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To Tweet or Not to Tweet? That Is the Question

2 Aug, 2011 By: Linda A. Goldstein


Direct response marketers know the power of celebrity endorsements. A popular and talented celebrity can be instrumental to the success of a direct response advertising campaign. Marketers must remember, however, that your celebrity endorsers are your brand ambassadors, and embarrassing actions by a celebrity endorser can tarnish the brand as well.

For years, marketers have attempted to protect themselves against unscrupulous or embarrassing conduct by their celebrity talent by including a so-called “morals clause” in the contract. These morals clauses, which are often heavily negotiated, typically give the advertiser the right to terminate a celebrity’s contract in the event that the celebrity commits an unlawful act or offense, is charged with a felony, or commits some undefined act of moral turpitude.

A recent case involving Pittsburgh Steelers’ running back Rashard Mendenhall and Champion sports apparel maker may underscore the need for a new type of morals clause – one that protects the brand against embarrassing conduct engaged in by their endorsers in social media.

In a fascinating case that raises issues of free speech, endorsements and the power of social media, Mendenhall has sued Champion for $1 million for terminating his endorsement contract after he made a series of controversial comments on Twitter following the death of Osama bin Laden.

The controversy arose when following the announcement of bin Laden’s death, Mendenhall posted the following Tweet:

“What kind of person celebrates death? Its amazing how people can HATE a man they never even heard speak. We’ve only heard one side ... We’ll never know what really happened. I just have a hard time believing a plane could take a skyscraper down demolition style.”

Hanes, the parent company of Champion, terminated Mendenhall’s contract two days after this tweet was posted.

The morals clause in Mendenhall’s contract, which is fairly standard, covers actions that would bring him “into public disrepute, contempt, scandal or ridicule or tending to shock, insult or offend the majority of the consuming public.” This is a fairly broad clause that likely provides Champion with a great deal of discretion. Nonetheless, a determination will have to made here as to whether Mendenhall’s Tweets fall within the purview of that clause.

Given the rising popularity of social media and the frequency with which celebrities engage in the medium, marketers would be well advised to consider an even more stringent morals clause that would specifically address the celebrity’s conduct on social media and afford the marketer great discretion in the event that the celebrity engages in social media conduct that is not consistent with the values of the company. While celebrities will certainly resist such clauses as an encroachment on free speech, and there is a natural tension between those rights of free speech and the need to protect the brand, companies that make a significant investment in celebrity talent need to do all that is necessary to protect that investment and the reputation of their brands.

Linda Goldstein is chair of the Advertising, Marketing and Media division of Manatt, Phelps & Phillips, LLP, based in the firm’s New York office. She can be reached at lgoldstein@manatt.com.


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