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On May 24, NFL Hall of Fame tight end Shannon Sharpe nabbed an interception on his Fox Sports show, Undisputed, when he called star wide receiver Julio Jones, then a member of the Atlanta Falcons, to discuss the player’s future. Jones, apparently unaware Sharpe was calling while being filmed live on television, confided that he was seeking an exit, stoking trade rumors and discussion of journalistic foul play.
Ethics aside, Sharpe may have committed the second legal equivalent of an encroachment penalty in sports talk radio this year, following the podcast recording conflict between Barstool Sports and Sommerville, Mass. mayor Joe Curtatone. While most states and federal law only require one party to a telephone conversation to consent to being recorded (so-called “one party consent” jurisdictions), some states go further to protect privacy. For instance, under California law, a person who records a confidential communication — even one they were themselves party to — can be punished up to $2,500 dollars, one year in the county (or state) jail, or both. Further, any person who has been injured by such a violation in the state may sue to recover $5,000 dollars in damages or three times the amount of the actual damages sustained by the injured person, whichever is greater. (Jones is in the midst of a three-year $66 million contract.)
California just happens to be where Undisputed is filmed. Therefore, Sharpe could face serious penalties. However, any attempt to prosecute or sue Sharpe will have to contend with a potentially fatal flaw: Georgia where Jones appears to reside (though he is on his way to Tennessee) is a one-party state. Which state’s law would apply? Could Fox Sports be on the hook? Let’s go to the tape!
Because Jones was presumably a resident of Georgia, Sharpe must contend with two jurisdictions. The good news for Sharpe is that, because Georgia law allows either party to a conversation to record, there is no realistic path to liability there. That means only a California court can serve as a field judge.
In circumstances involving an out-of-state victim, a court must assess which state’s law should apply. A California judge will compare each state’s governmental interest in the outcome to determine which law to apply. In 2006, the California Supreme Court did just that in the case of Kearney v. Salomon Smith Barney, when a California resident sued a Georgia business for recording her on the telephone without her consent. The court applied California law to the out-of-state defendant on the grounds that “a failure to apply California law in this context would impair California’s interest in protecting the degree of privacy afforded to California residents by California law more severely than the application of California law would impair any interests of the State of Georgia.” The Court essentially reasoned that while Georgians may not expect privacy for themselves in that situation it’s not too much to ask that they respect Californians’ privacy.
Here, we have the opposite formulation. Therefore, the question becomes: Which state has a greater interest in having its law apply to protect a Georgia victim? Here, a court could very well run the ball all the way back into the opposing end zone. By applying California law, Georgians’ expectations of privacy would be determined by the location of the person they correspond with, which would undermine the balance set by the state. On the other hand, California’s interest in punishing this conduct by its residents is arguably less than its interest in protecting its residents against it.
At the end of the day, it may be a fortuity on Sharpe’s part that he called Georgia, but it would be harsh to punish him when his call was legal on Jones’ side of the equation.
Even if California law ultimately applies, a court might question whether any conversation with a bombastic Fox Sports host could be considered “confidential” and warrant protection. However, California courts have rejected the notion that a listener’s occupation is relevant, so long as an individual had an objectively reasonable expectation that no one could overhear the conversation. So, while Sharpe may have been free to recount his conversation after the fact, recording could be strictly out of bounds. This distinction reinforces the tenets of California’s Privacy Act, which seeks to prevent the increased use of computers and other sophisticated information technology in violating individual privacy. Further, courts have held that secret monitoring denies a speaker an important aspect of privacy in a communication — the right to control the nature and extent of the firsthand dissemination of their statements.
On the other hand, if Jones took the call while within earshot on others, it could render the recording within bounds — and if he knew he was being recorded and chose to speak regardless that would also doom any legal claim.
Neutral Zone Infraction
What about Fox Sports? Ordinarily, under the 2001 U.S. Supreme Court case Bartnicki vs. Vopper, the news media is not liable for violations of the law by third parties. Unfortunately, Fox Sports’ hands are far from clean here. For one, the network would have a hard time claiming it simply received illegal materials. In Bartnicki, the defendant had no involvement in the illegal act. Here, the actual recording was done by Fox Sports’ own cameras. While the First Circuit recently invalidated a Massachusetts anti-wiretap statute to the extent it prohibited the secret audio recording of police officers performing their official duties in public, it is unlikely that Sharpe or Fox Sports could prevail on similar First Amendment grounds. There simply isn’t as compelling a public interest in NFL scoops.
Lastly, though the Undisputed producers were reportedly unaware of Sharpe’s intentions (indeed, it may have been a snap decision), and lack of intent is a defense to the Privacy Act, the producers continued to tape for the entirety of the roughly minute-long call. Further, Fox Sports could face liability under the doctrine of respondeat superior. California courts have held employers liable for misdeeds committed within the scope of an employee’s job. Did Sharpe break script, or was it authorized? Either way, Fox would have to explain why they didn’t call timeout.
So far, there is no indication that the L.A. District Attorney’s Office or Julio Jones are contemplating legal action. But the next time Sharpe wants to hit record without giving a heads up, he would be well served to make sure he isn’t calling a Los Angeles Ram or San Francisco 49er.
Daniel Novack is a publishing industry attorney and chair of the New York State Bar Association Committee on Media Law. This article reflects his personal views only. Tanvi Valsangikar is a second year law student at Rutgers University School of Law.
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