A lawsuit involving the nation’s leading basketball timing system has brought into question the involvement of Roger Ayers, one of the top Atlantic Coast Conference referees, and the use of N.C. State’s basketball practice facility to shoot an unauthorized video.
Precision Time System, founded in 1993 and now used by all of the Power Five conferences and the NBA, created technology that enables referees to stop the clock with a toot of their whistle, and start it by flicking a switch on a belt pack. But Precision Time now faces competition — from a Raleigh-based company with a new system called WhistleStop.
Precision Time founder and CEO Mike Costabile has filed a lawsuit claiming patent infringement against UStopIt LLC and Keith Fogleman, president and founder of the competing company. The patent complaint says Fogelman’s company, which counts Ayers among its investors, stole “intellectual property” in developing WhistleStop through reverse engineering of the Precision Time system, and that Fogleman continued to market the new system despite the patent infringement claim.
Fogleman, in a legal response to the lawsuit, has denied all claims. His company is contesting a Precision Time patent, and he says his referee clock-control system is more technologically advanced than Precision Time.
”I would never have done this if the other one was the greatest thing since sliced bread and it never messed up,” Fogleman told The News & Observer. “Why would I want to? This is way better. It’s here to stay.”
Involving N.C. State
Fogleman, a college referee who lives in Raleigh, said Ayers is one of his best friends and helped develop WhistleStop. Ayers has been listed as the company’s vice president of national sales on its LinkedIn page.
”We’ve been talking about this and what we’d like to do for a long time, so he’s definitely a big part of it,” Fogleman said.
Fogleman and Ayers used the Dail Basketball Center practice facility on the N.C. State University campus in Raleigh to test out the new system. While that was being done, Ayers, dressed in a referee’s uniform, took part in the shooting of a promotional video for WhistleStop — without NCSU approval.
“No one was informed in advance about a video being shot for external use, nor the ultimate intent outside of testing their equipment,” Fred Demarest, NCSU senior associate athletic director for communications and brand management, said in an email to The N&O. “It was done so without the permission or consent of N.C. State.”
Also seen in the background in the video was a 1983 N.C. State national championship banner, part of NCSU’s Block logo-S and a small scoreboard with “NC State” as the home team.
Ayers is identified only as a “Three Time Final Four official” in the promotional video, and not as an investor.
Gregg Zarnstorff, NCSU Director of Trademarks and Brand Protection, sent a Nov. 10 email to Fogelman saying his office was responsible for approving commercial filming on campus and adding, “To my knowledge, no official request to film on campus had been submitted nor permission to use NC State’s name in the video.”
The email continued: “The use of NC State’s name and other identifying indicia (partial Block S logo, 1983 championship banner, ACC banners, basketball court markings), in a promotional video could be construed as NC State endorsing the product or use the product in operations. To my knowledge, Whistlestopworks.com does not have a paid sponsorship with Wolfpack Sports Properties nor has a vendor agreement with N.C. State (and even then, North Carolina administrative code prevents the use of a contract for marketing and promotional purposes).”
Fogleman, in a return email to Zarnstorff, said “no harm was intended.” In The N&O interview, he said he was responsible for requesting the use of the gym, said the filming of the video was a misunderstanding and said he apologized “profusely” to NCSU.
“I didn’t go in there in the dead of night and sneak in and do this, nor would I do that,” Fogleman said. “If anyone gets blamed for it, it’s me, not Roger. ... I had no idea I was messing up when we were doing filming.”
Fogleman complied with NCSU’s request to alter the video on the company website — a new version of the WhistleStop video was uploaded with all NCSU markings blurred out.
Conflict of interest for Ayers?
Costabile, a former college and NBA ref, said he believed Ayers’ participation in filming the video at N.C. State and promoting WhistleStop, while a company investor and an active ACC referee, represents a conflict of interest. Costabile said he retired from refereeing to prevent any conflict-of-interest claims concerning his system.
”What those guys did was totally unethical,” Costabile said in an interview. “It doesn’t look good. To me, this whole situation with Roger Ayers or anybody officiating and selling something to the schools, I don’t care if it’s their whistle system or if they’re selling team uniforms and they’re a representative of Nike, you can’t officiate in my opinion. You have a different relationship with the coaches and the teams, because now it’s different than when you’re refereeing.”
Ayers could not be reached for comment. He has not worked an N.C. State men’s basketball game this season.
Fogleman said he and Ayers have talked to officials in the ACC, Southeastern and Big East conferences about the WhistleStop system.
“We also want them to know if there’s any conflict of interest please let us know, but there’s not,” Fogleman said.
There has been another incident this season that concerns Costabile, whose company is based in Supply, N.C., in Brunswick County.
One of the most dramatic moments of the early college basketball season had J.P. Moorman of California-Riverside heaving in a 70-foot shot at the buzzer to beat Arizona State. The Highlanders went nuts. The video went viral.
ASU coach Bobby Hurley was upset about the ending and the 66-65 home-court loss on Nov. 11, but not because of the last-gasp shot. Hurley didn’t like seeing UC Riverside inbound the ball three times at the end of regulation because of time-clock issues. On the third, with 1.7 seconds on the clock, Moorman took the pass in the backcourt, turned and fired up the long shot for the winning 3-pointer. The clock started properly on the third inbound play.
Hurley, in his postgame comments to the media, said, “We didn’t get the clock organized, so they kept re-setting the game and there you have it. Tough way to lose. The official told me if I’m angry I should be angry at the scorer’s table for not getting the clock set properly.”
Not so, Costabile said. Precision Time was used in the game. Costabile said he keeps extensive data for his system in which every call, every start and stoppage of play and which referee made which call is logged throughout every game.
Costabile said, according to his data, referee Eric Curry started the clock too soon on UC-Riverside’s first inbounds attempt. Referee Larry Spaulding started it too soon on the second inbounds, Costabile said.
“This doesn’t look good,” Costabile said in The N&O interview. “It’s got a really bad taste.”
Costabile said he believed Curry was an investor in WhistleStop. Fogleman later confirmed that is the case. While not accusing Curry of subterfuge, Costabile said the end-of-game timing system problems came at a sensitive time.
“I just hope and pray they made an error,” Costabile said. “I would always look at it that way, but then because someone is out there trying to sell or potentially sell a competing product, and now we’re discussing patent infringement, it just doesn’t look good.”
Fogelman said a prototype of the WhistleStop system was used in the Maui Invitational tournament, held Nov. 22-24 at Mandalay Bay resort in Las Vegas. There were no clock or timing issues, he said.
“It worked 100 percent perfectly,” Fogleman said. “All the officials raved about it.”
Ayers and Curry officiated the Gonzaga-UCLA game on Nov. 23 in Las Vegas — in T-Mobile Arena, with a Precision Time system. There were no clock issues in the Zags’ 83-63 win, Costabile said.
The complaint, Costabile said, is headed to a jury trial, although no date has been set. He believes Fogleman and WhistleStop, in asking for a review of the Precision Time patent, is attempting to gain added time to market his system during the governmental review process.
Fogleman believes the patent review, in the end, will substantiate his claims.
”I’m not concerned about it,” he said. “We’re full steam ahead.”