A federal magistrate judge has recommended the dismissal of Kathryn Mayorga’s lawsuit against Cristiano Ronaldo, largely because her attorneys relied on confidential documents obtained through a hacker. In his Oct. 6 ruling, Judge Daniel Albregts warned of “far-reaching, dangerous consequences on the legitimacy of the judicial process” if “hacked privileged documents” become “fair game for an attorney to use to create and prosecute the case.”
The ruling occurs as other highly publicized leaks rattle the sports industry.
Earlier this month, the International Consortium of Investigative Journalists released the “Pandora Papers,” which apparently reveal the existence of offshore bank accounts held by world leaders and persons of influence. Several sports figures, including Manchester City’s manager Pep Guardiola, are mentioned.
Fast forward to Monday evening, when Jon Gruden abruptly resigned as head coach of the Las Vegas Raiders. He did so in the wake of stories by The Wall Street Journal and The New York Times, which disclosed bigoted emails Gruden sent several years ago while an employee of ESPN. The emails, which contained racist, homophobic and misogynistic remarks, were leaked to the publications.
As private businesses enforcing their own workplace conduct rules, the NFL and Raiders enjoy wide discretion in deciding which types of transgressions deserve penalty. That is especially true of actions by coaches, who, unlike players, aren’t in a union and thus aren’t protected by procedural safeguards enumerated in a CBA. The NFL, which can rely on evidence it deems relevant, could still discipline the 58-year-old coach. The league could bar Gruden from any NFL employment for a period of time or issue a suspension that would take effect should he join a team.
Gruden’s situation is entirely different from the one faced by Mayorga and Ronaldo, who are parties in a public matter before a federal court. The matter is governed by laws that oversee whether evidence was lawfully obtained and whether it ought to be deemed admissible. But the cases all involve personal correspondence that was acquired or released with political intent.
Three years ago, Mayorga, 37, sued Ronaldo for battery and related civil claims. She accuses the Manchester United star of raping and sodomizing her in his Las Vegas penthouse in 2009. Ronaldo insists the sexual encounter was consensual. The Las Vegas Metropolitan Police Department investigated and declined to bring charges.
Ronaldo, 36, and Mayorga signed a settlement in 2010. In it, Ronaldo agreed to pay Mayorga $375,000 in exchange for dropping her claims. Both sides agreed to confidentiality, and both agreed that any disputes over interpretation and enforcement of the settlement would be resolved out of court, through arbitration. Mayorga now contends she lacked the legal capacity to sign, on account of psychological distress. Unless both parties had capacity to contract, the settlement would be unenforceable.
The 2009 incident and subsequent settlement were topics of German news outlet Der Spiegel’s 2017 story, “Cristiano Ronaldo’s Secret.” The story relied partly on communications between Ronaldo’s attorneys in Europe and the U.S. Under the attorney-client privilege doctrine, such communications are generally inadmissible in U.S. court proceedings.
The communications became reportable for journalists, however, through the “Football Leaks” website. The “leaks” constituted 1.9 terabytes of data—which, the Columbia Journalism Review noted, is roughly the size of 500,000 Bibles—and included numerous emails and other documents about prominent people in soccer. Rui Pinto, a Portuguese man who has been alternatively described as a hacker, leaker and whistleblower, was arrested and faces cyber hacking, extortion and other charges in Portugal over the release of the information.
According to court documents, the law firm of Ronaldo’s European attorney, Carlos Osório de Castro, was hacked, and a copy of the Ronaldo-Mayorga settlement was stolen. Meanwhile, Ronaldo’s U.S. attorney, Richard Wright, reported a theft of privileged communications during a hack.
Judge Albregts’ order details how Mayorga’s attorney, Leslie Stovall, contacted Football Leaks about a year after Der Spiegel published its story. Stovall sought attorney communications and other Ronaldo-related legal documents, including those detailing “negotiations leading up to the agreement to mediate.” Football Leaks honored Stovall’s request and turned over records. He later said both Der Spiegel and Mayorga’s former attorney had denied him access to the records.
Mayorga’s attorneys used the records in two ways. The first was by sharing them with Las Vegas police, who reopened the case but again declined to charge Ronaldo. The second was to bolster Mayorga’s lawsuit against Ronaldo. The complaint quotes from Football Leaks’ records, but instead of referring to them as privileged communications between Ronaldo’s attorneys, the complaint more evasively attributes the communications to “Ronaldo’s team.”
Ronaldo’s attorneys later demanded that Stovall remove any reference to privileged communications. His attorneys also objected to media reporting, since it had allegedly relied on “stolen and easily manipulated digital documents” of which “significant parts were altered and/or completely fabricated.”
Judge Albregts concluded that Ronaldo cannot receive a fair trial since an indeterminable amount of Mayorga’s evidence is based on unlawfully obtained records of privileged communications.
“Mayorga’s case against Ronaldo,” the judge stressed, “would probably not exist had Stovall not asked for the Football Leaks documents.” Judge Albregts added that Stovall could have lawfully based allegations on “Mayorga’s recollection and Der Spiegel’s publicly available reporting.” Instead, the judge admonished, Stovall relied on “abusive litigation tactics,” including “Deliberately hiding the nature of the documents from the court by using deceptive language,” such as by saying “Ronaldo’s team” instead of his “attorneys.”
Judge Albregts also reasoned that Mayorga’s claim that she lacked competence makes it impossible for the court to “parse out which facts in the complaint come from Mayorga’s own independent recollection and those which come from the Football Leaks documents.”
Judge Albregts’ recommendation doesn’t end the litigation. Mayorga’s attorneys can ask the presiding judge, U.S. District Court Judge Jennifer Dorsey, to reject it. Although district court judges apply a deferential standard of review to magistrate judges’ recommendations, Judge Dorsey previously rejected a recommendation by Judge Albregts last December, when she refused to move Mayorga’s lawsuit to private arbitration. Mayorga could also appeal a dismissal by Judge Dorsey to the U.S. Court of Appeals for the Ninth Circuit.