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Blurred Lines; High profile Premiership footballer sweating on appeal

Following on from last week’s High Court ruling regarding the lifting of an anonymity order protecting a wealthy well-known Premier League footballer who had a one-night stand despite having a long term partner, the whole issue of celebrity and sports ‘stars’ anonymity and reputation protection has again been brought into sharp focus.

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The Premier League footballer at the centre of an alleged blackmail plot following a one night stand can be named a High Court judge has ruled. The defender, who has a long term partner and child, had been granted an anonymity order after claiming a woman had demanded £100,000 to keep quiet about their sexual liaison. The woman then sold her story to a newspaper, prompting the footballer to seek an emergency order to keep his identity private. But it was ruled that there are no grounds for his identity to be kept secret and has paved the way for him to be named.

The player’s lawyer, claimed it would be a breach of the star’s right to privacy under the European Convention on Human Rights for him to be named. But the judge said the court had not been given all the facts, but had seen no evidence that the player was concerned about his privacy for his sexual conduct.

Mr Justice Warby said he felt the anonymity order had been driven by others adding that he felt “commercial motives” had played a considerable role.

The judge ruled that the anonymity order should be lifted and ordered him to pay the woman’s estimated £25,000 legal costs.

The player has 10 days to apply direct to the Court of Appeal, after which point the anonymity order will be lifted.

Ever since John Hemming MP used Parliamentary privilege to reveal that Ryan Giggs had decided to slap a gagging order on the world’s press preventing them from blowing the whistle on an alleged affair, the clock has been ticking on the bombs labelled in a variety of ways as gagging orders, anonymity orders and super-injunctions.

Assuming the identity of the Premier League star that has been the subject of much debate on social media is correct, the fact that it has backfired so spectacularly is a lesson to every wayward celebrity or organisation to think twice about following suit. If there ever was a case of a dead law walking then this is surely it. Woefully misjudging the power of the phrase ‘common knowledge’ as well as the power of the Internet, the lawyers who tried to brush the now widely reported indiscretions under the carpet have turned a minor marital indiscretion into a front page story. As privacy cases go, this might be construed as somewhat of a failure!

Lawyers around the country are familiar with the day-to-day tool by which a client can obtain an injunction: a court order requiring his opponent either to do something specific or very frequently not to do certain acts. In some circumstances an interim injunction can be obtained on an ex parte basis, which is without the other side having a chance to be heard, although in that situation there is always a hearing within a few weeks at which the defendant can put his/her side of the argument. If an injunction is granted, it is usually perfectly legitimate for the existence of the proceedings and the injunction granted to be reported by the news media. The difference with super injunctions, and why they are causing such a furore, is that as well as an ordinary interim injunction to restrict an act – usually the publication of a story linking businesses with wrongdoing or people together – part of the order is a restriction on the news media from reporting the very existence of the proceedings or of the fact that an injunction has been granted.

If granted, a super-injunction ensures a news blackout, until or unless the claimant declares it, or alternatively an anonymous soul puts themselves in contempt of court and breaches the order by tweeting or blogging the news. The developments of recent weeks tells us that once something is in the hands of the electronic media it is very hard to put the lid on it, whether the story being broadcast is true or false.

More recently the remedy has become increasingly common in privacy cases where celebrities get wind of the impending publication of stories about them and seek by way of a gagging order, anonymity order or super-injunction to elevate their right to privacy over the journalist’s rights to freedom of expression, even if the story is true.

It can be hard to see that a celebrity fling is ordinarily a matter of such importance that the public interest – and not merely tabloid prurience and curiosity – overrides an individual’s entitlement to privacy, but where for example that individual trades on an image promoting family values it may well be appropriate for the truth to be broadcast and reported to a wider audience. In the latest case, Mr Justice Warby said if the star was not named it could lead to unjust speculation about other innocent footballers adding: “There is thus a degree of genuine public interest in ensuring that the story has an additional name attached to it.”

In addition no doubt the judge was mineful of the power of social media where a large percentage of the population are tweeting at this very moment. So what is the point in gagging orders, anonymity orders or super-injunctions if Twitter, Facebook and the general blogosphere can tear the fragile privacy law to tatters?

It is safe to assume that keeping a story out of the traditional media no longer provides any kind of lasting protection for the public figure. In fact it can have quite the opposite effect as online rumour, conjecture and general Chinese whispers can potentially do more damage to an individual’s reputation.No one is denying for a moment that there isn’t a place for legal action in matters of privacy, but this latest case clearly proves that gagging orders, anonymity orders or super-injunctions are not the complete answer. It is possible that the figure at the centre of the storm would have attracted considerable less notice to his infidelity (and at considerably less financial cost), if he had announced it in a full-page newspaper advertisement!

Rather than protecting their privacy, the example of another Premier League footballer who sought a super injunction highlights the pitfalls of taking such a course of action. Back in January 2010, then England captain John Terry attempted to suppress revelations of an alleged affair with the ex-girlfriend of a former team-mate. After a week of being gagged by a super injunction, the full force of the British press turned on the Chelsea defender and the media furore led to him being stripped of the international captaincy.

That example proved that if you effectively declare war on the press, in the end you will nearly always lose. It is much better to work with them and at least have a chance to shape the story and to have your version of events heard. In mitigation for the celebrity and sporting rich and famous, there are those who are targeted by certain sections of the public to simply exploit their position in order to extract money, in which case an injunction is often the only means of protection. However, the public perception is now somewhat cynical and there will always be a perception that the person has something to hide.

David Beckham, has continually had to deal with allegations and claims surroundinghis private life. One such allegation emerged when playing for LA Galaxy, following reports that he had an affair with a Beverly Hills jewellery designer. However, deciding to take a completely different course of action, the former Manchester United ace and England captain chose to keep his counsel and take no action. 

So what next for those celebrities who wish to bury news about their private lives? With the current and future expansion of social media networks such as Twitter and Facebook, you can drive a coach and horses through the argument that gagging orders, anonymity orders or super-injunctions designed to protect celebrities’privacy are the only credible solution. Future responsible regulation and redress will undoubtedly lay at the feet of the Press Complaints Commission who have to be given greater powers of responsibility, regulation and independence in which the public and the law have confidence.

Consequently, where there is clear misrepresentation from which libel or defamation arises,the individual with the help of the courts should have the confidence of having a right of redress in respect of his or her right to public privacy and to seek damages as a result of the intrusion. Where there is genuine concern over a person’s privacy gagging orders, anonymity orders or super-injunctions will still have a place in such protection, but only with due thought as to the potential consequences with the media.

As referred to above much of the concern involving celebrities and sports personalities is the impact that press intrusion has on their privacy and how they can combat unreasonable behaviour by journalists and photographers.

It would be fair to state that media intrusion into the lives of current and former footballers continues to be a real source of anger for many within the game – especially when that intrusion can sometimes have profoundly damaging consequences. At the Leveson Inquiry itself, former Blackburn captain Garry Flitcroft spoke of how press reporting on his private life may have led to his father’s suicide.

Concern over the issue is nothing new. Back in 2010 Chelsea boss Carlo Ancelotti attacked the media for its fixation on what players were up to off-the-pitch, while the presence of hungry tabloid reporters and paparazzi has become a daily fixture in the lives of many top-flight footballers. As someone who has witnessed the stalking of players first-hand, and heard accounts of photographers waiting at school gates to snap players when they arrive to pick up their kids, it’s clear that the behaviour of some journalists can be unreasonably intrusive.

But what does the law have to say on the matter?

Although there is no express right to privacy under English law and therefore no civil action available there are a number of rights that do relate to privacy. The majority of privacy cases are fought at the pre-publication stage. The player usually finds out about a threatened publication and seeks a gagging order, anonymity order or -injunction to prevent it. The injunction can also restrict reporting of the court proceedings with players commonly anonymitised. This is the issue with the High Court ruling last week.

If publication of the information has taken place, the player can seek damages retrospectively through the courts. The judge will have to conduct a balancing exercise to decide whether Article 8 (right to respect for private and family life) or Article 10 (right to freedom of expression) will prevail.

The media will often quote Article 10 of the Human Rights Act 1998, which provides right to freedom of expression that does not mean they can automatically do and print what they like when it comes to well-known sports stars, and not face the possibility of real consequences.

Conversely Article 8 of the Human Rights Act provides individuals with a right to respect for private and family life, and a crucial test for breach of privacy is generally that of whether publication is in the ‘public interest’. What this means is that the breach of privacy or publication of personal activity should be of legitimate importance to the general public. This was one of the players lawyers contentions and considered as part of the ruling.

The cases of John Terry and Rio Ferdinand were deemed to be of sufficient public interest as the media were correcting a false image promoted by the players. An additional factor both players faced at the time of the allegations was that they were both captains of their country at their respective times. The acceptance of the armband brings with it an expectation of a higher standard of conduct as the public’s perception is that they immediately become a high class role model.

If the story is seen to contravene an image which the individual widely trades upon for publicity and profit, then publication is generally upheld as in the public interest. But just because someone is a well-known figure, it does not mean that details of their private life are in the public interest. Former F1 president Max Mosley successfully sued the News of the World after they ran a revealing story on his sex life, and received significant compensation as a result.

Footballers need to be careful about their relationship with the media as the line between public and private life can easily get blurred. If a footballer answers purely football related questions in interviews and does not open up their private life to the likes of Hello and Ok magazine then their privacy deserves to get a much higher level of respect from the media. Players need to be wary about discussing injuries in press conferences for example, as a seemingly innocent question about a players rehabilitation can open that player up to an intrusion into their private life.

Injunctions, gagging orders or anonymity orders to prevent publication of intrusive stories can be obtained but, as widespread contravening of a so-called super-injunction in the case of Ryan Giggs proved, the power of the internet means that keeping the cat in the bag is often impossible.

Stars who seek and welcome publicity which demonstrates their private life in a positive manner when they are hitting the back of the net should not have a leg to stand on when they wish to complain about an invasion of their privacy which shows them in an unfavourable light. The relationship with the media is very much a double edged sword for many top-level footballers in that respect.

If you need any dedicated advice regarding Crisis Management, Privacy Laws or Media Relations Management please do not hesitate to contact the Choix team.

John Hendrie – Sports Consultant

#OneTeamOneChoix

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info@onechoix.com

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Rafa’s Return to Queens and the Taxing Question?

Following the decision by Rafael Nadal to play the Aegon Championships, the traditional Wimbledon warm-up event at Queen’s Club in London this summer for the first time since 2011, it would be easy to say it is simply because of money.

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This year’s Queen’s tournament has been upgraded to an ATP 500, with prize money of €1,574,640 and will begin on 15 June, a week later than usual to allow players more of a grass court season. Britain’s tax laws, under which sports people are taxed on their off-court earnings when they compete in the UK, were cited as one reason the nine-time French Open champion decided to stop playing at Queen’s and play at the Gerry Weber Open in Halle in recent years.

Britain’s punitive tax regime demands a percentage of sponsorship income whenever the sports person appears here. A small relaxation in those laws may be one of the reasons why Nadal has decided to return, but the 28-year-old Spaniard cited tennis factors. While Nadal is understandably reluctant to pay more than the going rate, he is even more concerned about his results at Wimbledon.

Stephen Farrow, tournament director of the Aegon Championships, said: “Rafa is one of the greatest tennis players of all time and he is universally popular, so this is fantastic news for the Aegon Championships and our spectators. We have stayed in contact with Rafa and his team over the years and we always hoped he would return one day.” The tournament is owned by the LTA and, though paying guarantees to major stars to ensure their appearance is legitimate, undoubtedly the very top players and ‘star attractions’ are paid appearance fees to attend. The Spaniard and Roger Federer are regularly paid guarantees. They are believed to have received more than $1million to play in certain events, particularly in the Middle East, with Murray and Djokovic not far behind. Tiger Woods could command $3million in golf prior to his downfall.

There has, however, been particular concern amongst major sport promoters for some time regarding the UK tax system. Overseas stars are obliged by the Inland Revenue to pay tax on worldwide endorsements in proportion to the percentage of their time spent performing annually in the UK. One American golfer is said to have paid 400% tax on his winnings at a couple of events in the UK. The potential damage cannot be understated, not just to major sporting events in the UK, but also to the economy if it puts off key players from taking part and downgrading the quality of the event. The Government were forced to give an exemption to athletes competing in the 2012 London Olympics and also agreed to waive the rule for footballers so that we could host the 2011 and 2013 UEFA Champions League finals.

The Gerry Weber sponsored Halle tournament in Germany is the Queens Tournaments biggest competitor for attracting star names and held at the same time. Roger Federer has a long-term contract to appear there, and for the players, there is the element of saving on punitive tax rates for plying their trade in Britain. In 2010 Usain Bolt’s decision not to compete in the Aviva London Grand Prix was not because he was frightened to face his big rivals, Tyson Gay and Asafa Powell, but it was believed that it was in consideration of the potential UK Tax liabilities. Similar concerns were linked to his limited appearance at the Commonwealth Games in Glasgow and he wanted to avoid the tax burden following the ruling in the Agassi case in 2004, although injury was cited as the main reason. As Bolt earns a fortune from product endorsements, this means that if he only raced five times this year, HMRC could tax 20% of his total earnings. His appearance fees alone are generally reported to exceed £150,000 per event – so we’re talking big money!

In reality the Agassi case was a test case on behalf of a number of top overseas sports personalities, including Tiger Woods and Michael Schumacher. As a consequence of the ruling, the HMRC was able to grab a share of Agassi’s sponsorship income, even though it came from overseas countries and had nothing to do with the UK. The problem was that the taxman had become greedy and started claiming far more than his share of the overseas sponsorship which is why the test case arose. Agassi was the first non-British based tennis player to be hit with a tax bill by the Inland Revenue. The fear at the time was that the ruling could seriously damage the representation of all tennis players (and sports stars) who intend to compete in UK sporting events. It should not go unnoticed that Federer has never played in the UK other than when required to meet the playing obligations of Wimbledon and end of year World Tour Finals. Federer has always preferred to play the Gerry Weber Open at Halle. Agassi had argued that as he was not based in the UK and his sponsors had no tax liability in the UK then he should not be required to pay tax in the UK. But Justice Lightman sided with the Inland Revenue who claim that as Agassi visited the UK every year to compete in British tennis tournaments at least some of the revenue he generated through sponsorship should be liable for taxation. The decision consequently had implications for non-UK resident sportsmen who make occasional appearances in the UK and who receive payment for such appearances from sources outside the UK. Such individuals were no longer able to avoid paying tax on earnings linked to appearances in the UK as they were regarded as UK earnings. The Agassi ruling also had implications for Britain’s many highly-paid touring sports and show business stars. For commercially-minded stars such as Tiger Woods, and the Williams sisters, the outcome of what had been known in tax circles as the “game, set and match” case showed that two-week appearances in the UK for the Open, or Wimbledon can carry a heavier tax cost than they imagined.

Having regard to the various issues and contentions over the years, it is surprising that the 2015 Rugby World Cup will not receive a similar tax break to athletics and football. Apparently the International Rugby Board did not feel that the exemption was necessary although this will have an impact on overseas rugby players. The Inland Revenue has for some years actively looked to close “loop holes” in the system and chase additional tax revenue. No one is surprised that when the Revenue starts hearing about the huge pots of money they get their antennae working! The Agassi case also affected other sports personalities as well as show-business stars such as Beyonce, who earn millions every year from sponsorship deals.

For high-profile sports stars such as Federer and Nadal, multi-million pound sponsorship deals are an increasingly significant source of income. For many sportspeople and entertainers, sponsorship deals and endorsements are now the biggest part of their income. Entertainers are currently liable for tax on any earnings made in the UK, but touring is notoriously expensive and can often make a loss. However, big stars may be liable to pay British tax if their sponsorship earnings are ruled to be derived from their work in this country. While HMRC’s arguments in relation to endorsement work where the performance of duties  such as filming an advert  are carried out in the UK may be reasonable, it appears irrational to seek to tax an athlete on a percentage of a global endorsement contract purely because in the performance of duties, the athlete needs to appear in certain events in the UK. There is no objection to well-paid sports stars suffering UK taxation on prize money earned in the UK. However, losing or diluting international events due to uncertainty over the tax position of athletes in relation to endorsement income is unacceptable and ultimately costly to the UK economy.

Please do not hesitate to contact one of our team if you require specialist tax advice or guidance.

Adrian Rattenbury – Sports Consultant Choix

#OneChoiceOneTeam

0845-0348984

info@onechoix.com

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Choix; Sport & the Law

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