Athletes Try to Keep Proceedings Quiet

Article originally appeared in the October 23, 2012 issue of the Chicago Daily Law Bulletin written by Thomas F. Villanti and Evan D. Whitfield


The phrase “There’s no such thing as bad publicity” is most frequently linked to Oscar Wilde’s “The only thing worse than being talked about is not being talked about.”  In the world of NASCAR, many NASCAR drivers love publicity no matter the form.  However, not everyone associated with NASCAR likes publicity, good or bad, when it comes to their personal confrontations.  NASCAR’s Chairman and Chief Executive Officer Brian France is taking steps to keep his family confrontations in his post-divorce proceedings private.

Between 2001 and 2008, France and his ex-wife Megan France got married, divorced, married again and divorced again.  The parties’ second divorce settlement agreement, which contains a confidentiality clause, is currently under seal and is the subject of intense post-divorce litigation that has made its way to the North Carolina Court of Appeals.

The post-divorce litigation began in 2008 when France obtained a favorable ruling from a trial judge granting him the right to file a sealed lawsuit against his ex-wife alleging her breach of the settlement agreement’s confidentiality clause.  The trial judge ordered the entire complaint, including his order, placed under seal,  Late last year, on motion of a local media company, the Charlotte Observer, the judge now presiding over the case overturned the order sealing France’s litigation, affirming the public’s right to legal transparency.  France has since appealed that order, temporarily stalling the disclosure of his divorce and post-divorce actions.

When it comes to divorce proceedings, the public’s desire to have disclosure of sensitive details is usually trumped by protecting the athlete or celebrity.  North Carolina courts, like most states, treat divorce cases and related records as open to public viewing and inspection.  Unfortunately, Illinois courts fall in line with that practice.  However, a skilled family law practitioner should know that there are ways to shield any private facts from the public.

Illinois Supreme Court Rule 201(c)(1) provides a means to limit and secure the disclosure of information via a request for a protective order.  Such an order may be entered at any time on the court’s own initiative or on a motion by any party or witness.  If opposed, the moving party must show the existence or potential of unreasonable annoyance, expense, embarrassment, disadvantage or oppression.

In addition to limiting and/or securing the disclosure of information via a protective order, a  party may also request that any court filing be placed under seal.  Since Illinois is a fact-pleading state, sometimes it is necessary to include otherwise sensitive information in a court filing to obtain the requested relief.  A practitioner can request that the public filing be placed under seal from open inspection.

There is no bright line rule for when the court should allow for the filing to be sealed, but arguments should be made that third parties will and can use private factual information as a way of exploiting or harming the public figure.  Sometimes, the simple filing of damaging information can even be career threatening.

Recently, NFL wide receiver Chad Johnson (f/k/a Chad Ochocinco) found himself in hot water when the media publicized his domestic relations dispute.  Following a short-lived, 41 day marriage and founded allegations of domestic violence, Johnson was not only divorced, but without a job.  Call it a coincidence or just due to his lack of on-field performance, but within 24 hours of Johnson’s domestic issues coming to light, the Miami Dolphins terminated his contract.

It is difficult to tell if Johnson’s legal team had limited options to protect disclosure of information because of the timing of his arrest and how quickly the media obtained the information.  However, Brian France’s attorneys have taken advantage of a remedy available in North Carolina in an effort to ensure their client’s private information is afforded protection, arguing their client bears the risk of suffering irreparable harm as a result of any disclosure.

An attorney for the Charlotte Observer pointed out that if the agreement sought to remain sealed contains, for example, France’s salary information, the fans that pay the lofty NASCAR ticket may be interested in knowing.

Brian France’s pending litigation and the recent story of Ochocinco tell us that when dealing with high-profile, high net worth, visible athletes or celebrities, the “no news is good news” approach may save not only disclosure of sensitive personal information, but careers.

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