by Raizel Liebler & Keidra Chaney
Last year, we wrote an article published in Pace Law Review about how social media usage interacts with employment, institutional “voice” and the rights of individuals to express themselves. In a series of posts, we are sharing edited portions of the article to more fully share our ideas. If you are interested in citing this paper in an academic (or quasi-academic) setting, please use the full published version: Here We Are Now, Entertain Us: Defining the Line Between Personal and Professional Context on Social Media, 35 Pace L. Rev. 398 (2014)
Employment Contracts, Sponsorship Deals, and Athletes
The issue of employers and educational institutions asking for access to social media passwords is slowly being addressed by state legislatures. However, there are still several important trends within case law related to the interaction of social media and employment. One thread of this trend relates to the confusion that exists when an individual is the sole representative or social media “voice” to promote the services or work of an employer, or when an individual willingly shares personal social media profile information to an employer. Another thread relates to whose “voice” is speaking – whether it is that of the individual employee or of the employer as a whole.
Another way to look at the issue of what types of limitations employers should have over the social media interactions of employees relates to the moral rights clauses included in brand sponsorship agreements. To enter into these agreements, entertainers, including professional athletes, have the opportunity to consult with attorneys and other representatives putting their interests first. The money gained through these deals is not their sole source of income – thereby allowing for the type of contracting most employees do not receive. In contrast to “at-will” employment or contracts of adhesion, these contracts when containing morals clauses, including limitations on the use of social media, are entered into with full knowledge of the consequences. Additionally, public figures can be sought out by brands specifically for their personas which is not generally the reason why average employees are hired.
Professional athletes may have limitations on their social media use placed on them by either the brands they contract with for sponsorship or by their teams, but these limitations are contracted. On the other hand, there have been a number of discussions about how student athletes have much more limited personal autonomy than either the general student population or professional athletes. Another limitation placed on student athletes that distances them from their peers are partial or complete bans on student athlete use of social media.
Student athletes, like most college students in their late-teens and early twenties, are in the process of figuring out who they are – and part of the learning process for many is communicating and socializing using social media. As danah boyd discusses in the book, It’s Complicated: The Social Lives of Networked Teens, teens and young adults learn through interacting with others on social media and through creating their identities. An absolutist rule that restricts the use of social media prevents student athletes from learning how to use social media responsibly. Moreover, many of the restrictions for student athletes are based around banning the usage of specific inflammatory words. The focus on specific words leaves out the overall responsible use of social media, or more specifically about behavior, interaction with others, or appropriate topics of conversation. Finally, the limitations are established under the working assumption that an individual student athlete is communicating on behalf of the university, or as a representative of a university, not as a private citizen. The focus of many of these regulations is on the impact on the school’s brand rather than on the education of students.