In the aftermath of the latest video that the NFL couldn’t get but that TMZ could, the question has emerged regarding whether the NFL should do what TMZ does when obtaining videos that contain images of player misconduct: Buy them.
But the NFL isn’t willing to do that. Per a source with knowledge of the league’s thinking, the NFL’s concerns relate in large part to the possibility of becoming involved in litigation between the entity that created the video and the person who sold it to the league. Media entities like TMZ can refuse to disclose sources; the NFL is concerned that it wouldn’t be able to do the same.
The NFL has its own media operation. But the NFL wouldn’t be buying the video for the purposes of profiting from its disclosure. It would be buying the video in order to assist in the league’s disciplinary process, which would make it much harder for the league to invoke the media’s ability in many jurisdictions to refuse to identify sources. Indeed, there’s a chance that the NFL would choose to keep the video secret, using it for disciplinary purposes but otherwise not making it public. Which would make it even harder to stay out of a legal fight by comparing its situation to TMZ’s.
So don’t look for the league to fight fire with fire. Which means that the league will constantly be at a disadvantage when it comes for securing video that otherwise isn’t publicly available.
This also means that the league needs to try harder. When the hotel that owns the video refuses to give it to anyone except law enforcement and when law enforcement takes the position that it’s not interested in a video that would reveal only a misdemeanor, the NFL needs to do something more than check the box and say, “We tried.” The NFL needs to pester the police department to make an exception to its policy, or to flat-out change it. Misdemeanor or felony, important to the local police department or not, the matter is of critical importance to the NFL, and the NFL needs to impress that importance upon everyone, not engaging in cursory efforts aimed more at securing cover than discovering truth.
That’s not to say the league didn’t do that here. Without the raw communications, however, there’s no way to know whether the NFL was perfunctory or persistent in its effort to get the video. If the NFL won’t try to beat TMZ by joining it, the efforts to get these videos require an unrelenting persistence.