The overwhelming reaction across social media shows the tennis community in shock after recent comments by Australian Nick Kyrgios during a match in Canada yesterday. By even the most degraded standards his comments to Stanislas Warwinka were crass and inappropriate. What makes the incident so shocking is that Kyrgios decided to disclose facts not about himself, but chose to disclose private information about third parties in an effort to take a jab at his opponent. By doing so, Kyrgios subjected himself to sanctions from the ATP World Tour, as well as civil liability for violating the privacy rights of two fellow tennis players. This cause of action is sometimes called Public Disclosure of Private Facts.
The ATP announced on August 13, 2015 that it had imposed a $10,000.00 fine; however more stringent sanctions are available. You may review their rules online at http://www.atpworldtour.com/en/corporate/rulebook
While the sanctions available to the ATP World Tour address this issue are limited under the rules governing conduct for those involved with the ATP, called “the Code.” For a young player trying to build a brand, the real costs to him for this indiscretion may come in the form of lost endorsement opportunities.
Rule 8.03 is the Player Code of Conduct.
Rule 8.03 d) deals with verbal abuse directly.
d) Verbal Abuse
i) Players shall not at any time directly or indirectly verbally abuse an official, opponent, sponsor, spectator or any other person within the precincts of the tournament site. Verbal abuse is defined as any statement about an official, opponent, sponsor, spectator or any other person that implies dishonesty or is derogatory, insulting or otherwise abusive.
ii)Violation of this section shall subject a player to a fine up to $10,000 for each violation. In addition, if such violation occurs during a match, the player shall be penalized in accordance with the Point Penalty Schedule. In circumstances that are flagrant and particularly injurious to the success of a tournament, or are singularly egregious, a single violation of this section shall also constitute the player Major Offense of Aggravated Behavior.
If the violation is determined to be a Major Offense of Aggravated Behavior, then the analysis moves on to Rule 8.04.
Rule 8.03 g) addresses unsportsmanlike conduct directly
g) Unsportsmanlike Conduct
i) Players shall at all times conduct themselves in a sportsmanlike manner and give due regard to the authority of officials and the rights of opponents, spectators and others. Unsportsmanlike conduct is defined as any misconduct by a player that is clearly abusive or detrimental to the success of a tournament, the ATP and/or the Sport. In addition, unsportsmanlike conduct shall include, but not be limited to, the giving, making, issuing, authorizing or endorsing any public statement having, or designed to have, an effect prejudicial or detrimental to the best interest of the tournament and/or the officiating thereof.
ii) Violation of this section shall subject a player to a fine up to $10,000 for each violation. In addition, if such violation occurs during a match, the player shall be penalized in accordance with the Point Penalty Schedule. In circumstances that are flagrant and particularly injurious to the success of a tournament, or are singularly egregious, a single violation of this section shall also constitute the player Major Offense of Aggravated Behavior.
It appears that the ATP Tour did not find the comment to be significant based upon the minimal fine of $10,000.00. However, It is clear from the Rules that the acts of Kyrgios could be considered a Major Offense of Aggravated Behavior under either Rule, but what does that status provide? To continue the analysis we move on to Rule 8.04 (included below for your convenience).
In addition to the fines provided for the above offenses, the upgrade of the offense in status to Major Offense of Aggravated Behavior provides for additional amounts for fines and also for suspension. The Rule only requires one offense, however the ATP must show that the behavior was designated by the Code as constituting aggravated behavior, was “particularly injurious to the success of a tournament,” or was singularly egregious. Upon such a determination the fines may be $25,000.00 or the amount of prize money won at the tournament, whichever is greater. This section also provides for suspension from the game for a minimum of 21 days and up to a maximum of one (1) year. However some may argue that this act falls under Rule 8.04 2), Conduct Contrary to the Integrity of the Game. This type of act carries with it the most severe fines, up to $100,000.00 and the most severe suspensions.
The question for the ATP World Tour is governed by their Rules. It is up to the governing body to enforce these rules.
But what about the innocent parties that have been dragged into an unfortunate situation by Kyrgios. What recourse, if any, do the parties he named and suggested in his comments have against him?
Public disclosure of private facts.
The right to privacy is one that has significant importance to athletes and celebrities. The common law of Torts, which Prosser divided into four categories, include Public Disclosure of Embarrassing Private Facts about the Plaintiff. See William Proser, Law of Torts, 4th ed. (West Publishing Company, 1971) at p. 808-812. The basic premise is that while one arguably has the right to free speech, there is no right to disclose private information of others without their consent. When such a public disclosure results in damages, it gives rise to a cause of action in the injured party.
So to me, the more interesting issue arising out of Kyrgios’ behavior is whether these third parties will pursue damages against him for his comments. This article will not delve into the details of the causes of action available under the Common law, under the law of the Province of Quebec, or otherwise. It seems that due to the global nature of the event, an argument can be made that the comments by Kyrgios were made anywhere, or everywhere, on earth, and were not limited to Montreal, Quebec, Canada. The comments were made ina public forum, the event was televised to a global audience, and there certainly was no expectation that anything that happened on the tennis court during the match was private. To say his words were heard around the world is certainly no exaggeration.
Often it is not sufficient for the governing body of a sport to impose sanctions. In some circumstances, the facts scream for a civil action in order to achieve a just result. While costly and certainly not an enjoyable process, money damages serve as a deterrent and a mechanism for the innocent parties to recover for losses caused by the negative publicity.
For an overview of Privacy Law, please see Privacy Law in a Nutshell by John Soma and Stephen Rynerson.
Stanislas Warinka, Miami Open 2015, photo by the author.
8.04 Player Major Offenses/Procedures A. Offenses
1) Aggravated Behavior a) No player, their coaches, physiotherapist, therapist, physician, management representative, agent, family member, tournament guest, business associate or other affiliate or associate of any player (“Related Persons”), or any other person who receives accreditation at an Event at the request of the player or any other Related Person, at any ATP World Tour or ATP Challenger Tour tournament shall engage in aggravated behavior which is defined as follows: i) One or more incidents of behavior designated in this Code as constituting aggravated behavior. ii) One incident of behavior that is flagrant and particularly injurious to the success of a tournament, or is singularly egregious, including the sale of credentials. iii) A series of two (2) or more violations of this Code within a twelve (12) month period which singularly do not constitute aggravated behavior, but when viewed together establish a pattern of conduct that is collectively egregious and is detrimental or injurious to ATP World Tour or ATP Challenger Tour tournaments. b) Violation of this section shall subject a player to a fine up to $25,000 or the amount of prize money won at the tournament, whichever is greater, and/or suspension from play in ATP World Tour and ATP Challenger Tour tournaments or events for a minimum period of twenty-one (21) days and a maximum period of one (1) year. The suspension shall commence on the Monday after the expiration of the time within which an appeal may be filed, or, in the case of appeal, commencing on the Monday after a final decision on appeal. Violation of this Section by a Related Person may result in a maximum penalty of permanent revocation of accreditation and denial of access to all ATP World Tour and ATP Challenger Tour Tournaments.
2) Conduct Contrary to the Integrity of the Game The favorable reputation of the ATP, its tournaments and players is a valuable asset and creates tangible benefits for all ATP members. Accordingly, it is an obligation for ATP players and Related Persons, to refrain from engaging in conduct contrary to the integrity of the game of tennis. a) Conduct contrary to the integrity of the game shall include, but not be limited to, comments to the news media that unreasonably attack or disparage a tournament, sponsor, player, official or the ATP. Responsible expressions of legitimate disagreement with ATP policies are not prohibited. However, public comments that one of the stated persons above knows, or should reasonably know, will harm the reputation or financial best interests of a tournament, player, sponsor, official or the ATP are expressly covered by this section. b) A player, or related person, that has at any time behaved in a manner severely damaging to the reputation of the sport may be deemed by virtue of such behavior to have engaged in conduct contrary to the integrity of the Game of Tennis and be in violation of this Section. c) A player, or related person, convicted of a violation of a criminal or civil law of any jurisdiction may be deemed by virtue of such conviction to have engaged in conduct contrary to the integrity of the Game of Tennis. d) A player, or related person, charged with a violation of a criminal or civil law of any jurisdiction may be deemed by virtue of such charge to have engaged in conduct contrary to the integrity of the Game of Tennis and the ATP Executive Vice President, Rules & Competition may provisionally suspend such player, or related person, from further participation in ATP tournaments pending a final determination of the criminal or civil proceeding. e) Violation of this section shall subject the player to a fine of up to $100,000 and/or suspension from play in ATP World Tour or ATP Challenger Tour tournaments for a period of up to three (3) years. Violation of this Section by a Related Person may result in a maximum penalty of permanent revocation of accreditation and denial of access to all ATP World Tour and ATP Challenger Tour Tournaments.