By Decker Cady
One social media post can spread world-wide in seconds. In that same amount of time, a professional athlete or sports personality can lose thousands, and even millions, with a single post. Social media is a double-edged sword, and it applies to all areas of representation.
These days, professional athletes, their coaches, and operations personnel are restricted on when they post on social media. The NFL implemented a policy in 2009 that restricts those individuals from posting on social media 90 minutes before kick-off.1 The restriction is lifted once post-game media interviews conclude. Similarly, in 2009, the NBA prohibited use of communication devices from 45 minutes before tipoff up until they fulfill their responsibilities following the game.2 The same rules apply in the NHL, only the limitation begins two hours before the game starts.3
The MLB enforces similar restrictions.4 Like the NFL, NBA, and NHL, MLB policies extend to coaches, too. Former White Sox manager Ozzie Guillen was fined $20,000 for a post-ejection Twitter rant.5 The fine had nothing to do with what Guillen said, but rather the time and place in which he said it, as his duties had not yet concluded.
The NFL, NBA, and NHL also fine players, coaches, and operations personnel for posts that are prejudicial to the welfare of the league, a member club of that league, or for publicly criticizing an official.6 In 2013, NBA Cleveland Cavaliers shooting guard J.R. Smith was fined $25,000 for directing inappropriate tweets towards another player.7 Players can even get cut by their team for posting the wrong thing on social media. In 2009, the Kansas City Chiefs cut NFL player Larry Johnson after he vented frustration with the Chiefs head coach and made anti-gay slurs on Twitter.8 This list goes on.
Professional athletes can also be fined if their social media posts violate the morals clauses in their endorsement contracts. While morals clauses are nothing new, the language within is constantly evolving. Endorsement companies have reworked such language to give them an easy out if an athlete posts something that tarnishes the company’s image.
In 2011, former Steelers running back Reshard Mendenhall filed a breach of contract claim against Hanesbrand Inc. after the company cut ties with him over something he tweeted.9 The claim arose after Champion, trademark brand of Hanesbrand Inc., and Mendenhall agreed to amend and extend their existing endorsement contract. The original morals clause stated that Champion could cut ties with Mendenhall if he was “arrested for, or charged with, or indicted for or convicted of any felony or crime involving moral turpitude.”10 The original clause gave no outs to Champion in regards to a social media post. The amended version stated if Mendenhall “becomes involved in any situation or occurrence tending to bring Mendenhall into public disrepute, contempt, scandal, or ridicule, or tending to shock, insult or offend the majority of the consuming public …” Champion reserves the right to immediately terminate the agreement.11 Before the matter went to court, Hanesbrand Inc. and Mendenhall settled the dispute privately. The amended version of this morals clause demonstrates that companies are becoming much more social media conscious in their endorsement deals.
Social media has created a new world of not only marketability, but susceptibility. One big play or mention by an athlete can result in immense profits for a company or league. But, one tweet can also cost a company millions. Professional sports leagues are creating policies that restrict athletes’ social media activity; endorsement companies are constructing contracts that enable them to terminate deals with someone they deem has harmed their brand via social media. As the influence and availability of social media grows, so, too, will the need for restrictions and modified morals clauses.
This issue is not only prevalent in sports — it arises under other areas of representation as well. Lawyers, much like agents, should counsel clients on the dangers of posting on social media; one wrong post can lose a case. And employees should be advised to consider how their social media behavior can harm their employer’s reputation. While the pros of social media are widely noted, the wildcard of a client or employee’s marriage to social media can be devastating.
Decker Cady graduated from Thomas Jefferson School of Law.
1 http://espn.go.com/espn/page2/story/_/id/7026246/examining-sports-leagues-social-media-policies-offenders
2 http://espn.go.com/espn/page2/story/_/id/7026246/examining-sports-leagues-social-media-policies-offenders
3 Id.
4 Id.
5 http://espn.go.com/chicago/mlb/news/story?id=6450727
6 http://espn.go.com/espn/page2/story/_/id/7026246/examining-sports-leagues-social-media-policies-offenders
7 http://www.sbnation.com/nba/2013/11/15/5109204/jr-smith-fine-twitter-brandon-jennings
8 http://www.nytimes.com/2009/11/10/sports/football/10chiefs.html?_r=1
9 http://www.law360.com/articles/260202/steelers-star-sues-ex-sponsor-for-nixing-endorsement
10 Mendenhall v. Hanesbrands, Inc. (M.D.N.C. 2012) 856 F.Supp.2d 717.)
11 Id.