Flag on the Play: How an Ambush Interview Put Fox Sports Host in a Legal Red Zone (Guest Column)

On May 24, NFL Hall of Fame tight end Shannon Sharpe nabbed an interception on his Fox Sports indicate, Undisputed, when he called asterisk wide receiver Julio Jones, then a member of the Atlanta Falcons, to discuss the musician ’ s future. Jones, apparently unaware Sharpe was calling while being filmed live on television receiver, confided that he was seeking an exit, stoking trade rumors and discussion of journalistic filthy play .
Ethics aside, Sharpe may have committed the second legal equivalent of an trespass penalty in sports lecture radio this year, following the podcast recording battle between Barstool Sports and Sommerville, Mass. mayor Joe Curtatone. While most states and federal law only require one party to a call conversation to consent to being recorded ( alleged “ one party accept ” jurisdictions ), some states go far to protect privacy. For exemplify, 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 submit ) jail, or both. Further, any person who has been injured by such a violation in the country may sue to recover $ 5,000 dollars in damages or three times the sum of the actual damages sustained by the injured person, whichever is greater. ( Jones is in the midst of a three-year $ 66 million condense. )

California fair happens to be where Undisputed is filmed. consequently, Sharpe could face serious penalties. however, any attack 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 ’ south police would apply ? Could Fox Sports be on the hook ? Let ’ s go to the tape !
Offsides
Because Jones was presumably a resident of Georgia, Sharpe must contend with two jurisdictions. The good newsworthiness for Sharpe is that, because Georgia law allows either party to a conversation to record, there is no naturalistic path to indebtedness there. That means merely a California court can serve as a field judge .
In circumstances involving an out-of-state victim, a court must assess which state ’ sulfur law should apply. A California pronounce will compare each express ’ randomness governmental sake in the result to determine which law to apply. In 2006, the California Supreme Court did good that in the sheath of Kearney v. Salomon Smith Barney, when a California resident sued a Georgia business for recording her on the call without her accept. The court applied California police to the out-of-state defendant on the grounds that “ a bankruptcy to apply California jurisprudence in this context would impair California ’ second sake in protecting the degree of privacy afforded to California residents by California police more badly than the application of California jurisprudence would impair any interests of the State of Georgia. ” The Court basically reasoned that while Georgians may not expect privacy for themselves in that situation it ’ second not besides much to ask that they respect Californians ’ privacy .

here, we have the opposite formulation. consequently, the motion becomes : Which country has a greater interest in having its law apply to protect a Georgia victim ? here, a court could identical 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 localization of the person they correspond with, which would undermine the counterweight set by the state. On the other hand, California ’ south matter to in punishing this behave 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 accident on Sharpe ’ s part that he called Georgia, but it would be harsh to punish him when his call was legal on Jones ’ english of the equation.

ineligible receiver
flush if California police ultimately applies, a woo might question whether any conversation with a bombastic Fox Sports host could be considered “ confidential ” and warrant protective covering. however, California courts have rejected the notion that a hearer ’ sulfur occupation is relevant, therefore long as an person had an objectively reasonable expectation that no one could overhear the conversation. sol, while Sharpe may have been free to recount his conversation after the fact, commemorate could be rigorously out of bounds. This differentiation reinforces the tenets of California ’ s Privacy Act, which seeks to prevent the increased practice of computers and other sophisticate information technology in violating individual privacy. Further, courts have held that secret monitor denies a loudspeaker an important view of privacy in a communication — the right field to control the nature and extent of the firsthand dispersion of their statements .
On the early 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 careless that would besides doom any legal claim .
Neutral Zone Infraction

What about Fox Sports ? normally, under the 2001 U.S. Supreme Court case Bartnicki vs. Vopper, the newsworthiness media is not liable for violations of the law by third base parties. unfortunately, Fox Sports ’ hands are far from uninfected hera. For one, the network would have a difficult clock claiming it plainly received illegal materials. In Bartnicki, the defendant had no interest in the illegal work. here, the actual record was done by Fox Sports ’ own cameras. While the First Circuit recently invalidated a Massachusetts anti-wiretap legislative act to the extent it prohibited the privy sound recording read of patrol officers performing their official duties in public, it is improbable that Sharpe or Fox Sports could prevail on similar First Amendment grounds. There plainly international relations and security network ’ thyroxine as compelling a populace matter to in NFL scoops .
last, though the undisputed producers were reportedly unaware of Sharpe ’ second intentions ( indeed, it may have been a tear decision ), and miss of captive is a defense to the Privacy Act, the producers continued to tape for the entirety of the approximately 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 setting of an employee ’ s speculate. Did Sharpe break handwriting, or was it authorized ? Either manner, Fox would have to explain why they didn ’ thyroxine call timeout.

supernumerary Points
so far, there is no reading that the L.A. District Attorney ’ sulfur Office or Julio Jones are contemplating legal natural process. But the following time Sharpe wants to hit commemorate without giving a heads up, he would be well served to make sure he isn ’ deoxythymidine monophosphate calling a Los Angeles Ram or San Francisco 49er .
Daniel Novack is a publish industry lawyer and moderate of the New York State Bar Association Committee on Media Law. This article reflects his personal views only. Tanvi Valsangikar is a second class law student at Rutgers University School of Law .

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