Amar’e Stoudemire fined $50,000 for anti-gay tweet. J.R. Smith fined $25,000 for posting an inappropriate picture on Twitter. And, of course, Mark Cuban the outspoken owner of the Dallas Mavericks with a long history of fines, most recently fined $50,000 for tweeting comments about league officiating.
Athletes and other team officials are fined for a number of reasons – arguing with the officials, improper dress code, and tweeting during games. Fines and punishments range from suspensions with or without pay and monetary fines. With tweets limited to 140 characters, these slips-ups cost about $297 per character on average. Although these fines for inappropriate tweets might seem outrageous because it is “just Twitter,” or “violates a player’s first amendment rights,” that is simply not the case.
Social media has grown from a way for teens and college students to share photos of their friends (or their meals) to an incredibly valuable – and indispensible – way for businesses, sport leagues, and individuals alike to express their views. Social media has granted individuals the power to overturn their government, set up petitions for change and even “shut down” the internet for a day to protest a bill. The power of social media is boundless.
Realizing the dual importance of having a social presence and maintaining brand, businesses, ranging from “mom-and-pop” shops to Fortune 500 companies, have climbed aboard the social media train. In fact, businesses have created entirely new employee positions, where the sole job description is to write and maintain social media content, respond to consumer comments both positive and negative through social media, and manage the company’s “online brand.” These positions are usually referred to as online community managers. Companies recognize community managers play an important role because while social media has made it easy to circulate information and commentary, negative news tends to spread even more rapidly. If a negative tweet goes viral, it can reach millions upon millions of people all over the world, and businesses must seek to avoid that risk as best as possible.
Professional sports leagues are no different. A sports league is a private sector industry, and the individual teams make up the constituent businesses. Their objectives are similar to those of other businesses and industries: they look to turn a profit. With the volatility of their specific product – namely, the players and other outspoken members of the organization – it makes sense that the leagues regulate all forms of social media. Therefore, leagues created social media policies which typically include prohibited behavior and penalties for those behaviors.
These social media policies do not create violations of the players’ first amendment rights for two reasons: first, the first amendment is only applicable to government actors, and second, the players had already agreed to be governed by their league’s rules.
First amendment protections would be applicable if the government were to intervene and restrict the player’s speech. Here’s an example: remember when the government tried to package the SOPA and PIPA bills as a copyright protection laws last year? After the immense protests those bills were recanted after successful first amendment rights protests. Congress knew, or was made aware, that these laws would face a legal challenge and would most likely lose, so they were pulled.
In contrast, professional sports leagues are private entities. A private entity has the right to create their own rules regarding employment contracts and policies as long as they don’t violate federal employment laws. The first amendment is not considered an employment law, so private employers can restrict their employees’ speech within reason. The recent case regarding Costco’s social media policy provides a convenient point of contrast. The Costco policy attempted to restrict employees from posting any language that may damage the company and employees could be subject for discipline or even termination for violating the policy. The National Labor Relations Board deemed the policy “too broad” and required Costco to change it.
Professional sports leagues’ social media policies do not violate the first amendment for another, more intuitive reason: the players have agreed to it.
Leagues acquire the authority to make these social media policies from the collective bargaining agreements they negotiate with the players associations. Social media policies are conditions of the players’ immense contracts, and when players sign their contracts they adopt the conditions of the contract, including abiding by all league rules. It remains to be seen whether someone disputes the professional sports leagues’ social media policies for being over-broad.
Additionally, even when these pictures or tweets are being posted from the players’ personal accounts, it’s often hard to separate the player from their team. When you hear of Kobe Bryant, you likely think “professional basketball player for the Los Angeles Lakers. Or Mark Cuban, you likely think “Dallas Mavericks’ owner,” and so on. These athletes and owners have become celebrities in their own right but are also brand ambassadors. Their negative actions can reflect poorly on the organization or league as a whole.
Social media policies in sports have become the norm, just as they are in everyday businesses. The leagues try their best to limit negative exposure, and they believe that fines, fees, and penalties will hopefully inhibit the players from posting an inappropriate tweet. If a player can be fined for yelling at a referee when no one but the referee can hear and maybe no one in the arena saw, then does it not make sense to fine a player for conduct that could instantly and permanently be seen by millions? I believe so.
Mark is currently the Head of Salford Law School, Manchester, UK and from 1st September 2013 will be Professor in Law at Northumbria University, Newcastle. He is one of the UK’s leading sports law academics and has particular expertise in the interaction of the criminal law with sports activities and events. He has advised the Ministry of Justice and Security of the Netherlands on the regulation of football disorder and Football Supporters’ Federation on the advice provided to fans who have been arrested at or on their way to matches. Following the award of the 2012 Olympic Games to London, Mark has carried out extensive research on the UK’s Olympic laws and their criminalisation of language and space, specifically as a means of controlling ambush marketing, and the impact that these laws are having on subsequent sporting mega-events. A selection of recent publication by Mark can be found here.
