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New Guidance on How Clubs Should Treat Social Media Misconduct by Footballers

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.Given
the rise in use of Twitterby 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.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
,in which he acted for the
successful Respondent employer. 

COMMERCIAL ADVANTAGES

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.In
relative terms clubs lag behind; in December 2014 Arsenal became the
first Premier League club to reach “only” 5-million followers.The
highest value club in the Premier League, Manchester United, has only 4.3 million followers.England
captain and Manchester United player, Wayne Rooney, has 10.6 million followers.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

WHEN IT GOES WRONG

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 

“GUIDANCE” ON WORKPLACE SOCIAL MEDIA MISCONDUCT

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:

  1. Any
    pre-existing I.T. or social media policy provided by the
    club to the player; the potential sanctions set out in that policy, and
    whether that policy was enforced in practice by the club or
    whether there has been inconsistency in treatment. Given that the FA has
    sent guidance to all professional football clubs, it would
    be hard for a footballer to contend that a social media policy
    did not exist. However, whilst a policy may exist, its implementation may
    be loose or inconsistent. For example, it would be inconsistent (and, as a
    result, almost certainly unfair) for one player to be dismissed for an
    offensive tweet whilst another (say, more important player from a playing
    perspective) was not sanctioned in the same way for a similar tweet.21
  2. The
    nature and seriousness of the alleged social media misuse.
    This should be self-evident, whilst a one-off offense may not
    merit a dismissal, repeated offensive tweets may render the player-club
    relationship untenable.22
  3. Whether
    the social media post is clearly labelled as representing
    the player’s “own views”. However, within a sporting context,
    distinguishing this point is the equivalent of dancing on the
    head of a pin. “Followers” will generally read a player’s tweets
    because they are a high-profile athlete, so their tweets will almost
    always be synonymous with their employer club. As a result whether the
    player’s views are their “own views” will not detract from the fact
    that offensive comments will almost certainly impact on their
    employer club’s reputation.
  4. Any
    previous warnings, whether expired or not, given to the player for social media misuse
    or similar misconduct.
  5. Any
    actual or potential damage to commercial relationships by the
    relevant posts by the player. Within a sporting context, actual
    damage may be relatively rare. However, the prospect of a club’s image
    (and, therefore, value) being adversely affected by the acts of
    its players is a very real one.
  6. How quickly
    posts were removed by the player from the public domain after
    posting. Indeed, as the recent furore surrounding Mario Balotelli’s posts
    showed, an immediate acceptance that he was in the wrong, however well
    intentioned, and made an apology effectively ended the debate about the
    matter – even if he was then handed a 1-match ban and a £25,000
    fine
    .23

Although the points above will have general applicability, Mason
v. Huddersfield Giants
24 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. 

References

  1. Team
    valuations of Bayer Munich, Arsenal and Manchester United from Forbes.com,
    accessed on3 February 2015, http://www.forbes.com/teams/bayern-munich/;http://www.forbes.com/teams/arsenal/;http://www.forbes.com/teams/manchester-united/
  2. Twitter
    user statistics, https://about.twitter.com/company
  3. ‘Robert
    Huth: FA charges defender over responses to explicit tweets’, BBC.com, 14
    January 2015, last viewed 15 January 2015 http://www.bbc.co.uk/sport/0/football/30660374
  4. Game
    Retail Limited v Laws
    UKEAT/0188/14/DA, https://littletonchambers.com/lib/judgments/game%20john%20mehrzad161214.pdf
  5. ‘The
    world’s highest paid athletes’, Forbes.com, accessed 2 February 2015, http://www.forbes.com/athletes/list/#tab:overall
  6. Christiano
    Ronaldo’s official Twitter account, https://twitter.com/cristiano
  7. Reuters,
    Arsenal first Premier League side to reach five million Twitter followers
    as Gunners continue to lead way on social media’, Daily
    Mail
    , 22 December 2014, 14 January 2015, http://www.dailymail.co.uk/sport/football/article-2883952/Arsenal-Premier-League-reach-FIVE-MILLION-Twitter-followers-Gunners-continue-lead-way-social-media.html
  8. Manchester
    United’s official Twitter account, https://twitter.com/manutd
  9. Wayne
    Rooney’s official Twitter account, https://twitter.com/waynerooney
  10. Real
    Madrid’s official Twitter account, https://twitter.com/realmadrid
  11. Examples
    include the following: www.tempero.co.uk,www.giraffesocialmedia.co.uk,www.fitysocialmedia.com,www.digitalsherpa.com,www.emoderation.com,www.yogurttopmarketing.co.uk,www.yomego.com
  12. For
    more details about social media platforms using athletes to
    endorse third party products see, http://www.businessinsider.com/mike-vick-twitter-endorsement-mylikes-mcdonalds-drew-brees-new-orleans-times-picayune-new-orleans-saints-2011-10?IR=T [Accessed
    15 January 2015]
  13. For
    an interesting analysis see Patricia Leonard, “Howis Sport
    Professionalising its “Twitterati”? Morality Clauses, Regulation and
    Enforcement
    ”, LawInSport.com, 1 September 2014, last viewed 3 February
    2015, http://www.lawinsport.com/articles/item/how-is-sport-professionalising-its-twitterati-morality-clauses-regulation-and-enforcement
  14. Hytner,
    D. (2014).Think before you tweet: FA makes £350,000 in Twitter
    fines since 2011
    . [online] the Guardian. Available at: http://www.theguardian.com/football/2014/oct/30/fa-fines-rio-ferdinand-twitter [Accessed
    14 Jan. 2015].
  15. Hytner,
    D. (2014).Think before you tweet: FA makes £350,000 in Twitter
    fines since 2011
    . [online] the Guardian. Available at: http://www.theguardian.com/football/2014/oct/30/fa-fines-rio-ferdinand-twitter [Accessed
    14 Jan. 2015].
  16. FA
    Rule E3(2) provides that comments that include a reference to any one or
    more of a person or person’s ethnic origin, colour, race, nationality,
    faith, gender, sexual orientation or disability are considered
    “aggravating factors”.
  17. The
    FA, (n.d.).English Football’s Inclusion and Anti-Discrimination
    Action Plan
    . [online] London: The FA. Available at: http://www.thefa.com/News/thefa/2012/dec/david-bernstein-anti-discrimination.aspx [Accessed
    14 Jan. 2015].
  18. Hytner,
    D. (2014).Think before you tweet: FA makes £350,000 in Twitter
    fines since 2011
    . [online] the Guardian. Available at: http://www.theguardian.com/football/2014/oct/30/fa-fines-rio-ferdinand-twitter [Accessed
    14 Jan. 2015].
  19. See http://www.premierleague.com/en-gb/news/news/2012-13/jul/premier-league-issues-club-guidelines-on-social-media.html [Accessed
    15 Jan. 2015].
  20. Ibid
    at i
  21. See Hadjiannou
    v. Coral Casinos
    [1981] IRLR 352 (EAT) for the legal principles
    in relation to inconsistency of treatment amounting to an unfair
    dismissal.
  22. See,
    for example,Weeks v. Everything Everywhere Limited ET
    (Case Number 2503016/2012) in which an employee, despite a warning to stop
    posting offensive posts, continued to do so and was subsequently fairly
    dismissed.
  23. See
    a report within The Guardian, 18 December 2014: http://www.theguardian.com/football/2014/dec/18/mario-balotelli-fa-super-mario-instagram-liverpool [accessedon29
    January 2015]
  24. >Mason
    v. Huddersfield Giants[2013] EWHC 2869 (QB)
  25. See
    the Littleton Chambers website for a fuller explanation of this case: https://littletonchambers.com/rugby-player’s-moonie-is-not-repudiatory-misconduct-462/
  26. Lerwill
    v. Aston Villa Football Club Ltd.
    (ET Case Number 130758/2010)
  27. The
    Football Association it has a dedicated page and video-link to its
    decision making process in relation to social media and media comment misconduct: http://www.thefa.com/football-rules-governance/rulebookanalysis/media-comments [Accessed
    14 Jan. 2015]
  28. This
    is not the place for a long commentary about the legal concept of
    vicarious liability suffice to say that liability has been placed on the
    employing entity even in circumstances where the employee has committed
    heinous criminal acts:Lister v. Hesley Hall [2001] UKHL
    22. There are now strong policy reasons for doing so, principally that
    employers are required to have compulsory insurance, thus in most
    circumstances have “deeper pockets” than their individual employees.
  29. Byway
    of example, the Rugby Players’ Association have such a programme for its
    members. I have already mentioned a similar programme on behalf
    of the FA.
  30. Human
    Rights Act 1998, http://www.legislation.gov.uk/ukpga/1998/42/contents

 

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