Invasion of Privacy Claims of Professional Athletes: Public Figures Have Rights, Too
The Arcade 2.0™: Video Game Law Blog
The right to privacy is deeply rooted in American jurisprudence. By and large, many of the privacy protections to which we are entitled, are provided by state statutes. For invasion of privacy claims, public figures have always been held to a higher standard, as courts are reluctant to permit the selective acceptance of publicity, after one has availed themselves of the public spotlight. However, public figures are not completely without rights to privacy, and under certain circumstances, may successfully advance invasion of privacy claims.
While professional athletes understandably face a great deal of public scrutiny, not all of the scrutiny is reasonable, and thus may run afoul of privacy protection statutes. Consequently, it behooves professional athletes to educate themselves about the nature and extent of their privacy rights, so that they can successfully enforce those rights against any intrusions.
Out of Bounds: The Public Disclosure of Private Facts
Despite their status as public figures, professional athletes may enforce their privacy rights under several theories, including the tort claim of public disclosure of private facts. While the statutory language may vary across states, under Florida Law, to successfully advance a claim for the tort of public disclosure of private facts, the plaintiff must establish “1) the publication, 2) of private facts, 3) that are offensive, and 4) are not of public concern.” Paige v. U.S. Drug Enf't Admin., 818 F. Supp. 2d 4, 15 (D.D.C. 2010), aff'd sub nom. Paige v. Drug Enf't Admin., 665 F.3d 1355 (D.C. Cir. 2012).
In 2016, New York Giants defensive end Jason Pierre Paul filed suit against ESPN, and its NFL beat report Adam Schefter, alleging a violation of his privacy rights, and a Florida statute protecting medical records. The suit stemmed from an instance where Schefter tweeted a photograph of Pierre-Paul’s medical records, detailing the extent of an injury he sustained during a Fourth of July fireworks incident, and the nature of the treatment he received; namely, the amputation of one of his fingers. Although the claim alleging a violation of the medical records statute was ultimately dismissed, the judge noted that the public figure status of professional athletes does not preclude invasion of privacy claims, and stated that limits to the public figure exceptions are, “anchored in the ‘common decency, having due regard to the freedom of the press and its reasonable leeway to choose what it will tell the public.’” The judge went on to say that Pierre Paul established that such limits may have been exceeded by the publication of his medical records, and they were thus not a matter of public concern. The judge added that 1) the records were not publicly available, 2) Pierre Paul did not consent to the use of his records, and 3) generally speaking, medical record protection statutes consider such records to be private.
Athletes Have Privacy Rights, Too: How to Protect Your Rights to Privacy and What to do If Your Rights Have Been Infringed
Now that you are aware of your rights, how are you going to protect them? First and foremost, as a professional athlete, it is imperative for you to understand the nature of your right to privacy. Yes, you have privacy rights, but your status as a public figure significantly impacts the scope and depth of those rights. The following guidelines can be used to assist you as you prepare to defend your right to privacy:
- Understand that your status as a public figure subjects you to a burden of proof, much higher than that to which those who are not public figures, are subjected.
- Ask yourself these questions:
- Would the publication of these personal matters be highly offensive to a reasonable person?
- Were these personal matters of a legitimate public concern?
- Avoid exacerbating the issue by publicly airing your concerns.
- Maintain accurate documentation of the disclosure, and if possible, the repercussions of which you have thus far been made aware.
- Seek the advice of counsel.
If you are a professional athlete, seeking to defend against an intrusion of your right to privacy, please Contact Us.