Favre Should Learn to Keep A Secret, A Trade Secret that Is.

Nov 21, 2008

By Henry M. Abromson, Esq.
In late October, Jay Glazer of Foxsports.com, first reported that Brett Favre, the iconic quarterback formerly of the Green Bay Packers and now playing with the New York Jets, telephoned the Detroit Lions, the Packer’s division rival, prior to the Lion’s game against the Packers and, “gave them a rundown of the nuances of what Green Bay does on offense.”
In fact, according to Glazer’s sources, “Favre actually spent over an hour on the phone with Lions coaches, who were connected with Favre by then-team president Matt Millen.”
Glazer further claims that, “other teams the Packers have played had also heard about the Favre coaching clinic with Detroit. In addition, there have been rumors that Favre has spoken to other teams giving them information, but most of those teams insist they have not heard from the famed gunslinger.”
In defense of Favre, Glazer argues that, “Favre has the right to do whatever he pleases. If he wants to help other teams there is nothing in League rules that prevents him from doing so.”
While Mr. Glazer may have a comprehensive understanding of the game of football, he is a bit off the mark in his statement above. Favre may have done what all business owners in competitive industries fear; disclosed his former employer’s trade secret information to a competitor, which is illegal and such actions are, therefore, likely in violation of the League’s conduct policy.
Trade Secret
Plainly speaking, a trade secret is the highly confidential information that gives a business its competitive advantage. For example, the recipe for Coca-Cola would be considered trade secret information. Further trade secret information is generally not known to, and not readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use and is subject to efforts to maintain its secrecy that are reasonable under the circumstances. Trade secret information should be available only on a need-to-know basis.
Trade secrets are protected by laws codified under the Uniform Trade Secrets Act or UTSA. Almost all of the states have adopted the laws under the Act and some states offer common law protections in addition to the statutory protections for trade secret information.
Pursuant to Wisconsin’s version of the UTSA – relevant in this case because that is where the Packers are located – no person may misappropriate or threaten to misappropriate a trade secret by … disclosing or using without express or implied consent a trade secret of another if the person … at the time of disclosure or use, knew or had reason to know that he or she obtained knowledge of the trade secret [by way of] … acquiring it under circumstances giving rise to a duty to maintain its secrecy or
limit its use. Wis. Stat. § 134.90 (2007)
In this case, it seems likely that if the allegations are true, Brett Favre violated Wis. Stat. § 134.90. Here, Brett Favre allegedly disclosed the trade secrets of the Packers to the Detroit Lions obviously without the consent of the Packers. Favre acquired knowledge of these trade secrets while working as an employee of the Packers.
Further, the Packers, like all NFL teams, make substantial efforts to keep their plays, schemes and formations a secret. Additionally, as a former employee of the Packers, Favre most likely had and likely still has a duty by to protect those trade secrets.
Moreover, the information allegedly disclosed by Favre is not readily ascertainable through proper means. While teams are allowed, under certain circumstances to video tape other team’s plays during a game so that they may try to decipher the team’s formations after the game, the practice is generally not allowed; and in more instances than not, if formations and plays are acquired by video tape, they will have been improperly acquired in violation of NFL rules, like the New England Patriots’ numerous acquisitions of teams’ plays between 2000 and 2007.
Additionally, trade secrets must have value to the owner of such information. Whether they are of value to others is insignificant. Here, the Packers certainly value their plays, schemes, and formations as the plays are one of their few ways to gain a competitive advantage over their competition. In this situation, because the plays would likely be found not to be readily ascertainable by proper means, because Favre likely has a duty to keep the trade secret information confidential, and because they certainly hold value for the Packers, if the allegations that Favre disclosed the information are true, it certainly seems likely that a court would find that Favre has violated the trade secret statute in this situation.
If the Packers chose to sue Favre, they could pursue several forms of recourse. They could ask for injunctive relief, although the greatest damage is likely already done. Even if they pursued injunctive relief to prevent further disclosures, the information is already allegedly out to one team and Detroit could simply relay the information to other teams.
The Packers could also pursue monetary relief. The court, pursuant to the statute, can award monetary damages to the Packers in addition to, or in lieu of injunctive relief. The damages may include both the actual loss caused by the violation and unjust enrichment caused by the violation that is not taken into account in computing actual loss.
Furthermore, if the violation of the UTSA is willful and malicious, which could be found in this case, the court may award punitive damages in an amount not exceeding twice any other monetary award for damages. If the violation is willful and deliberate, the court may also award reasonable attorney fees to the prevailing party.
If Favre did violate UTSA, which certainly is a violation of the law, he could be punished under the NFL’s new conduct policy for conduct detrimental to the League and his team. While this is an unlikely result, especially without more evidence that Favre’s conversation with the Lions really did take place, it should nevertheless be pointed out that Glazer’s comment that Favre has the right to do whatever he pleases is far from correct. Even a legendary figure like Brett Favre must abide by the common and statutory laws in the states and country in which he lives and works.
Henry “Hank” Abromson is an associate attorney practicing with Greber & Associates, P.C. in Frederick, Maryland. He handles sports and entertainment, intellectual property, and corporate law matters. Henry received his law degree and MBA in Sports Business from Marquette University and his Sports Law Certificate from the National Sports Law Institute. He currently authors www.AbromsonOnSportsLaw.com, a website dedicated to sports law and business issues. Henry also teaches Sports Law at Stevenson University in
Owings Mills, Maryland.


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