With the advent of technology, those within the sport’s industry have long been aware of the value in protecting their intellectual property. Perhaps less common is the thought given to the protection of one’s reputation in the technologically advanced world we live in where a picture or tweet can go viral in the blink of an eye.
Reputation Management has long been perceived as the preserve of the rich and famous and not relevant for lesser known or non-for- profit individuals and bodies. Recent events have made it abundantly clear that sports governing bodies ignore this issue at their peril. Hard earned reputations can be seriously harmed if adequate provisions and protections are not in place.
Sports fans have never been required to wait long for the next Twitter furore regarding athletes, however some issues are so big they transcend the individual and have an effect on the sports itself, or worse still, relate to the action or inaction of a governing body. Some of the larger scandals over the last 12 months range from those relating to corruption and integrity issues in football, cricket and tennis to one off incidents such as “Deflategate”, Luis Suarez’s infamous bite of Giorgio Chiellini or racist comments attributed to Donald Sterling, the now former owner of the LA Clippers.
In the past a number of these issues would not have been known about or discussed publically to anywhere near the same extent. Now they make front page news and are discussed, blogged and tweeted about at length for months after.
The challenge for governing bodies is that they will often be judged by the actions of their athletes, i.e. those whom they govern, rather than their own actions. Is it right for instance that the International Cricket Council should be criticised for its perceived failure to deal with match fixing when faced with an online gambling industry which has developed a system so open to manipulation? Contrast this with the alleged action of a number of FIFA’s Executive Committee members who, if the allegations are found to be true, will only have themselves to blame for the predicament they now find themselves in.
When dealing with serious violations of conduct, governing bodies will often find themselves in the invidious situation of having to spend significant amounts of money investigating and determining charges in relation to events in which they have had no direct involvement. They will also often be required to make determinations in respect of disputed facts which will have a significant impact on the reputation and livelihood of those concerned.
The fact that a modern athlete will often have a number of commercial endorsements and agreements in place mean they too are becoming increasingly aware of the need to maintain their own reputation.
What Then Should a Governing Body Be Aware of When Undertaking the Disciplinary Process?
The case of Gregory v Portsmouth City Council  2 WLR 306 was important in establishing that it is not possible to bring a claim for malicious prosecution as a result of bringing proceedings negligently. Rather the court held that the only tortious remedy arising from damage to a claimant’s reputation lay in defamation or malicious falsehood.
Whilst it may be unsettling that claims can be brought at all in the event disciplinary proceedings are brought unsuccessfully or overturned on appeal, it must be seen in the context of the remedies available to Governing Bodies who find themselves in this situation both by way of statute and at common law.
Together with being able to justify any allegation on the basis they are true, the most obvious defence available is one of qualified privilege. Qualified privilege exists in a situation where a person is acting under a duty to another with a corresponding interest and where the defendant reasonably believed that publishing the relevant statement was in the public interest. The court will consider all the circumstances of the case to decide if these conditions have been met.
In order to benefit from the qualified privilege any report or publication concerning the proceedings needs to be a fair and accurate reflection of those proceedings. Straying outside of this important proviso or missing out crucial findings in the judgments or reports can have serious consequences and leave the governing body open to a claim in defamation.
Whilst this is the most likely defence to be deployed by a governing body threatened with libel proceedings it is not an absolute defence and can be overcome if the claimant can establish malice on the part of the governing body; this is however a very difficult hurdle to overcome.
Another issue which governing bodies should be alive to is that of data protection. This is becoming an increasing popular add-on for reputation claims as a result of the uncertainty arising from s.13(2) of the Data Protection Act 1998 and the decision in Google v Vidal- Hall  EWCA Civ 311 that an individual can recover damages for distress as a result of the misuse of their personal data.
Defences to damages claims under the Data Protection Act may be available in the event that the governing body has no physical presence or data processing equipment in the UK or any other EEA state, and if for instance within their agreement with the governing bodies athletes have specifically consented for their personal data to be processed during the disciplinary proceedings.
If a Governing Body Does Find Itself the Subject of Media Scrutiny What Should It do to Best Protect Its Reputation?
In the event that a governing body becomes the subject of media scrutiny it is important that it is prepared to deal with any journalistic enquiry it may receive. It should prepare in advance who will be responsible for dealing with media enquiries – being able to react quickly will afford the best possible opportunity of maintaining reputation. Response teams should preferably include a reputation management and PR/communications professional.
The following are recommended steps to be implemented by governing bodies in anticipation of being contacted by the media:
- Ensure that all employees are aware of the relevant individual/ team to whom all enquiries should be channelled and, to ensure consistency, that anyone not on this team does not make any comment.
- If contacted by the media this can be used as a chance to correct any false assertion or get the governing body’s side of the story across. It is virtually impossible to obtain a pre- publication injunction for defamation therefore it is often better to communicate the key messages to the journalist. A “no comment” response is likely to be interpreted as an admission of guilt.
- Saying nothing can often be the best course of action especially if the allegations made are true.
- Be careful not to defame third parties. Two of the main defences to a defamation claim are (i) truth; and (ii) honest opinion based on fact, so be sure of the facts before blaming others.
- Be aware that anything that is said may be used by regulators, insurers, athletes and/or in litigation against the Governing Body. Also consider any ongoing legal proceedings.
If the media has already published false and defamatory allegations, it may be possible to obtain a correction and/or apology by deploying defamation law and/or the relevant press regulations. It is generally easier for a media organisation to amend or add a statement to an online piece than to publish something in the next hard copy edition. Moreover, online content is arguably more important to correct or balance, since it is searchable and can be available forever.
It should be noted that defamation claims may more be difficult than previously for two reasons arising from the implementation of the Defamation Act 2013. Firstly the need to establish that the claimant has suffered or is likely to suffer serious harm as a direct result of the publication – for bodies that trade for profit serious harm equates to serious financial loss. Secondly, even if this can be established the media is likely to rely upon the defence available in respect of publications on matters of public interest.
This makes it all the more important to involve (i) specialist communications teams to deal with issues arising from the leak; and/ or (ii) litigation experts with the knowledge to advise on the risks associated with such claims.
Recent experience also suggests that particularly sensitive issues can generate significant comment on social media (Twitter, Facebook etc.). It is important therefore to communicate key messages through these channels also whilst noting not to get embroiled in online debates before the full facts are known.
In light of the potential issues that can arise, as highlighted in this article, it is important that Governing Bodies have in place adequate safeguards to protect and preserve their reputations.