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Wednesday, September 20, 2006
Do Pro Athletes’ Spouses Waive Privacy Rights?

It may seem obvious that professional athletes have diminished expectations of privacy when compared to a typical person. See O'Brien v. Pabst Sales Co., 124 F.2d 167, 169-170 (5th Cir. 1941), cert. denied, 315 U.S. 823 (1942) (professional athlete waived privacy right by previously seeking publicity); see also Laura Lee Stapleton & Matt McMurphy, The Professional Athlete’s Right of Publicity, 10 MARQUETTE SPORTS LAW JOURNAL 23 (1999). Although courts (and commentators) have not always been clear about the difference between a right to privacy and publicity, it’s long been clear, as one student author noted, that
professional athletes, and other public performers, because of the “public” nature of their occupations, are typically considered to have “waived” their right to privacy; they are also probably more psychologically tolerant of having their daily lives depicted in the press.
D. Scott Gurney, Note, Celebrities and the First Amendment: Broader Protection Against the Unauthorized Publication of Photographs, 61 INDIANA LAW JOURNAL 697 (1985/1986).
Can the same be said for the family members (and, in particular, the spouses) of professional athletes? From the Globe and Mail:
Tiger Woods was outraged Wednesday at an Irish magazine and a tabloid that linked photos of his wife to various pornography sites, and his agent was studying the merits of a lawsuit.

“My wife, yes, she has been a model prior, and she did do some bikini photos,” Woods said. “But to link her to porn Web sites and such is unacceptable, and I do not accept that at all. Neither does our team.”

The Dubliner magazine wrote in its September issue about Elin Nordegren, his Swedish wife of nearly two years.

“Most American golfers are married to women who cannot keep their clothes on in public,” the magazine wrote. “Is it too much to ask that they leave them at home for the Ryder Cup? Consider the evidence. Tiger Woods’ wife can be found in a variety of sweaty poses on porn sites.”
The Dubliner’s efforts seem obviously tortious. Even celebrities, as Jennifer Aniston has recently demonstrated, can assert privacy rights with respect to topless photos under some circumstances. And a photo of the wrong person would seem to offend even the diminished expectation of privacy of a celebrity athlete.

There aren’t a lot of guideposts out there regarding the privacy rights of athletes’ spouses. Do spouses surrender their privacy rights to the same extent as the athletes themselves? Should the law should be more forceful in defending the privacy interests of athletes’ spouses?


Why is this "obviously tortious"? The statements of Woods and Dubliner are not mutually exclusive. A porn site could could have non-pornographic material, such as bikini photos. If Dubliner is referring to a site like this, how is it "obviously tortious" to point out something already in the public domain?

Anonymous Anonymous -- 9/20/2006 12:44 PM  

I wonder if this is the example to use in order to pose the question you do. While she is indeed Tiger's wife, the photos in question -- and where they are posted -- are either tortious or not based on facts entirely separate from her status as his wife. Of course, "Look at Tiger Wood's Hot Wife" is a selling point, but the photos are or are not of her and a case would be decided on those grounds.

Of course, I can't really come up with a hypothetical situation now to illustrate the difference, but I imagine there is one, where a person's "public figure" status is based entirely on who they're married to (or who they are related to by blood, since you can't actually choose that part).

Anonymous Collin -- 9/20/2006 1:28 PM  

Perhaps the closest analogy for this situation is defamation law where the question arises over who is a "public figure."

Anonymous Anonymous -- 9/20/2006 2:00 PM  

I wish I were a professional golfer. :)

Blogger ChapelHeel -- 9/20/2006 2:00 PM  

Athlete's spouses (or partners) should implicitly waive their privacy rights--kind of like "coming to the nuisance."

Anonymous Anonymous -- 9/20/2006 5:22 PM  

I can only remember one torts case that dealt with this, and someone with a little more knowledge and free time on their hands might be able to find additional (and more recent) cases.

Anyway, this was addressed by Johnny Carson's wife in Carson v. Allied News Co., 529 F.2d 206 (7th Cir. 1976) held that "one can assume that the wife of a public figure such as Carson more or less automatically becomes at least a part-time public figure herself." So, at least one court out there has ruled on this issue.

Just my 2 cents.

Blogger Tammy Thomas -- 9/20/2006 11:22 PM  

This comment has been removed by a blog administrator.

Blogger Rick Karcher -- 9/21/2006 6:48 AM  

There's more to this. The publication included a nude photograph of another woman who resembled Tiger's wife, with a statement indicating that it was in fact his wife.

But the public figure/waiving rights issue has always intrigued me. Why does a professional athlete, simply by being exceptional in his field, under the law assume the risk that somebody may publish nude photographs of a woman resembling his wife and then actually lie that it is his wife? That makes zero sense to me.

What's even more ludicrous is that a person who marries a professional athlete assumes that risk as well.

Blogger Rick Karcher -- 9/21/2006 6:50 AM  

It makes no sense to me, either, why the legislature seems to encourage freedom of the press in this manner. And then to take it even one step further by allowing Internet services immunity from liability for publishing defamatory material as long as the info was given by another party, makes even less sense. But that's a topic for another day.

It seems to me that a line has to be drawn somewhere and that most people in the general public would agree that any publication of a nude photo that was not of the person it was claimed to be would have crossed that line. This seems to be a complete reckless disregard for truth if there ever was one.

Blogger Tammy Thomas -- 9/21/2006 11:24 AM  

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