Playing it with a straight bat – gagging clauses and the KP settlement soap opera
Say what you like about Kevin Pietersen (and many do) but he is never boring. As a young man, he controversially left his native South Africa in protest at its racial quota system to bring his mercurial talents to England. Since then, cricket fans have watched him develop from skunk-haired, switch-hitting talisman to record-breaking run scorer, via a disastrous stint as captain and being dropped for sending texts about his team mates to the opposition. ‘KP’ was unlikely to leave the public stage quietly and, when it was announced that his England contract was not going to be renewed following the Ashes tour of Australia, rumours abounded about his (allegedly) disinterested and disruptive influence in the dressing room.
For a while it seemed that these rumours would remain unsubstantiated as the England and Wales Cricket Board (ECB), keen to avoid further bad publicity after a shambolic winter tour, agreed settlement terms with Pietersen. These apparently included confidentiality and ‘gagging’ provisions on both sides, which prevented either party from discussing the events leading up to the termination of Pietersen’s contract, such as any dressing room bust-ups or details of the severance negotiations. However, this did not stop a constant drip feed of comments from individuals close to the player and eventually the ECB’s Managing Director, Paul Downton, weighed in with comments of his own. In an on-the-record statement to journalists, he remarked that Pietersen had appeared disinterested and distracted in the fifth Ashes Test in Sydney, and that he could not find any team mates who had wanted the batsman to remain in the team.
Pietersen reacted furiously to Downton’s comments, denying them and suggesting that they were in breach of the agreed settlement terms, with the ECB subsequently issuing a bland apology. In a further twist, it has recently been ‘revealed’ that the confidentiality provisions in the agreement expire on 1st October of this year, and that Pietersen has lined up an interview with his friend, Piers Morgan, to ‘blow the lid’ on his sacking.
All of the above begs the question, with this much public mud now being slung, what was the point of the settlement agreement in the first place?
The first point to make is that the precise terms of the settlement reached between the parties are still unknown. However, the relative lack of specific comment by the parties since January does support the idea that the agreement dealt, at least in general terms, with confidentiality and disparaging comments. As such, it seems likely that that any off-the-record briefing of friendly journalists by Pietersen was in breach of his contractual duties and/or that the ECB most likely breached its legal obligations to Pietersen through the actions of Downton.
The second point of interest is that it is very unusual for confidentiality and non-disparagement terms to be time-limited, as it has been suggested is the case here. Confidential information can usually be divided into two categories: information that is and will always be confidential (for example, KFC’s or Coca Cola’s secret formulas); and information that is confidential now but will not be confidential in the future (for example, details of those companies’ next advertising campaigns). Confidentiality obligations are therefore open-ended, on the basis that there is a legitimate need to preserve the first category of information in perpetuity whereas the second category of information will, by its nature, cease to be protected once it is in the public domain or no longer commercially relevant.
Restrictions on the settling parties discussing the terms and background leading up to settlement and/or making any disparaging or damaging comment about the other also tend to be open-ended. This is because settlement is generally intended to be a final resolution to all disputes between the parties and allowing them to speak ill of the other, even after a reasonable passage of time, can only put such resolution at risk.
If it is true that the settlement agreement contained confidentiality and non-badmouthing provisions, one can only speculate as to why neither party sought to take action to pursue their potential claims against the other in this case. However, the ECB may have felt that proving that Pietersen was the source of comments made by others would be difficult and that getting involved in a public dispute with him would simply fan the flames of publicity. Equally, Pietersen may have been advised that the ECB would claim his conduct had constituted a repudiatory breach of contract, which released it from its obligations to him, and that any action he took could leave him open to an expensive counter-claim. In short, both sides may have considered litigation to be a messy, unsatisfactory and potentially expensive option.
It is also possible that time limiting the relevant terms suited both parties in this case. The ECB probably accepted that it was unrealistic to expect to gag Pietersen indefinitely and that the truth would come out eventually but wanted a window of relative calm to review matters such as the coach’s position and the captaincy. Pietersen for his part may have taken the view that interest in him would remain undiminished and that agreeing to a relatively short period of silence would simply delay his opportunity to have his say in a lucrative autobiography or interview, not reduce it. The way in which events have transpired may not have been perfect for either party. However, judged from this perspective, it appears their aims have broadly been met.
The cricket, and wider sporting world, waits with bated breath for 1st October…
Hill Dickinson, London
This article originally appeared on the Hill Dickinson blog. To view the original, click here. A search on the World Sports Law Report archive returned three results under the text ‘settlement agreement’. To sign up for a free trial to World Sports Law Report, click here.