Attorneys Representing Players Will Increasingly See Value in Retaining PR Specialists
By Holt Hackney*
Corporate America has tremendous respect for public relations, which it recognizes as a powerful tool for achieving marketing objectives through the media.
Attorneys representing athletes must be crossing the Rubicon as well, given the spate of high-profile missteps that athletes and other celebrities have taken in 2007. PR and the discipline of crisis communications should no longer be viewed as a frivolous expense, but rather a worthwhile hedge against disastrous consequences.
Let us invoke the names of Vick, Imus, Bonds, Jones, Daly and Bryant as just a few of the entries who have collectively squandered billions because of their misdeeds and subsequent failure to mitigate the damage through effective PR.
Is that too strong of a statement? Hardly. Lets look, with 20-20 hindsight, how the Vick situation might have been handled differently. At the first sign of trouble, Vick should have met privately with the ASPCA or PETA. He should have informed those organizations that while he is not a saint, he does love animals. He should have offered to do television spots, or otherwise raise the platform for the organizations. While they may have turned him away, he likely would have blunted some of the trauma that PETA, for example, would later inflict (PETA’s pressure and threats of boycott were significant factors in Nike’s decision to suspend its contract with Vick). Vick could have also met privately with supporters with the media, which presumably he has. He could have displayed contrition without an admission of guilt. Michael Vick would be in training camp as we speak had a savvy media professional been on retainer. Instead, his career has all but been destroyed.
And Vick is not the only loser is such cases. The sports lawyer representing Vick loses. He no longer has a marketable client.
Harlan Loeb, Esq., even went so far as to suggest in these pages four years ago that there is an ethical obligation of attorneys representing athletes to consider the public relations component.
“Rule 2.1 of the Model Rules of Professional Responsibility recognizes that inherent in the obligation of an attorney’s role as a trusted counselor is the duty that he or she consider the totality of his or her experience including moral, economic, social, and even political factors in rendering advice,” wrote Loeb. “The comments to the rule suggest that when the matter goes beyond pure legal questions into the domain of other professionals, the lawyer may be duty-bound to engage that proficiency. This may be giving rise to expanded duties lawyers may have to clients, to consider the experience and professional expertise of a variety of consulting firms with media and strategic communications expertise.
“While lawyers have routinely worked with experts to support client interests, particularly in the litigation context, it appears that these standards must now embrace a managerial and custodial function as it relates to the court of public opinion on important litigation interests. The greater the likelihood of media interest, the more important it is for lawyers to consider the impact on his or her sports client.”
Loeb cited an example from his own career at Hill & Knowlton, the global consultancy.
“In a recent case involving a challenge by the former owner of the Denver Broncos, Edward Kaiser, against current owner, Pat Bowlen, over option rights in the sales agreement, careful media planning and tactical execution kept the case focused on the legal issues despite the fact that John Elway and numerous other high profile individuals associated with the Broncos testified in the case. Hill & Knowlton understood that if the media story was about the ‘Denver Broncos’ and not the genuine legal issues of the case, the settlement value of the case would diminish greatly.”
Loeb went on to offer “critical steps to follow in order to mitigate the negative impact of the media and public opinion, which include:
(1) Litigation Communications Plan: Recent trials and settlements including the NHL lockout and the Kobe Bryant trial have documented the fundamental need for a comprehensive litigation management plan that accounts prospectively for a variety of contingencies, but is nimble in its design and execution. The experiential intuition that goes into a sound sports litigation plan is critical to link action and perception.
(2) Targeted research to gauge public sentiment: Such research would uncover possible communications approaches, including the use of a sports industry personality that could serve as a third-party advocate.
(3) Advance key message development: While it is clear that “no comment” or synonymous evasive language is a tacit admission of a weak case, a poorly prepared case for the court of public opinion forfeits an essential opportunity to educate the biggest consumer – the public.
(4) A pre-emptive environment should be created: Sports stories are written in literally minutes and can have a devastating impact on a case that has been developed over many years. Strategic outreach to educated critical stakeholders is essential to promote a story-line which is shaped according to plan.”
Loeb went on to add that recognizing when litigation will become attractive to the media is essential in preparing successful communications strategies.
That early recognition entails an understanding of what business and sports reporters look for in assessing a lawsuit or legal issue’s news value. This advance warning is especially critical in cases where media pressure is likely to become intense.
“The attorney and public relations professional should have a good working relationship built on frequent, honest communication by the time the lawsuit starts. They also should have a shared strategy in place. A foundation of trust and preparation are much easier to build when the team comes together before the lawsuit is filed and the media calls begin.
“To help assess a lawsuit’s likelihood of earning headlines,” Loeb offered the following checklist:
• Does the opposing attorney or party to the lawsuit seek publicity, or have a track record of using it in previous litigation?
• Is the lawsuit unique or unusual?
• Does it involve well-known attorneys or parties?
• Are the facts sensational or scandalous?
• Does it have high potential as a human interest story?
• Does it involve large sums of money?
• Does it involve an area of the law or a kind of conduct that is getting a lot of press coverage currently?
• Does it involve a new law, or a new application of old law?
• Does the case suggest a trend or have broad implications?
• Are there political or regulatory aspects?
“If the answer to any one of these questions is yes, that can be enough to make a lawsuit media-genic. If multiple questions prompt a yes, the attorney and public relations professional have an opportunity – and a need – to get to know each other well.
“In high-profile sports litigation, the media seeks to try the case long before it reaches the jury. Attorneys serve their clients better when they understand the dynamics outside the courtroom. They share common ground with public relations professionals in that both may advise clients on a broad spectrum of factors.
“This is seldom truer than in high-profile sports cases. A lawsuit can be won or lost before it goes to court, and sometimes before it is even filed, for reasons dimly related to the law. Attorneys who know how to work with public relations professionals and incorporate litigation communications into their strategy greatly improve their opportunities to deliver the best results for their clients.”
*In addition to being editor of Sports Litigation Alert, Hackney also manages a public relations firm (Hackney Communications), which represents corporate clients and several high-profile personalities.
