Negative publications and statements from former employees in sport is an issue that’s only grown as clubs have become more visible, commercial, and exposed to fast‑paced news cycles and social media commentary. Whether it’s speculation about finances, allegations of misconduct, or inaccurate reporting around transfers or governance, false statements can have significant reputational and financial consequences.

High profile instances such as Itziar Gonzalez de Arriba, the former nutritionist and physiotherapist for Real Madrid, making allegations that the club used a free version of Chat GPT to determine players’ supplement regimes, highlight how statements from former employees can negatively impact on a club’s reputation.

In this article, we’ll explore:

• The steps that can be taken to protect a club’s reputation in the context of negative statements
• Where these statements cross the line into defamation
• The legal tests and practical challenges clubs need to be aware of.
• What you can do when defamatory comments are made about your club.

Statements by current and former employees

It’s not unusual that a former employee may feel disgruntled after leaving an organisation. In the context of sports clubs, and given the media attention they receive, there is the potential for significant reputational damage where a disgruntled former employee makes negative statements about their former employee.

Employment contracts in the sporting context often include express clauses to prevent employees from writing or saying anything to bring the club into disrepute.

Employment contracts will also often include continuing non-disparagement clauses which are post-termination covenants to protect the employer’s reputation by preventing former employees from making negative statements.

Where it becomes apparent that a current or former employee is publishing negative statements about the club, it’s important to act quickly to review the contracts and determine whether the statements breach such clauses.

Where statements cross the line into defamation

Sport is a uniquely high-profile environment. Clubs operate under constant scrutiny from fans, journalists, pundits, and online commentators. But when does legitimate scrutiny cross the line into defamation?

Defamation occurs when someone publishes a false statement of fact about a person or organisation that causes, or is likely to cause, serious harm to their reputation. Publications include both traditional media, as well publications on social media.

Legal tests and practical challenges to be aware of

Under the Defamation Act 2013 (the DA 2013), there are a number of defences to a defamation claim, notably, in the context of publications about sports teams:

• Truth – it’s an absolute defence to a defamation claim if it can be shown that the statement complained about was true;
• Honest opinion – it can be a defence if it can be shown that the statement complained about was a statement of opinion, and was clearly an opinion rather than a false accusation of fact

Under the DA 2013, corporate bodies such as professional sports clubs must show that the publication has caused (or is likely to cause) serious financial loss. It’s not enough that the club’s reputation is harmed — the club must show that the harm has had, or will have, a real financial impact.

Financial loss must be tangible and measurable, for example the loss of a sponsorship or commercial partner, reduced ticket sales, or a cancelled event or contract. Damage that is not tangible or measurable – like embarrassment, bad press or online criticism – isn’t enough in itself enough to successfully found a claim for defamation.

Note, however, that if defamatory statements target individuals at the club, for example the CEO, manager or sporting director, then those individuals could potentially bring their own claim in defamation, where they wouldn’t need to prove serious financial loss, just “serious harm” to their personal reputation.

This “serious financial harm” threshold can create difficulties for sports clubs because reputational damage often happens in ways that don’t create immediately measurable financial outcomes and it’s often difficult to establish a causal link between the defamatory statement and the alleged loss. For example, if a sponsor walks away, the club will have to show the defamatory statement was the reason as opposed to other commercial factors.

Further, sport is emotional. If a club appears to clamp down too aggressively on criticism, supporters can interpret it as defensive or an attempt to silence legitimate criticism, which can backfire and cause more harm than the original comment.

What you can do when defamatory comments are made about your club

When a club is hit by negative public statements, it needs to respond swiftly, strategically and proportionately. Clubs should consider the following:

1. In the context of statements by current and former employees, it’s important to understand the scope of any non-disparagement clauses, and to act quickly to ensure the club’s rights are protected and enforced where appropriate.
2. Publications can and do spread fast. It’s also common for publications on social media to be taken down or published on “stories” for a limited time. These publications can nevertheless be picked up by wider media interest, with continuing impact for clubs, despite the original publication no longer being available. Securing evidence and understanding the extent and nature of the publication is often the first and most important step.
3. Clubs should assess whether the statement is potentially defamatory:
   1. Is the statement false?
   2. Does it cause (is it likely to case) serious financial harm?
   3. Could the statement be defended as genuine opinion?

4. Is there suspected IP infringement, such as the unauthorised use of club crests, broadcast footage, photographs, or branded content within the publication? Ownership of IP rights is typically clearer, and infringement / enforcement is more objective than in defamation. Where IP rights have been infringed, it’s often possible to work with web hosts and social media platforms to have the offending publication taken down.
5. It may be possible and favourable to:
   1. Proactively make a public statement in relation to the negative publications;
   2. Engage with PR agencies and the press to prevent false or defamatory statements being published or to have false statements retracted.

How we can help

Our Commercial Dispute Resolution team has extensive experience dealing with situations where negative statements and publications are made, especially in the context of current or former employees. Working closely with our dedicated Sports colleagues, we understand the delicate balance sports clubs face when dealing with reputational matters and offer targeted, sensitive and effective advice.

Whether it’s proactive risk management, in connection with contractual negotiations or brand protection; or whether it’s strategic crisis response and/or dispute resolution, speaking to our specialists and taking action early is the winning formula. Please contact Nick, Ben or James for more information or advice.