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Social media, sporting clubs and athletes

Since it arrived in Australia, Uber has been under fire for its disruption of the transport industry and its complicated relationship with its drivers.

Social media has long been a platform through which athletes can engage with their fans and “build their brand”.

For professional athletes, their status as public figures make them instantly recognisable and immediately associated with their sport and their club. Even a non-professional athlete’s use of social media can impact the club or sport’s relationships with sponsors and the public. Given this linked recognition, posts on social media will inevitably be seen as a reflection of the club or sport.

In the employment context, most employers have introduced specific social media policies, procedures and training to address the use of social media by employees. These measures usually include some advice to employees about the acceptable use of social media and the consequences for breaching a social media policy.

Recent case law has seen courts and tribunals form the view that the online behaviour of employees does have the potential to cause damage to the employer’s interests or the employment relationship. For this reason, the courts have supported an employer’s right to regulate the out-of-hours conduct of employees (including the use of social media) where that can impact on the employer’s interests.

For example, in Pearson v Linfox Australia Pty Ltd [2014] FWC 446, the Fair Work Commission (FWC) considered an unfair dismissal claim by an employee who was dismissed, amongst other things, for his refusal to sign an acknowledgement that he read and understood the employer’s social media policy after he received one-on-one training in the policy. The employee refused to sign on the basis that the policy would constrain his activities outside of work hours – which in his view the employer had no right to do.

The FWC was satisfied that the employer’s direction to the employee to sign the acknowledgment was not unlawful or unreasonable. It commented: “Gone is the time (if it ever existed) where an employee might claim posts on social media are intended to be for private consumption only.” The FWC also noted it would be impractical for a social media policy, which served to protect the reputation of the business, to operate “at work” only and held that “clearly there are some obligations employees accept as part of their employment relationship that have application whether they are at work or involved in activities outside of working hours.”

The recent well-publicised matter between Rugby Australia and Israel Folau demonstrates the importance of sporting organisations having clear social media policies in place and providing training to players in the acceptable use of social media.

While Folau was previously warned about his social media use, it is reported that there were no clauses in the standard player contract relating specifically to the use of social media. Reports have also suggested that specific social media training was not provided to Folau to further guide him in what was acceptable and what was not acceptable in relation to his use of social media.

Sporting organisations – with professional or non-professional athletes - must adopt and have in place a social media policy and must provide training to players on the policy and appropriate social media use. If these measures are properly implemented, this would leave little room for doubt about player obligations, the consequences for breaching the policy and their club or sport’s expectations of them.

Workplace Law has a social media “do’s, don’ts and legal obligations” training module specifically designed for players and sporting clubs – please contact Shane Koelmeyer if you would like to know more or to arrange for us to conduct that training session for your players and club.

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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