How Osama bin Laden's death created litigation for an NFL star

Loose lips sink ships, as the Cincinnati Bengals have recently discovered when their coach banned use of Twitter by players so they wouldn't give out secrets like details about their injuries. But sometimes they sink endorsement deals and launch litigation. Rashard Mendenhall of the Pittsburgh Steelers found that out the hard way, and his situation has some lessons for people who sign deals to endorse products.

By the way, you may not think that you've got anything to worry about here. But do you run a blog? And do you have a deal with publishers or other companies to supply you with content to review? If so, then these tips apply especially to you.

In 2011, after Osama bin Laden was killed in Pakistan by the US military, Mendenhall took to Twitter. And unlike many people whose comments were positive, Mendenhall went a different direction:

What kind of person celebrates death? It's amazing how people can HATE a man they have never even heard speak. We've only heard one side...

I believe in God. I believe we're ALL his children. And I believe HE is the ONE and ONLY judge.

Those who judge others, will also be judged themselves.

For those of you who said we want to see Bin Laden burn in hell and piss on his ashes, I ask how would God feel about your heart?

He subsequently clarified that he didn't support Osama bin Laden but just didn't like to see people celebrating anyone's death, but on at least one front the damage was already done.

Mendenhall's tweets got plenty of attention including from Hanes, the clothing company with which Mendenhall had an endorsement deal for its Champion line of sportsgear Hanes terminated the contract, invoking the "morals clause" in the contract. This type of clause is fairly standard in endorsement contracts; Mendenhall's prohibited him from making statements that would bring him "into public disrepute, contempt scandal or ridicule, or tending to shock, insult or offend a majority of the consuming public."

Mendenhall sued for wrongful termination of the contract. Hanes defended by invoking the contract language I quoted above. In a recent judgment the court held that Hanes can only terminate the contract using the morals clause if they can actually prove that Mendenhall's statements brought him into public disrepute or would offend the public. And the judge went further: Mendenhall has shown some tweets that suggest his comments actually raised some people's opinion of him rather than lowering it.

So Mendenhall might be able to get his endorsement deal back. Good for him. But how does that affect you and me? Here's two ways:

1. If you're lucky enough to have an endorsement deal of your own, or even a book publishing contract or something similar where your reputation is important to sales, you might be worried about the scope of these kinds of issues. Mendenhall's case is going to be very important to show that companies can't terminate these deals just because they disagree with things you say in public unless those things affect your reputation or they have specifically prohibited you from talking about them.
2. Or let's say you've started a new hobby. After the success of 50 Shades of Grey, you might think there's some money in that erotica-writing thing. Unless you're in an at-will state Mendenhall's litigation is going to be very important in determining whether your employer should be allowed to fire you if they find out. And even if you are in an at-will state, there may be First Amendment and related issues that come up if they do.

So the Cincinnati Bengals can stop players from using Twitter. But without specific text saying so their endorsement deals probably can't. And probably that means neither will yours.


LINKS:

Cincinnati Bengals banning use of Twitter in training camp:
http://www.cbssports.com/nfl/blog/nfl-rapidreports/19671003/bengals-coach-marvin-lewis-bans-player-use-of-twitter
Judgment in Mendenhall case:
http://scholar.google.com/scholar_case?q=mendenhall+champion&hl=en&as_sdt=2,48&case=8116998380552192400&scilh=0