The FA proudly announced its player code of conduct last week.  It was widely welcomed by the media particularly in the wake of the John Terry disciplinary panel decision and Ashley Cole’s angry reaction on Twitter to the panel’s view of his evidence.  Footballers have been left in no doubt that they will have to answer to the FA for their misdeeds, and a good thing too, you may say.  As many a journo commented, it is a surprise that it has taken until now for a code of conduct to be introduced for footballers, given the equivalents in sports such a rugby and cricket.

But journalists will be licking their lips for other reasons:  the code serves as a wonderful invitation to intrude into the already horribly exposed world of footballers’ private and family lives.  In publishing the code and seeking the players to sign up to it (could a player possibly refuse to do so under these circumstances?) they might just be delivering the equivalent of a tap-in to a newspaper lawyer seeking to resist a footballer’s privacy injunction or otherwise justify his paper’s story.

The code contains the following (my emphasis): “On and off the field I will:…display and promote high standards of behaviour”.  The code goes on to refer to expect no use of “insulting or abusive language” and to speak to “the opposition.. with respect”.  The FA is clearly expecting a Damascene conversion.  The press will be there “on and off the field” to demonstrate that there will be no such thing.  The sanctions for breaches of the code include imposing apologies, suspensions and even dismissals.

FA Chairman David Bernstein reinforced the code by saying “England players are representing their country, they’re role models, their behaviour is incredibly important in respect of everything else we’re trying to do”. Rio Ferdinand (currently out of favour with the national selectors) may find these words familiar to him.  Mr Justice Nicol in dismissing Ferdinand’s claim (Ferdinand v MGN [2011] EWHC 2454 (QB)) quoted from Fabio Capello’s comments when he removed the England captaincy from John Terry.  Capello referred to the England captain needing to be “an example for the young, the children, for the fans” and “how important it is to behave well when you are representing England”.  Nicol J clearly agreed.

The argument that footballers are role models and therefore have a reduced expectation of privacy is not a new one.  The case of  A v B [2003] QB 195gave clear judicial sanction to a newspaper justifying publication of the sexual exploits of even little-known players.  The impact of A v B and the role model argument has since been substantially eroded most notably in Campbell v MGN [2002] QB 633 at [41].  Ferdinand v MGN reignited the debate but it served as a forewarning specifically to the standards of behaviour expected of those with the Captain’s armband (last weekend worn by Wayne Rooney).  The FA code may well put an end to the distinction.  The Court cannot ignore the message that football’s governing body has delivered.

The legitimacy in expecting footballers to be scrutinised upon their standards of behaviour off the field is highly questionable.  Is it fair to ask young men, plucked from modest circumstances at a very young age and into a world of wealth and fame, to “promote high standards of behaviour” and not use “insulting or abusive language”?  Remember, these standards appear to apply when footballers are going about their jobs and when going about everyday life, often under the glare of the media.  I would challenge media lawyers to live up to such expectations.  I agree that footballers (unlike media lawyers) are hero worshipped by children, but is this a good reason to scrutinise their behaviour or should we acknowledge that such scrutiny is likely to expose otherwise private flaws that children shouldn’t have to know? Perhaps the FA disagrees.  Lawyers for newspapers will certainly not have to incur the time they have spent in the past ferreting through sponsorship contracts for clauses relating to a player’s behaviour and moral fortitude.

The way in which the code of conduct is to be interpreted is yet to be seen as is the extent to which the FA will invoke disciplinary steps based upon intrusive journalistic exposés.  One would hope that the FA is highly unlikely to consider marital infidelity as contravening its new code (except possibly in the unusual example of John Terry’s alleged affair with a team mate’s partner/former partner), and it is this area of their lives that is the staple fodder of red tops.  Likewise, the Court must take a robust view when presented with the FA code, and draw a line where off the field activity should remain off limits to journalists and photographers.  Irrespective of the intention of these austere institutions, sports and celebrity journalists will keep the code close at hand; it will not be long before they will deploy it in withering judgement upon the next errant and now code-breaking footballer.

Dominic Crossley is a Partner and Head of Defamation and Reputation Management at Collyer Bristow LLP.