Navigating social media in the US & UK: our top tips for athletes, executives and sponsorsAlex Henderson, David Blood, Danielle Moore Burton
Sports is one of the most popular topics discussed on social media. The 2014 FIFA World Cup broke all records as the most tweeted about event ever, with 672 million tweets sent referring to the finals in Brazil.1 In the UK, 8 out of the top 10 tweeted about moments in 2014 related to football. Of the top 10 topics on Facebook in the UK in 2014, the World Cup came in third, closely followed by the Premier League title. Even Louis Van Gaal's pending, and then subsequent, appointment at Manchester United received more social media engagement than other more serious topics such as the Ebola virus outbreak and the First World War centenary.2 While the athletes themselves are not as well followed (none are in Twitter's top 10 most followed accounts3), Cristiano Ronaldo still has in excess of 37 million followers on Twitter and more than 100 million fans on Facebook.
The opportunities for athletes, executives and sponsors to leverage this exposure is tremendous; they can engage with fans, market themselves, break news and share personal information. While social media can be used advantageously to expose players, increase profitability and promote brands, mismanagement of social media can be as equally destructive and lead to damaged reputations, disciplinary actions, fines, and suspensions.
The first half of this article looks at how social media is being used in the sports industry in both the UK and US and considers briefly how traditional legal tools can apply. The second half will go on to offer ten top tips that athletes, executives and sponsors should consider when using social media platforms.
Social Media Missteps in the UK
When people think of sports and social media in the UK, they often think of ill-advised tweets from athletes that end up in fines and, in some cases, suspensions. Since 2011, the FA has heard over 120 cases and issued over £350,000 worth of "Twitter" fines.4
Some of the more high profile incidences include a fine of £25,000 and a one match ban for Mario Balotelli for a racially inflammatory post about Super Mario,5 Ashley Cole's fine of £90,000 for using an expletive to describe the FA following the John Terry racism case6 and then Liverpool player Ryan Babel's £10,000 fine for posting a doctored picture of a high profile referee in a Manchester United shirt after Liverpool's defeat at Old Trafford.7
Indeed, one of the most active sportsmen on Twitter, Rio Ferdinand, who has in excess of six million followers, was fined £45,000 for merely re-tweeting another user referring to then international team-mate Ashley Cole as 'choc ice' (a slang term that describes a black person who allegedly acts like a white person).8 More recently in November 2014, Rio Ferdinand was fined again, this time £25,000 along with a three match ban for responding to a tweet using the slang term “sket” (meaning a promiscuous girl or woman).9 In imposing the sanction, the FA reportedly held particular regard to the fact that Rio Ferdinand is an experienced Twitter user and is seen by many to be a role model. The sanction was imposed despite the “jokey” nature of the back and forth between Ferdinand and Twitter users, of which the tweet in question was a part, and is particularly interesting considering the similar sanctions imposed on John Terry (four games)10 and Luis Suarez (eight games)11 for the far graver offence of racial abuse.
But it’s not just players that can make errors of judgment when it comes to social media use. Even owners and executives can be guilty of an ill-advised tweet or two. One of the most widely covered examples was a tweet sent out by Liverpool and Boston Red Sox owner, John W. Henry, in response to a reported offer by Arsenal of £40,000,001 for then Liverpool striker, Luis Suarez. Apparently, John W. Henry was not too impressed with the offer when he tweeted his 400,000 plus followers with "What do you think they're smoking over there at the Emirates?"12
However, not all social media jabs end badly, as such platforms do offer excellent venues for some more relaxed sporting “banter” between rivals. For example, Manchester City welcomed Roma to the Etihad for a Champions League group match in September 2014 with a good natured swipe at Roma legend Francesco Totti, tweeting that he had never scored a goal in England. Somewhat predictably, Francesco Totti then scored for Roma in a one-all draw, which led Roma to respond, ahead of the return match in Rome, by tweeting that Manchester City had never won in Italy.13 In response, Manchester City duly beat Roma 2-0 in the Stadio Olimpico a couple of months later.
Social Media Fumbles in the US
American sports leagues are also no stranger to controversy surrounding inappropriate, insensitive or illicit social media use. Violations of league policies via social media posting span the entire sports industry. For example, in the National Football League, Miami Dolphins defensive back Don Jones was fined in May 2014 for violating the team’s policy when he sent out a tweet critical of Michael Sam, an openly gay man who was drafted to the St. Louis Rams.14 Tampa Bay Rays pitchers David Price, Jeremy Hellickson and Matt Moore were fined $1,000 each by Major League Baseball for their criticism of an umpire on Twitter.15 The National Basketball Association handed Knicks guard J.R. Smith a $25,000 fine for directing hostile and inappropriate language to another player via his Twitter account.16
While players are the largest group of offenders, owners and managers are also subject to discipline for improper social media use. Dallas Mavericks owner, Mark Cuban, was fined $50,000 for making critical Twitter comments about league officiating -- "Im sorry NBA fans. Ive tried for 13 years to fix the officiating in this league and I have failed miserably. Any Suggestions ? I need help."17 Former Chicago White Sox manager Ozzie Guillen was suspended two games and fined $20,000 for his post-ejection rants -- "This one is going to cost me a lot of money this is patetic [sic]" followed by "Today a tough guy show up at Yankee stadium."18
Indeed, even team accounts can cross the line. In an interesting comparison to the Manchester City and Roma interaction discussed previously, a Houston Rockets employee found himself out of a job when he sent out an irresponsible tweet from the team's official Twitter account. The Rockets were in the process of eliminating the Dallas Mavericks from the NBA playoffs when the Rockets tweeted emoji imagery of a pistol next to a horse along with the line, "Shhhhh. Just close your eyes. It will all be over soon".19
A Powerful Tools for Sponsors
Social media is also an extremely effective medium for sponsors of sporting events (and those wishing to gain an implied association with an event through so-called ambush marketing) to communicate with the target audience in real time. One of the first high profile uses of social media (and still arguably one of the best) was the tweet sent out by Oreo during the 2013 Super Bowl.20 The Super Bowl that year was halted during the third quarter due to a huge power outage at the Superdome venue at which it was being played. Almost immediately, Oreo tweeted an ad that read "Power Out? No problem" with a picture of a highlighted Oreo cookie. The ad was retweeted over 15,000 times and had more than 20,000 likes on Facebook. It turns out that Oreo had a 15-person team on hand to react and respond to anything that happened on the night, ensuring that their communications were relevant and immediate.
More recent examples of the power of social media are seen in the statistics from the 2014 FIFA World Cup. Nike released eight video campaigns during the World Cup for 240.6 million views, topping Samsung’s 124,374,254 views and Adidas’ 90,314,729 views. World Cup-themed videos were viewed more than 75 million times and generated 100 million actions, which included social shares. In total, Visa’s digital activations generated 1.7 billion impressions, besting its goal of 1.2 billion.21 Athletes and other team personnel just need to be cautious when harnessing all that power to ensure that they don’t get themselves into trouble through careless statements and postings.
However, in the UK, athletes, team personnel and sponsors also need to be careful that they do not fall foul of advertising rules. Some early examples concerned Wayne Rooney and Jack Wilshire sending out "personal" tweets that were deemed to be advertisements under the UK's advertising regulatory regime. Both Jack Wilshire and Wayne Rooney sent out tweets with the hashtag "#makeitcount" along with the URL "gonike.me/makeitcount", a reference to their sponsorship deals with Nike. In upholding a complaint, the Advertising Standards Authority deemed that the tweets did not make it sufficiently clear that they were a marketing communication and hence a breach of the Consumer Protection from Unfair Trading Regulations at the time.22 Athletes, team personnel and sponsors sending a promotional message in the UK via social media should therefore ensure they include a reference that it is a marketing communication, through using #ad or #spon.
Impact on Legal Proceedings & Criminal Trials
Social media gaffes and violations of league policies are one thing, but the use of social media in proceedings can be another. For instance, during the arbitration battle between the New Orleans Saints and Jimmy Graham regarding whether in his franchise tag determination Jimmy Graham should be considered a tight end or a wide receiver, the arbitrator sided with the New Orleans Saints' argument that Jimmy Graham considered himself to be a tight end as, amongst other things, he described himself as that on his Twitter bio. Jimmy Graham had stood to gain an approximate $5 million pay increase if he was found to be a wide receiver.23
Further, the high profile nature of sports and the media interest surrounding athletes can also mean participants are susceptible to the impact of social media outside of the playing field with more serious consequences. In the UK, the rape trial of Ched Evans grabbed headlines for all the wrong reasons, largely due to Ched Evans's status as an international footballer. Predictably the court case generated lots of media attention, including on social networks (6,000 messages relating to the case were posted on Twitter). In a more sinister turn, supporters of Ched Evans disclosed the identity of the victim, contrary to the Sexual Offences (Amendment) Act 1992, and then directed accusations blaming the victim, for which they were criminally prosecuted and fined.24
In comparison, in the US, it is arguable whether Jameis Winston's attorney, David Cornwell, could be prosecuted for disclosing the name of a woman who had accused Jameis Winston of rape and sexual assault. The case is different, as Jameis Winston was not convicted or even formally charged with the offence that was accused. However, it is striking that there is no law in Florida that could, on the face of it, be used to bring charges against David Cornwell for doing something not significantly different from those prosecuted and fined in the case of Ched Evans.25
There are few laws in the UK or the US that are specifically designed to address many of the issues that social media creates. Instead, when faced with such legal questions the courts are forced to apply principles of law that were created for other purposes and analogously apply them to the new world of social media. Given the pace of the legislative process compared to the rapid change of social media innovation, that dynamic is not likely to change any time soon.
That said, in the UK, the House of Lords Communications Committee released a report in 2014 expressing a view that the current legislation, including the Communications Act 2003 and the Protection from Harassment Act 1997, along with the guidelines for applying them published by the Director of Public Prosecutions, are enough to ensure that criminal offences committed using social media can be adequately prosecuted.26 But what about when a tweet does not constitute a criminal offence but does bring the sport, team or governing body into disrepute?
The most common control imposed on players/athletes is through a contractual matrix of player contracts and social media policies. But what of an individual's freedom of expression? In the UK, the right of freedom of expression is enshrined in the Human Rights Act 1998. However, the Act only directly applies to public authorities and only has indirect relevance to private bodies such as clubs and most sporting organisations. An interesting argument could, however, be made in respect of athletes that participate in Olympic sports. The International Olympic Committee’s status as a United Nations permanent observer obligates it to strike an appropriate balance between its autonomous interests and the human rights that the UN promotes. However, the European Commission has held that there would be no interference where an individual has agreed to limit their own freedom of expression contractually.27
In the US, nearly every professional sports league has adopted a social media policy28 restricting the use of social media by personnel, players and owners in some way, and such limitations are often further supplemented by additional policies implemented by the individual teams. A key part of most league social media policies is the restrictions imposed on the use of social media before, during and after the game, to ensure that players and other personnel are focused on the game. For example, the NBA prohibits the use of cell phones and electronic devices during games, including 45 minutes before tipoff until after media obligations have been completed. Similarly, the NFL prohibits social media use less than 90 minutes before kickoff and such use can resume only after traditional media interviews conclude. While many such social media policies do not directly impose limitations regarding the content that may be posted by athletes and league personnel, such policies generally make it clear that league and/or team personnel are as responsible for statements made in social media as in other form of media and communication.
Restrictions on social media must balance between protecting the franchise without running afoul of the privacy and free speech rights of athletes. Freedom of speech is a foundational principle of the US, enforced by the First Amendment to the United States Constitution. Free speech, however, is not absolute. First of all, the federal constitutional protections of free speech only apply to actions by federal, state and local government officials and agencies -- not private organizations, like sports leagues and teams. In addition, even when First Amendment principles do apply, such protections are limited by application of conflicting legal principles that may apply, such as when speech is false or fraudulent, defamatory, discriminatory or harassing. Employers have the right to discipline employees for inappropriate speech, particularly bigoted or disparaging speech and statements that are not permitted by their policies. In addition, employers can punish for “off-duty” conduct if it has a sufficient nexus with the workplace -- it does not matter whether such conduct is happening in a virtual world of social media or any other communication/media platform.
Athletes, executives and sponsors in the sports sector, therefore, need to strike the right balance between promoting themselves and the sport and ensuring use of social media is exercised with a modicum of prudence so that ill-advised statements broadcast through the Internet megaphone do not cross the line into bringing the sport, league, team or athlete into disrepute.
Our Top 10 Tips for Athletes, Executives and Sponsors
Taking into account the examples previously discussed, athletes executives and sponsors would do well to consider the following tips when approaching social media:
1 Devise a social media strategy
Social media is a powerful tool for sponsorship opportunities as well as marketing and connecting with fans. The more ubiquitous a team’s presence is on the various social media platforms, the more opportunities teams and players have to grow their brands. Facebook, Twitter and Instagram are the primary platforms used by most teams. Great consideration should be given to the platforms that best send a message. For example, the Dallas Cowboys’ Instagram account featured a photo of the dates of training camp, whereas the team’s Twitter account features, “#CowboysCamp”. It should also be noted that interacting with fans creates a good opportunity to use comments from fans for team promotion and receive quick and honest feedback. It is a good idea to poll fans, post questions or provide historical information about the team in the off season and on non-game days to sustain interest.
2 Create an effective social media policy
Athletes, executives, sponsors and lawyers need to know what information can and cannot be communicated on social media forums in order to protect the franchise/team, the player’s reputation and the integrity of the game. A social media policy could send a clear signal about what is expected from personnel, players, owners and corporate partners alike.
An effective social media policy must
- encourage individuals to buy into the policy;
- educate all stakeholders about the social media policy; and
- ensure that the consequences of violating the policy are clearly articulated and proportional to the offense.
First, individuals are more inclined to accept and comply with rules that they help create. Players’ associations should be consulted and engaged in the process of devising and/or amending the social media policy.
Second, all stakeholders should be educated about the risks of violating the social media policy, which not only includes fines, disciplinary, suspensions and removal from the team, but also potential lawsuits and undoubted reputational damage. Sports organizations can also promote education by offering training based on legal advice and marketing advice. In addition, persons affiliated with the franchise should have a social media adviser or a point person to turn to for advice on social media usage.
Sponsors and corporate partners should also be required, pursuant to their applicable contractual relationships, to abide by the franchise's/club's social media policy and buy into the organisation's overall social media strategy. Whilst corporate partners may not be directly bound by the social media policy in the same way that players and employees will be, the applicable terms of the social media policy (or other similar provisions providing the similar protection to the league/franchise) can be incorporated into any sponsorship agreement and annexed to the other contractual terms. In this way, any breach of the social media policy will be a breach of the contractual relationship between the parties.
Finally, like any effective policy, the consequences for violating the policy should be clearly outlined and should be applied uniformly with a clear process for review and appeal, resulting in swift and fair action.
3 Stay up-to-date
As the saying goes, "the only thing that stays the same is change." Social media is always rapidly evolving and young people seem to use and then discard social media platforms at an alarming rate. As a result, a sports organisation's policies and strategies should always be kept up-to-date. A policy drafted even 6 months ago could now very well be out of date. The last year has seen an increased rise in "image-as-priority" platforms such as Instagram, Vine and now Periscope rather than the initial "text-as-priority" platforms like Facebook and Twitter. Sports organisations should be cognisant of and rigorously assess both the opportunities and dangers these new, popular platforms present. Likewise, sports organisations should ensure that their crisis management strategies stay up-to-date and recognise the specific dangers that new platforms present, such as privacy, confidentiality and defamation and how these can be managed accordingly. Given the competing pressures on a sporting organisation, an annual review of any polices is recommended. However, any changes will only be effective if they are communicated to, and accepted by, applicable stakeholders. Sporting organisations should therefore ensure that any changes and updates to its social media policies and crisis management strategies are effectively communicated throughout the organisation and to all relevant third party partners, and, if necessary, an appropriate education programme is put in place.
4 Restrict certain comments
As a general rule, nothing should be placed on social media that one wouldn’t want to appear on the front cover of a newspaper or magazine. Even private messages or posts can quickly become public. While fans and detractors may post harsh criticism, insulting remarks and denigrating comments, athletes, coaches and owners should aim to take the high road and be respectful. For example, former NFL athlete, Bernard Berrian, told an amputee who served in the war in Iraq to "sit down n shut up!!" on Twitter after the man criticized his play on the field. It may seem obvious to some, but comments that target a particular group should be avoided at all costs. For instance, Australian Olympic swimmer Stephanie Rice writing "Suck on that fa***ts!" on Twitter after Australia beat South Africa in a rugby match, caused her to lose a very lucrative deal that she had with Jaguar.29 Similarly, Paraskevi Papachristou, a Greek Olympic triple jumper, sent out a tweet that featured a tasteless, racist "joke", which ended up getting her removed from the Greek Olympic team.30 Sports teams attract people from all walks of life and it’s to the advantage of the team and sponsors for sports organizations to appeal to the broadest group possible. It would be wise to restrict offensive and insensitive comments to avoid alienating any particular group.
5 Monitor social media channels and react quickly
Sports organisations would be well advised to diligently monitor all social media channels linked with the team and their athletes (be it the club's official Facebook page or its players’ Twitter and Instagram accounts). It is always better to confront issues in an open and timely manner. If effective monitoring is in place and your star player posts something inadvisable, the organisation will be able to react quickly by posting an official statement and/or asking the player to delete the post/issue a clarification statement or apology. Moreover, in Europe, the recent decision by the European Court of Justice in Delfi AS v Estonia31 has cast doubt over whether organisations that allow users to post comments can hold themselves immune of liability for the content of such comments. Sports is an emotive and passionate subject for many and can incite fervent views and remarks. Sports organisations should ensure they employ effective monitoring of user-generated comments through official channels and remove obscene, defamatory and inciting comments in a timely manner.
Sports organisations should also monitor their social media channels to check on performance and effectiveness. The exact metrics used should be considered as part of the overall social media strategy (see tip #1) but some concepts that may be worth tracking include:
- the perception of the organisation's brand and reputation;
- whether the social media campaign/strategy is targeting and reaching the correct audience; and
- whether the result is an increase in revenue (either through increased merchandise sales, more tickets being sold or even a sponsor's increase in sales following its association with the team).
Finally a key measurement of performance is to listen to what people are saying online – their views on the team, what they want more of and how you can improve.
6 Protect your trademarks
A trademark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods of one seller from those of others, and to indicate the source of the goods. For example, one of the most famous trademarks is the symbol of Air Jordan, a silhouette of Michael Jordan dunking, which appears on Nike shoes. In addition, domain names and hashtags can be protected as trademarks (provided they meet the applicable tests). To the extent that social media is used as a tool to brand a player or co-produce a brand with a sponsor, players and sponsors should be proactive and obtain legal support before placing an idea into the social media ether for someone to register the idea first.32
Even if you’re unsure about whether the idea will become popular, you should file an intent to use application, which will ensure that you can lay claim to the idea even before you begin selling your logo, hashtag or catch phrase on an article of clothing or in association with an app. Whilst the UK and Europe more generally does not have the same concept of "intent to use" applications, the principle remains the same. If there is a brand, logo or slogan that is fundamentally important to the campaign, steps should be taken to ensure that the value in that asset is protected. Social media provides a means to promote your brands and there’s no better way to do that than to secure your intellectual property rights early. Before you tweet it or place it on Instagram, make sure that you protect your trademark.33
7 Engage the fan
The key to a great social media strategy and campaign is to engage with the fans. As such, interactive content can be the most effective way of starting a conversation. Interactivity provides a more personalised feel for the fan, who can immediately feel part of the team rather than simply somebody who is part of the target market. It can also help widen the reach of the message, as fans can share their experiences with their friends and followers. A great example of "out-of-the box" thinking, albeit outside of sport, was Virgin Mobile's "Game of Phones" campaign in Australia. The campaign saw the creation of a location based reality app, which saw players hunt for virtual prizes around major cities, whilst protecting those prizes they had found from others trying to "virtually" steal them. The campaign recruited almost 40,000 players, generating 2.5 million screen views and more than 103 million impressions throughout its duration.34 It also drove customers to physical stores, as the stores acted as "safe houses" where prizes could not be stolen. Innovative campaigns like this can be hugely successful and effective ways of engaging with fans and building a relationship with them that goes beyond the stadium or arena.
8 Engage the athlete
Don't just engage the fan with your social media campaigns, engage your team, players, executives and partners. Doing so has multiple benefits. First, it will expand the breadth of exclusive content you can offer. For example, video diaries with players or behind the scenes looks at how the organisation operates can be fascinating insights for fans. It is exactly the type of exclusive content that the organisation can offer which can promote fan interaction. Second, it will help get buy-in from employees of the organisation and help them understand the overall social media strategy and what is and is not allowed. In this way, it can offer a useful educational tool, especially for players about how best to use social media to boost not only the organisation's brand but also the player's.
9 Work with official partners for better social media campaigns…ward off ambushers
The ease and speed with which commercial messages can be distributed via social media channels makes it a primary tool for so-called ambush marketers to imply an unauthorised association with a sporting organisation. Whilst the inadequacy of legal protections against ambush marketers is outside the scope of this article, the impact can arguably be minimised by sporting organisations working with their official partners to provide a higher quality interaction with fans. The traditional model of granting certain rights to partners at the outset and then leaving them to it for the term of the association is long gone. Sporting organisations should seek to work in partnership with sponsors to provide a better quality, more interactive, more exclusive experience for the fan. This can be achieved through providing exclusive content, prizes and giveaways and generally working with the partner to consolidate the association with the sporting organisation. Success in this area can also enhance the future value of partnerships for the sporting organisation.
10 Seek legal advice!
Effective and legal use of social media is largely down to the use of common sense by the individual (be it an athlete, executive or sponsor) seeking to get his or her message out there. Indeed, common sense pervades through almost all of our top tips above. However, innovative uses of social media can touch upon a vast array of laws and regulations including privacy and data protection, advertising, defamation and freedom of speech. Therefore, if you are in any doubt, you should always be pro-active and seek legal advice from specialist law firms.
This work was written for and first published on LawInSport.com (unless otherwise stated) and the copyright is owned by LawInSport Ltd. Permission to make digital or hard copies of this work (or part, or abstracts, of it) for personal use provided copies are not made or distributed for profit or commercial advantage, and provided that all copies bear this notice and full citation on the first page (which should include the URL, company name (LawInSport), article title, author name, date of the publication and date of use) of any copies made. Copyright for components of this work owned by parties other than LawInSport must be honoured.
- Tags: 2014 FIFA World Cup Brazil | Commercial Law | Communications Act 2003 | Contract Law | Employment Law | First Amendment | Governance | Human Rights Act 1998 | IOC | Olympic | Protection from Harrassment Act 1997 | Regulation | Sexual Offences (Amendment) Act 1992 | United Kingdom (UK) | United Nations (UN) | United States of America (USA)
- Mark my words: protection of athletes’ nicknames & catchphrases in the U.S.
- Non-traditional trade marks in sports – an EU perspective
- Do English laws sufficiently protect sports stars from social media abuse?
- Social media and reputation management - what’s over the marksman’s line?
About the Author
Alex is a commercial lawyer at Dentons with a particular emphasis on the media and sport sector. Alex has worked on media rights related matters for a number of clients including, the England and Wales Cricket Board and Chelsea Football Club as well on various commercial arrangements in sports such as football, cricket and formula 1.
David is a partner in Dentons' Corporate practice based in Los Angeles, with more than 15 years of experience negotiating corporate and complex commercial transactions, particularly in which media, sports, technology and intellectual property are key assets. David has broad experience representing US, international and multinational clients with respect to matters such as joint ventures, private equity investments, licensing, distribution, mergers and acquisitions and complex commercial transactions. Internationally, he has counselled companies operating throughout Latin America, Europe, the Middle East and Asia.