By Alan K. Fertel, esq.
The attorney who represents the athlete in trouble finds himself walking a tight rope. In law school, he was trained to represent clients in the Court of Law where there is a presumption of innocence. In the Court of law, it is in the best interest of the client to be quiet, to allow the state or a Plaintiff to prove their case. In a criminal context, the constitution does not permit evidence to be presented, nor testimony to be given by the accused and no inference can be drawn against the accused when he exercises his constitutional right to remain silent. In the Court of law, in criminal cases, the burden or proof is beyond and to the exclusion of all reasonable doubt. In a civil case, the burden of proof is the preponderance of the evidence, i.e. is it more likely than not that the acts have occurred. In the criminal case, the burden is upon the state or prosecutor to present evidence to meet its burden. Criminal Lawyers find themselves in a very compromised position in representing the athlete in criminal proceedings. Their task is to either (a) have their client found not guilty or (b) to obtain the best “plea or deal” in order to avoid trial. However, when representing an athlete in trouble, the presumption in the Court of public opinion is upside down. The client is PRESUMED GUILTY. There is immediate national and international press, whether it appears on ESPN, the Internet, sports radio, blogs or various sports or news TV stations. Bad news travels fast as is evident in the recent events concerning Tiger Woods. There have been numerous examples of athletes faced with wrongdoing over the last few years, including the likes of Michael Vick, Plaxico Burress and Dante Stallworth, but the incredible calamity that has befallen Woods, a golden icon in sports, has captured the public’s attention like no other scandal in recent memory. Woods is the first billion-dollar athlete and previously a very private, image-controlled individual who has never given the press anything more serious than a club-throwing incident and an off-color lesbian joke to sully the meticulously pristine “Tiger Woods” brand. Now the question becomes, what does the athlete owe to the public? Do you lose all of your rights to privacy by accepting endorsements and making millions of dollars endorsing products? Or is the protection of yourself and family more important to the athlete than the public’s right to know? Additionally, how did “Team Tiger” control the information or did they at all? And lastly, how do you control the witnesses in Tiger’s case-the individuals coming out of the woodwork for their fifteen minutes of fame?
It is incumbent upon the lawyer representing athletes in trouble to immediately confer and work with the professionals to allow the spokespersons and public relations experts to do their job…getting out in front of the story by issuing press releases, statements, interviews and disseminating player’s responses. It is most important to get the player’s response out quickly and effectively. The player must apologize, accept responsibility, be cooperative, “throw themselves under the bus”, be contrite, attempt to be sincere and most importantly, be believable.
Rule No. 1. The public is forgiving-The first rule about the public is that the public is forgiving. For the most part, athletes are placed on a pedestal. While some fans may vilify the athlete, most are idol worshippers and will accept a contrite, sincere, believable apology if they believe that the athlete is truly remorseful. To use a racing analogy, some fans like to see the car crash, while many just like to see the car go fast. The Court of public opinion drives the athlete’s off-the-field and, to some extent, on the field income, endorsement opportunities, off-season speaking engagements and career opportunities in TV and radio, both during their career and after the career is over.
Rule No. 2. The public hates a liar-The public is forgiving of the act. While there are exceptions (child pornography, rape), the public has forgiven a myriad of sins, including steroids, self-inflicted gunshot wounds, vehicular manslaughter and, yes, even marital infidelity. It is the lie, the denial, the defiance, and the cover up that destroys the athlete in the Court of Public Opinion. The public gives the athlete many, many chances if the athlete accepts the blame and seeks forgiveness. The public buries an athlete if that athlete lies and get caught, or even if it just perceives that they lied or, when faced with a misdeed, didn’t “come clean”.
The question ultimately becomes: What is in the best interest of the athlete in trouble? Is it staying out of jail or being accepted by the public or even being allowed to continue to play?
In the current climate, the television, radio and print media is all Tiger, all the time. The hero is spiraling out of control. He has not fallen from grace, but plunged, headfirst. Initially, he was spotless, apolitical, never utilizing his public persona and reputation for social causes other than devoting his money and time to his foundation. He, like Michael Jordan, was bland. He had handlers, spokespeople, publicists, lawyers, accountants and a stellar marketing team and the public knew little of his life beyond a nearly superhuman ability to win that had not been seen in many, many years in sports. He is the first athlete to earn over nine hundred million dollars from endorsements, yet, despite his rich, good-looking, talented guy persona, Tiger was seemingly shielded from the paparazzi and gossip websites. What the public did know about his private life was his fairytale marriage to a beautiful, blonde former Swedish swimsuit model and nanny and subsequent arrival of two adorable children. However, Tiger’s “Fortress of Solitude” came crashing down over the course of one Thanksgiving weekend, when reports raced across the newswire that Tiger Woods had been involved in a “serious car accident”. What the media and public learned, guessed, and hypothesized over the next few weeks shocked both the sports world and fans everywhere. By now, everyone who owns a television is aware of the events leading up to Tiger’s downfall. After the crash, Tiger was taken to the local hospital and treated for minor injuries. He was to talk to the police the next day. Unfortunately for him, Tiger and his professionals’ handle on the situation with the police was abysmal. His spokespeople did him a massive disservice by not stating, unequivocally, “Pursuant to Florida Law all that Mr. Woods is required to do is to provide his driver’s license, proof of insurance and car registration and that is all that he was going to do.” During the next three days, the media had a feeding frenzy with Tiger’s constant cancelling and rescheduling of interviews with Florida Highway Patrol. Again, his public relations experts left too many open-ended questions about the incident, leading the public and media to draw their own salacious conclusions-why was Tiger driving out of his home on Thanksgiving night at 2:30 a.m.? Why did he run into a fire hydrant and then a tree? Why were the two windows of his car smashed and what role did his wife play in the incident-savior or attacker? Rumors swirled-was Tiger Woods’ accident the result of a fight that he had with his wife? There were allegations and speculation that he had been beaten around the face and his facial injuries were not consistent with facial injuries received in a car accident. As it turned out, a National Inquirer Article had reported a few days earlier that Tiger Woods was unfaithful to his wife and was having an affair, which occurred in Melbourne, Australia. The woman that he was allegedly involved with immediately denied those allegations, but also immediately lawyered up with Gloria Allred, a famous celebrity attorney.
This further fueled the fire of public debate and speculation.
Tiger was also required to cancel his involvement and participation in a golf tournament that he was the host of and his Foundation was the primary beneficiary. Eventually, Tiger utilized his own website to disseminate information to the public, but the damage had already been done-“Team Tiger” had fallen on it’s face. Adding to this poor showing was Tiger’s lame apology-it didn’t silence the gossip, instead inciting more questions in the Court of public opinion, encouraging more women to come forward (thirteen have come forward at the time of this article’s publishing, and the list keeps growing), and causing more harm to his reputation and persona. Woods and his people should have immediately come out and stated something along the lines of the following:
“I have been unfaithful to my wife. I want to apologize to my wife, my family, my fans, the Professional Golf Association and the many companies and sponsors that I work with. I have sinned and I am human, I beg the public and my family both for forgiveness. We are going through a very difficult time in our lives right now and we ask you all to please give us some space and privacy so we can work out the problems that have been caused by my conduct. Please forgive me. I am sorry.”
If Tiger Woods would have given such an unequivocal, believable, immediate and sincere apology and if he would have been able to do so in a setting such as going on the Golf Channel or an exclusive interview on ESPN and looked the camera (the public) in the eye, the court of public opinion may have forgiven him, but he has chosen to listen to his “suits” who has given him horrible advice. In the plus column, at the end of the day all he received was $164.00 traffic ticket, four points and some scratches on his face, but what about the hit that Tiger’s image has taken in the Court of Public Opinion?
Two weeks after the story broke, Tiger Woods finally took control of the story and “fell on his sword”. He is now taking an indefinite leave from the PGA Tour to repair his fractured family life. Sponsors are beginning to shy away from Woods as his commercials have not been aired since Thanksgiving. Some are even dropping him altogether.
The Tiger Woods drama continues. The story continues to have legs…
It bears repeating that, again, when representing the athlete in trouble, a lawyer walks a tight rope. He must immediately take into consideration all of the factors concerning this very special representation. An athlete’s attorney must immediately circle the wagons and get his professionals to get out in front of the story and have a clear and concise plan. But most of all, the athlete must buy into the plan and must immediately beg to the court of public opinion for immediate forgiveness. If he does this, the Court of Public Opinion, most of the time, will forgive. So, to reiterate: Rule No. 1. The Court of public opinion is forgiving; Rule No. 2. The public hates a liar. Rule No. 3. See Rules 1 and 2.
Alan K. Fertel is a partner at the firm of Pathman Lewis LLP in Miami and heads the state court civil litigation division. Mr. Fertel is an accomplished litigator, having tried over one hundred jury and non-jury trials, and obtained verdicts and settlements of multi-millions of dollars. He is a tenacious and aggressive negotiator who protects the rights of his clients, in and out of Court. In Mr. Fertel’s twenty-five years of experience, he has represented a broad spectrum of clients. Mr. Fertel is also an accomplished and experienced sports and entertainment lawyer. He has represented many diverse individuals and entities in the entertainment and sports community, from athletes and entertainers to agents, leagues, radio stations, models, modeling agencies, restaurants and clubs, and he utilizes his wide range of skills to assist, counsel and advise his clients. He has consulted with eight first round draft picks in the NFL draft and has been featured on the NFL League Security Video filmed by NFL Films, shown to every NFL player as counsel on how to avoid the problems and pitfalls of being a celebrity professional athlete. Mr. Fertel has negotiated broadcast agreements with the Florida Marlins, the Miami Dolphins, the Florida Panthers, and the University of Miami Hurricanes.
