Tuesday, January 9, 2018

The Trade Secret Status of Football Game Plans

For the second day in a row, The Wall Street Journal identified interesting questions concerning the law of trade secrets. Today's article comes in the wake of the Alabama-Georgia national title game, which Alabama won in dramatic fashion.

The question the article raises is pretty simple and quaintly summarized: are football game plans trade secrets?

The article explores this question rather indirectly, given WSJ's apparent effort to use Freedom of Information laws to seek these game plans from public universities. My readers will be stunned to learn that the recipients of these FOI letters were less than forthcoming.

One of the traditional exceptions to disclosure of public documents is that information's trade secret status. For their part, FOI laws contain slightly different definitions of trade secrets than do federal and statutes designed to guard against misappropriation. For example, the so-called Exemption 4 under federal law allows for the protection of trade secrets and "commercial or financial information obtained from a person [that is] privileged and confidential." The Supreme Court never has interpreted Exemption 4.

So let's look at Alabama, whose flagship school's football game plans were the subject of the WSJ article today. Alabama's Open Records Act contains no exemption for trade secret material, which is odd but no more odd than sending Roy Moore twice to the state Supreme Court. Though I haven't researched any other statutory basis the University of Alabama may have to withhold game plans under a records request, the Open Records Act does not appear to do so.

Aside from this, the larger question is quite intriguing. Are game plans actually trade secrets?

The best analogy I can come up with is the scripts for popular television serials, a subject I wrote on several years ago in the lead-up to the final Breaking Bad episodes. I've since changed my conclusion and do not believe those scripts are trade secrets, though they can be protected contractually. Why do I say that?

The answer comes straight from the statutory definition of a trade secret. We'll use the 1979 Uniform Trade Secrets Act, whose definition is most in use. The term "trade secret" means that the information must:

(1) derive independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

(2) be the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

While much of the text would suggest popular television scripts are protectable, the highlighted part illustrates why they're not. How, for instance, would any other production company, studio, or network gain from knowing what the plot lines of a series finale are? They wouldn't. In all likelihood, the only remedy that the script owner has is contractual. That is to say, the owner could claim that improper disclosure by an insider bound to a confidentiality clause reduced the economic impact of a television run, such as through lost advertising fees.

My rationale, though, supports giving game plans trade secret status.

Let's start with the basics. Those game plans are valuable, in that they reveal compilations of plays, schemes, coverages, and strategies for a variety of in-game scenarios. So too, there are economic interests at stake, as college football is a business. Universities stand to gain in myriad ways from successful football programs.

And game plans, unlike television scripts, are useful to competitors - even if only to the competitor whose being schemed against in the game plan. So assume that the University of Georgia has a copy of Alabama's game plan. It should know the preferred set of plays for 3rd-and-short. It would know how Alabama's blitz patterns. And it may know whether Alabama wants to deploy a trick play on special teams. That would provide it economic value in the form of a marginally better chance of winning a game, which in turn could yield significant economic gains for the university.

The oft-used defense of reverse engineering likely would not be a good one as applied to game plans. Those plans change week to week based on a variety of factors, including newly obtained personnel, injuries to key players, past performance, competition level, and even the weather. Knowing what Alabama did on 3rd-and-short against Fresno State in September is only marginally helpful when it faces a different defensive scheme, and totally different personnel, against Georgia the following January.

The rather unique aspect of game plans, though, is that they likely have a very short useful life as a trade secret-even for a matter of days. That is to say, anyone can watch tape of last night's game and deduce what Alabama's preferred blitz coverages looked like. They could, in theory, reconstruct a game plan in large part. And again, obtaining a game plan for Georgia would prove marginally helpful, if at all, next season when Alabama opens its season with new players and new schemes.

Today's WSJ article is a fun read and even notes that the paper reviewed Alabama's defensive game plan for its first-round playoff win against Clemson. No one from Alabama seems too worked up about that, suggesting that game plans aren't a trade secret for very long. As one of the Alabama assistants even said, "There's some good information in there, but I don't understand it."

Most people, even other college coaches, wouldn't either. The idea of game plans as trade secrets is academically interesting and challenges us to apply timeless concepts to unique situations. But the debate is still largely theoretical.

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