Unearthing the Pitch-side Mole: How to Protect Confidential Information in Sport
The importance of keeping certain information confidential in sport should not be underestimated. Knowledge of even the smallest piece of information relating to an opposing club or rival’s team selection, tactics, recruitment targets or commercial arrangements can give the club in receipt of such information a significant advantage both on and off the pitch.
In the 2018/2019 football season, a number of leaks of confidential information were reported. In particular:
West Ham’s team selection was routinely leaked online by a Twitter account with the handle @ExWHUemployee; and
a document containing information relating to Celtic’s player retention and recruitment plans (which included information relating to the contract status of first team players and possible recruitment targets) appeared online.
The problem with leaks of this kind is that once the confidential information has been made public, the damage is done, as the information can never be made confidential again. This leads to the question: how can clubs prevent these sorts of leaks from happening?
A large proportion of people in receipt of a club’s confidential information in the circumstances noted above are likely to be employees of the club. This will be the case for most of the players, coaches, physios, kit men, analysts, ground staff and other support staff of a football club.
It would therefore be prudent for clubs to ensure that employees are under an express duty to keep confidential any information of a confidential nature obtained during the course of their employment. Despite the fact it may be difficult to enforce in practice, it would also be advisable for clubs to include confidentiality obligations that survive termination of the employee’s employment. This is especially important given the high turnover of staff (players and coaches in particular) in the modern game.
In the event that clubs have not included express confidentiality obligations in contracts with employees, all is not lost as a duty of confidentiality is implied into every contract of employment. This general duty will subsist for the duration of the employment relationship. However, clubs should note that after the employment relationship has ended, former employees will only be subject to an implied duty to keep confidential their former employers’ ‘trade secrets’. Trade secrets are defined in the Trade Secret Regulations 2018 as information which:
“(a) is secret in the sense that it is not, as a body or in the precise configuration and assembly of its components, generally known among or readily accessible to persons within the circles that normally deal with the kind of information in question,
(b) has commercial value because it is secret, and
(c) has been subject to reasonable steps under the circumstances, by the person lawfully in control of the information, to keep it secret”.
As such, the definition of a trade secret is narrower than the general concept of confidential information under common law. This means that information relating to team selection, tactics or recruitment may not be subject to an implied duty of confidentiality after the termination of the employment contract as it may not amount to a trade secret.
Agreements with contractors and other third parties
In the same way that clubs should ensure their employment contracts contain watertight confidentiality obligations, clubs should ensure that their agreements with contractors and other third parties impose express confidentiality obligations on the third party, together with a requirement to impose equivalent confidentiality obligations on their staff.
This would apply to certain of a club’s support staff who may operate under a contract for services, which may include (depending on the arrangement) agents and scouts, as well as other commercial partners.
Failure to ensure that agreements with third parties contain adequate confidentiality obligations will leave the club having to rely on the common law duty of confidentiality to pursue a third party in the event of a leak. This is an undesirable position for a club to be in, as the club will have the additional burden of showing that the information was disclosed in circumstances importing an obligation of confidence.
For situations where clubs plan to disclose particularly important information, clubs should consider entering into standalone confidentiality agreements in addition to any confidentiality obligations that may already be contained in employment contracts, service agreements or other agreements with third parties. This will also put the recipient on notice that the information being disclosed is of a confidential nature.
Whilst it is important to ensure contractual confidentiality obligations are imposed on recipients of confidential information, it must be noted that confidentiality provisions in a contract do not provide an absolute guarantee that the recipient will protect the confidential information.
The most effective way to protect a club’s confidential information is to ensure there are practical measures in place to prevent any misuse of such information (including a third party benefitting from the same). Depending on the context, there are several practical steps that clubs can take to address the risk of misuse:
Where clubs are aware of the risk of misuse by a recipient:
(i) act quickly to remind them of their confidentiality obligations and, if required, obtain an injunction to prevent disclosure; and
(ii) approach third parties to whom they believe their confidential information will be disclosed to put them on notice that the information is confidential.
Enter into a non-disclosure agreement before commencing negotiations with a third party, and consider staggering the release of confidential information and holding back the most important information until negotiations are at an advanced stage.
Although it is accepted that this may be undesirable as it affects pre-match preparations, managers could change the way they announce team selection and leave team meetings, where team selection is announced, until closer to kick-off.
Restrict access to the information to those people that need to know the confidential information. This would include, for example, limiting the attendees of team meetings to those players and support staff as are required to be aware of the contents of the meeting.
Restrict access to areas where confidential information is accessible. This may include, for example, having controls on those individuals who are able to access the changing rooms (at both the training ground and stadium) or offices where confidential information is accessible.
Remind departing employees and contractors of their obligations of confidentiality and ask them to confirm, in writing, that they have returned all club property.
Author: Sam O'Neill