This article was first written for and published by LawInSport. Click here to view the original.
John Mehrzad
The brand valuation of a football club forms a significant part of its total value. For instance, Bayern Munich, Arsenal and Manchester United alone have a combined brand valuation in excess of £550 million.1 Given the rise in use of Twitter 2 by fans and footballers alike, tweets have the potential to affect how clubs are perceived, which in turn impacts their brand value as well as the reputation of the sport.
This makes tweeting a major concern, especially when barely a week goes by without a footballer tweeting out a comment that lands them in hot water.3 It also raises the issue of how clubs and governing bodies appropriately regulate footballers’ use of Twitter and, indeed, ultimately how controversial tweets can affect the player-club employment relationship. This author would like to share his thoughts on this latter issue following the recent first domestic appeal-level decision about work place social media misconduct,Game Retail Limited v. Laws,4 in which he acted for the
successful Respondent employer.
Byway of context, athletes as well as the clubs and brands that they represent can derive huge financial benefits from the social media “reach”
that can be enabled by Twitter usage. Sponsors and advertisers can tap into a ready-made market by signing up an athlete with a large “following” and then contractually oblige them to send out marketing to their “followers”. Club brands get significant additional exposure. And, of course, the athlete benefits from enhanced remuneration, particularly from related sponsorship deals.5
Social media “reach” of leading sports-people can be phenomenal. For example, Cristiano Ronaldo has over 30 million Twitter followers.6 In
relative terms clubs lag behind; in December 2014 Arsenal became the first Premier League club to reach “only” 5-million followers.7 The
highest value club in the Premier League, Manchester United, has only 4.3 million followers.8 England captain and Manchester United player, Wayne Rooney, has 10.6 million followers.9 The wealthiest club in the world and Ronaldo’s employer, Real Madrid, has only 14.6 million followers (or just 18.6 million if its English account is included).10 This shows that, in the main, it is the players who are usually followed in preference to their clubs.
All is not, though, as it seems; Twitter usage is often a sophisticated operation. There are social media platforms that hire celebrities to endorse products via their Twitter accounts.11 Instead of hearing of preparation for a big game, you may see tweeted advertisements
about kitchens from some players.12 Some leading athletes even leave responsibility for tweets to media teams working for their representative agencies. Those teams ensure sponsors are satisfied with exposure and players tweet the “right thing” after games. By regulating tweets, there is little chance of lucrative endorsement contracts being terminated due to unfortunate comments.13
However, not every player has their virtual hand held. Some sporting tweeters are followed because followers can expect controversial
posts. For example, the (self-professed) eloquent Joey Barton, who has taken to Twitter to lash out at critics, has 2.85 million followers, over 10 times more than his club, QPR.
Using Twitter can go wrong – and, in sport, often does. Since December 2014 the Football Association has collected around £350,000 in
fines from social media-related offences.14 Indeed, since 2010-11 when Ryan Babel became the first player to be censured for
posting a photograph of referee Howard Webb mocked up in a Manchester United shirt, the FA has investigated no fewer than 121 instances of inappropriate social media comments. Of those cases, 18 resulted in no further action; 27 in warnings; 16 in the participant being reminded of their responsibilities and 60 led to charges.15 Of the charges, 33 involved aggravated breaches of rules,16 which came into force in 2010-11 and then tightened in May 2013 as part of English football’s inclusion and anti-discrimination plan.17
To curb re-offending the FA added a training programme to the list of sanctions for offenders. Rio Ferdinand is due to undertake that
course following his recent FA disciplinary for his “sket” tweet.18 The Premier League has also already sent out guidance to
all clubs regarding social media.19
In the recent December 2014 judgment in Game Retail Limited v.Laws (an employment case in which the author appeared for the Respondent) the Employment Appeal Tribunal, considered workplace social media misconduct for the first time at appeal level domestically.20 The EAT overturned a decision by the first instance Employment Tribunal that summary dismissal had been unfair since the offensive tweets were sent outside work-time, in a seemingly private capacity and without any obvious reference to the employer in the offensive tweets.
Whilst not a sporting case per se, some of the relevant tweets included admittedly offensive comments made towards supporters of a rival football team – as well as towards the police and the NHS. Given the employee’s Twitter account had a mixed public/private usage – he followed a number of Game Retail stores and in return was followed back by them – his conduct could not be viewed as purely private or limited to friends. Even though Game itself was not mentioned specifically in the tweets, the employee was recognised as a Game manager and, as such, his tweets could be associated with his employer.
Although the EAT did not give “tick-box” guidance, it did consider factors that it viewed as being of general relevance for workplace social media misconduct. For the purposes of sporting cases, the following are the most pertinent:
Although the points above will have general applicability, Mason
v. Huddersfield Giants24 is a good reminder that a court
will look very closely at the context of the relevant tweet to determine
whether it really amounts to repudiatory conduct, entitling the club to
terminate the player contract. In Mason,
the club was found to have wrongfully dismissed the player because the player
removed a tweet of his backside, which had been posted by his
girlfriend, during “Mad Monday”, a marathon drinking session between
players (and tolerated by the club); the conduct took place outside
his place of work from the player’s personal account and could not be seen as
being inextricably linked to the club; it was a single act; and the player then
followed instructions in terms of its removal. As a result Mason was awarded
£167,000 in damages and £35,000 in costs.25
Clubs also need to treat the rest of their
workforce fairly too. After all, non-playing staff are equally as likely to use social media as
players. In 2011 this came home to roost for Aston Villa in 2011 in Lerwill
v. Aston Villa Football Club Ltd.,26 when it was found to
have unfairly dismissed their Club Historian for making inappropriate comments
in response to an article that had been incorrectly attributed to him and had
resulted in criticism on an unofficial fans’ web-forum. The dismissal
was unfair since Villa had not provided guidance that a comment on a
public message board could result in disciplinary proceedings and dismissal,
the comment had been made in the employee’s own private capacity and not during
working time and the club had not made it clear that an employee’s views were
at all times representative of the club.
THE FUTURE
Clubs, sponsors, and agents will continue to seek to exploit
players’ “followers” for commercial advantage. In practice what that
will probably mean for leading players is that their Twitter content will
become increasingly sanitised, as all interested parties seek to control and
regulate what is tweeted out.
For other players, though, their only guidance will
come from clubs, player unions and associations.27 In the
same way that employers are now generally expected to have clear policies regarding
employee behaviour, including in relation to social media, so do clubs.
Where a player commits a tortious act, such as harassment or discrimination,byway
of a tweet, there is scope for a club being found to be vicariously liable for
any damage suffered by the victim.28 It can be of
little surprise, therefore, that players’ unions and national associations now
educate players on social media usage.29
Whilst all those developments suggest that a player’s
Twitter – and other forms of social media– usage will
inevitably see more control in the future, one area which has not yet been
tested out at appeal level in Europe (it was not specifically raised in Game)
is the qualified right of freedom of expression under Article 12 of
the Human
Rights Act 1998.30 That is, of course, a very topical
issue which arises in many areas not just in sport. So far, though, it remains
the elephant in the room within a sporting context.
