SPYGATE II STILL LURKING

Posted by Mike Florio on February 26, 2008, 11:21 a.m.
It’s been a couple of days since there have been any new statements or developments relevant to the Spygate II drama, but the story isn’t going away. As Peter King pointed out in his MMQB column, the story will linger until Matt Walsh talks.

But one of the wrinkles in all of this that has been virtually ignored by the “real” media is that there’s a clear dispute over a key credibility point in this matter.

Walsh initially told the New York Times that a confidentiality agreement signed by Walsh prevented him from getting into any of the details. Recently, ESPN.com buried in a largely unrelated item a contention from the Pats that there is no such agreement.

Since then, there has been no further comment or examination of this issue. We sent an e-mail to Walsh’s lawyer, Michael Levy, but he has not responded. (He also hasn’t responded to an e-mail from us inquiring regarding the process that led to an assistant golf pro in Hawaii being represented by the head of the White Collar/Investigations and Enforcement group at a high-powered D.C. firm.)

We’d like to think that the folks to whom Levy has fed sound bites will ask these same questions.

If Walsh doesn’t have a confidentiality agreement, nothing prevents him from talking — other than his desire to leverage his willingness to talk into a “get out of jail free” card as to the question of whether he stole property from the team, taped conversations in violation of Massachusetts law, and/or will be defaming the Patriots if he says things that aren’t true to Arlen Specter or 60 Minutes.

Speaking of defamation, King also raises the possibility that the Patriots will sue the Boston Herald for its February 2 item proclaiming that the Patriots taped the Rams’ final walk-through practice prior to Super Bowl XXXVI. That report has triggered the storm that has been raging around the franchise, and directly led to the class-action lawsuit that the team is facing in New Orleans.

Indeed, the lawyer who is handling that case has made it clear that the action will be seriously damaged if it turns out that the walk-through practice wasn’t taped. (You can listen to a radio interview during which the lawyer makes the concession right here.)

The team’s challenge in that regard will be to satisfy the higher standard that applies to defamation claims brought by public figures. Specifically, the Pats would be required to prove that the Herald proceeded with actual malice or that the Herald acted with reckless disregard as to the truth.

Though it might be hard to show malice, the Patriots could get to a Massachusetts jury as to the issue of “reckless disregard.” We can’t clearly recall whether the Herald got a statement from the Pats before running the story (and we’re not inclined to now pay for access to the original Herald story, which is now archived). Our general recollection is the Herald proceeded with only one side of the situation, which is always risk for such an inflammatory story.

Also, there is some scuttlebutt that Walsh, who is believed to have been the source for the Herald story, has since backed off the contention that the practice was actually videotaped.

It’s another reason, as we see it, for the Patriots to want to know what Walsh knows, and to get whatever tapes or other materials that he has. If there wasn’t cheating at Super Bowl XXXVI, the Pats should have nothing to fear.