Social media has become a way of life in the 21st century. For athletes and sports organisations, navigating risks on social media has been a challenge. There have been countless incidents where athletes have found themselves in strife after a social media post. It is up to sports organisations to guide its athletes to avoid these pitfalls and encourage athletes to maintain a healthy presence on social media.
This article will primarily analyse the risks imposed by social media for athletes and their sports organisations, discuss how to manage these risks through policies and how respond to incidents of online misbehaviour.
Folau and Rice: Social Media Gone Wrong
There have been numerous incidents in the past where athletes have misbehaved on social media and faced consequences as a result.
In Australia, former professional rugby union player Israel Folau had his playing contract terminated by Rugby Australia in 2019 after he made a homophobic post on Instagram. In his post, Folau made comments that “hell awaits” homosexuals unless they “repent” and “turn away from [their] sin”. Folau was roundly condemned for his actions, with Rugby Australia terminating his playing contract with the Australian Wallabies.
Another Australian incident involved Australian gold medallist swimmer Stephanie Rice. In 2010, Rice watched the Australian Wallabies win their rugby union match against the South African Springboks. After the match, Rice made a post on Twitter, saying: “Suck on that faggots!” Rice later apologized for making the post, and consequently lost her sponsorship with Jaguar Cars.
Internationally, Greek track athlete Paraskevi Papachristou made a racist post on Twitter ahead of the 2012 Olympics. In her Tweet, Papachristou made a statement which could be translated to: “With so many Africans in Greece… the West Nile mosquitoes will at least eat homemade food!!!”. She later apologized for making the tweet, claiming it to be an unfortunate and tasteless joke. She lost her selection from the Greek Olympic team because her Tweet was deemed to be contrary to Olympic values and ideals.
Managing Risks
In this section, we outline the main ways a sports organisation may manage the risk of athlete misconduct on social media.
- Constitution
All sports organisations (should) have a constitution. While constitutions mainly deal with the structure, aims, and governance matters of an organisation, they may also include:
- The grounds for disciplinary action, such as a failure to comply with a policy or bringing the sport into ‘disrepute’.
- The establishment of a disciplinary body, such as a tribunal.
- The disciplinary process.
- Potential outcomes, such as suspension or revocation of membership.
The inclusion of clauses of this kind provides a basis on which a sports organisation may respond to incidents of athlete misconduct. Addressing disciplinary procedures within the constitution is especially important for small sports organisations, who may not have any other governing policies which apply to athlete conduct. In other words, a failure to include disciplinary clauses in a sports organisation’s constitution may leave it without the ability to sanction or punish an athlete for conduct which brings the sport into disrepute.
- Adoption of National Integrity Framework (NIF) Policies
The NIF is made up of multiple best-practice policy templates available for adoption by National Sports Organisations (NSO). To be an NSO, a sports organisation must be the pre-eminent body for the sport they represent in Australia. Some examples of NSOs are Athletics Australia, AusCycling and Gymnastics Australia. A full list of NSOs can be found here.
The core NIF policy templates are:
- Child Safeguarding Policy
- Member Protection Policy (MPP)
- Complaints, Disputes and Discipline Policy
- Improper Use of Drugs and Medicines Policy
- Competition Manipulation and Sports Wagering Policy
If adopted by an NSO, the NIF policies apply to everyone involved in the sport of that NSO (e.g. professional athletes, amateur athletes, coaches, officials, participants, employees, contractors, and support personnel), from national to local level. For example, all participants in gymnastics in Australia are covered by the NIF policies adopted by Gymnastics Australia.
The NIF policies are broad, capturing in-person and online conduct.
For example, the MPP prohibits discrimination, bullying, harassment, and sexual harassment against another person involved in the sport. So, if an athlete of Gymnastics Australia (for example) was bullying another gymnast on Facebook, that would be considered a breach under the MPP.
However, there is a key limit to the scope of all NIF policies: they only apply to participants of the sport. If, for example, an athlete is bullying someone not involved in the same sport on Facebook, the MPP would not apply, as that other person who is being bullied by the athlete is not involved with the sport. Therefore, it is important to supplement NIF policies with policies that do cover this sort of conduct.
- Other Policies
Sports organisations may also adopt other policies to cover conduct which fall outside of the scope of the NIF. For example, a code of conduct policy outlines the standards of behaviour expected by a sports organisation, setting out what athletes (and others involved with a sports organisation) can and cannot do. Codes of conduct may prohibit behaviour such as bullying, discrimination, harassment, and may prohibit any behaviour which brings the sport into ‘disrepute’ or behaviour which could be classified as ‘conduct unbecoming’.
It is common for incidents of poor online behaviour to reflect poorly on a sports organisation while not being covered by any the NIF policies. For example, the Stephanie Rice post mentioned above is not covered by the MPP because her comments were not directed at a person not involved in the sport. Her post may still have brought the sport of swimming into disrepute and would therefore be a contravention of Swimming Australia’s code of conduct – providing a basis on which Swimming Australia may penalise her.
- Athlete Education
Educating athletes about the risks associated with social media can reduce the number of instances of athletes misbehaving online.
Athlete education can be provided internally by the sports organisation. For example, workshops, seminars, and having athletes read and sign the sports organisation’s policies ensure athletes are informed about ethical decision making online. Sports organisations may also source athlete education externally. For example, Sports Integrity Australia offers Webinars, e-learning courses, and face to face courses.
Education is an ongoing project; it should not be a one-and-done thing. As such, sports organisations may do yearly refreshers and courses to ensure athletes continue to understand the standard of behaviour expected of them and/or any changes in the organisation’s policies.
- Professional Athlete Contracts
Generally, the relationship between the sports organisation and professional athlete is one of employer and employee.
An employer generally does not have the right to supervise the private activities of their employees.
However, an employer may supervise or control out-of-hours conduct of an employee if there is a ‘relevant connection’ between their conduct and their employment. In Rose v Telstra Corporations Limited [1998] AIRC 1592, it was said that for there to be a ‘relevant connection’:
- The conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employee and employer; or
- The conduct damages the employer’s interests; or
- The conduct is incompatible with the employee’s duty as an employee.
Simply, for the employer to have a say in how an employee conducts themselves, the behaviour must relate to the employment relationship.
In the case of Israel Folau, his homophobic posts on social media damaged Rugby Australia’s interests as it was actively advocating for the acceptance of LGBTQI+ community in the sport. So, despite Folau posting in his personal capacity, the post had a ‘relevant connection’ to his employment with Rugby Australia because: (1) it was, viewed objectively, likely to cause damage to the employment relationship; (2) and the post damaged Rugby Australia’s interests. It is only necessary for one of the factors to be present for there to be a ‘relevant connection’ between the conduct and the employment relationship; in Folou’s case, it is likely there were two.
Responding to Incidents
Despite preventative measures to manage the risk, online misbehaviour by athletes may still occur. As such, it is important that sports organisations have a fair and proper procedure for responding to incidents of online misbehaviour.
- NIF
The Complaints, Disputes and Discipline Policy (CDDP), which is a NIF policy, establishes a process for when a complaint is received by a sports organisation. This process includes:
- the making and evaluation of a complaint
- whether provisional action is necessary
- the investigation process
- referral to a tribunal
- the findings and sanctions which may be imposed.
This process is dealt with by Sports Integrity Australia, providing impartiality and independence.
The CDDP applies to conduct prohibited under NIF policies which occur online. For example, bullying or harassing another athlete on Facebook.
As previously mentioned, NIF policies only apply where every party is a participant in the sport – both the complainant and respondent have to be participants. Therefore, it is important to supplement the CDDP with an internal discipline policy that covers the conduct the NIF policies don’t.
- Other Policies
Internal discipline policies provide procedures for dealing with complaints or allegations of conduct which are not covered by the NIF. They allow for conduct that contravenes a sports organisation’s policies or regulations (such as a code of conduct) to be dealt with by the sports organisation. For example, a racist tweet contravening a sport’s organisation’s code of conduct may be dealt with under an internal discipline policy.
- Constitution
A disciplinary process included in an organisation’s constitution will provide clarity for an organisation on how to respond to incidents of athlete misconduct on social media. Further, it may provide a basis for sanctions imposed on that athlete. For example, a sports organisation may make it a condition of membership that its policies are not breached, enabling the sports organisation to revoke an athlete’s membership if it is found that they breached the organisation’s policies.
- Professional Athlete Contracts
As previously discussed, athlete contracts can be used by sports organisations to manage out-of-hours conduct of athletes if there is a “relevant connection” between the conduct and the employment relationship.
To ensure that all potential athlete misconduct is captured by the contract, sports organisations may include ‘disrepute’ or ‘conduct unbecoming clauses’ in the athlete contract. These clauses provide that an athlete is liable to disciplinary action if they “bring the sport or themselves into disrepute” or engage in “conduct unbecoming”. Such clauses predicate the employment of the athlete on their good behaviour, providing a direct link between after-hours conduct and the employer. As such, if an athlete makes a post on social media which is unbecoming or brings the sport into disrepute – a broad phrase which provides wide discretion to sports organisations – a sports organisation will be able to request the post be taken down and punish the athlete if they deem it appropriate.
Procedural Fairness
When conducting a disciplinary process, under either an adopted policy or a contract (for professional athletes), it is important for sports organisations to do so in a procedurally fair manner. This is called procedural fairness, and it must be followed to avoid legal challenges to the outcome of a disciplinary process. The key principles of procedural fairness are:
- the opportunity to know the case against you;
- the opportunity to respond to the case against you; and
- the opportunity to be heard before an unbiased decision-maker
You can read more about the principles of procedural fairness here.
It is especially important that sports organisations undertake thorough investigations to ascertain all available facts. It is common for allegations to be substantiated without a procedurally fair process, resulting in a conclusion not based on evidence but on assumption. If all relevant facts are not considered, fairness of the procedure is less likely to be achieved, which may result in unjust findings or sanctions, for which the sports organisation may be legally liable.
Conclusion
Athlete misbehavior on social media can bring with it scrutiny from the media and the public. Consequently, sports organisations should have in place the right policies and education, appropriate contracts for professional athletes, and proper disciplinary processes that ensure fair outcomes where complaints are made.
Contact Sports Lawyer to discuss where your policies, athlete contracts and complaint processes can be improved, and get help from us to do it. We provide proactive assistance to protect organisations, creating fit-for-purpose contracts and policies, and advise you on how to fairly follow and implement your disciplinary processes, and can provide representation during the disciplinary processes.
Disclaimer: Nothing in this article should be relied upon as legal advice. The contents of this article should be regarded as information only, and for specific legal matters, independent advice should always be sought.
