Social media usage is not a contractual issue

Policing every little detail of a player’s social media obligations is too onerous for a sponsor.

Earlier this week, for the umpteenth time, social media was the battleground for a war of words between two cricketers.  This time former England batsman Kevin Pietersen was involved in a Twitter spat with Essex fast bowler Jamie Porter over Pakistan’s perceived weakness against the short ball.

During the second ODI between South Africa and Pakistan in Durban on Tuesday, Pietersen posted the following tweet:  “Pakistan’s 1st wicket falls AGAIN to a short ball… What the hell????!!!! A month in SA and they still cannot play it! Weak & pathetic!” .

Porter replied:  “Reminds me of a certain someone against left-arm spin…” – a reference to Pietersen’s struggles against such bowling during his England career.  Pietersen retorted:  “Big difference between a technical flaw and a mental flaw…! But you’d know cos you play for Essex! And if playing for Essex is, ‘living the dream’, then f**k me, I’ve got it real wrong…”

Porter felt he couldn’t leave it there:  “Just because you look down on county cricket doesn’t mean it doesn’t mean a lot to the blokes playing it but guess you don’t see much past your own shadow”.  He has since seen discretion to be the better part of valour and deleted the tweets.

Also this week a sponsorship proposal for a franchise player crossed my desk.  The sponsor offers to give him a certain quantity of their product for free for a year.  A really liberal estimation of the value of the product for the sponsor would be around R3,000.  There is no cash involved in the offer.

However, if you read what is expected of the player in terms of social media obligations, you’d swear he was getting R100,000 in cash from the sponsor.  There is a complete imbalance between the player’s social media obligations and what he will get out of it.  Unfortunately, this also the umpteenth time in recent years that I’ve seen sponsorship offers like this.

I have little doubt that Pietersen and Porter’s contracts with SuperSport and Essex respectively have clauses in them relating to social media behaviour.  But as far as I’m aware, neither one has been on the red carpet for the tweets.  The point, however, is that like so many others before them an employment contract has not stopped them from getting embroiled in social media mudslinging.

As for the franchise player’s sponsorship offer, my advice to him will be to accept it.  Experience has taught me that policing every little detail of a player’s social media obligations is either impractical or too onerous for the sponsor.  If the player engages in a reasonable amount of social media activity it is fine and the sponsor will turn a blind eye to the fine print.

So, if an employment contract is not going to stop someone from spewing out whatever is on his mind and if social media obligations in a sponsorship contract are not going to be adhered to, then what is the use of having stipulations about social media usage in contracts?

Social media (in all its various formats) is in essence dynamic and fast-paced.  Its dynamism cannot be controlled or regulated.  Employers and sponsors therefore cannot prescribe it in contracts.  Contracts have rigid structures, and rigidity and social media are antonyms.  Employers and sponsors can only deal with social media issues (however you want to define “issues”) on an ad hoc basis.  Social media usage is a management issue, not a legal problem.

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