Social media and the law: How to monetise your following without breaking the law

For elite athletes, sponsorship is a big deal. Social media is now playing a bigger role than ever before in securing these lucrative deals and endorsements. Therefore strategically – and correctly – managing a social media presence is key to the modern-day footballer’s off-field success.

As such, more footballers are turning to the professionals to build and maintain a following across all of the main social channels.

“The modern footballer now plays more games than ever before, meaning their time to solely manage and improve their social media followings is non-existent,” says Dave Claxton, Account Director at Clarity PR. “It makes complete sense to bring in professionals – such as an agency – to handle this part of their lives, just like they would use a nutritionist to look after their diets.”

The costs associated with having an agency involved are minimal to the world’s biggest footballers and, as Claxton says, the benefits are clear:

“If the agency can significantly increase the player’s social followings, lucrative brands are much more likely to want to partner with them in order to tap into their huge online audience. The truth is, many of the players with the biggest followings use both an agency and also post their own content.

“This is a smart approach as they can maintain their authenticity with their followers but also rack up more followers by putting out a consistent flow of quality content from people who know how to optimise social media content.”

Keeping it real

It’s this authenticity which is key to a successful following online. If a player wants to hit the heights of Cristiano Ronaldo – whose social presence is said to be worth around £410m a year to Nike – they need to be savvy. Digital marketing agencies can offer this know-how for players, but they need to be 100% sure of what they’re signing up for.

Robert Lands, Partner and Head of IP and Commercial at Howard Kennedy LLP, says that even if players enlist the help of agencies to look after their profiles they could still be personally liable for the content that is published.

“If it’s being carried out in their name, they risk investigations and negative PR. These days marketing agencies should be pretty savvy and know what they can and can’t do, but people do make mistakes.”

In Lands’ experience of advising on deals and endorsements, social media is beginning to play a bigger and bigger part. And with brands paying in accordance with a player’s following the temptation to have that side of things professionally managed is even greater.

Lands says a typical contract with a sponsor will include a stipulation for a certain number of tweets per year. And he advises that players should be aware of the Advertising Standards Authority’s rules on making it clear whether social media content is paid for or not: “You can’t use your personal social media account in a way that implies you’re just talking off the cuff when you’re actually being paid to say something.”

Wayne Rooney and the ASA

The ASA’s approach to celebrities using social media to advertise brands or sponsors is evident in two complaints made about Wayne Rooney in 2012 and 2013.

My resolution – to start the year as a champion, and finish it as a champion… #makeitcount http://t.co/JD6HUzbJ January 1, 2012

This tweet was investigated as it was argued it wasn’t obviously identifiable as a marketing message, despite appearing to be one.

As part of the investigation, Nike argued that the tweet “could be objectively viewed as marketing communications because of the presence of the Nike URL within the body of the tweets, which indicated that the tweets’ purpose was to direct followers to the Nike website”.

The ASA upheld the complaint, saying that “the Nike reference was not prominent and could be missed, consumers would not have already been aware of Nike’s “#makeitcount” campaign and that not all Twitter users would be aware of the footballers’ and their teams’ sponsorship deal with Nike”.

One year later, however, and Rooney posted the following:

The pitches change. The killer instinct doesn’t. Own the turf, anywhere. @NikeFootball #myground pic.twitter.com/22jrPwdgC1 April 7, 2013

In this case the result was different, with the ASA not upholding the complaint and saying that they “considered that in the particular context of a tweet by Wayne Rooney the wording of the initial statement was such that in combination with “@NikeFootball” and “#myground”, the overall effect was that the tweet was obviously identifiable as a Nike marketing communication”.

“It’s really interesting to see where they draw the line because on the second tweet – in 2013 – the tone of voice is different,” says Lands. “It sounded less off the cuff and personal, and more like a marketing statement. He also put in, as well as a hashtag, the @Nike handle. So when you see that you get a different impression to the first tweet.”

The ASA’s Code on social media is continually evolving alongside the internet and social media. Lands estimates that it’s only in the last five years that people have started to take notice of this kind of advertising content, and to avoid falling foul of advertising law he recommends the following:

Don’t agree to say anything that makes you uncomfortable.
Make sure to disclose when you’re being paid to say something.
Get professional advice if you’re entering into any kind of agreement.

As brands continue to look to monetise their assets’ social feeds and measure their ROI, it’ll be increasingly important for athletes to maintain a healthy audience that can drive value for their partners. It makes sense that specialist agencies may grow in this space but does this risk losing the very sparkle that social media brings to sports fans?