“The most luxurious possession, the richest treasure anybody has, is his personal dignity.”
— Jackie Robinson.
By Leticia R. Halas
In March 2013, The San Francisco Giants signed Buster Posey to a nine-year, $167 million deal with a $22 million option for 2022 and a full no-trade clause — the most lucrative contract in franchise history. Team President Larry Baer explained that he was confident in making such a commitment due to Buster’s “professionalism, work ethic, maturity, character [and] the way he plays the game.” Buster is a respected and valued asset to the team and issues concerning misconduct are non-existent. Sponsors are lining up around the block to have their products endorsed by this promising young role model. He has a bright future and is a perfect example of how both on and off the field behavior can reap sizeable rewards.
Unfortunately, Buster’s reputation is not wholly congruent with that of his high profile counterparts in professional sports. Tiger Woods does not exactly take home the “best behaved” trophy, nor does the slogan “Live Strong” hold much weight today. Names like Michael Vick, Ben Roethlisberger, and Oscar Pistorius carry certain connotations that are not easily ignored. A defaced public image is difficult to restore, even after changing one’s jersey number and buying one’s wife a $4 million dollar purple diamond ring. Thus, moral character is a hot topic at the bargaining table.
A professional athlete’s conduct can have a significant effect on their future contracts. What athletes have done in the past can either bless or haunt their lawyers in the drafting process. Perhaps most importantly, the drafting of morals clauses. For Buster, morals clauses are not really an issue. For other, more controversial athletes, these clauses can call for exhausting negotiation.
Morals clauses protect the sponsor’s product from depreciation or detriment caused by the athlete. They allow the sponsor to revoke certain rights or monies in the event that the athlete engages in any conduct affecting “moral turpitude.” The real meat of the negotiation comes down to defining moral turpitude. The team or sponsor wants the term to be broadly defined, whereas the athlete aims to narrowly define each behavior with intricate specificity. Of course, criminal acts are cause for revocation but if carefully worded, are limited to final convictions not subject to appeal.
In turn, the birth of the reverse-morals clause has given the individual athlete some protection. While fairly recent in application, the reverse-morals clause allows an athlete to terminate his contractual obligations should the business entity engage in “immoral” behavior. Including a reverse-morals clause shows that concern for moral conduct is reciprocal. It insures the athlete against any business practices which could adversely affect his/her marketability down the road. Modernly, morals clauses have expanded to cover online activity and communications through social media. The athlete’s talent, success and lifestyle will dictate who has supreme bargaining power when negotiating such clauses.
The inclusion of online social media within morals clauses is prudent. Many universities have banned the use of social media for their student-athletes or imposed strict guidelines on the use of such outlets. The PAC 12 Conference requires that if student-athletes choose to use Facebook or Twitter, they must “friend” the Compliance Office. Student-athletes who do not comply with that requirement face heavy punishments. On the other hand, professional athletes can maximize their earning potential through social media and get paid to endorse products through Twitter. Drafting the clause in such a way to exempt commercial speech can enhance an athlete’s profitability without running afoul with the sponsor or team.
Continuing education addressing the economic and legal ramifications of an athlete’s online activity is warranted. On April 29, 2013, NBA center Jason Collins confessed publicly that he was gay – and everybody had something to say about it. That day, many public commentators either opened a floodgate of sponsorship opportunities or flushed them down the toilet. For example, Miami Dolphins wide receiver, Mike Wallace tweeted “All these beautiful women in the world and guys want to mess with other guys SMH [shaking my head].” He later deleted the comment but the harm was already done. Such a statement makes him ineligible for a wide range of endorsements — especially from companies that advocate for gay rights. Regardless of individual beliefs, athletes should have been sternly warned that any comments made by them would receive high criticism and could affect their marketability — positively or negatively.
In the interest of commercial viability, it is crucial that athletes be well aware that their conduct has consequences. Equally as important, client representatives must be informed on an athlete’s character because it can dictate future workload. A professional athlete’s current success is evidenced by what has been done in the past. Success in the future is dependent upon what the athlete is doing right now.
