The recent controversy over the charging of Southampton Football Club with ‘spying’ on their opponents’ training ground for the purpose of preparing Southampton for its Premiership play-off match with Middlesborough FC has caused a great deal of outrage in the footballing world, and no little embarrassment and disappointment to Southampton FC and its supporters.
The net result was that Southampton FC – who won the subsequent two-match play off to secure a place in the final against Hull to gain promotion to the Premier League for the forthcoming season – have now been penalised by the English Football League for breach of its rules. Instead of Premiership football, its victory over Middlesborough has been voided, and the club has been deducted points for the next season.
The relevant rules for which the club was penalised are as follows:
Regulation 3.4 — which requires clubs to act toward each other with good faith; and Regulation 127, brought in after Marcelo Bielsa’s Leeds affair, below, which prohibits any club from observing, or attempting to observe, another club’s training session within 72 hours of a scheduled match between the two clubs.
As a result, Southampton will stay in the Championship (with points deducted); with Hull City FC (who, ironically, went on to beat Middlesborough in the play-off final) taking their place in the Premier League. Despite that ruling, and the fact that Southampton will forgo the benefits of Premiership football, the Southampton manager – Tonda Eckert, who took full responsibility for the spying incident – has been retained as head coach for the forthcoming season. We can only wish Mr Eckert the best of luck for next season, as he will face the wrath of Southampton fans as well as merciless ribaldry from the fans of their opponents throughout the season (and beyond).
The background
Middlesbrough FC train on Rockliffe Hall, just outside Darlington, the Hall being part of a luxury hotel, spa and golf resort built by Middlesbrough. The complex is open to the public, and access to a site where you can watch the training is, evidently, very easy. A ‘representative’ of Southampton situated himself to gain a clear vantage point, taking photographs of the training on his phone.
It appears that unlike the original story, this person did not hide in the bushes, but instead parked at the golf club, then walked a short distance down a road which leads to the top of a small hill and observed the training session there. A member of Middlesbrough’s staff approached the individual, who quickly deleted some content off his phone before running off into the golf club. The individual was caught on CCTV and Middlesborough reported the matter to the Football League.
Spying by one football team on its opponents is not new – in 2019, Leeds United manager Marcelo Bielsa admitted that he had sent a member of his staff to spy on every team Leeds played that season. This incident invoked Rule 124, above, but consequences of this breach had far greater ramifications, as a position in the Premier League was at stake. It was no surprise, therefore, that Middlesborough reported the incident to the Football League, who disciplined the club (see above).
The issue of spying on opposing football teams was once parodied in the award-winning comedy series ‘Father Ted‘.
The legal consequences of the spygate affair
The club were charged with breach of the Football League’s rules, above, which form a contact between the League and the clubs. Although this is a private contractual arrangement between the league and the clubs, the courts are mindful of the power wielded by such associations and the consequences of their decisions (on the clubs themselves and the public). Thus, even though such associations (including the Premier League) are not regarded as public bodies or authorities as such – so as to subject them to the process of judicial review, or to make them liable for human rights’ breaches under the Human Rights Act 1998 – they are nevertheless subject to many of the principles of administrative justice – such as the duty to follow its rules whilst abiding by the rules of fairness (natural justice) and not acting irrationally or in abuse of its powers (Enderby Town v Football Association [1971] Ch 591). No challenge has been made by the club to the recent ruling, but if it did challenge it, the case would be through breach of contract, above, with remedies of injunctions, declarations and damages awarded to the affected club if the action is successful.
In addition, as the manager transgressed the rules of the Football League, and, probably, his own contract, he is subject to punishment by the club. This could take the form of fines, or loss of wages, provided the contract permits for such sanctions. It could also involve actions for any dismissal. This could be at common law for fundamental breach of contract by the manager (in which case no notice or compensation would be claimed by the manager), or a statutory action, under the Employment Rights Act 1996, for unfair dismissal. In the latter case the dismissal may be justified by the club as fair, with respect to a substantial reason such as misconduct or bringing the club into disrepute. Such are the arrangements of managers’ contracts, that compensation in cases of a wrongful or unfair dismissal will be high. As it is, the club has not decided to dismiss the manager; a decision which would be very difficult, if not impossible, to challenge by those who wished action to be taken; but which might cause a loss of confidence in those who made the decision.
Although the incident was dealt with under regulatory law, by Middlesborough complaining to the Football League, who wanted Southampton FC to lose their right to gain promotion because of the breach, other actions may have been available in such circumstances. Although neither the club nor the manager are public bodies, so as to allow them to bring a direct human rights claim, it appears that a club’s private law rights might be interfered with in such cases.
Further, as the domestic courts are now ‘public authorities’ under s. 6 of the Human Rights Act 1998, they must interpret and develop domestic law in a way which is compatible with the European Convention rights given effect to by the 1998 Act. In this case this could include the right to private life (privacy) under Article 8 ECHR, and the right to peaceful enjoyment of possessions under Article 1 of the First Protocol of the Convention. Thus, victims of rights violations may use private law to supplement their domestic rights and remedies so as to reflect any breach of their human rights. This is evident in private law claims for misuse of private information by the press (who are private entities), where the courts are allowed to use Convention rights (of privacy and free speech) to resolve civil law disputes. However, in the recent ruling in, Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4, the Supreme Court in finding that the Tate Gallery had breached tenants’ tortious rights by allowing gallery visitors to view their flats from inside the gallery, held, obiter, that there was no need to invoke human rights law in such cases, and that the common law adequately protected the tenants’ rights.
Nevertheless, the Supreme Court held that the notion that visual intrusion could never be a nuisance was contrary to principle, and there was no authority for the proposition that being constantly watched and photographed from neighbouring land could not amount to a private nuisance. Further, the Court noted that the sharing of images on social media added a further dimension to the interference. This illustrates that actions in tort are capable of recognising and protecting privacy and other enjoyment rights.
The case of Hickman v Maisey
Before we leave this discussion, we also need to refer to a case brought before the Court of Appeal 125 years ago, which bears some similarity to the present dispute, and allows us to assess the development of the law, and of rights, in this area. The case of Hickman ([1900] 1 QB 752) shows that although the private law of trespass is concerned with protecting damage to property rights, rather than privacy as such, it is also capable of recognising a person’s right to private life and privacy.
The plaintiff owned land that adjoined a public highway, and leased part of the land to individuals who wished to use the land to train horses. The defendants positioned themselves on the highway to view the training of the horses and to pass on that information for profit. The plaintiffs brought an action in trespass, and granting an injunction against the defendant, the Court of Appeal held that the object of the defendants were all important in deciding whether their use of the highways was a reasonable one or not. Importantly, it recognised that the defendant’s conduct had exceeded their right to use a public highway for lawful purposes. The Court of Appeal thus established that while the public has a right to use the highway for passing and repassing, the defendant’s specific actions were not an “ordinary and reasonable user of the highway”, and by using the highway specifically to spy on the plaintiff’s adjoining land, the defendant exceeded their rights and were liable for trespass.
Thus, using this case, would it have been possible for Middlesborough to bring an action against Southampton or the club in trespass or (for continued action) in nuisance to secure their property and privacy interests? Alternatively, could the courts use the law of misuse of confidential information (formerly breach of confidence) to stop Southampton and the manager from disclosing and using private and commercial information? It is clear now that there is no longer the need to show a contractual duty to retain confidentiality in any misused information (Douglas v Hello! Ltd [2005] EWCA Civ 595). Thus, the press owes a moral (but legal) duty to protect private information and privacy wherever there a person or group can show a legitimate expectation of privacy in that information (Campbell v. MGN Limited [2004] UKHL 22), and this duty can apply to other individuals. Such an action was not necessary in the present case, as the matter was dealt with by the Football League, but otherwise an action might be suitable to stop further intrusions or compensate the aggrieved party for any loss.
Conclusions
The press has made a great deal of this incident, even to the extent of distorting and glorifying the facts so as promote publication and to ridicule Southampton’s effort to gain an advantage over its rivals. The tactics employed by their agent certainly lacked investigative finesse. It is worth noting that in the 1980’s the club had a Holmes and a Watson on their playing staff!
Yet, in addition to the ridicule piled on the club as a whole by the affair, the incident does raise some interesting legal issues – in both public and private law.
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