By Miles Cooley and Jamie Zagoria, of Kelley Drye
Introduction
Laremy Tunsil woke up on April 28, 2016 — the first day of the 2016 NFL draft — with the world at his feet. The Ole Miss offensive lineman was a shoo-in to be drafted in the top ten later that day. Fast forward a few hours and, indeed, all eyes were on Tunsil, but not because he was selected first in the draft. Rather, just moments before the draft began, a purported hacker posted a video to Tunsil’s Twitter account showing the player smoking what appeared to be marijuana through a gas mask. The aftermath of the Twitter post was palpable: Tunsil found himself at the epicenter of a media firestorm, and watched helplessly as twelve other players were drafted before him. Aside from ruining his night, the Twitter post likely cost Laremy Tunsil millions of dollars. The number one draft pick signed a contract worth nearly $28 million, compared to the $12.5 million contract Tunsil received as the thirteenth pick.[1]
What happened to Laremy Tunsil on Draft Day serves as a cautionary tale for both aspiring and established professional athletes, and drives home a critical message in the era of social media: What is posted on social media not only influences opinions about athletes, but can quickly, even instantaneously, impact an athlete’s career. Thus, to the extent athletes can control the conversation about them on social media, it is imperative that they do so.
The modern athlete wears many hats: entertainer, public figure, role model and brand representative. An athlete’s conduct on social media is a representation of their personal brand. The number of eyeballs on social media can present either a marketing dream or nightmare, depending on what is said. Savvy athletes will maintain control over how their personal brands are reflected on social media — not only by regulating their conduct off the field, but by carefully monitoring and curating their own social media usage.
Social Media’s Impact on Sports
Thanks to the proliferation of social media, more sports-related activity is occurring on social media platforms than on the field or court. Many collegiate and professional athletes, as well as nearly every sports association, team and league have multiple social media accounts. Then, of course, there are the fans.
Legions of fans are tweeting and posting their sports commentary every minute. In the United States, nearly 17 million tweets were sent about Super Bowl 50.[2] Hashtags such as #NBAFreeAgency, #MarchMadness, #Worldcup, and #deflategate are created to reference and discuss every major (and minor) sports event on social media. While athletes’ off the field conduct has always been subject to scrutiny — see Michael Phelps’ bong photo, Michael Vick’s dog fighting scandal, Kobe Bryant’s sexual assault case — social media has amplified everyday sports talk and put athletes under a microscope more than ever before.
Amateur sportscasters now have a platform from which they can directly express their opinions about an athlete’s behavior and not just be heard by the big wigs of sports, but actually influence their decisions. Together, all of the comments on social media form one powerful voice that is difficult to ignore. In essence, social media has created a virtual sports town hall.
Athletes are drawn to social media for the same reason the rest of the world is — it provides an unparalleled level of connectivity and instantaneous interaction with others. Social media gives athletes unprecedented exposure to their fan base and potential sponsors. A decade ago, it was highly unlikely, if not impossible, that a Cleveland Cavaliers fan would ever have the opportunity to speak to LeBron James. Today, any person who wishes to send a message to @kingjames can do so in less than 30 seconds via Twitter, Facebook or Instagram. Social media is especially enticing to athletes because it enables them to communicate directly with the public without the media altering their message. Yet, because the sports world “follows” an athlete’s social media activity as closely as they do their performance on the field, social media is a powerful tool that can make or break an athlete’s career depending on how it is wielded.
Use of Social Media Can Adversely Impact An Athlete’s Career
Shortly after the Los Angeles Lakers selected Larry Nance Jr. as the 27th overall pick in the NBA draft, a tweet Nance posted three years prior about his new teammate, Kobe Bryant, reemerged on Twitter. The tweet read: “Gee I sure hope Kobe can keep his hands to himself in Denver this time. #rapist.”[3] It is unclear if the Lakers would have picked Nance had the team discovered the tweet beforehand. What is clear, however, is that Nance was extremely embarrassed and apologetic towards Kobe.
Aside from causing stress and humiliation, inappropriate or inopportune social media usage can have dire consequences on an athlete’s career.
Losing recruitment opportunities. Many collegiate and professional sports teams have implemented social media background screenings and will stop pursuing a prospective recruit upon discovering inappropriate social media conduct. [4] Notre Dame and Michigan stopped recruiting Yuri Wright, one of the top 100 prospects in the country, after his high-school expelled him due to his “sexually graphic and racially charged” tweets.[5] Many believe that Manti Te’o may have plummeted in the draft and lost out on millions because of the infamous social media girlfriend hoax.[6]
Fines. University athletic departments and professional sports teams and leagues have instituted rigid social media policies to address their athletes’ increasing use of social media. Failure to comply with these policies can result in harsh penalties. The NBA fined Stephen Jackson and J.R. Smith $25,000 each for posting a “hostile tweet” and “inappropriate pictures,” respectively, on their Twitter accounts. The NBA fined Amar’e Stoudemire $50,000 for posting a homophobic Tweet. The Football Association fined defender Ashley Cole $145,000 for insulting the FA.[7] As it turns out, an imprudent 140 character or less post can be quite costly.
Losing endorsement deals. Triple Olympic gold medalist Stephanie Rice lost her endorsement deal with Jaguar over an offensive comment made on Twitter.[8] Pittsburgh Steelers running back Rashard Mendenhall lost his endorsement deal with Champion after tweeting about the killing of Osama bin Laden.[9]
Suspension and/or Expulsion. Greek triple jumper, Paraskevi “Voula” Papachristou was expelled from the Greek Olympic team after posting a racially insensitive tweet.[10] Bloomsburg University suspended Joey Casselberry from its baseball team after he tweeted a derogatory comment about Little League World Series player, Mo’ne Davis.[11] The Chiefs suspended Larry Johnson for insulting fans and his coach on social media, and ultimately released him from the team after 32,000 fans petitioned for his removal.[12]
Distraction. Olympic swimmer Emily Seebohm partially blames her failure to win the gold in London on her late night social media usage.[13] Most professional sports leagues have banned social media usage prior to and during games, likely, in part, to encourage their athletes to keep their heads in the game.
Lawsuits. A careless post on social media could potentially subject an athlete to various legal claims, such as a breach of contract action for violation of the morals clause or defamation. For instance, Nike dropped its sponsorship of Manny Pacquiao over his homophobic remarks on a television program.[14] While Nike did not sue the boxer for breaching the agreement, it was likely able to terminate the contract due to Pacquiao’s violation of the morals clause.
Athletes’ Social Media Usage Must Protect and Bolster Their Brands
As Houston Texans defensive end J.J. Watt astutely observed, “A reputation takes years and years and years to build, and it takes one press of a button to ruin.”[15] In light of this reality, athletes must behave as if they are on the field or court every time they post on social media. In order to protect their brands and performances, athletes would be wise to adopt the following social media practices:
Athletes must internalize that a post/tweet/share can be a broadcast to the entire world. The ease and speed with which social media posts can be generated creates the illusion that any given post is innocuous. Athletes must recognize and eschew this fallacy.
Athletes should review each prospective post multiple times, wait an hour, and then review the post again to confirm it is still worth sharing with the public.
Athletes should show the potential post to counsel and other trusted advisors. An objective third party can provide perspective and save an athlete from an embarrassing post or one that runs afoul of his endorsement contract(s).
Athletes should work with counsel to: (1) carefully draft morals clauses, and (2) devise a social media brand strategy that will not jeopardize current and future endorsement deals.
Athletes should stay off social media before, during, and immediately after competition, even if not specifically subject to such a rule. Social media usage can distract athletes, especially when they are “trending” on social media, and cause their performances to suffer.
Athletes should resist the temptation to mindlessly read the comments about them on social media. More importantly, they should resist the urge to defend themselves or respond to inflammatory comments meant to do nothing more than incite a reaction.
Athletes should be careful of who they surround themselves with and be cognizant of any pictures and videos taken of themselves.
Prudent athletes will examine what is already out there on social media and delete any posts that are inconsistent with their personal brands. In the Internet Era, where everything is screenshotted, cached, and retweeted, posts from the past can come back to haunt you.
Miles Cooley is a partner in the firm’s Los Angeles office and focuses on resolving business and entertainment disputes. He represents entertainment and sports talent, such as famous musical artists, actors and race car drivers, as well as high-net-worth individuals. He can be reached at MCooley@kelleydrye.com. Jamie Zagoria is an associate in the firm’s Los Angeles office and focuses on entertainment, intellectual property and complex business litigation. She can be reached at JZagoria@kelleydrye.com.
[1] http://www.spotrac.com/nfl/draft/#ifrndnloc
[2] http://www.nielsen.com/us/en/insights/news/2016/tv-season-2015-2016-in-review-the-biggest-social-tv
moments.html
[3] http://www.espn.com/espn/story/_/id/13294924/larry-nance-jr-jj-watt-bret-bielema-illustrate-importance-social-media-how-athletes-portray
[4] The NFL has even created a Director of Digital Forensic Investigations position, which has “an emphasis on
Properly investigating and handling evidence related to social media…” (http://deadspin.com/looking-for-a-job
applyto-bethe-nfls-new-director-of-1714408238)
[5] http://www.espn.com/espn/story/_/id/13294924/larry-nance-jr-jj-watt-bret-bielema-illustrate-importance-social-media-how-athletes-portray
[6] http://www.cnbc.com/id/100679205; http://radaronline.com/2013/01/notre-dame-football-manti-teos-dead-girlfriend-hoax-cost-nfl-career-crisis-expert/; http://www.forbes.com/sites/jasonbelzer/2013/01/17/notre-dames-manti-teo-may-lose-millions-on-nfl-draft-day-due-to-girlfriend-hoax/#79b374f5c4ec
[7] http://www.espn.com/blog/playbook/trending/post/_/id/12233/undefined
[8] http://www.espn.com/figure-skating/swimming/news/story?id=5541847
[9] http://fortune.com/2014/09/20/ray-rice-adrian-peterson-tiger-woods-athletes-dropped-endorsements/
[10] http://abcnews.go.com/International/greek-olympic-jumper-expelled-racist-tweet-defenders-flock/story?id=16856393
[11] http://www.washingtontimes.com/news/2015/apr/4/social-media-an-issue-for-athletes-coaches/
[12] http://www.nfl.com/news/story/09000d5d81411012/article/chiefs-release-larry-johnson-after-oneweek-suspension-ends
[13] http://www.telegraph.co.uk/sport/olympics/news/9440774/London-2012-Olympics-Australian-swimmer-Emily-Seebohm-blames-Twitter-and-Facebook-for-failure.html
[14] http://www.espn.com/boxing/story/_/id/14793389/nike-ends-endorsement-contract-manny-pacquiao
[15] http://www.espn.com/espn/story/_/id/13294924/larry-nance-jr-jj-watt-bret-bielema-illustrate-importance-social-media-how-athletes-portray
