September 17, 2007
The Patriots and Individual vs. Collective Liability
Posted by Lisa Fairfax

As luck would have it, I was in Boston this weekend and got a chance to hear the hometown perspective on the Patriots' version of "spygate"--Coach Bill Belichick videotaping the New York Jets' defensive signals.  As one would expect, there were plenty who believed that the punishment (fines on both the coach and the team as well as the potential loss of a first round draft pick) was too harsh, particularly because many felt that others in the league were guilty of similar conduct.  But there were also those who felt that the punishment was both necessary and appropriate, and hoped that the team could just move on.  In the end, though, it seemed that many were simply disheartened by the conduct and the shadow it would cast over the team and the game of football.  As a fan of both the Patriots and the NFL, I would have to put myself in that final category.

On a broader note, however, the debate regarding the appropriateness of the punishment reminded me of the debate regarding individual vs. collective liability in the corporate context.  Thus, many people's arguments seemed to suggest that the most appropriate penalty and the one most likely to deter future misconduct was one that focused on the individual--in this case Belichick.   As a result, these people scrutinized the $500,000 fine levied against Belichick.  Some thought it set the right tone--it was the highest fine ever levied against an NFL coach and according to ESPN, represents 12% of his 2007 salary.  But many others were dissatisfied and questioned why the fine was not stiffer and did not include any game suspensions.  For these any team penalty harms players and fans who had no control over the misconduct, but also because such a penalty was perceived as less effective than one that focused on the individual. 

Others seemed to believe that the most significant penalty should be aimed at the team, arguing that the only way to ensure that this kind of misconduct does not occur in the future is to hold the team responsible, which would create incentives for the team and its owner to more effectively monitor its coaches.  Most of these people were not happy with the $250,000 fine imposed on the team and thought it needed to be significantly higher to get the attention of management, and encourage them play a more active role in weeding out misconduct.  There also was debate about whether stripping the Patriots of its first round draft pick if the team made the playoffs was enough.  Regardless of how people resolved this debate, however, most people who focused on the team penalty seemed to think that such a penalty (and not whatever was imposed on Belichick) was the most important one and the one that would prove most effective in sending a message aimed at deterring future misconduct.

Certainly in the corporate realm we have seen a lot of debate regarding whether and to what extent individual executives or their corporations should be subjected to liability for misconduct.  And just like in the corporate context, the resulting punishment seems to satisfy very few.  More importantly, however, similar to the corporate context, there was an effort to impose both individual and collective liability, based on the recognition that both the individual and the corporation, or the team in this case, not only bear some responsibility for the misconduct, but also appear to reap whatever benefits flow from the misconduct.

For my part, while I do think we should ask questions that allow us to fully understand the extent of the misconduct and the reasons behind it, I nevertheless hope for the day when we can talk about the Patriots without hearing the word spy--or worse, the word cheater

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