As the FA and the unforgiving British press rake through offensive text messages sent by the former Cardiff City manager to his head of recruitment, we consider how Malky Mackay's private communications have made their way into the public domain.
Following a very public deterioration of the relationship between Malky Mackay and Vincent Tan, the owner of Cardiff City, Mackay was left in no doubt about his position when Tan sent a now infamous email telling him to 'resign or be sacked'. Mackay dug his heels in, and was duly relieved of his services a few days later on 27 December 2013.
Shortly after, Mackay issued proceedings against Cardiff for the wrongful termination of his contract and was reported to have sought compensation of £7.5m. Media commentators widely condemned Tan’s approach and Mackay’s claim was regarded as an open and shut case.
It came as a something of a surprise, therefore, when in May 2014 Mackay abandoned his claim against Cardiff City and issued a press release stating, “If I have caused any offence to anyone during this time, especially to Vincent Tan, then I apologise without reservation”. The sudden apology contrasted sharply with Mackay’s previously aggressive pursuit of damages, and baffled industry commentators. It suggested that Cardiff City had obtained significant leverage over Mackay but – until now – it was not clear what that was.
The game changer
Earlier this year Cardiff City obtained a court order entitling its legal team to search the home of Iain Moody, the Club's former head of recruitment who had worked closely with Mackay. It is reported that they seized mobile phones and computers containing 10,000 text messages and 70,000 documents.
A number of incriminating text messages exchanged between Mackay and Moody have now surfaced in the press. Assuming that they were sent before his dismissal, the messages may have been sufficient to breach express terms of Mackay's contract, or alternatively the implied obligation in Mackay’s contract that he would not act in a manner which was calculated or likely to destroy, or seriously damage, the relationship of trust between him and his employer. Normally, discriminatory behaviour falls squarely into this category and many disciplinary policies list discrimination as grounds for summary dismissal.
Vincent Tan would no doubt say that the text messages were capable of seriously damaging the Club’s trust in Mackay. If Cardiff could show that Mackay had committed acts of gross misconduct during his employment, they could argue that they were entitled to sack him in any event, and should not be obliged to compensate him for the loss of the remainder of his contract. A successful argument along these lines would have caused real difficulties for a wrongful dismissal case.
But the position is more complex if the messages were set out in private texts not intended for broader consumption, and were only disseminated further because Cardiff obtained an invasive High Court order. There is a distinction between personal communications revealing discriminatory thinking, and actually engaging in discriminatory treatment of others. This may go a long part of the way to explaining why, in the Richard Scudamore case, the Premier League decided not to take disciplinary action against their CEO in the face of widespread calls for his dismissal following his own email scandal.
So, why the quick settlement and unreserved apology? It may be that Mackay decided that the text messages had sufficient legal impact to justify abandoning his claim. Perhaps he did not wish them to be made public and – wrongly, as it turned out – hoped that a settlement with Cardiff and an apology to Vincent Tan would prevent them from being aired.
Or it may be that there is further, as yet unrevealed, evidence among the 10,000 texts and 70,000 emails which gave Cardiff an even stronger hand. There is another aspect to the dispute: Cardiff City are also investigating alleged overspending by Mackay in the transfer market, prompted by Vincent Tan’s concerns over investments in players who rarely started and were quickly loaned out or sold on at a loss. Damning evidence in connection with Mackay’s financial management would also have damaged his wrongful termination claims, and could have been a strong driver for early settlement.
Search and seizure
How did Cardiff come to raid Iain Moody’s house for evidence? The most likely explanation is that they obtained what is known as a “search and seizure” order from the High Court.
Search and seizure orders are not granted lightly. The court recognises that they are an invasive and draconian measure, to be employed as a last resort when evidence is at risk of being destroyed. Orders will only be made where an applicant can persuade the court that:
- they have an extremely strong claim or defence against the other party. The court will not entertain a party who plans to use the order to search for evidence to prop up an otherwise weak or uncertain case;
- the applicant has suffered very serious damage. This criteria makes it more likely that Cardiff sought the search and seizure order on the basis of their concerns about Mackay’s decisions in the transfer market -potentially this has far greater financial impact than offensive private exchanges between Mackay and Iain Moody. The discovery of the racist messages may have been an unexpected “windfall” for Cardiff;
- there is a real possibility that the evidence will be destroyed. The applicant may show this by pointing to previous threats or attempts to destroy evidence. However, in cases where there is strong evidence of serious fraud, the court may infer that destruction is likely without further proof of the risk; and
- the harm likely to be caused by the execution of the search order is not excessive or out of proportion to the object of the order.
Applications for search orders are virtually always made covertly. The respondent is not given notice of the hearing at which the application is considered, otherwise they might have an opportunity to destroy or hide the evidence sought. Because the respondent is unrepresented, the applicant's team are required to give "full and frank disclosure" at the hearing and to highlight the weaknesses in their case as well as the strengths.
The first Iain Moody would have heard of the order is therefore when Cardiff’s legal team arrived on his doorstep witha copy of the order. The order would have been branded with a penal notice along the lines that: "If you do not complywith this order you may be held to be in contempt of court and imprisoned or fined, or your assets may be seized." Whilst Cardiff's lawyers would have had no right to force their way into Moody's home, it would have been clear to him that not allowing them to enter would have made his position extremely difficult.
The fact that some of the documents caught by the terms of the order may have been private, or even confidential, is not a legitimate reason to withhold them from disclosure. Whilst Iain Moody would have been entitled to withhold legally privileged material, the court order would not have respected the intended privacy of the communications with Mackay.
Reporting to the FA
Cardiff City obviously deployed the documents gathered during the search of Moody’s home to good effect when persuading Mackay to drop his claims. Generally speaking, Cardiff ought not to have been able to use the documents for any other purpose than then the litigation for which the search order was obtained; historically this principle was known as the "implied undertaking" and is now reflected in the court's procedural rules (CPR31.22).
How is it, then, that a dossier of text messages, emails and other documents has now been passed to the FA for investigation?
It is possible to circumvent the general rule by obtaining an order from the Court permitting an alternative use. Usually speaking, the courts will not grant such orders unless there are special circumstances, and the order will not cause an injustice to the person whose documents are being re-used. However, there is a body of case law (eg Metropolitan Housing Trust v Tominey ) which indicates that the court will look favourably upon a party who wishes to use the material to comply with a requirement to disclose information to their regulator or an enforceable obligation in another jurisdiction.
Under Rule E14 of the current Rules of the Football Association, Cardiff are compelled to "immediately report" to theFA "any incident, facts or matters which may constitute Misconduct", as long as the report is not made for vexatious or frivolous reasons.
"Misconduct" is broadly defined, and includes any breach of the FA's Rules, including in particular those relating to conduct. Malky Mackay and Iain Moody were required by Rule E3(1) to act at all times "in the best interests of the game and shall not act in any manner which is improper or brings the game into disrepute or use any one, or a combination of, violent conduct, serious foul play, threatening, abusive, indecent or insulting words or behaviour". A breach of this rule is considered "aggravated" – and carries additional penalties – where it includes a reference to protected characteristics such as ethnic origin, colour, race, nationality, religion or belief, gender, gender reassignment, sexual orientation or disability.
Under the FA's Disciplinary Regulations, once an investigation is commenced, everyone involved – the Club, Mackay and Moody – becomes subject to an express obligation to produce any evidence requested by the FA, subject only tothe constraints of legal privilege. Again, the personal nature of the communications offers no protection.
It's likely therefore that Cardiff were able to make a persuasive case that an order permitting further use of the documents was appropriate given the regulatory framework. It may also have been influential that Iain Moody mayhave had to hand over the documents to the FA anyway.
The release into the public domain
What this does not explain, however, is the cascade of embarrassing quotations into the press, which presumably would not have been an alternative use of the documents authorised by court order.
But ultimately this may not matter. Whilst the general position under the FA's Disciplinary Regulations is that evidence and submissions used in disciplinary proceedings shall be kept confidential, the FA reserves the power to publish anything and everything connected with the proceedings, including evidence, whether or not it reflects badly on a participant's character or conduct. Furthermore, the Regulations provide that Mackay shall be deemed to have consented to such publication, and so loses the right to complain.
Now that the investigation has commenced, it seems that Mackay will have almost no control over the dissemination of this material.
Mackay has already seen Crystal Palace withdraw its job offer. His employability and reputation has been severely damaged. He has offered an unreserved public apology for the content of the discriminatory texts, describing his behaviour as "totally unacceptable".
We await with interest the outcome of the FA's investigation, and in particular whether in the face of mounting pressure they will deviate from the line taken in the Richard Scudamore case, in which they decided to take no action on the basis that:
"…The FA does not as a matter of policy consider private communications sent with a legitimate expectation of privacy to amount to professional misconduct. The FA has applied this policy on an ongoing basis and in relation to numerous other cases…"
It also seems likely that despite having reached some form of settlement in May 2014 the investigation into Mackay's transfer dealings will rumble on and provide further material for the press and legal briefings.