Do Pro Athletes’ Spouses Waive Privacy Rights?

It may seem obvious that professional athletes have diminished expectations of privacy when compared to a typical person. See O'Brien v. Pabst Sales Co., 124 F.2d 167, 169-170 (5th Cir. 1941), cert. denied, 315 U.S. 823 (1942) (professional athlete waived privacy right by previously seeking publicity); see also Laura Lee Stapleton & Matt McMurphy, The Professional Athlete’s Right of Publicity, 10 MARQUETTE SPORTS LAW JOURNAL 23 (1999). Although courts (and commentators) have not always been clear about the difference between a right to privacy and publicity, it’s long been clear, as one student author noted, that

professional athletes, and other public performers, because of the “public” nature of their occupations, are typically considered to have “waived” their right to privacy; they are also probably more psychologically tolerant of having their daily lives depicted in the press.
D. Scott Gurney, Note, Celebrities and the First Amendment: Broader Protection Against the Unauthorized Publication of Photographs, 61 INDIANA LAW JOURNAL 697 (1985/1986).

Can the same be said for the family members (and, in particular, the spouses) of professional athletes? From the Globe and Mail:

Tiger Woods was outraged Wednesday at an Irish magazine and a tabloid that linked photos of his wife to various pornography sites, and his agent was studying the merits of a lawsuit.

“My wife, yes, she has been a model prior, and she did do some bikini photos,” Woods said. “But to link her to porn Web sites and such is unacceptable, and I do not accept that at all. Neither does our team.”

The Dubliner magazine wrote in its September issue about Elin Nordegren, his Swedish wife of nearly two years.

“Most American golfers are married to women who cannot keep their clothes on in public,” the magazine wrote. “Is it too much to ask that they leave them at home for the Ryder Cup? Consider the evidence. Tiger Woods’ wife can be found in a variety of sweaty poses on porn sites.”

The Dubliner’s efforts seem obviously tortious. Even celebrities, as Jennifer Aniston has recently demonstrated, can assert privacy rights with respect to topless photos under some circumstances. And a photo of the wrong person would seem to offend even the diminished expectation of privacy of a celebrity athlete.

There aren’t a lot of guideposts out there regarding the privacy rights of athletes’ spouses. Do spouses surrender their privacy rights to the same extent as the athletes themselves? Should the law should be more forceful in defending the privacy interests of athletes’ spouses?

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