Celebrities, Contracts, Football, Sports, Technology, Twittering

When Celebrity Tweeting Goes Wrong and the Resulting Lawsuit Goes (Sort of) Right

It feels like some celebrity gets roasted, fired, or arrested for Twitter comments more often than they do something that should actually earn them celebrity status.

Less often, though, do you see celebrities fighting back against the backlash. But last week, the star running back for one of my least favorite NFL teams won what seems to be a small victory in his legal battle against the apparel company that dropped him after some contentious tweeting.

Which running back ran his mouth off? And what is he doing about it?

The player in question is Rashard Mendenhall of the Pittsburgh Steelers. I have no problem with him as an athlete, but for what it’s worth, I hate his team. I really do. Ben Roethlisberger and Hines Ward’s terribleness as fantasy players last year still give me stress headaches.

The Law and Technology Marketing Blog breaks it down:

Rashard Mendenhall plays professional football as a running back for the Pittsburgh Steelers. Mendenhall entered into an endorsement contract with Hanesbrands, which owns the Champion brand. The agreement between Hanesbrands and Mendenhall had a “morals clause,” which originally said that Hanesbrands could terminate the agreement if Mendenhall was arrested, charged with, or indicted for a felony or a crime involving moral turpitude. This clause was later amended to provide that Hanesbrands could terminate the agreement if, in addition to being charged with or indicted for a crime, Mendenhall:

[Became] involved in any situation or occurrence . . . tending to bring Mendenhall into public disrepute, contempt, scandal, or ridicule, or tending to shock, insult, or offend the majority of the consuming public . . . . [Hanesbrands’] decision on all matters arising under [this section] shall be conclusive.

Knowing the Steelers’ history — and professional athletes generally — of having problems in that department (cough, cough Roethlisberger), you could say a “don’t humiliate yourself or our brand” clause might be reasonable.

But then, Mendenhall made his fatal error, shortly after Osama bin Laden was assassinated. He went and ran his mouth off on his Twitter account. He should have stuck to just running the ball:

What kind of person celebrates death? It’s amazing how people can HATE a man they never even heard speak. We’ve only heard one side . . .

I only believe in God. I believe we’re ALL his children. And I believe HE is the ONE and ONLY judge.

Those who judge others, will also be judged themselves.

For those of you who said we want to see Bin Laden burn in hell and piss on his ashes, I ask how would God feel about your heart.

There is not an ignorant bone in my body. I just encourage you to #think

Honestly, I don’t think those comments are particularly offensive, other than the fact that they stray from the national death cult that exploded in the wake of Osama bin Laden’s death. Regardless, Hanesbrands said it “disagreed” with Mendenhall’s comments, and terminated his endorsement contract. Then the football player sued (and stopped tweeting).

In Mendenhall v. Hanesbrands, the District Court for the Middle District of North Carolina denied the defendant’s motion for judgment on the pleadings. Even though Hanesbrands said it had discretion to terminate the contract, Chief Judge James A. Beaty Jr. said there’s a possibility the company overstepped its bounds. A simple disagreement with Mendenhall’s statements may not have been enough to terminate the deal.

For termination, the contract had required conduct that would bring him into major disrepute or shock the majority of the public. Causing a relatively minor Twitter kerfuffle was not necessarily enough. (Besides, in this day and age, who hasn’t been the center of one of those?)

This makes you wonder what kind of contract Iago had when he got fired from his job as the AFLAC duck for his bad Twitter jokes about the Japan tsunami.

Editor Eric Goldman frames it in terms all you contracts law nerds will appreciate:

I love love LOVE this case! It’s an instant Contract Law classic. I could see the opinion, or its facts, appearing in Contract Law casebooks and courses throughout the country. In addition to the star power/pro sports angle, it’s a rich springboard for intellectual pursuits[.]

It’s worth reading through Goldman and co-editor Venkat Balasubramani’s analysis of the case for a more in-depth, academic discussion about the way Twitter has changed the way many contracts need to be written:

I don’t deal with morals clauses with much frequency, but it’s interesting to see that even a morals clause has to be constrained by some standard. If the brand reserves for itself the right to freely terminate the contract any time the endorser says something the brand disagrees with, this raises the problem of the contract being illusory.

Unlike the government, which has to comply with First Amendment constraints, private employers and brands can freely restrict the speech of their employees or endorsers. (Employers have to deal with NLRB guidelines, but those were not implicated here.) The challenge is to come up with a standard that doesn’t tie the hands of the brand but at the same time provides some metric that is not totally subjective and does not give the brand unbridled discretion.

Despite the lawsuit, hopefully Mendenhall will still have enough Benjamins to stay busy counting until football season starts again. In the meantime, go Giants A’s Giants A’s. Ahh, forget it. Go Sharks.

Terminating an NFL Player’s Endorsement Agreement for Polemic Tweets May Be Contract Breach–Mendenhall v. Hanes [Technology & Marketing Law Blog]
Defendant’s Motion for Judgment on the Pleadings is DENIED. [Mendenhall v. Hanesbrands]

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