How is sport professionalising its “Twitterati”? Morality clauses, regulation and enforcement

Published 01 September 2014 By: Patrica Leonard

Twiiter on Mobile

In this article, Patricia Leonard examines the growing prevalence of sports stars engaging with fans through social media, and discusses how the industry is reacting to and trying to manage the interactions.


The growing importance of social media

There has been a shift away from the previous position of curbing athletes’ use of social media to prevent confidential information being leaked or derogatory comments being made. Instead, there is now an impetus to push players to promote themselves and their clubs and sponsors on social media.

This has developed to such an extent that the use of social media has become a negotiable clause of a player’s contract - the NFL Players Association has seen such an increase in social media clauses in player deals that it has recently backed a programme called Activate (professional sports’ first online microendorsement marketplace)1. This shift has shown the increasing importance of social media and its ability to make or break athletes into stars or remove them from the playing field altogether.

This shift can be attributed to the ability of an athlete or a sports club to build their brand among the increasing number of social media users. In the US, 73% of all adults using the Internet have at least one social networking profile and one in every seven minutes spent online is spent on Facebook2

It is not just athletes who benefit; social media is also a mechanism for sponsors to increase brand recognition. Around 64% of adult U.S Internet users who follow a celebrity also follow a brand, making the celebrity fan four times more likely to follow a brand than the average adult online. Additionally, such fans are also more likely to offer advice and opinion to fellow online consumers. This is particularly the case when it comes to entertainment topics, where 32 percent of celebrity fans online provide advice on movies (making them 44% more likely than the average online user to do so), and 28 percent provide guidance on music (56% more likely) and television programs (34% more likely)3.

By extrapolation, a similar model could apply to sports personalities and the brand they cultivate around themselves and their respective clubs. Athlete endorsements yield an average 4% increase in sales and a 0.25% increase in stock value4. Therefore, the rise of social media and the increasing role of the athlete in the spotlight have created new ways in which athletes can influence consumer behaviour and brands can capitalise on endorser opportunities.


Social media policies: regulation of player’s posts by third parties

Unsurprisingly, the constant media limelight athletes are encouraged into can create the reverse effect when a social media post goes terribly wrong. Olympic Gold Medal swimmer, Stephanie Rice, was dismissed from her role as spokesperson for Jaguar followed a homophobic tweet she posted after beating South Africa in a tournament5.

Insulting one’s team, and therefore tarnishing a brand, has also lead to repercussions; Charger’s quarterback Antonio Cromartie, was fined $2,500 for a tweet that insulted the food at their training camp.6

Carlton Cole was fined £20,000 by the Football Association for comments he made on Twitter during England's friendly with Ghana; Immigration has surrounded Wembley premises! I knew it was a trap”.

With these examples relating to the damage caused to a celebrity’s, and vicariously, their association and/or club’s reputation, it’s not surprising that associations and clubs have taken matters into their own hands by owning, or controlling, the athletes’ social media accounts in some way7 and/or ensuring that appropriate social media clauses are drafted into contracts. This has become such an accepted practice that one commentator noted "Every celebrity endorsement contract of any kind in the future must have a Twitter/Social Media clause…I will be so bold as to state that the failure to not have such a clause would be tantamount to endorsement contract drafting malpractice."8


Morality clauses: interplay with social media

But what about the impact of a player’s use of social media on third parties such as sponsors who have paid for a player’s image rights or companies which have paid for endorsement of their products? Companies pay huge sums to have their products/services associated with athletes or teams and the returns can be significant. However, the fall out can be devastating if the athlete falls out of favour with the public (think Tiger Woods, Lance Armstrong etc.).

As a result, most sponsorship and endorsement agreements contain a “morality clause.” This will allow the organisation to terminate, or otherwise take some corrective action against, a player who is damaging the organisation’s reputation based on some “immoral” conduct. These morality clauses allow these organisations to protect themselves by seeking to regulate the conduct of the athlete and providing an exit option if necessary.

How are morality clauses drafted?

Morality clauses are usually deliberately vague and drafted very widely, often referring to conduct that ‘brings the athlete into public disrepute, contempt, scandal or ridicule’, ‘shocks, insults or offends any class or group of people’ or ‘reflects unfavourably of the sponsor’s reputation or products’. The intention is to give flexibility to the organisation who has often paid sizable sums of money to a player to endorse the company’s products or to build up an advertising and marketing campaign around the player. There will also be specific clauses prohibiting the abuse of substances or the violation of the anti-doping etc. These morality clauses can, therefore, control how a player discusses a sponsor or its products online.

Most high profile clubs and leagues also have standard morality clauses inserted into player contracts and their own constitutions. The clubs and leagues themselves want to protect their brand and curb their players more egregious behaviour online.  Currently, Mario Balotelli is set to make a return to English football providing he agrees to incorporate strict morality clauses in his Liverpool contract regarding his behaviour.

Difficulties with enforcement

The strengthening in recent years of social media policies and morality clauses show the increasingly significant repercussions of the misuse and mismanagement of social media accounts. However, Sports Business Digest research suggests that organisations and clubs may have difficulty in imposing penalties or dropping an athlete following a digression on social media due to the difficulty in proving brand diminution.9 It is not always clear what the causative effect is of a player’s behaviour. It is also crucial that the language describing unacceptable behaviour is not too narrow. 

There may also be an argument that a player is entitled to post comments on social media as he or she has the right to freedom of expression and there are limits on the ability of a sponsor to curtail what a player says in the public sphere if it is purely of their own opinion10. The courts may be asked to perform a balancing exercise of protecting the untarnished image of a club versus a player expressing personal views on a privately owned twitter account.

One example in the US is the NFL star, Rashard Mendenhall, of the Pittsburgh Steelers, who tweeted controversial comments with regard to Osama Bin Laden’s death and insinuated that 9/11 could have been a conspiracy.11 His team were quick to make a statement supporting the U.S military and to distance themselves from his comments. Following the public uproar over his tweets, Mendenhall was dropped from his endorsement contract with Hanesbrands due to the triggering of the morality clause in his contract. Mendenhall filed a suit under the First Amendment, claiming his right to freedom of speech. Hanesbrands countered by saying the dispute was really about whether a trademark owner that had built a famous brand was required to continue to pay a celebrity endorser whose opinions threatened to bring the company into public disrepute12. A settlement was reached before trial; however, before the case was voluntarily dismissed13, Hanesbrands sought to strike out Mendenhall’s application. This was ultimately refused by the presiding Judge, Judge Betty, setting a precedent that such issues would indeed go to trial and indicating that there was merit in Mendenhall’s claim.

This result is a little surprising, as in the US the First Amendment is only applicable to government actors seeking to restrict a player’s speech, and, more importantly, players have usually already agreed to be governed by their league’s rules. As a particular league or sporting body is a private entity they are entitled to create their own rules and contractual policies as long as they comply with federal employment laws (the First Amendment is not considered an employment law). Likewise, in Europe, the European Commission of Human Rights has held that there is unlikely to be an interference with the right to freedom of expression where the individual has entered into an agreement limiting this14. Interestingly, Mendenhall’s twitter followers nearly doubled in the few days following the controversial tweets15.

A club or sponsor will also have to decide when and if they wish to enforce a morality clause; sometimes it may be felt that a player is simply too valuable. However, this approach is not without difficulties, for example, Mendenhall also argued that Hanesbrands had waived the right to terminate his endorsement contract in circumstances where he had not been sanctioned for earlier offensive tweets. If a player is too valuable to lose, it is important that there are a range of sanctions available under the contract such as fines, recoupment of bonuses and suspension.


Pushing player’s use of social media

Whilst some commentators feel that players should be banned from using social media, the increasing use of social media in sports has led to many sponsors and clubs actively encouraging players to use social media and trying to control this use. This has been led by the realisation that athletes are far more attractive to social media followers than the brands they endorse; for example, Lebron James has five times the amount of followers that Nike has16. This push is not just coming from third parties; aggressive and tactical use of online media has also allowed athletes with more moderate successes to carry the same type of marketing weight as much vaunted athletes.

There are differences of approaches amongst major sponsors, organisations and clubs in terms of what their social media clauses provide; some adopt a ‘pay-per-tweet’ model, others expect specific endorsements of products, some will insist on pre-approved endorsements whereas some will only require the player build up his or her own brand/exposure. One ski company, Amanda Skis, has previously made it clear that they make tweeting a mandatory for its athletes17. However, they do not require their athletes to promote a certain product, their aim is to increase visibility which in turn would increase interest in the brand as a whole.

Other action-sports athletes (for example, skaters and snow boarders) have entered into endorsement contracts that stipulate monthly tweeting quotas in addition to potential four-figure bonuses for every 5,000 new followers the athlete attains on Twitter18. The Ultimate Fighting Championship, the world's largest mixed martial arts organisation, incentivise fighters to enhance their social media platforms by offering $5,000 bonuses for those with the biggest increase of social media followers. Further bonuses are allocated to those whose tweets are deemed the most creative19 and the fighters are also expected to undertake social media training20.

Some sponsors will not only specify how many tweets/facebook mentions and Instragram photos an athlete must post, but will also draft each social media entry on behalf of the athlete.  Ashley Wagner (US figure skater) admits this is the case but emphasises she reviews and approves all of the posts that the sponsor writes for her21.

Therefore, each club/sponsor/endorsement organisation will have to think how best to draft the social media clause requiring the player to utilise their online presence. Some brands lend themselves more easily to specific marketing pushes whereas others prefer the slightly more subtle close association with a high profile athlete.


Final thoughts

Social media allows players to gain greater and more direct contact with the fans, to create a relationship between them and the player and the brand they represent. Whilst this could be seen as a positive step, it also creates another dimension in the bargaining power of the agent and clubs who may place ever increasingly demands their athletes. Would this create an unfair leverage to the side of the agent? Or, would it create an advantage for one player to be taken on by a team due to their significantly higher number of twitter followers than their fellow athlete? Already, players havetaken to twitter to gain leverage in contractual negotiations by exposing the (apparently, unacceptably small) amounts they are being paid22.

Importantly, it also raises legal questions; such as what would the repercussions of including morality clauses be for freedom of speech? Arguably, in line with US and ECHR jurisprudence, players cannot claim freedom of speech where they have signed up to a lucrative contract curtailing the same.

There is also a question about the type of “morals” we expect our athletes to abide by and whether we have the right to dictate a universal code to them. It is difficult to argue against the imposition of high standards of behaviour (for example, the NFL insist players are ‘dressed neatly’) given the influence exerted by players, especially on younger audiences. However, there are discrepancies of approach depending on the negotiating power of the player – high profile players are more likely to be able to argue for less constraining morality clauses and, even when they are breached, can expect a more benevolent approach.

Whether these types of clauses and bonus payments in contracts would start becoming more prevalent in the UK must boil down to current attitudes towards social media and the role they play here. Social media has had a fast increasing role in the lives of the ordinary individual and in the role and presence of companies. With athletes and their clubs becoming ever commercialised, it appears to be only a matter of time before players’ use of social media becomes more and more professionalised in the UK.


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Patrica Leonard

Patrica Leonard

Patricia Leonard is a Barrister at 7 Bedford Row Chambers and has experience of dealing with high profile clients and media sensitive cases. Patricia has successfully obtained a Reporting Restriction Order and a permanent Anonymity Order in a three week race discrimination trial. As this application was made in a race discrimination claim, neither Rule 49 or Rule 50 applied. The successful application relied upon Article 8 of the European Convention of Human Rights and the EAT case of F v G (Practice and Procedure: Reporting Restriction order) UKEAT/0042/11/DA. It is believed this is the first Reporting Restriction Order and a permanent Anonymity made in a case of this type.

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