Confidential leaks and allegations of espionage have abounded in recent months in both sporting and political contexts, whether that be the furore surrounding alleged hacking relating to the US presidential election or the shadowy Fancy Bears gaining access to the databases of both the World Anti-Doping Agency and the United States Anti-Doping Agency.

And now allegations of espionage or, at the very least, “loose lips” have arisen in the context of Rugby Union. Whilst Sale Sharks’ sacking of Tom Arscott for allegedly leaking information to his elder brother Luke does not, admittedly, have the same geo-political ramifications as the incidents referenced above, it does shine a spotlight on the obligations of confidentiality that an employee owes to his employer, the categories of “business information” that commonly arise and the measures that employers can take to protect information provided to employees during the course of their employment.

Sacking of Arscott

To summarise the events that led to Sale Sharks terminating their erstwhile winger’s employment:

• 1 January 2017 – Sale Sharks lose a keenly-contested clash against fellow Aviva Premiership Rugby strugglers Bristol 23-24 at their home ground, with Bristol fighting back from 15 points down to emerge as winners by a single point.

• 4 January 2017 – members of Sale Sharks’ squad approach their director of rugby, Steve Diamond, with allegations that Tom Arscott had passed “information” to Bristol in advance of the game (with newspaper reports later claiming the information related to a number of Sale’s line-out moves). Without it being made public, Tom Arscott is suspended by Sale Sharks whilst internal investigations commence.

• 16 January 2017 – news emerges that the Rugby Football Union (“RFU”) is investigating a complaint raised by Sale Sharks that “information” was leaked to their opponents in advance of the fixture and that Tom Arscott met his brother Luke (who plays for Bristol) at Bristol’s team hotel the night before the game.

• 19 January 2017 – Sale Sharks confirm that Tom Arscott has been sacked following the conclusion of a disciplinary investigation and hearing.

Diamond made it clear that there was no suggestion Bristol’s management had asked Luke to elicit information from his younger brother.  Neither brother actually played in the match itself (with Tom not making the squad at all and Luke an unused replacement) and Bristol’s acting head coach, Mark Tainton, was at pains to stress that no information was “passed to the Bristol coaches of any sporting value, nor did it change the strategy in which we approached the game in any way, shape or form“.

However, notwithstanding Diamond’s comments, Bristol’s response was understandable given the RFU’s ongoing investigation and its power to discipline members. Under the RFU’s Rules and Regulations, its disciplinary powers include the ability to impose fines; deduct league points; and/or disqualify the member from any competition (Rule 5.12 of the RFU Rules; Regulations 19.6.5 & 19.11.7(b) of RFU Regulation 19).

Employees’ duties of confidentiality

The Courts have identified four kinds of business information:

1. Trade secrets

2. Confidential information

3. Information that amounts to the skill and knowledge of the employee

4. Public information

Where appropriate, Courts will seek to protect the first two categories of information, with “trade secrets” attracting a higher level of protection than information that is found to be merely “confidential”. Indeed, if an employee obtains information amounting to a trade secret during the course of their employment (which is determined on a case-by-case basis) they have an implied duty of confidentiality to their employer to keep that information confidential, even after their employment terminates. In contrast, the position in respect of information that is regarded as confidential is slightly different. Whilst the information must still be treated as confidential during the course of an individual’s employment, this obligation does not survive the end of their employment relationship if it has, in the words of one Judge, been “inevitably carried away in the employee’s head”.

In the case of tactics or moves devised and practised by teams during training, with the intention that they can be successfully deployed in competitive fixtures; it is likely that such information would be classified as “confidential”. Employees who obtain that information during the course of their employment have an implied duty to handle any such information in good faith and not use it to benefit either themselves (rather than, in this case, the team as a whole) or a third party (in this case, an opponent).

Consequently, in the case of Arscott, information he obtained during the course of his employment relating to his side’s line-out moves is likely to fall under the category of confidential information.

However, most employers ensure that employees are under an express duty to keep any information that they receive during the course of employment as confidential, most commonly via an express term in their employment contract and/or via a specifically tailored confidentiality agreement. In such cases, an unauthorised disclosure of confidential information by an employee can allow an employer to summarily dismiss the guilty party (albeit, the employer is still obliged to follow a fair procedure before doing so).

In the case of Arscott, it is very likely that his contract contained such a clause. Diamond suggested as much when he stated that “I think when you sign a professional contract, team information is sacrosanct to the team’s performance and that can’t be discussed, certainly with opposition teams…I think it’s worded [in contracts], words to that effect, that the passing of information is forbidden”.

Indeed, the RFU’s Standard Form Player Contract for 2016 states, at clause 6.11, that one of the player’s obligations to his club is that they must:

“not at any time (whether during the Term of this Agreement or after its expiry) disclose any privileged or confidential information obtained during his employment save to professional advisers or the Salary Cap Manager.  For the purposes of this clause confidential information is information however recorded relating to the affairs and finances of the Club for the time being confidential to the Club and trade secrets including without limitation know-how relating to the business of the Club” (emphasis added).

By introducing an express duty of confidentiality, the Standard Form Player Contract ensures that employees have a duty to keep information confidential, not only during their employment (as per their implied duty), but also after it. However difficult it may be to enforce in practice, the logic behind the clause is understandable, given the chaos that could ensue in a sport where players regularly move clubs for numerous reasons.

Enforcement of rights

Should an employer wish to hold their employee to account for any breach of their implied or express duties, they can consider civil action against both the employee (as the original recipient of the information) and any third party recipient (if they were either aware of/or become aware of its confidential nature). Indeed, if a recipient were to misuse that confidential information whilst employed by a third party (i.e. at a player’s next club), the third party can still be liable for a breach of confidence, even if they were unaware that the confidential information is being misused by their new recruit.

Conclusion

Returning to Sale Sharks, any civil action being brought by the club against either Tom Arscott or Bristol, seems remote at best. Not only have Sale exonerated Bristol from any blame (by confirming that they were not accusing Bristol of an act of sporting espionage), Diamond also acknowledged that the information allegedly leaked from one brother to the other did not lead to Sale’s narrow defeat, stating that “I think if you do your own analysis, you probably don’t need the information, because teams do the same most weeks“. Given the very nature of sport and the various permutations that impact upon the final score, this confirms how difficult mounting any legitimate civil claim would be in a sporting context. Interestingly, Diamond’s statement also potentially calls into question just how “confidential” the information is, if it could be deciphered by analysis.

In the meantime, the RFU’s investigation remains ongoing and Tom Arscott has confirmed that he is cooperating fully with the investigation.  Whilst it seems unlikely Bristol will fall foul of any sanctions from the RFU, it is a timely reminder to rugby players of, not only the more intangible duties of loyalty they owe to their teammates, but also the legal obligations they owe to their employers.