A five-minute video of seven Ottawa Senators players ridiculing one of their coaches, Martin Raymond, and disparaging the team’s play recently surfaced on YouTube and Twitter. As detailed by The Ottawa Citizen, the players—Chris Wideman, Matt Duchene, Thomas Chabot, Chris Tierney, Dylan DeMelo and Alex Formenton—were recorded without their knowledge or consent while they were seated in an Uber van on Oct. 29. The recording took place in Phoenix, where the Senators were visiting to play the Arizona Coyotes. While the players have since apologized and an Uber executive has tweeted that the driver’s recording was a “clear violation” of the company’s terms of service, the incident is hardly resolved. As explained below, a legal fallout could ensue.
Not a crime
In certain situations, it is unlawful to record another person without their consent. It can also be unlawful to publish an unauthorized recording. States have adopted wiretapping and eavesdropping statutes in order to protect people from illicit recordings of their conversations and movements. These laws criminalize unconsented videos and other electronic media and allow victims to sue offenders for monetary damages.
That said, the laws of the 50 states vary widely as to when a recording requires the consent of all involved, and in which locations recordings are allowed or forbidden. Arizona law is relatively forgiving of those who secretly record others. Arizona is a so-called “one-party consent state.” This means that only one party in a conversation needs to consent to its recording.
To that end, Arizona’s criminal statute for wiretapping generally permits the recording of others so long as the recorder is present during the conversation. “Generally” does not mean always. Arizona law criminalizes the use of hidden cameras in a narrow set of private circumstances. Those circumstances concern when a person (1) is in a bathroom, restroom, locker room or other location with a reasonable expectation of privacy; (2) is urinating, defecating, dressing, undressing, nude or involved in sexual intercourse or sexual contact; and (3) is not being surveilled for security reasons and is denied an opportunity to take notice of the fact that he or she is being recorded.
Here, the Uber driver presumably consented to the recording of the players. That presumption would change if it is determined that the van did not belong to the driver and if he was unfamiliar with the van and the presence of the camera. Assuming the driver owns, rents or had previously used the van, the camera was probably, if not almost certainly, known to him.
The driver was also clearly seated next to the players while they conversed. In fact, the driver interacted with the players, at one point asking them which team they played for. Furthermore (and obviously), the players were not engaged in any kind of restroom or bedroom activity that would make the use of a hidden camera problematic. Even if the van could be interpreted as an extension of the Senators’ locker room or some other place with a reasonable expectation of privacy, the players were not dressing or urinating etc. and were thus not engaged in the kind of behavior governed by Arizona’s hidden camera statute.
These factors indicate that Arizona’s criminal wiretap statute did not forbid the Uber driver from recording the players in the van. Interestingly, if the same situation had occurred while the Senators played the Los Angeles Kings, the driver likely would have committed a crime: California is a two-party consent state and, in many situations, criminalizes recordings unless everyone who partook in a recorded conversation consented. California, however, is uncommon in that respect: 38 of the 50 states are, like Arizona, one-party consent states.
Possibility of civil lawsuits over the recording
While the Uber driver complied with Arizona’s criminal statute for wiretapping, the players might nonetheless insist that the recording constituted an unlawful invasion of their privacy. The players are also positioned to argue that publication of the video on YouTube and Twitter was designed to cause them emotional distress and interfere with their NHL employment. Should the players adopt these viewpoints, they could file civil lawsuits in Arizona and demand monetary remuneration.
Arizona law features several types of invasion of privacy claims, two of which are arguably relevant to the players’ regrettable encounter. One concerns an intrusion into a person’s private affairs and the other centers on publication of embarrassing private facts.
The players could credibly argue that a conversation during a ridesharing experience does not occur in a public forum. They would insist that ridesharing passengers have paid for a certain transportation service that, unlike traveling on a municipal bus or a subway, occurs mostly out of public view. The players could thus declare that Uber passengers ought to enjoy a reasonable expectation of privacy for their conversations and one that deems surreptitious recordings of those conversations illegal.
To bolster the depiction of a ridesharing experience as a private one, the players might stress that each Uber car is privately owned, typically by the driver himself or herself. A passenger on a public bus or Amtrak train, in contrast, would presumably have a weaker claim to privacy. Also, Uber’s community guidelines stress that “we all value our personal space and privacy.” The players could contend that their driver and, by extension, Uber, intruded into their privacy through the unauthorized recording.
The players could also stress how their objection is not to the driver’s use of camera, but to the driver’s use of a hidden camera. To be sure, an Uber driver may have defensible reasons for installing a dashboard camera. A recording could provide valuable evidence for the driver in the event of a disagreement or altercation with a passenger—especially an inebriated passenger whose subsequent recollection proves unreliable and exaggerative.
Alternatively, a recording could be used to rebut a passenger’s allegation that the driver engaged in any kind of sexually abusive or otherwise inappropriate conduct. The presence of a visible camera might also deter unruly passengers from misbehaving in the first place. Insurance companies could also become interested in a recording when there is disagreement or uncertainty as to how an accident occurred. These are all legitimate reasons for an Uber driver to record his or her passengers. But the driver should give passengers a heads up about the camera before any recording begins: either verbally warn them or post noticeable warning signs. Here, there is no indication that the van contained a detectable warning sign about a camera and that all seven players somehow missed it.
Possibility of civil lawsuits over the publication of the recording
The players could contend that publication of the video on YouTube and Twitter was designed to humiliate them and harm their professional reputations. At this time, it is unknown whether the driver or someone else uploaded the video. To the extent the person who uploaded the video could be identified, he or she might be vulnerable to an invasion of privacy claim on account of publication of embarrassing private facts. The players would contend that their rebukes of coaches and teammates would have never been stated in public and were thus clearly confidential. Further, publication of those remarks placed the players in a humiliating light with fans and in an awkward situation while interacting with coaches and teammates.
The players could also contend that publication of the video caused them mental anxiety and professional hardship. To that end, they could sue for intentional infliction of emotional distress. The players would maintain that the publication was designed to ridicule them. They would also assert any reasonable person in the same or similar situation in their own workplace would feel highly offended and ashamed.
In addition, the players could sue for tortious interference with contractual relations and prospective business advantage. In such a claim the players would argue that publication of the video has damaged their relationship with their employer, the Senators. The video and accompanying disparagement of a coaching staff have likely caused friction on the team and possibly made the players less valuable to their organization. The publication has perhaps also made it more difficult for these players to land lucrative endorsement deals. After all, the Internet will ensure that these players’ names are forever associated with this infamous recording. This dynamic suggests that the players might be able to sue for considerable damages, possibly millions of dollars.
Defenses to lawsuits
If sued, the driver, Uber and the person(s) who uploaded the video to YouTube and Twitter would all be armed with persuasive defenses.
First, the recording complied with Arizona’s criminal wiretap statute and, absent evidence of hacking, there is no statute that would regard publication of the video as a crime. While engaging in non-criminal behavior doesn’t automatically mean that said behavior also complies with civil law, it’s worth noting that Arizona lawmakers have intentionally declined to require the consent of all parties to a recording.
Second, the players are public figures, particularly in the hockey world. In light of the considerable media attention over the unauthorized video, the players’ controversial remarks were clearly newsworthy and thus likely in the public interest. Likewise, the remarks were not in any way defamatory towards the players since the players themselves spoke the hurtful remarks—you can’t defame yourself. The video also did not display an intimate matter such as the one at issue in Hulk Hogan’s successful invasion of privacy lawsuit against Gawker, which had published a sex video of Hogan.
To that end, the First Amendment would be a key area of legal defense. U.S. courts are generally skeptical of “prior restraints,” which are judicial orders that muffle publication of news that might otherwise be damaging. The late U.S. Supreme Court Justice Potter Stewart made this point crystal clear in New York Times Co. v. United States, which is also known as the “Pentagon Papers case” and involved publication of classified U.S. Defense Department documents concerning the Vietnam War. Potter reasoned that only when a publication would “surely result in direct, immediate, and irreparable damage to our Nation or its people” should a prior restraint be deemed lawful. This sentiment would favor the legality of publication of undoubtedly inelegant, but hardly catastrophic, remarks by a group of pro hockey players.
Third, the defendants would cast doubt on the notion that a ridesharing experience warrants a high level of privacy. Uber drivers are not limo or cab drivers who are trained and licensed professionals from the service industry. They are members of the public who participate in the “gig economy,” which is characterized by those who, on their own schedule, partake in freelance and independent work, often to supplement earnings from their occupations. Uber drivers are not governed by dress codes and the many other duties that professionalize limo and taxi drivers. Along those lines, if the players had prioritized confidentiality for this particular journey, they probably should have hired a chauffeur who guaranteed them confidentiality.
Fourth, it’s not clear the players were meaningfully harmed by the video’s publication. While the players have been humiliated this week, the news cycle will soon turn and attention will dwell on some other controversy. Besides, teams normally judge players by their talents and production. If these seven players (one of whom, Formenton, has been reassigned to the minors) are viewed favorably by the Senators’ front office, the team will probably want to keep them in the organization. Along those lines, it isn’t as if these players are linked to crimes or corruption. They candidly ridiculed their bosses using words that their teammates might have expressed in the locker room, hotels, bars or homes. Given that the targeted coaches were former players themselves, they are surely aware that such commentary happens from time to time. That’s not to say the coaches, particularly head coach Guy Boucher and Raymond, aren’t perturbed. But they probably won’t fixate on it for too long.
Fifth, the one “deep pocketed” defendant—Uber, which is valued at $62 billion—is the one defendant that would have the capacity to pay a sizable damages award and yet is probably the hardest one to successfully sue. Uber structures its employment with drivers so that they are independent contractors, rather than employees. While some courts have held that Uber is legally responsible for the acts of its drivers, others have not. It remains an open question as to how often, and in what circumstances, Uber is legally responsible for the misdeeds of its drivers.
In sum, the seven Senators players would face a number of legal hurdles if they sue and suing would only prolong the controversy. Chances are, the players will gradually become less inclined to do anything about the incident except chalk it up to youthful indiscretion.
Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.