If you know me, then you knew it was only a matter of time before I found a way to talk about all three subjects in one post. Here it is.
On April 28, 2011, the Football Association (the FA- English soccer’s governing body), charged soccer player Danny Gabbidon (from West Ham Football Club) with “improper conduct and/or bringing the game into disrepute ” after the player angrily Tweeted the following rant to his fans (apparently now “former” fans!):
“U know what, #$@%& the lot of you, u will never get another tweet from me again, you just don’t get it do you. Bye bye.”
(Profanity replaced by typographic symbols by yours truly).
On February 12, 2011, the FA issued this clarification of their social media policy, which is applicable to all soccer players in England:
A statement on the use of social networking websites.
The FA has issued clarification to participants relating to the use of social networking sites, including, but not limited to Twitter, Facebook and internet blogs.
Participants should be aware that comments made on such sites may be considered public comment, and that further to FA Rule E3, any comments which are deemed improper, bring the game into disrepute, or are threatening, abusive, indecent or insulting may lead to disciplinary action.
Comments which are personal in nature or could be construed as offensive, use foul language or contain direct or indirect threats aimed at other participants are likely to be considered improper.
Participants are required to act in the best interests of the game at all times and should be aware of this when using social networking websites. Furthermore, participants are reminded that postings on social networking sites which they believe to be visible to a limited number of selected people may still end up in the public domain and consequently, care should be exercised with regards to the contents of such postings.
In addition, we would remind participants that social networking postings could also lead to civil proceedings being brought by affected parties.
Cleary, Mr. Gabbidon’s Tweet violated the above policy. Recent FA rulings make it likely that he will be fined between £10,0000-20,000.
Looking at this policy as it is currently written, would it survive NLRB scrutiny as an employer social media policy here in the US? Assuming arguendo that the NLRB would have jurisdiction over the FA (or Major League Soccer over here), my guess would be no. I say this because the recently settled AMR case (or Facebook Firing case) featured similar restrictions on employee speech that the NLRB alleged were unlawful. The inquiry would be whether the policy would have the effect of chilling employee protected speech, such as discussion on wages, terms and conditions of employment. Under Federal law, such speech is permitted to be abrasive, rude, and even profane. In Mr. Gabbidon’s case, I am not saying that his speech would be protected (because it does not appear to be concerted activity), but rather that the FA/MLS would nevertheless be charged with having an unlawful policy. Based on past NLRB Advice Memoranda, the anti-disparagement/abusive language part of the policy should be buried within a list of other serious employee misconduct for the policy to stand a chance at surviving NLRB scrutiny. The context is key in determining whether particular language would tend to chill employees from engaging in protected concerted activity.
Now, back to Mr. Gabbidon. Given that the FA clearly warned all players about their use of social media, including Mr. Gabbidon, and the FA is not under NLRB jurisdiction (plus the fact that Mr. Gabbidon is a West Ham player (Arsenal FC rules!)), I foresee no problems should the FA eventually impose a fine on him should they find that he violated their social media policy. The lesson for US employers is that social media policies have to be reviewed in light of the AMR case, because language that may seem to be clear and unambiguously prohibiting generally unacceptable employee behavior may be deemed unlawfully broad by the NLRB. Consult experienced labor and employment counsel in your jurisdiction. And, of course, support a proper football club, like Arsenal FC.
Baseball seems to have the same stance on tweeting: White Sox Manager Fined
DISCLAIMER: This blog and any information contained herein, including this post, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.