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15th November 2019

Confidentiality agreements in contracts

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It is essential that sports organisations are aware of the importance of maintaining confidentiality, particularly as leaks can have a detrimental impact on the cohesion and performance of a team. Once confidential information (such as team selection, training methods, set moves or tactics) is disclosed, the damage will already have been done, and the ability for an organisation to discipline employees, athletes, volunteers and others can be limited.

The messy circumstances come to mind in which Kevin Pietersen's international career ended in 2014 in view of the contents of his texts to members of the South African Cricket team during their 2012 series with England (including, so it was claimed, advice on how to get one his team-mates out). The growth of other social media since that time, and its use by players and others (including opposition teams and journalists), only serves to increase this risk.

By being transparent and upfront about an employee's duty not to disclose sensitive information outside the organisation, organisations can help reduce the risk of such issues arising, and simplify the disciplinary process if they do. Organisations and employers should regularly remind their employees of their duty of confidentiality and the need for it. Having a properly drafted contract with robust confidentiality clauses will help reduce the risk of confidential information leaving an organisation. When situations arise where it is necessary for information to be disclosed outside the organisation, clubs should consider standalone, bespoke agreements, specific to the circumstances. Whilst those being asked to sign such agreements may have the right to refuse, the consequences of doing so may, in practice, make refusal unlikely. Refusal by an athlete, for instance, to sign an Athlete Agreement for a particular event will usually result in the athlete's selection for that event being overturned.

Organisations should also try to implement and train employees in standard, clear procedures when it comes to entering into commercial relationships, for example exercising caution with the information disclosed in the early stages of negotiations, restricting early pre-disclosure meetings to essential attendees only and/ or requiring those involved to sign a non-disclosure agreement. These can further protect the dissemination of sensitive information.

For further information on this topic, or assistance with drafting confidentially agreements and reviewing employment or other contracts in the sporting field, please contact a member of our Sports Group by clicking here.