Journal, Vol. 28, Iss. 2 [2021], Art. 2 320 JEFFREY S. MOORAD SPORTS LAW JOURNAL [Vol. 28: p. 319 Astros had cheated (they had), but at precisely what point their conduct crossed the line; and further, whether that line had been drawn correctly in the first place. This Comment attempts to identify a principled distinction be- tween cheating and competitive advantage in an athletic landscape where scientific, technological, and biological developments con- tinue to widen the boundaries of the gray area. Section II will trace the origins of two sports mantras- “competitive balance” and “integ- rity of the game”- and how they have been challenged to various degrees by instances of cheating. Section III will consider where the line should be drawn between cheating and competitive advantage given the realities of scientific and biological enhancements availa- ble to today’s athletes and personnel. Finally, Section IV of this Comment will offer suggested approaches that professional sports leagues might take to address the issue. II. INTEGRITY OF THE GAME AND COMPETITIVE BALANCE A. Role of the Commissioner All major sports leagues in the United States today employ a Commissioner.5 Although Commissioners are involved in many of the day-to-day aspects of operating a professional athletic league, their primary authority rests in three areas: decision making, dis- pute resolution, and disciplinary power. In executing this author- ity, Commissioners are meant to act in the best interests of their respective leagues. However, with the continued skyrocketing of as- set values of these franchises and the growing importance of busi- ness issues in major sports, the Commissioner position has become more and more aligned with the interests of owners, compared to players, in his or her day-to-day role. Despite their ubiquity today, the first Commissioner in profes- sional sports was not installed until 1920, when Judge Kenesaw Some Thoughts, NEW YORKER (Feb. 13, 2020), https://www.newyorker.com/sports/ sporting-scene/is-stealing-signs-in-baseball-really-so-bad-bobby-valentine-has-some- thoughts [https://perma.cc/QVZ3-XA7Q] (“Major League Baseball says that steal- ing signs is legal so long as it’s done the old-fashioned way, without telescopes, cameras, or other technology.”); Everything you need to know about MLB’s sign-stealing scandal, ESPN (Feb. 13, 2020), https://www.espn.com/mlb/story/_/id/ 28476282/everything-need-know-mlb-sign-stealing-scandal [https://perma.cc/ FR9A-8EGK] (explaining that “[t]he old-fashioned way” of sign stealing does not break rules). 5. As of this writing, the commissioner of Major League Baseball is Rob Man- fred, the commissioner of the National Football League is Roger Goodell, the com- missioner of the National Basketball Association is Adam Silver, and the commissioner of the National Hockey League is Gary Bettman. https://digitalcommons.law.villanova.edu/mslj/vol28/iss2/2 2 Brandt: Where to Draw the Line: The Endless Search for a Legal Competitiv 2021] WHERE TO DRAW THE LINE 321 Mountain Landis was hired to restore the credibility of Major League Baseball following the infamous Black Sox Scandal. That episode saw a number of players from the Chicago White Sox, in- cluding Shoeless Joe Jackson, throw the World Series (intentionally lose it) in exchange for a portion of gambling winnings.6 In a line of case law originating with Commissioner Landis’ appointment, two guiding principles emerged that have defined what is meant by the “best interests” that Commissioners are charged with protect- ing: integrity of the game and competitive balance.7 These princi- ples have been the starting point in discussions surrounding various instances of cheating that have since been uncovered in all corners of professional sports. B. NFL Highest-Profile Enforcement The notorious “Deflategate” incident in the NFL was the rare modern cheating scandal that did not involve specialized technol- ogy or biological enhancement. Rather, the allegation at the center of the controversy was that the New England Patriots had underin- flated their footballs below the league-mandated 12.5 pounds per square inch of air pressure during the AFC championship game against the Indianapolis Colts in 2015, giving Patriots’ quarterback Tom Brady a competitive advantage.8 Following a series of findings by the NFL that supported a claim of foul play by the Patriots, coach Bill Belichick publicly defended his team, stating that there was not “any intent” to compromise “the integrity of the game.”9 Nonetheless, the NFL’s internal investigation did not put the matter to rest. Independent investigator Ted Wells released his own 243-page report on May 6, 2015, stating that it was “more likely 6. See Jason M. Pollack, Take My Arbitrator, Please: Commissioner “Best Interests” Disciplinary Authority in Professional Sports, 67 FORDHAM L. REV. 1645, 1645 (1999) (“In an episode popularly known today as the ‘Black Sox scandal,’ eight Chicago White Sox players fixed the outcome of the 1919 World Series, causing the White Sox to lose to the Cincinnati Reds, five games to three.”). 7. See Milwaukee American Ass’n v. Landis, 49 F.2d 298, 299 (N.D. Ill. 1931) (upholding Commissioner Landis’s refusal to approve trade between two baseball clubs on grounds that he allowed to take any steps “as he might deem necessary and proper in the interest and morale of the players and the honor of the game”); see also Charles O. Finley & Co., Inc. v. Kuhn, 569 F.2d 527, 539 (7th Cir. 1978) (upholding Commissioner Kuhn’s rejection of three player trades on grounds that they would “seriously. unbalance the competitive balance of baseball”). 8. See Erin Flynn and Beth Maiman, A timeline of the Deflategate controversy, SPORTS ILLUSTRATED (Jan. 15, 2016), https://www.si.com/nfl/2016/01/15/new- england-patriots-tom-brady-deflategate-anniversary-timeline [https://perma.cc/ KU58-T2LE] (summarizing major events comprising Deflategate scandal). 9. See id. (quoting Belichick’s press conference following NFL findings in re- gard to Deflategate). Published by Villanova University Charles Widger