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Questioning pat downs (cont.)

Posted: Wednesday October 24, 2007 3:47PM; Updated: Wednesday October 24, 2007 3:49PM
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A less obvious consideration, tort law, may also distress the NFL. The league, the host team, and stadium operator may all be exposed to massive tort liability in the event of an attack. Such exposure would depend on the quality of security measures, with inadequate measures potentially comprising negligence.

The NFL is the only major American pro sports league to mandate pat downs. Abroad, however, pat downs are routine and often uncontroversial. Luís Cassiano Neves, head of the sports law practice group at the Miranda Law Firm in Lisbon, Portugal, says, "Everyone going to a Euro Cup game or a National Soccer League game in Europe expects to be searched by security officers or stewards. It's standard procedure."

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Although most NFL ticket holders appear accepting of pat downs, a minority vehemently opposes them. The primary critique charges that pat downs, which entail strangers touching the worn clothing of ticket holders, are degrading.

Ann Brick, an attorney for the American Civil Liberties Union of Northern California and plaintiffs' representative in the Sheehan case, tells SI.com: "Being patted down is a very invasive experience, it is essentially being groped by a stranger."

Critics of pat downs also question their necessity and efficacy. As the NFL concedes, though pat downs have identified dangerous items, they have not yet uncovered terrorist plots. Rebecca Harrison Steele, the regional director of the ACLU of Florida, points out other criticisms: ticket holders can receive starkly different pat downs depending on which screener they encounter, with some screeners conducting thorough searches while others seeming nonchalant. Also, by requiring people to stand outside of the stadium, pat downs might unwittingly hatch a new target.

These criticisms primarily implicate the Fourth Amendment to the U.S. Constitution, which requires that physical searches conducted under governmental authority (including private authorities acting as government agents) be reasonable. Some states, such as California, also constitutionally regulate searches by nongovernmental entities.

Since pat downs at NFL games are "suspicionless" (i.e., everyone is automatically patted down), reasonableness depends on the gravity and specificity of the threat and the degree of invasiveness caused by the search. Consent also proves crucial. The NFL contends that through e-mail, signs, public address announcements, and disclosures, ticket holders are repeatedly notified about pat downs and thus consent to them by entering stadiums. Critics dismiss such consent as reflecting a "Hobson's choice": submit to a search or never attend an NFL game.

Although pat downs have been invalidated in other sports contexts and although many courts disfavor "suspicionless" searches based on unspecified threats, the NFL has successfully defended its pat down policy. Courts have focused on consent: ticket holders know what they are getting into. It bears watching whether the California Supreme Court will agree.

Michael McCann is a law professor at Mississippi College School of Law. He specializes in sports law. McCann can be reached at mmccann@mc.edu.

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