Was the Wake Forest Play Leaking a Crime in North Carolina?

As the fallout from the revelation of Wake Forest's discovery of a multi-year leaking of football plays and internal information continues to reveal itself, there has been limited discussion of a fascinating question: was there a crime committed when Tommy Elrod leaked Wake Forest football information to competing football teams in the ACC? (Wake Forest has clear civil actions against Elrod and these other schools, but those cases would be much less interesting since they would just involve monetary damages).

On this morning's radio show I said I thought the answer was yes -- while also saying I wasn't an expert on North Carolina criminal law and hadn't researched the state statutes. Later this afternoon one of Outkick's readers, a North Carolina lawyer, sent along the following email which lays out the potential criminal violations pretty succinctly:

"While enjoying your radio show (per usual), I was interested in your question of whether the Wake Forest radio announcer could be guilty of a crime under North Carolina law. So I decided to pull Chapter 14 of the North Carolina General Statutes to do some digging. Turns out, I think you are right (per usual). The place to start is N.C. Gen. Stat. 14-74, which is one of those statutes that was written before the civil war and hasn't been updated since (so it reads like a crappy limerick). Nonetheless, I still think it applies so long as the radio announcer also worked for the University in some capacity:

14-74. Larceny by servants and other employees.

If any servant or other employee, to whom any money, goods or other chattels, or any of the articles, securities or choses in action mentioned in G.S. 14-75, 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, securities or choses in action mentioned as aforesaid, or any part thereof, 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 if any servant, being in the service of his master, without the assent of his master, shall embezzle such money, goods or other chattels, or any of the articles, securities or choses in action mentioned as aforesaid, or any part thereof, or otherwise convert the same to his own use, with like purpose to steal them, or to defraud his master thereof, the servant so offending shall be guilty of a felony: Provided, that nothing contained in this section shall extend to apprentices or servants within the age of 16 years. ...

(emphasis mine).

Where this gets interesting, however, is N.C. Gen. Stat. 14-75.1:

14-75.1. Larceny of secret technical processes.

Any person who steals property consisting of a sample, culture, microorganism, specimen, record, recording, document, drawing, or any other article, material, device, or substance which constitutes, represents, evidences, reflects, or records a secret scientific or technical process, invention, formula, or any phase or part thereof shall be punished as a Class H felon. A process, invention, or formula is "secret" when it is not, and is not intended to be, available to anyone other than the owner thereof or selected persons having access thereto for limited purposes with his consent, and when it accords or may accord the owner an advantage over competitors or other persons who do not have knowledge or the benefit thereof.

(emphasis mine).

Was this statue written with a college football playbook in mind? No, obviously not. But does a college football playbook fall within the scope of a "record, document drawing ...which constitutes ... a secret scientific or technical process..."? I think it does."

I agree with him. I think an aggressive prosecutor could definitely charge Elrod with violations of North Carolina state law under the statutes here.  

Moreover, we also know that these stolen documents crossed state lines since Louisville has admitted to receiving plays in advance of their game against Wake Forest. So you could make a case that this is a federal law criminal violation now as well. 

My point on all this?

If I were an ambitious district attorney in North Carolina -- or an ambitious federal attorney with jurisdiction in these parts of the country -- I could bring criminal charges against Tommy Elrod for stealing this information and passing it along to someone else. If charges were brought against Elrod then criminal charges could also be theoretically brought against any coach who received this stolen information as well. After all, receipt of stolen property is a crime in every state. And here there is no dispute that the assistant coaches would have known that this information was stolen and being given to them without the consent of the owner. (Elrod's best defense would be that a playbook and plays were not "property," but I think it's clear they would be objects of value. Put it this way, if a football office were broken into and the playbooks were stolen, wouldn't you consider this a crime?) 

What's more, there's also the possibility that Elrod received something in exchange for giving this information. Did the coaches he gave this information to respond with money or valuable enticements of any nature? If so, that could be a federal racketeering charge. 

Further, since Wake Forest "caught" the radio announcer via examination of his text, cell phone and email records, presumably this would be an open and shut case. We have clear evidence of the property being stolen and passed on to a third party who knew he was receiving stolen property.  

Heck, Louisville has already admitted to the receipt of stolen property in its statement released earlier this afternoon: 

"We have looked further into the matter surrounding the Wake Forest information released on Tuesday.

Our offensive coordinator Lonnie Galloway and Tommy Elrod have known each other since 2007. Lonnie received a call from Elrod during the week of the Louisville game and some information was shared with him that week.

Among the communication were a few plays that were sent and then shared with our defensive staff. None of the special plays were run during the course of the game. Our defense regularly prepares for similar formations every week in their normal game plan.

Any other information that may have been discussed was nothing that our staff have been discussed as nothing that our staff had not already seen while studying Wake Forest in their game preparations for the game and the material was not given any further attention.

I'm disappointed that this issue has brought undue attention to our football staff as we prepare for our upcoming bowl game."

It's amazing to me that Louisville would release this statement since athletic director Tom Jurich ADMITTED TO A CRIME IN IT. What's more, Jurich then had the gall to lecture us for the "undue attention to our football staff" as part of this story. 

HELLO, YOUR FOOTBALL STAFF MAY HAVE COMMITTED A CRIME HERE. 

Now you can argue that this case isn't a significant enough to expend governmental resources on, but people who argue this have never dealt with the criminal justice system before. This case is more impactful than the vast majority of all criminal charges brought in a state in a given year. Unlike, say, petty low level drug offenses or traffic violations of one sort or another, which occupy the majority of a criminal court's time, this case is connected to major universities and directly implicates theft and the integrity of collegiate athletic contests in a multi-billion dollar conference.

Last year Louisville beat Wake Forest by one point. Did the Cardinals have secret stolen information then too? If so -- which it seems reasonable to assume that they did -- that stolen information could have flipped the outcome of that game.  

What other teams received this information and what, if any, impact did that information have on the outcome of their games? This is an important question to answer. Particularly where, as here, investigating this case could have an important impact on ensuring that future leaks like this don't happen. Why didn't any ACC coach turn in Elrod for leaking this information? Remember, it went on for years. The number of teams and coaches implicated could be massive. Further, the ACC, which has been slow to respond, is incentivized to sweep this case under the proverbial rug since it makes the conference look awful. Criminal charges would keep that from happening.   

My point here is pretty simple, this is a huge story that has the potential to become massive in college football and beyond. Especially if, as seems very likely, an aggressive state or federal prosecutor decides to open an investigation or file criminal charges against Elrod and the individuals who received his stolen information.