Professional tennis made its long-awaited return this month as Melbourne hosted the first major tournament of the year, the Australian Open.
The competition, and the build up to it, was unique in many ways: players were flown in on specially chartered flights, strict hotel quarantines were imposed and fans returned to stadiums for the first time since professional tennis was suspended last March (before being forced to leave halfway through a match due to Victoria’s five-day lockdown).
Much of the media attention focused on those restrictions, with several players criticised for publicly complaining about the conditions they had to “endure” and world No.1 Novak Djokovic roundly condemned for issuing a list of “demands” in the midst of a worldwide pandemic. Not the press tennis’ governing bodies would have wanted but perhaps unsurprising given the level of global scrutiny on the event.
One player who will have been glad to see the spotlight shining elsewhere however, is current World No. 7 Alexander Zverev. A tumultuous 2020 for the German saw his on-court reputation grow, as he reached the US Open final for the first time, but his off-court behaviour heavily scrutinized amidst allegations of domestic abuse by his former girlfriend.
Zverev v ACE Group International Ltd
Tabloid headlines aside, Zverev has also been embroiled in a two-year legal battle against his long-time management firm, ACE Group, regarding the enforceability of his representation agreement with the agency.
The High Court claim was settled out of court in December, on the second day of a nine-day trial, so the question of whether sports agency contracts can amount to unfair restraints of trade was not subject to judicial scrutiny. The case did however raise an interesting point regarding the disclosure of confidential documents in light of the Business & Property Court’s Disclosure Pilot Scheme.
Disclosure under PD51U
Zverev had sought a declaration that his contract with ACE Group, which he entered into as a 15 year old in 2012 and was due to last until 2023, constituted an unfair restraint of trade and was thus unenforceable. ACE Group counterclaimed for declaratory relief of its own, together with damages for losses suffered by Zverev’s purported early termination. The agency also brought a claim against Zverev’s parents under the parental guarantee they had signed at the time the contract was entered into, for indemnification in respect of all damages and costs caused by the early departure.
As part of its attempts to demonstrate the contract with Zverev was fair and enforceable, ACE Group’s legal team filed expert evidence containing a comparison of Zverev’s contract with other tennis players’ agency contracts. The expert report referred to and attached copies of several “comparator contracts”, each of which had the relevant player’s identity, ranking, agent and date redacted. Zverev’s legal team argued that without those redacted details, it was impossible to determine whether the contracts constituted suitable comparators and thus draw any reasonable conclusions from the evidence. They filed an application for specific disclosure of the unredacted contracts accordingly.
The judge, Andrew Hochhauser QC, was asked to consider whether under Practice Direction 51U.21.1(5), which allows parties to request a copy of any document not already provided by way of disclosure but mentioned in a statement of case, witness statement, witness summary, affidavit, or an expert’s report, the claimant was entitled to see the unredacted contracts.
In opposing the application, ACE Group contended that the court lacked jurisdiction under PD51U as the application was, in essence, being made against a third party – the experts – who were not agents of the party instructing them. ACE Group also argued it would be inappropriate for the court to use its powers of case management under CPR 32.1(1) to force ACE Group’s expert to provide evidence in breach of confidentiality undertakings given to the other players whose contracts had been referred to.
In deciding the application, Mr Hochhauser agreed that it would be very difficult for Mr Zverev to challenge the appropriateness of the comparators in the expert’s report without having access to the unredacted contracts. Casting doubt on the applicability of PD51U.21.1(5) in instances involving disclosure by third parties, he instead relied on CPR 32.1(1) and ordered that, if either party's expert wished to use the contracts mentioned in their reports as comparators, those contracts would have to be provided in unredacted form to a lawyers-only confidentiality ring, to create an "even playing field".
While Mr Hochhauser wasn’t required to rule on the applicability of PD 51U.21.1(5), he observed (obiter) that he saw "some force" in ACE Group’s argument that this procedure was directed at obtaining documents that were within the control of a litigating party, and that the purpose of the provision was not denuded by limiting it to such documents.