Commentary

Tiger photos the Brits will never see

Nifty legal moves keep allegedly racy photos of Tiger from being seen in England.

Originally Published: December 24, 2009
By Lester Munson | ESPN.com

Sure, 'tis the season to be jolly. But the wacky world of sports and the law never takes a holiday. So here we go, full speed ahead (and showing no prior restraint!) into another look behind the headlines.

Today, we start with …

Tiger Woods and an injunction function

Worried about a series of cell phone photographs making the rounds of British newspapers, Tiger Woods and a powerful London law firm have obtained a sweeping injunction that bars publication of any images that purport to show Woods, direct from the wording in the injunction paperwork, "naked or any naked parts of [his] body or of him in any sexual activity."

It's a legal maneuver that would be impossible under the press freedoms guaranteed in the First Amendment of the U.S. Constitution.

In papers filed in London's High Court earlier this month, Woods and attorneys from the Schillings law firm assert that their plea for the injunction "is not be taken as an admission that any such photographs exist," and that Woods would never "have consented to such photographs being taken."

[+] EnlargeTiger Woods
AP Photo/Tom HeveziCould this photo of Tiger appear in a London publication? Maybe not. His forearms are naked.

A leading London media attorney whose clients have seen the purported photographs, Mark Stephens of the law firm of Finers, Stephens, Innocent, told ESPN.com that the photos "are clearly too rude to publish." But, Stephens notes, under the terms of the draconian order, it is now impossible for English media to publish even photos of Woods "with his bare arms extending out of his golf shirt."

Under rules that govern media in England and Wales, Woods' legal team was permitted to file sealed documents, make a presentation to a judge in secret without notifying any newspapers or broadcast outlets of their intentions, and then demand that all British media comply.

Attorney Simon Malcolm Smith's statement to the court describing the photos was immediately "sealed" along with his notes and what the English courts call "skeleton arguments," which are claims of the terrible damages Woods would supposedly suffer if the photos were published. Neither Smith nor his law firm responded to e-mails and voice mails from ESPN.com asking for details about the photos and for a description of the damage the photos might do to Woods.

The injunction became public only when the Schillings law firm sent the court injunction with a warning letter to the media. It was first reported in the Financial Times and on TMZ.com. If any news organization wishes to contest the court order or seek a change in its restrictions, it must advise Woods and his lawyers at least two days before it appears in court.

The letter includes a stern warning that English media should "note in particular the Penal Notice" in the order, a notice that provides that anyone who publishes the photos "may be held in contempt of court and may be imprisoned, fined or have your assets seized." It applies even to "anyone who helps or permits" in the distribution of the photos.

Any of these actions, if attempted in the U.S., would be viewed as "prior restraints" on press freedom. Although American judges occasionally issue "gag orders" that prevent media from publishing medical records or other privileged material, such orders are issued only in public and only after all sides have been able to present their arguments.

Under the British procedures that Woods and his lawyers used successfully to obtain the injunction, it is easy to see why the British Open may replace the Masters as the major tournament that is most interesting for Woods.

Fair play about foul balls


Responding to a promotion from the Albuquerque Isotopes, the Dodgers Triple-A farm team, a 4-year-old boy and his family gathered around a table in July 2003 in the four-tier Blake's Lotaburger Picnic Pavilion just outside the left field wall at Isotopes Park.

It was the Crespin family's first trip to the ballpark, known affectionately as "The Lab," a state-of-the-art minor league facility that had opened two months earlier.

Sitting at the table, which has been installed by the City of Albuquerque, the owner of the stadium, young Emilio Crespin had his back to the field as he and his family enjoyed a pregame dinner. Moments later, without an announcement over the public address system, batting practice began for the visiting New Orleans Zephyrs, the Astros' Triple-A team.

In an uncharacteristic burst of power, a career minor league infielder named Dave Matranga launched a home run toward the picnic area. The ball struck Emilio on his head, fractured his skull and bruised the tissues of the brain, leading to permanent, disabling brain damage.

[+] Enlargefoul ball
Otto Greule Jr/Getty ImagesWhose responsibility is it to protect fans from batted balls? The answer isn't so easy any more.

As paramedics arrived and attended to Emilio, batting practice home run balls continued to rain down in the picnic area as replays of the drives and fans running for cover were shown on the Jumbotron in center field.

Did little Emilio assume and accept the risk of serious injury from a batting practice home run when he entered Isotopes Park with his family? Is the team that promoted the family event responsible? Is the ballpark's owner, which designed the pavilion and installed the picnic tables, responsible?

Do they share the responsibility?

For nearly a century, the rule of law that applied to injuries such as the one Emilio suffered was this: Any fan who enters a baseball park assumes and accepts the risk of injury. It has been known as the "baseball rule," and it requires fans to focus on the field and look out for their own safety. The only responsibility of the team and the stadium owners under the rule was to install a net behind home plate, the most dangerous area of the ballpark.

But with the advent of picnic areas, elaborate scoreboards and team mascots attracting the attention of fans away from the field, the rule appears to be changing.

The Crespin family and their attorney, Jake Vigil, one of the nation's leading trial lawyers, filed suit against the Isotopes and the City of Albuquerque, asserting that the team and the owner of the stadium were duty-bound to warn Emilio and the others in the picnic area that batting practice was about to begin.

"They could have made an announcement, or they could easily put up a net like the net they use for extra points or field goals in a football stadium," Vigil told ESPN.com. "But, without a word of warning, baseballs are suddenly landing in the very place where they had invited families to come for a picnic."

Following the old "baseball rule," Judge Richard J. Knowles of the District Court of Bernalillo County in Albuquerque dismissed the case. But a higher court, in a 2-1 decision, has now ruled that Emilio and his family are entitled to present their situation to a jury for a decision on who is responsible for the boy's injuries.

In its opinion, the New Mexico Court of Appeals noted that the seats behind the net at home plate are now in a premium section sold at higher prices and are "unavailable to the casual game attendee."

Higher prices for the safest seats, combined with deliberate distractions designed to take fans' focus away from the field, the court reasoned, make it time to eliminate the "baseball rule" and apportion liability among the family, the team and the owner of the stadium.

Both the Isotopes and the city have now taken the case to the Supreme Court of New Mexico for its consideration. If Emilio and his family prevail, it may be the start of a new set of rules for fan injuries in baseball parks across the U.S.

A decision is expected in mid-2010.

Lester Munson, a Chicago lawyer and journalist who reports on investigative and legal issues in the sports industry, is a senior writer for ESPN.com.

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