Sporting bodies need to ensure that they have an effective social media policy in place to guide what gets published online by its employees, including athletes. Of particular importance is the role that such policies can play in pre-empting unfair dismissal claims arising from alleged social media misuse.
When it comes to sport, most teams, leagues, and federations have social media accounts in an attempt to engage with social media users. Each social media account will usually have a social media manager who will publish material on behalf of the account holder.
Notwithstanding instances where such an employee has ‘gone rogue’, these representations are mostly aligned with the account holders’ views, policies and general ethical and moral standards. This is achieved with relative ease, as there is usually just the one outlet per social media platform that ‘speaks’ on behalf of the organisation, and can therefore be regulated by an effective and instructive social media policy.
When it comes to individuals in sport, such as athletes, coaches, training staff, or members of the management or executive team, however, there are a number of challenges that social media presents. The most pressing of these, arguably, is distinguishing between personal and professional use and wider considerations of balancing the rights of an employee or athlete to engage in free speech with an employer’s ability to control what is posted on social media.
Sporting bodies should be implementing a social media policy which outlines what is considered to be acceptable employee or athlete conduct when using social media platforms. This should be made clear in any employee or athlete contract, whether it be a club’s star player or an administrative staff member. The focus of such a policy should revolve around the often-forgotten fact that once something has been posted online, it is usually immediately made public.
Examples of guidelines provided by sporting bodies include the Australian Olympic Committee’s 2014 Australian Olympic Winter Team Social Media Guideline which states that ‘[c]omments should reflect and enhance Olympic values, particularly fair play and respect for others. They must not be offensive, inappropriate, defamatory, misleading, deceptive or otherwise illegal’.
The importance of social media guidelines was recognised by the Fair Work Commission in the case of Stutsel v Linfox , where the Commission held that it would be expected that employer’s implement such a policy and convey its substance to employees. In other words, there may be cases where an individual has posted inappropriate comments or material online, but due to the fact that their employer had not implemented a social media policy, may be found not have conducted themselves in a way which gives rise to their termination. Of course, termination should be a last resort and only reserved for severe circumstances, however it is likely that tribunals within each sport will take such considerations into account when reviewing a sporting body’s decision to act on social media misuse.
Whilst guidelines such as this are an effective starting point for managing social media use, they don’t always deal with the tension caused by trying to distinguish between personal and professional social media use. This will often be an important factor in trying to ascertain whether an individual has breached a social media policy, particularly when what has been posted is not explicitly offensive or inappropriate, but may be nonetheless controversial.
This is especially the case for high-profile sporting personalities. For example, if a popular athlete has a Facebook fan base of several hundred thousand users by virtue of their sporting popularity, does that mean that anything that he or she posts must be regarded in a professional capacity? If so, are they entitled to set up separate, personal social media accounts if they wish to discuss, for example, controversial rather than inappropriate matters? Or are they bound to the social media policy of the club they play for as long as they are playing for them?
Such rhetoric will always fall back onto the debate over the responsibility that comes with fame and popularity, and many will argue that such responsibility – to the sport, to their club and to their fans – outweighs the right for an individual to be able to speak their mind. A lot of this will be up to the sporting body to decide how they want to engage with their fans and followers on social media.
Notwithstanding these wider considerations, if sporting bodies, as employers, are ensuring that they have effective social media policies, that these policies are clearly communicated and accessible to all employees and athletes, and that these policies are regularly followed up by training and briefs, they should be in a good position to prevent social media misuse. In the event that such misuse nevertheless occurs, evidence of the existence of policies and the exercise of continuing training will work in favour of the sporting body in an unfair dismissal claim.
Play by the Rules has a social media policy template and guidelines you can download for free here
Gene Goodsell & Kosta Hountalas Goodsell Lawyers