How the Super Bowl tests boundaries, including the Constitution

Jamie Coe

A LAST-MINUTE paint job to obscure the brand names on food truck tires. A trademark infringement battle over a jolly, anthropomorphic and "superb" owl. A global soft drink giant that missed out on the Super Bowl taking place in its own backyard.

These are just a few of the many ways the NFL has long exerted control over its jewel event. But last Thursday -- just 10 days before the Eagles and Chiefs kick off -- a Phoenix judge said the league, the host committee and its Super Bowl planning had crossed a line: Violating the U.S. Constitution.

The case in question centered on something known as a "Clean Zone" -- areas near the stadium and fan gathering points where companies aren't allowed to sell or advertise their products unless they are official partners with the NFL. League spokesperson Brian McCarthy told ESPN that Clean Zones are important "to protect the sponsors who work with the NFL and the local host committee throughout the year to offer fans different events."

A Clean Zone is why, though, in 2017, Ric Campo, head of the organizing committee for that year's game in Houston, got a call from the league about those food trucks which -- it turned out -- had tires not made by Bridgestone, the official tire of the NFL. "We literally had to get out some black paint," Campo said. They did, and the festivities continued.

Last month, however, a Phoenix man filed a lawsuit against the city in which he said this year's Clean Zone resolution infringed on his free speech by restricting his ability to sell an advertisement on the side of the building he owns downtown. The judge, Brad Astrowsky, agreed, calling the ordinance "unconstitutional" in a decision that was a strong rebuke to the city -- and the NFL -- as well as a significant step for those who believe the league's control over the Super Bowl borders on imperious corporate power.

Indeed, the case in Phoenix is emblematic of a larger issue: When it comes to the Super Bowl, the NFL's fingerprints are on everything. From small issues -- like demanding the NFL Network be shown in every room of nearby hotels or requiring every decent-sized venue in the city be held in case the league needs it -- to larger matters, like aggressive trademark opposition or pushing municipal requirements that might undercut the First Amendment, the NFL wants its presence to be felt.

"There is a lot of 'You can't do this' and 'You can't do that,'" Campo said. "It's not just about football; fundamentally, it's about the control of their brand and their customers."

Many interviewed for this story made clear that the NFL's desire to exert control over its showpiece hardly makes it unique. Rather, it is the NFL's ferocity in exercising that control that "is in a different ballpark compared to other sports," said one event and marketing executive who has worked often with the NFL and its partners.

"The only thing it's close to that I've seen in controlling their events is political parties when they put on their national conventions," the executive added, speaking on condition of anonymity to avoid endangering business relationships. The executive laughed. "The only one as concerned about messaging as the Democrats and Republicans," he said, "is the NFL."

WHEN A CITY becomes a Super Bowl host, its organizing committee receives a document from the league that lays out its obligations over a hundred-plus pages. Everything from police and security reinforcements to parking areas to catering rules to infrastructure build-out and street sign decorations -- it's all delineated in numbing, minute detail.

The Clean Zone, according to Michael Kelly, who has led local organizing committees for three Super Bowls, is "one of the most challenging aspects of it (and) always has been." The problems range widely, from wrangling business owners to navigating city councils to handholding corporate executives who aren't used to being told no.

The NFL says Clean Zones are not only about money -- having one is "an important tool in protecting public health, safety and welfare," it wrote in a hosting document for the 2018 Super Bowl in Minneapolis. But Jim Steeg, who spent 26 years as the league's point man on special events including the Super Bowl, said the Clean Zone concept actually became popular around 1999 as a result of Budweiser, which was not a league partner at the time, constantly finding ways to infiltrate the Super Bowl scene through creative pop-up marketing.

"All of a sudden, there were inflatables or signs -- they'd buy [parking] lots up and put up things advertising their brands," Steeg said, "while your official guys were only getting what was inside the stadium. We had to do something."

While other large-scale events (including the World Cup and Olympics) also utilize some form of a Clean Zone, the NFL's pressure on its hosts for wide-ranging control and aggressive enforcement has led to significant complications for some cities.

An organizer who worked on the 2019 Super Bowl in Atlanta said that the committee's conversations with Coca-Cola -- which has its global headquarters right near the stadium -- were "some of the most awkward I've ever heard" because Pepsi is the NFL's official sponsor. "The game was in Coke's backyard and we had to tell them they were shut out," the organizer said.

That paled -- at least in terms of gravity -- to the legal case in Phoenix. Although the Super Bowl itself is in Glendale, some 18 miles away, many of the big events leading up to the game will be in Phoenix, and so, at the NFL's behest, the city council passed a resolution last year creating a Clean Zone that covered nearly the entire downtown area. It would start three weeks before the game and last until one week after, the resolution read, and banned all "temporary signage ... that has not been authorized by the NFL and/or [the Host Committee]."

Bramley Paulin, the local property owner who wanted to sell an ad on the side of his building, sued. The ordinance, according to John Thorpe, an attorney for the Goldwater Institute who represents Paulin, created a situation where residents who wanted to exercise their free speech rights by hanging, say, a rainbow flag on the balcony of their apartment could be in violation if they didn't have the NFL's approval.

Paulin also filed suit, Thorpe said, because the ordinance gave power that should be the government's -- the approval of permits -- to a private business in the NFL or host committee. That meant Paulin suddenly had to ask the NFL, a business based in New York, for permission to sell an ad on a building he owns in downtown Phoenix.

"It was particularly egregious -- in this case, they said the quiet part out loud," Thorpe said of the city passing authority to the league.

The legality of Super Bowl Clean Zones has been challenged before -- in New Orleans and Arlington, Texas, for instance -- but none gained traction. When local politicians have questioned the concept, they've generally been shouted down. John Dingfelder, a member of Tampa's city council for 10 years, was one of the few voices of dissent when the council considered its own Clean Zone ordinance before the 2021 game, telling his fellow members, "I know we would want the Super Bowl, I know we love the Super Bowl ... but I think it's just overkill."

In an interview with ESPN, Dingfelder said, "I remember thinking, 'Are they really trying to restrict the rights of all these people?'

"But the flip side is they've got you -- they're basically blackmailing you," he continued. "Are you going to be the one who stops the Super Bowl coming? If the NFL wants to step on free speech, the city has no choice but to do it." (Tampa's city council passed its Clean Zone resolution easily.)

Dingfelder added that navigating the Clean Zone provision is just one of the burdens a host city must handle. In many instances, he said, the bigger issue is the financial outlay connected to the game. The NFL does contribute to community legacy projects in host cities, and various studies about the economic benefits of hosting a Super Bowl show it can be a positive. But much of the upside comes from indirect sources, like increased tourism recognition, which can be hard to quantify. Meanwhile, for the cities and locally run committees, the NFL's demands, whether for temporary structures or traffic deviations or police overtime or tax breaks, almost all come with the provision that they're offered at no cost to the NFL.

The numbers add up quickly. When Kelly led the local organizing committee for the first time ahead of the 2001 game in Tampa, he said the local budget was around $6 million. Fewer than two decades later, Campo said the Houston committee's budget was projected at $50 million but "we ended up spending $80 million."

Making matters even more difficult is the NFL's pattern of scooping up revenue streams that the local committees might use to offset their costs. As just one example, for years hospitality and suite sales were big revenue drivers for local committees; since 2005, however, the league has run (and profited from) its own program for VIPs.

Campo recalled an instance when the NFL sold the host committee a slew of suites at one price, then asked for one of the suites back because it suddenly realized it needed an extra.

"They wanted me to sell it back to them -- below cost -- so Tom Brady's family could take it," Campo said. "I couldn't believe it."

The league also shut down a "multimillion-dollar" agreement with a local sponsor that would have raised significant money for the Houston committee because, Campo was told, it would infringe on exclusivity promised to an official league partner. After that, Campo said, he had a conversation with NFL commissioner Roger Goodell in which Goodell asked him about his biggest concern.

"Well, you want us to pay for everything but you won't let me raise money," Campo said he told the commissioner. "You come in here and tell me what to do, but then you tie one hand behind my back as I try to do it."

In an interview, Campo described his overall feeling with a shrug: "The NFL was very supportive," he said. "Just in their own way."

THE NFL'S CONTROL over all things Super Bowl isn't limited to the physical space around the game site. Goodell bragged in a 2006 speech to NFL owners that just days before that year's Super Bowl, the Rolling Stones were planning to play two songs in the halftime show that he did not think were appropriate. "I told our people to tell the Rolling Stones they would be replaced by Stevie Wonder if, by the next morning, they did not agree to change those songs and present a show that reflected well on the NFL," Goodell told the owners. The Rolling Stones played the songs, but the offending lines were dropped.

The league also closely tracks any usage of the words "Super Bowl" -- or, as it turns out, even any usage of the letters that comprise those words.

In 2015, the NFL opposed a trademark application from an Arizona non-profit that had adopted a "Superb Owl" as the mascot for its charity 5-kilometer races, one of which was held on the morning of the Super Bowl. The NFL objected to the anthropomorphized owl, depicted in face paint and sneakers with a football cradled in its wings, because it could create the impression the owl was connected to the Super Bowl, the league said in its filing with the U.S. Patent and Trademark Office. The NFL also argued that Superb Owl was "identical to the NFL's SUPER BOWL mark, with only a difference in the spacing between the letters."

"To me it seems less traditional and more aggressive ... it falls between the border of trademark use and trademark abuse," University of Houston assistant law professor Aman Gebru said of the NFL's approach to protecting the Super Bowl.

Among the entities against whom the NFL has filed trademark oppositions are restaurants wanting to sell acai bowls (presumably super ones); a series of management books encouraging readers to treat every day like Super Bowl Sunday; and an environmental organization seeking to run "Superbowling Spectacular" fundraising events.

To some extent, this fly-swatting approach is a defensive tactic practically required of all trademark holders. Walmart tried to sue an artist for parodying its smiley face logo before a court ruled that the icon is public domain. Subway sent cease-and-desist letters to other restaurants advertising 12-inch meals as "footlong." And McDonalds has periodically challenged other companies that include "Mc" as a prefix to names or products.

Matthew Swyers, who represented the applicant trying to trademark "Superbowling Spectacular," said that if enough people start using a trademarked term generically -- like referring to all trash bins as Dumpsters or facial tissues as Kleenex -- the brand can lose its trademark status. For businesses that see that as a potential threat, it's worth the money to chase down trademark violations and put them to an end. "They're just policing their brand, not trying to make money off of it," Swyers said.

"We want fans to know that when they see the NFL shield or the Super Bowl logo that they know what they're getting," McCarthy said.

Over the years, many entities have tried to avoid the "Super Bowl" issue by substituting "The Big Game" in ads. In response, the NFL tried to trademark that, too.

More than 20 parties, including two California universities and Super Bowl sponsor Anheuser-Busch, filed in opposition, prompting the league to quietly withdraw its application.

The filing itself was "preposterous," intellectual property attorney Chris McHattie told ESPN. Because the NFL hasn't used "The Big Game" in ads or built a brand around it, McHattie said the term was far too generic to apply only to the NFL championship.

"If they really went after 'The Big Game' and made it clear they considered that to be their trademark they might be able to create some rights around that," McHattie said. "They made the right decision, at the end of the day, to recognize that they were probably more aggressive than they should've been."

IN HIS RULING last week, Astrowsky, the Phoenix judge, made his views clear: The original Clean Zone ordinance, which gave the NFL or host committee approval power over signage, was "totally antithetical to the principles of limited government" because the host committee is clearly "an entity interested in protecting NFL sponsors and the NFL" as opposed to serving the people of Phoenix.

In an interview after the ruling was issued, Thorpe, the attorney representing Paulin, said his client had "nearly finalized a couple of possibilities" for advertising partners to display on his building -- none of whom was an official NFL partner -- and "had a printer ready to go" to create his ads.

Beyond helping Paulin sell the ad on his building, the ruling also creates a challenge to the NFL's ability to demand similar Clean Zones at events going forward. "Obviously cities around the country do this on a regular basis," Thorpe said, "and we intend to monitor the situation and challenge this wherever it arises."

The NFL declined to comment on the ruling, but Thorpe conceded that there are always ways for the league and its host cities to try to change the language or be less obvious about seeking control. There is also no denying that the NFL frequently evolves its approach to the Super Bowl, finding different methods to monetize its biggest game. Ahead of this year's Super Bowl, as Pepsi pulled back from its sponsorship of the halftime show, the NFL signed an agreement with Apple Music to brand the show, reportedly for $50 million.

And yet still: The larger question remains of how many -- and how often -- cities will want to welcome the game and all the demands that come with it. "We're very reasonable with how we work with the cities and look at it as a partnership," McCarthy, the league spokesperson, said. But Steeg, the longtime league employee who was at the heart of building the Super Bowl into what it is, expressed concern about the NFL going too far.

"I do worry about those things," he said. "If only one guy makes money off it, that's not good."

Kelly, the local organizer, put it another way: "They might have finally hit a tipping point where you kind of say, 'Well that's probably as much as we can extract from a city.'

"It gets to a point where a city just can't afford it anymore."

ESPN researcher John Mastroberardino contributed to this report.