I have a feeling that most people seeing the title of this article are scratching their heads and are slightly confused. “WakeyLeaks? What’s that?” In 2016, it was revealed that one of Wake Forest Football's assistant coaches (also an alumnus of the University and the Wake football program), Tommy Elrod had been providing other teams with the Wake Forest playbook before games. That year, as Wake Forest prepared to play Louisville on the road, Wake Forest coaches found a binder—which would be conveniently placed at the very top of a trash can on the Demon Deacon sideline—which contained all of Wake Forest’s secret and trick plays they had been developing throughout the season, and specifically for use in the Louisville game.

The ramifications of this discovery were massive for the program. upon investigating the incident, the university found evidence that Elrod had leaked plays to at least three different ACC teams dating back to 2014, the first year of head coach Dave Clawson's tenure at the school. It's unclear exactly how many opponents ended up with their hands on their playbook but based on the trajectory of the program since this discovery was made (and how it has changed drastically since then), it was certainly widespread knowledge at the time.

In 2016 (the year the scandal was uncovered), Wake scored an average of 20.4 points per game, which ranked 119th out of 128 Division I programs. The very next season, when there was little meaningful turnover on the roster, the Demon Deacons averaged 35.3 points, 21st in the country among Division I programs. In their 2016 matchup against Louisville, Wake scored 12 points. In 2017 they scored 42, and in 2018 the Demon Deacons scored 56. Quite the “quick turnaround” if you ask me.

First, before diving deep into the heart of this article, I wanted to take a second to point out how insane it is to me that this is not discussed more in the college football world. Wake Forest is a Division I team in the ACC—the same conference as national powerhouses Clemson, (some would say) Louisville (who did have Lamar Jackson at the time), and Notre Dame. If a scandal like this had happened at any of those schools (or God forbid any SEC school), we would still be talking about it every single Saturday—it would be mentioned in every single broadcast of every single game that team played in perpetuity. But, at the time, Wake wasn't a good football school. Dave Clawson was brought in to turn the program around, which he has done. However, if Clemson or Alabama were in a “period of rebuilding” (a concept that seems more theoretical than actually possible today), and this happened to them? The college football world would grind to a halt.

There. I got the obligatory rant as a Wake Forest alumnus out of the way, and now we can move into my real question: why weren’t there legal ramifications for Elrod?

Did the Demon Deacons have any legal recourse available to them?

The question of available legal recourse is trickier than you might first imagine. It is clear from the investigation done by the team (and as coverage by The Athletic) that Elrod used his access to the team's information and plays to take these plays and distribute them to other coaches. But what legal doctrines could the university have employed to try and recover for this wrong? Trespass to chattels? Intellectual property? Let's explore these two areas, which I think are possibilities—even if longshot possibilities.

Here, for reasons that I will get into momentarily, I think it is important to clarify why I think at least part of this playbook is protectable. I understand that within athletics, it is common practice to attempt to “steal” signs (as in baseball) or plays (like here in football) by looking to film and other accepted mediums. A lot of football plays are seen before any given opponent plays that team, and therefore they can look to film to try and pick out what play is going to happen, when it's going to happen, and then figure out the best way to counteract it. As reported by The Athletic, the playbook in 2016 contained several trick plays that had been newly created and never before put on the field. These plays had never been subject to being videotaped or seen by any other means by any opponent, and therefore the only way for them to know about these plays would be if they had advance notice they existed (which The Athletic article makes it appear Louisville did).

Surprisingly, the legal remedies are quite limited.

NC Statutes and Rules:

The closest state statute which I could find that would relate directly to this case was N.C. Gen. Stat. §14-74. This criminal statute states, in part, that:

§ 14-74. Larceny by servants and other employees: If any servant or other employee, to whom any money, goods or other chattels,… by his master shall be delivered safely to be kept to the use of his master, shall withdraw himself from his master and go away with such money, goods or other chattels, or any of the articles…, with intent to steal the same and defraud his master thereof, contrary to the trust and confidence in him reposed by his said master; or… convert the same to his use, with like purpose to steal them,… the servant so offending shall be guilty of a felony:

(emphasis added)

While this arcane statute has not been updated in some time based solely on the choice of language, it seems to state that anyone that knowingly steals something of value from an employer is “guilty of a felony.” The civil doctrines of trespass and conversion to chattels seem to offer civil recourse here as well, where the program could be compensated for the loss in value of these plays.

Intellectual Property?

Conversely (and controversially), one could argue that these plays constitute intellectual property, and therefore subject to federal intellectual property laws.

Generally, intellectual property is considered to be the result of some creativity of the creator, and therefore the creator has some protectable interest in their creation. Now don't get me wrong, I understand that you can't patent, copyright, or trademark, football plays—but there is one area that I think at last has an “argument” to be made: Trade Secrets.

Keep in mind, I am just a law student who’s attempting to make a point—I apologize if my characterizations are oversimplified or flawed, and these opinions are based on my understanding only.

Trade secrets essentially are practices or processes known within an organization that derives value for that organization by not being widely known by other parties the organization competes with. To be considered a trade secret in the United States, an organization needs to:

• Make a “reasonable effort” to keep the information secret and out of the public’s hands

• This secret must have some intrinsic economic value (to the third parties)

• The value must come from the fact that the information is not widely known.

Looking at that first point, Wake Forest had policies, practices, passwords, etc. employed to protect these secret plays that had never been used before. After the breach, they changed their passwords, conducted an investigation, and did, even more, to make sure this didn’t happen again.

Looking at the second point, I think it's a fair argument to make that these secret plays had some form of economic value. Looking to the market value of these secrets, never before seen plays, other teams were willing to steal them (and did steal them) with the help of Elrod—which implies that they were valuable enough to warrant trying to steal, and risk getting caught. If you are looking at the Demon Deacons' value of these plays, while not directly monetary, the value of the plays makes it more likely to win football games, which makes it more likely to make more money from your football program in general.

Trade secret litigation is complex and nuanced, but I think there is at least an argument to be made here that you could consider, (at the very least) the plays that had never been seen before trade secrets. Their value was solely in the fact that they were secret—because trick plays once commonly known are no longer valuable (because they don’t work). Wake itself obviously valued these plays, as evidenced by the processes used to protect them, and Elrod and Louisville certainly valued them enough to go through the efforts of stealing them. The revealing of these secrets before Wake Forest was ready to do so inhibited a competitive advantage that they could have had, which has some intrinsic economic value.

There are some issues with this analysis though. Because these were football plays, the Demon Deacons were going to reveal these plays voluntarily—but on their own time. At that point, they could no longer claim trade secret protection, because they disclosed the secret. However, my counter to this would be disclosure happened before Wake wanted it to, therefore destroying the value that they expected to have. It's also an issue that the true “monetary” value of these plays is almost impossible to calculate due to the nature of the plays. Additionally, I don't think this would have covered the entire playbook. As I stated before, most football plays are public knowledge, and it is a regular practice within the industry to attempt to steal or determine what plays are going to be played and when. It poses a difficult question whether these trick plays would be considered part of that public knowledge, or by their nature and because they had never been used before, they were still considered “secret.”

As I mentioned above, I am no expert in this field—not even close, to be precise. However, based on my understanding of the justifications for trade secret law, I think there is an argument you could make that football plays that are 1) developed in secrecy; 2) That have never seen the light of day; 3) That were subject to reasonable measures of protection and secrecy; 4) that are stolen and used by other teams against the creator—MIGHT constitute something protectable under trade secret law.

Reasons no action was perused:

Okay. if, for the sake of this argument, you agree with me that at least one of these above legal theories could reasonably have been employed by the Demon Deacons in this situation, why was there no legal action taken? Well, if assuming there was an option, I think it boils down to the simple facts of a cost-benefit analysis. Even if the university could prove one of these theories, it's going to take a lot of money, time, and effort to litigate these issues. On top of this, as I established earlier, neither of these are surefire “slam dunks,” so Wake Forest could be risking all of that investment of time and money for ultimately no return (or a low one even if you win).

Ultimately, I think nothing was even pursued because it was cheaper and more efficient for the team to just cut its losses and start over than worry about trying to litigate this. I also think a cultural reason might be behind this as well. As I've stated it's very common within sports for your plays/signs to be “stolen,” and Wake might have just thought of this as the risk of doing business and dismissed it without even thinking about legal recourse.

if I had a time machine I would love to go back and ask officials within the athletic and legal departments at Wake Forest to see what they thought, and also in an alternate universe what the outcome would be if they did bring a suit. But instead, I'm sitting here on a Friday afternoon trying to apply my limited legal knowledge to a complex and fascinating issue. The ultimate moral of this story is best summarized I think in a question (and its answer) posed by my intellectual property professor:

Q: “What's the best way to keep a trade secret?”

A: “Don’t let anyone know you have a secret.”

Zachary Bryson is a graduate of Wake Forest University with a B.A. in Economics and a Minor in Entrepreneurship. He is currently a JD candidate at Elon University School of Law, Class of 2023. You can connect with him via LinkedIn or follow him on Twitter at @ZacharySBryson.

SOURCES:

https://theathletic.com/3403878/2022/07/12/wakeyleaks-wake-forest-dave-clawson/