Spygate lives on

By David Frank

Dolan Media Newswires

PROVIDENCE, RI--Three federal judges in Philadelphia are making things mighty uncomfortable for Bill Belichick and the New England Patriots.

With little fanfare, the 3rd U.S. Circuit Court of Appeals recently cleared an entire afternoon's docket to hear a case that Patriots pom-pom carriers had long laughed off as frivolous.

But they may not be laughing anymore.

"It's very rare for the 3rd Circuit to hear oral arguments," says attorney Carl J. Mayer, a New York Jets season ticket-holder who ticked off plenty in these parts when he filed a $184 million consumer fraud class-action suit against the Kraft empire.

According to Mayer, who filed the complaint pro se, on the rare occasion that the 3rd Circuit does hold oral arguments, it typically allows each side seven or eight minutes. "The fact that we were up there for almost an hour and 15 minutes arguing our case shows you how seriously the court is taking this," he says.

The suit, involving the infamous "Spygate" scandal, goes back to the 2007 NFL season opener when, Mayer claims, Belichick ordered a team employee to videotape the Jets' coaches and players "with the purpose of illegally recording, capturing and stealing" their signals.

The Princeton, N.J., lawyer says the powers that be at Patriot Place (who declined to comment) deprived him and others who were attending the game of their contractual right "to observe an honest match played in compliance" with all laws regulations and NFL rules.

When a U.S. District Court judge tossed the case in 2009, most assumed the sordid affair would quietly die.

No such luck. Not only is the complaint still kicking around in the City of Brotherly Love, the 3rd Circuit's decision to conduct oral arguments shows the panel thinks there might be some merit to the thing.

"The point of our lawsuit, which the judges clearly seemed to recognize, is that the fan has rights and should enjoy the same consumer protections as anyone else," Mayer says.

Though you'll never get rich in Vegas betting on the tone and tenor of judicial questioning, it's hard to ignore some of the back and forth that went on during the April proceedings.

During oral arguments, Judge Robert E. Cowen reportedly told Bingham McCutchen's Daniel L. Goldberg of Boston, who represents the Patriots, that Mayer, et al., went to the Meadowlands thinking "they were going to see a legitimate game. They didn't think they were going to see a game that was rigged." (Goldberg was unavailable for comment last week.)

At another point, Judge D. Michael Fisher called the Patriots' violations "egregious" and asked a Skadden Arps lawyer appearing on behalf of co-defendant NFL why ticket-holders shouldn't be disappointed they had attended a game that was "unfair."

While Patriots fans have irrationally defended the club by noting that nothing ever conclusively proved Belichick's guilt, those of us who don't wear Patriots pajamas to bed know that's not true.

NFL officials, after all, concluded after an investigation that something inappropriate had happened, as did U.S. Sen. Arlen Specter, after he looked at the evidence.

Belichick, who issued a quasi-apology, was fined a record half-a-million bucks for his role in the episode, and the Kraft family wrote a $250,000 check on top of forfeiting a first-round draft pick.

So, will the legal floodgates open if the court rules against the Patriots? Probably not, but the team's slippery-slope arguments can't be ignored, either.

After all, when a pitcher uses an emery board to scuff a baseball, no one can deny that's cheating. Is everyone in attendance legally entitled to compensation? What about fans who paid good money to watch basketball games officiated by disgraced referee Tim Donaghy, who went to prison for fixing games?

"Those arguments were raised to the 3rd Circuit, and the court didn't seem the least bit interested," Mayer comments. "Those examples involved individuals who decided to take rogue actions. What we're talking about here is the entire organization, from Belichick on down, knowingly involved in perpetrating this fraud. And they were doing it for a number of years."

While I know this will lead to the termination of my Patriots Nation fan card, I've got to admit I'm 100 percent behind Mayer here. If he gets his day in court, deposes Billy B, and finally uncovers answers to Spygate, aren't we all better off?

"Felix Frankfurter said sunshine is the best disinfectant," Mayer says. "We want to do our best to see what happened here. I don't know whether we'll get to, but we're certainly giving it a college try."

Rooting for New York has never been so easy.

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Published: Thu, Jun 10, 2010


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