9670267679?profile=RESIZE_400xRecently, a US federal magistrate judge recommended the dismissal of a female’s lawsuit against famous soccer player - Cristiano Ronaldo.  The recommended dismissal is largely because her attorneys relied on confidential documents obtained through a hacker.  In the 6 October ruling, the federal magistrate warned of “far-reaching, dangerous consequences on the legitimacy of the judicial process” if “hacked privileged documents” become “fair game for an attorney to use to create and prosecute the case.”  The ruling occurs as other highly publicized leak is rattling the sports industry.

Earlier this month, the International Consortium of Investigative Journalists released the “Pandora Papers,” which apparently reveal the existence of offshore bank accounts held by world leaders and persons of influence.  Several sports figures, including the UK’s Manchester City manager Pep Guardiola, was identified.[1]

This past Monday evening the NFL Las Vegas Raiders football team’s head coach Jon Gruden abruptly resigned.  Gruden did so in the wake of stories by The Wall Street Journal (WSJ) and The New York Times (NYT), which disclosed bigoted emails Gruden sent several years ago while an employee of the US sports network ESPN.  The emails, which contained racist, homophobic and misogynistic remarks, were “leaked” to these publications.

As private businesses enforcing their own workplace conduct rules, the NFL and Raiders enjoy wide discretion in deciding which types of transgressions deserve penalty.  That is especially true of actions by coaches, who, unlike players, are not in a union and thus are not protected by procedural safeguards enumerated in a collective bargaining agreement, or CBA.  The NFL, which can rely on evidence it deems relevant, could still discipline the 58-year-old coach.  The league could bar Gruden from any NFL employment for a period of time or issue a suspension that would take effect should he join a team.

Gruden’s situation is entirely different from the one faced by the alleged victim and Ronaldo, who are parties in a public matter before a federal court.  The matter is governed by laws that oversee whether evidence was lawfully obtained and whether it ought to be deemed admissible.  But the cases all involve personal correspondence that was acquired or released with political intent.

Three years ago, the US female defendant sued Ronaldo for battery and related civil claims.  She accuses the Manchester United soccer star of raping and sodomizing her in his Las Vegas penthouse in 2009.  Ronaldo insists the sexual encounter was consensual.  The Las Vegas Metropolitan Police Department investigated and declined to bring charges.  Ronaldo and the female signed a settlement in 2010.  In it, Ronaldo agreed to pay her $375,000 in exchange for dropping her claims.  Both sides agreed to confidentiality, and both agreed that any disputes over interpretation and enforcement of the settlement would be resolved out of court, through arbitration.  The female currently claims she lacked the legal capacity to sign on account of psychological distress.  Unless both parties had capacity to contract, the settlement would be unenforceable.

The 2009 incident and subsequent settlement were topics of German news outlet Der Spiegel’s 2017 story, “Cristiano Ronaldo’s Secret.”  The story relied partly on communications between Ronaldo’s attorneys in Europe and the US.  Under the attorney-client privilege doctrine, such communications are generally inadmissible in US court proceedings.  The communications became reportable for journalists, however, through the “Football Leaks” website.  These “leaks” constituted 1.9 terabytes of data—which, the Columbia Journalism Review noted, is roughly the size of 500,000 Bibles—and included numerous emails and other documents about prominent people in soccer.  An alleged Portuguese hacker, leaker and whistleblower, was arrested and faces cyber hacking, extortion and other charges in Portugal over the release of this information.

According to court documents, the law firm of Ronaldo’s European attorney was hacked, and a copy of the Ronaldo-(female) settlement was stolen.  Meanwhile, Ronaldo’s US attorney reported a theft of privileged communication during a hack.

The federal magistrate’s order details how the female’s attorney contacted “Football Leaks” about a year after the Der Spiegel published its story.  This attorney sought attorney privileged communications and other Ronaldo-related legal documents, including those detailing “negotiations leading up to the agreement to mediate.”  “Football Leaks” honored Stovall’s request and turned over its records.  

The female’s attorneys used these records in two ways.  The first was by sharing them with the Las Vegas police, who reopened the case yet again declined to charge Ronaldo.  The second was to bolster the female’s lawsuit against Ronaldo.  The complaint quotes from “Football Leaks’” records, but instead of referring to them as privileged communications between Ronaldo’s attorneys, the complaint more evasively attributes the communications to “Ronaldo’s team.”

Ronaldo’s attorneys later demanded that the female’s attorney to remove any reference to privileged communications. His attorneys also objected to media reporting since it had allegedly relied on “stolen and easily manipulated digital documents” of which “significant parts were altered and/or completely fabricated.”   The US magistrate concluded that Ronaldo cannot receive a fair trial since an indeterminable amount of the female’s evidence which was based on unlawfully obtained records of privileged communications.  “(The female’s) case against Ronaldo,” the judge stressed, “would probably not exist had her attorney not asked for the ‘Football Leaks’ documents.”  The judge added that her attorney could have lawfully based allegations on “(her) recollection and Der Spiegel’s publicly available reporting.” Instead, the judge admonished, her lawyer who relied on “abusive litigation tactics,” including “deliberately hiding the nature of the documents from the court by using deceptive language,” such as by saying “Ronaldo’s team” instead of his “attorneys.”  The judge also reasoned that her claim that she lacked competence makes it impossible for the court to “parse out which facts in the complaint come from (the female’s) own independent recollection and those which come from the ‘Football Leaks’ documents.”

This federal magistrate’s recommendation does not end this litigation.  The female’s attorneys can ask the presiding judge, a US District Court Judge to reject the magistrate’s ruling.  Although district court judges apply a deferential standard of review to magistrate judges’ recommendations, this specific judge has previously rejected a recommendation by the magistrate last December, when she refused to move the female’s lawsuit to private arbitration.  This female can also appeal a dismissal by the federal judge Dorsey and to the US Court of Appeals for the Ninth Circuit.

Back to Jon Gruden.  How did the WSJ and NYT get the internal emails?  This current NFL Raiders saga remains to be told and most likely will end up in a federal courtroom somewhere in the US.

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 [1] https://www.sportico.com/law/analysis/2021/cristiano-ronaldo-manchester-1234643737/

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