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Burden of Proof

Yellow Flag Thrown to Protect Privacy of NFL Team Secrets

Aired September 1, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

GRETA VAN SUSTEREN, CO-HOST: It's the eve of pigskin mania. As college and NFL football teams launch their seasons this weekend, have their game plans been leaked from the locker room? Four current and former pro coaches have filed a lawsuit against two Internet sites claiming they were selling pilfered playbooks over the World Wide Web.

Today on BURDEN OF PROOF, tilt back your lounge chair. A yellow flag's being thrown to protect the privacy of your team's secrets in the huddle.

ANNOUNCER: This is BURDEN OF PROOF, with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF. Roger is off today.

Gridiron coaches call them their "Bibles." The strategies outlined in playbooks are essentially their recipes for success in the big-time, big-money world of professional football. Now, four current and former NFL coaches, including the legendary Buddy Ryan, are suing to keep those secrets secret.

Named in the lawsuit, two Internet sites, including Fogdog.com, which sells sports merchandise and paraphernalia; and also named as a defendant, an Internet site called Sportsplaybooks.com, which was temporarily shut down four months ago after receiving complaints from coaches and football programs.

Joining us today from Los Angeles is former NFL great Rosey Grier. In Houston, Texas, we're joined by plaintiff's attorney Scott Marrs. In San Francisco, Pat McGovern, general counsel of defendant Fogdog.com. And here in Washington, Susie Xu (ph), Internet attorney Anthony Lupo, and Mike Leighs (ph). And in our back row, Arshad Ahmad (ph) and Mike Wanyo (ph).

Rosey, let me go first to you. What are these playbooks?

ROSEY GRIER, FORMER NFL PLAYER: Well, you know a team has certain amount of players on a team, and that playbook tells each player what they are suppose to do. It lays out the whole diagram of what the whole team is supposed to do as a team.

VAN SUSTEREN: Who creates...

GRIER: And it tells each player what he's supposed to do.

VAN SUSTEREN: Rosey, in general, who creates these playbooks?

GRIER: The coaches. The coach, the head coach, he comes in with -- it's a system that each coach has. When he comes into a team, they have a certain way of doing things, and that's their way of doing it.

VAN SUSTEREN: Rosey, do they sort of just pass them out the first day of practice, spring training? I mean, how do you get your playbook? And does each player get one?

GRIER: Yes. When a player joins a team, he is given a playbook to learn what he's supposed to do. That's how he performs on the football field.

VAN SUSTEREN: Did they ever tell you, Rosey, look, this is secret, keep this to yourself, or is it just sort of known among the team, don't give it out to the enemy.

GRIER: No, you cannot give a playbook out. They will fine you heavily for misplacing a playbook or losing a playbook.

VAN SUSTEREN: Well, Rosey, what happens, like, if you're on a team and you know the playbook, but then you get traded to another team. I mean, you walk off with that knowledge. Aren't you walking off with the playbook, in essence, so it's not that secret?

GRIER: No, you don't walk off with the playbook. They said, the coach want to see you; bring your playbook.

VAN SUSTEREN: But don't you remember it. I mean, Rosey, I mean, don't you bring those secrets at least in your memory to the next team?

GRIER: No. You might remember some, but you won't remember the whole book. You won't remember the system. It's a system that each coach has.

VAN SUSTEREN: Rosey, you know, in your long experience with football, do you ever remember a playbook being lost or stolen?

GRIER: Oh, yes, I remember.

VAN SUSTEREN: And when was that?

GRIER: Oh, occasionally on a team, a player would lose a playbook and he gets fined heavily. It happens.

VAN SUSTEREN: In picking up a playbook, Rosey, if I were to pick one up, is it sufficiently clear to sort of the unschooled in football that it would make sense to me if I looked at it?

GRIER: No, not really.

VAN SUSTEREN: So do you think it has any value to anybody outside the team to which it belongs? GRIER: The opposing team. They would love to get their hand on a playbook so they can scout the team and know what their plays are, what their signals are, what their changes are. And they would know all that stuff and be able to defend their various plays by that knowledge.

VAN SUSTEREN: All right, let's go to Houston to Scott Marrs, who is a lawyer for some coaches who have filed a lawsuit. Scott, first of all, what's the complaint all about in your lawsuit?

SCOTT MARRS, PLAINTIFF'S ATTORNEY: Well, Greta, as Rosey has already told you, these playbooks have confidential, strategic information with respect to the plays, the runs and the calls. It's no different than if any business had its game plans and business strategies stolen, pilfered or wrongfully taken from it and put on the Internet for sale.

We are claiming that this is wrongful conduct, that the playbooks should be returned. We are out to preserve the integrity of the game and certainly the competitiveness of the sport -- to do our small job in preserving that. And I believe Rosey is on the money when he says that this is very valuable information, especially to the competition.

VAN SUSTEREN: Scott, whose playbooks have been pilfered?

MARRS: Well, certainly when Sportsplaybooks.com, the Web site at issue, launched its site, there were reverberations throughout the country from numerous college and professional sportscasts, as well as the coaches and the teams.

VAN SUSTEREN: But who got ripped off? I mean, whose playbooks do you claim got ripped off?

MARRS: Well, at issue here, of course, our clients are Ernie Zampesie (ph), Buddy Ryan, Rex Ryan and Rob Ryan. Their playbooks are at issue and they have been sold, but they're not the only ones. And we invite, of course, other coaches and teams to get involved in this issue to protect these playbooks from being exposed and to protect the competitiveness of the sport.

VAN SUSTEREN: Are you saying that Ernie Zampesie, who's the coach of the Dallas Cowboys, that the Dallas Cowboys' playbook is on the Web?

MARRS: Well, I'm saying that there are over 110 categories of playbooks from various teams and coaches.

VAN SUSTEREN: But are the Dallas Cowboy's playbooks on the Web?

MARRS: Well, they may be.

VAN SUSTEREN: How about Rex Ryan of the Baltimore Ravens? Are the Baltimore Ravens -- because he's one of your clients -- is the Ravens' playbook on the Web.

MARRS: It's my understanding that one of the Ravens' playbook has been on this particular Web site for sale, yes.

VAN SUSTEREN: And how about Bob Ryan of the New England Patriots? Is the New England Patriots' book on the Web?

MARRS: My understanding is one of their -- one of those books was on the Web site as well.

VAN SUSTEREN: And as a self-serving question for me, my beloved Green Bay Packers' playbook, is that on the Web?

MARRS: Well, Greta, I hate to inform you, it just might be.

VAN SUSTEREN: All right, how come Buddy Ryan, who is a former coach, he's one of your clients? How does he fit into this scheme if it's a -- if he's not currently coaching a team with playbooks on the Web?

MARRS: Sure. We learned through my co-counsel Jim Ryan with the Samburg Phoenix (ph) firm in St. Louis that, indeed, Buddy Ryan's -- a number of his playbooks from different teams and different years have appeared on this Web site for sale. That, of course, causes great concern to not only Buddy, but the teams in which he was coaching for.

VAN SUSTEREN: All right, Pat McGovern, you are the general counsel for Fogdog.com, which is one of the defendants in this case. Have you answered the complaint filed by Scott and his clients?

PAT MCGOVERN, FOGDOG SPORTS: No, Greta, we haven't. In fact, we have not received notice that we've actually been served in the case as of yet.

VAN SUSTEREN: Does your company -- does Fogdog have a Web site, first of all?

MCGOVERN: Yes, it does. It's at Fogdog.com.

VAN SUSTEREN: Does it have any playbooks on the Web site?

MCGOVERN: Well, the plaintiff hasn't even alleged that we've sold any of these playbooks about which he's complaining. And, of course, you're asking exactly the right questions, Greta, which is, what are these specific playbooks?

VAN SUSTEREN: Well, you've dodged me a little bit on this, Pat, so let me go back and ask you: Has your Web site put any playbook of any of Scott's clients on the Web?

MCGOVERN: We have no knowledge or information of any sort that would suggest that we have ever had any of these playbooks. Again...

VAN SUSTEREN: Scott, how do you answer that?

MARRS: Well, it's a simple answer, Greta, and that is that although they're not selling the playbooks themselves on the Fogdog site, in essence, this Sports Playbooks site where they were being sold is, in essence, a Fogdog site. It says it's affiliated with Fogdog. The agreement between Fogdog and this Web site and its owners state that they will show the Fogdog logo, that they will say they are affiliated and in association with Fogdog. They receive renumeration from Fogdog. Fogdog required a link to be put from this Sports Playbooks Web site.

VAN SUSTEREN: So the real sort of the main culprit, Scott, is Sportsplaybooks.com, and it's Fogdog by virtue of links and affiliation gets brought in, is that right? Is that fair to say?

MARRS: It's fair to say also that when you aid and abet wrongful conduct, you yourself should be held responsible.

VAN SUSTEREN: All right, we're going to take a break.

Up next, football strategy: Is it intellectual property? And are pigskin plays protected by law? Stay with us.

(BEGIN LEGAL BRIEF)

On Thursday, the independent counsel's Whitewater investigations office in Arkansas was closed, ending an era which started six and a half years ago with Robert Fiske. During their work in Little Rock, independent counsel Robert Fiske, Ken Starr and Robert Ray saw 21 people charged and 14 convicted for a variety of crimes.

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Good news for our Internet-savvy viewers: You can now watch BURDEN OF PROOF live on the World Wide Web. Just log-on to cnn.com/burden. We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site at any time via video-on-demand. You can also interact with our show and even join our chat room.

Four current and former pro football coaches are suing two Internet sites for alleging posting playbooks on the World Wide Web. Plaintiffs' lawyers say the playbooks represent the coach's life work, containing "confidential and proprietary information."

Tony, can you copyright playbooks? I mean, can you own playbooks that way?

TONY LUPO, INTERNET ATTORNEY: Absolutely. There are three problems here, though. The first is that a copyright claim was not even alleged, I'm a little confuse about that.

VAN SUSTEREN: Well, we will ask Scott in a second why he didn't allege that, yes.

LUPO: The problem is that, who owns the book? is it actually owned by the team? is it actually owned by the coach?

VAN SUSTEREN: Let's ask Scott right now. Scott, were the books copyrighted? why didn't you make a copyright claim? and who owns them? MARRS: Well, the books are certainly protected under the copyright laws. They have not been copyrighted and the copyrights have not been registered. And the simple reason is because, prior to suing, you must register your copyrights. There are hundreds of book at issue.

First we wanted additional teams and coaches to join, and then we can segregate that out and also add that claim later. The primary claim in this case is trade secrets and conversion of property rights.

VAN SUSTEREN: Go ahead, Tony.

LUPO: Copyright would have been, clearly, their strongest suit. They would able to get an injunction from it being distributed, but there is still a question of whether the coach owns it or the team owns it.

I mean, considering that the coach is an employee, anything they create might be owned by the team.

VAN SUSTEREN: Rosey, when the playbooks are created are they created solely by the coaches? or is there input from the players?

GRIER: No, it is by the coaches only. A coach comes in with a system. They are hired based upon their work in the past, and the owner of a team look at that coach, and said this guy, I like that system here with my team, and they hire the coach based upon his system.

VAN SUSTEREN: Do you remember. Rosey, ever any time when you got a book. I mean, did they ever say to you: Look, don't give it out to a friend? don't give it out to anybody? or is just simply understood?

GRIER: Absolutely, they tell you that. It's verbal communication. They tell you, do not give this book out.

VAN SUSTEREN: Tony, you want to respond.

LUPO: That's not going to necessarily be sufficient. With regard to the trade secret claim. they are going to have to actually show that they have taken affirmative steps to really protect this, much more than verbal.

VAN SUSTEREN: And what would be affirmative steps? I mean, you've got to give it out to team players.

LUPO: You make them sign that they are not going to disclose it, simple agreement, you don't have the right to disclose this, we own it, it comes back to the team, or whoever.

And what is interesting is, once again, that agreement, because I have heard that some NFL team require their players to sign that agreement, that is from the team, not from the coach.

Now, the other big issue here is, if these books were ever disclosed anywhere on the Web before, the trade secret is lost, they are no longer a trade secret.

VAN SUSTEREN: Because they have waived it. You have basically sat on your rights.

LUPO: You have the right to get after the first party. So if the playbook site that they are suing was the first party to put it out on the Web, the trade secret is not generally known.

However, let's assume that the book was put out on three or four sites and then they sued the playbook site. Well, now it is now generally known, it has been out before.

VAN SUSTEREN: Scott, you have alleged in the complaint, on behalf of the coaches, the civil tort called conversion, which is basically stealing, do you know who it is, who has, quote, "stolen" or "converted" these, do you know the individual?

MARRS: We have some ideas with respect to the individuals that may be responsible. However, as you know, this lawsuit is new. We are in the thrust of our investigation right now, discovery is ongoing, and we will soon be taking the depositions of a Fogdog representative, as well as the owners of the Web site, to find out exactly where these books came from and who took them from the various coaches and/or teams.

VAN SUSTEREN: Have you -- I mean, it seems a little bit unusual that you have several teams named here, at least Dallas, Baltimore, and New England. Have you encouraged law enforcement to seek criminal actions against anyone for taking these books?

MARRS: Well, you may recall some years ago, and I'm sure Rosey knows about this, at least one or two players were indeed brought up on criminal charges for stealing playbooks from their coaches. That is an answer for law enforcement. We do know that the acts alleged may constitute violations of the Economic Espionage Act, with respect to trade secret misappropriation. However, that is not a private cause of action; that is for the law enforcement officials to decide.

VAN SUSTEREN: Rosey, do you remember anyone being charged with stealing these playbooks in the past?

GRIER: No, I don't. I don't remember anything like that.

VAN SUSTEREN: Let me go now back to Pat.

Pat, in this case, what do you intend to say as your defense? just that you are unaffiliated with the primary person who Scott claims is the converter or the thief?

MCGOVERN: Well, the reason we accepted your invitation to come here, Greta, is to say exactly that. We don't belong in this lawsuit all. Our affiliate program is an important part of building ourselves as a leader in the sporting goods e-commerce retail area, which we have successfully done, featuring over 800 brands. We have 40,000 or so affiliates.

And Scott, apparently, has read the agreement on the Web site that should have made clear to him what the relationship is.

Person or a company with a Web site can go on-line, fill out a form, become an affiliate. We give them the opportunity to put a link on their site. People can link from their site to Fogdog; and if they do so and make a purchase on Fogdog, the Web site that made the referral gets a referral fee.

VAN SUSTEREN: Let me ask you a quick question, Scott. If CNN linked to your primary defendant here, had a link to Sportsplaybooks.com, would CNN be one of your defendants in the case?

MARRS: Well, that certainly could be a factor.

VAN SUSTEREN: Of course, I have no information it does. I don't think they do. I am just saying hypothetically.

MARRS: Of course not.

MCGOVERN: If I can jump in there, Fogdog does not have a link on its site to Sportsplaybook, it is the other way around. And that is the only direction the relationship goes. And Fogdog has absolutely no relationship with Sportsplaybooks in the form of ownership, control, common interests. The only relationship is that referral and commission relationship, which the term has been coined in the industry, in the Internet industry, as an affiliate. I would think that Scott would be aware of that.

VAN SUSTEREN: Hold your thought. We are going to take a quick break. We will be right back. Will this case stand up in court? We will talk about it. Stay with us.

(BEGIN Q&A)

Q: What member of the BURDEN OF PROOF staff owns stock in an NFL franchise?

A: Greta Van Susteren, one share, Green Bay Packers.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: CNN has learned that there is a development in the Wen Ho Lee story. We understand that there will be an emergency hearing in Judge Parker's chambers at 1:30 p.m. Eastern, that's about a half hour from now. CNN will be following this story throughout the day.

A group of professional football coaches have filed suit in Harris County, Texas. They want to shut down an Internet site and force the return of their playbooks, which were posted for sale on Sportsplaybooks.com. Before we go to it, I just want to sort of show off my one share in the Green Bay Packers. The fact that I happen to be an owner in a professional football team, one share, which, of course, has no value but makes me an owner. Tony, I want talk about this business about affiliate. Foghat says it's an affiliate, that the main culprit links to its Web site, what about that, does that help Foghat -- or Fogdog, rather?

LUPO: Fogdog, absolutely, What is happening on the Web is this has become a very common model to make money. What you'll do is you will drive traffic from one page to the other and they share. The only way you're going to pull a affiliate in is if there's some direct knowledge of the trade secret or illegal act being done. It's almost...

VAN SUSTEREN: Well, let me ask Scott, then, Scott, do you have any direct knowledge that Pat McGovern and Fogdog have direct knowledge?

MARRS: Tony, I think that's a good point. In this case we do have such evidence.

VAN SUSTEREN: What is it?

MARRS: Well, even after there were IP concerns even posted on Sportsplaybooks on site, which is affiliated with Fogdog, Fogdog continued to affiliate with and have their agreement in place to pay commissions back to Sportsplaybooks.com whose sole purpose was to sell these confidential playbooks.

VAN SUSTEREN: What about that, Pat?

MCGOVERN: Well, again, let's get the relationship straight. We don't affiliate with Sportsplaybooks, they'd become an affiliate of us. And we don't derive any revenue from anything that they're doing on their site, nor do we have any control over it or any control over it whatsoever. We have, as I said, 40,000 of these sites out there. We do our best to monitor them but we can't control the content. So there really isn't any basis to think that we had direct knowledge of anything that they may or may not have been doing, or certainly not of the source of their books.

VAN SUSTEREN: Tony, who wins in a situation like this usually?

LUPO: Fogdog, because there's not a lot -- there's no control over the Web site. The best they can do is they can terminate their link. They're going to have to show some actual knowledge, more than probably a cease and desist. There's been cases in other realms, more in the copyright infringement realm, there was a Net.com case where the judge went so far as to say that even if the infringing site thought that they had a defense, a good faith defense, that was sufficient. So it's a tough argument to make.

VAN SUSTEREN: Rosey -- go ahead.

MCGOVERN: If I may, it's an excellent point, too. The first knowledge we had of any allegation of this sort whatsoever was when we received a copy of the petition from the media, not from Mr. Marrs. We didn't ever receive any form of cease and desist letter.

VAN SUSTEREN: Which may soon be -- which may be forthcoming, though.

MCGOVERN: We never did, and we never were given any notification from the plaintiff that they believed we did anything wrong. And they still have not made an allegation of any wrongful conduct directly on our part. I think that just as leader in this space and in this category, in this high-profile industry, perhaps we become an attractive target.

VAN SUSTEREN: Rosey, let me give you the wonderful job of being the single-man jury in this case. And let's just assume hypothetically that somebody has stolen these playbooks, and that somebody is going to have to pay. What do you think they are worth? what's your wild guess? if you were the jury, how much is it worth?

GRIER: I have no idea. It's very valuable individually, it's very valuable to that coach depending what that coach himself is deprived of through the loss of this book. So I'd base it upon that.

VAN SUSTEREN: How in the world, Scott, do you show damages? I mean, here you've got Rosey, one the most famous football players, and obviously I've hit him cold with trying to measure the value. But let's assume that you win, maybe not against Fogdog, according to Tony, but against somebody for stolen -- how are you going to prove damages? what's it worth?

MARRS: Well, what's it worth to keep your business plans and strategies out of the hands of your competitors?

VAN SUSTEREN: Yes, but you've got to somehow prove value, what do you think this is worth? just give me a hypothetical, what do you think this is worth?

MARRS: Well, as you know, we've asked for injunctive relief. We've asked to...

VAN SUSTEREN: You've asked for money, though, you've also asked for money. How much money do you think this is worth?

MARR: We've asked for the profits that were made by the defendants in this case. We are still in the early stage of discovery. So I can't give you a million dollar or multimillion dollar figure at this time.

And, of course, we're in the early part of the season, which opens this week. And I assume everyone's going to cheer for the Green Bay Packers.

LUPO: What happens if the team ends up winning?

VAN SUSTEREN: That's right, ends up winning, that's another possibility.

But we have no more time, thanks to our guests and thank you for watching today.

Today on "TALKBACK LIVE," why a healthy pregnant woman was forced into court-ordered custody, allegedly to protect her unborn child. Tune in at 3:00 p.m. Eastern time, noon Pacific.

And Monday on BURDEN OF PROOF, forensic artists, how their artistic renderings factor in the search for suspects in high-profile cases. Join us then for another edition of BURDEN OF PROOF.

TO ORDER A VIDEO OF THIS TRANSCRIPT, PLEASE CALL 800-CNN-NEWS OR USE OUR SECURE ONLINE ORDER FORM LOCATED AT www.fdch.com

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