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On August 1, 2015, popular Twitch.tv streamer Tim “Trick2G” Foley celebrated his channel reaching 800,000 followers by faking that his house had been raided by a SWAT team. The practice of faking a 911 call that results in a SWAT team being sent to someone’s house is known as “swatting,” and is unfortunately too common within the gaming community. Although Trick2G faked that he was swatted, likely as a publicity stunt, his actions have resurrected the discussion about the consequences of swatting.
Legal consequences Make no mistake, a person who engages in swatting is committing a criminal offense. Effectively, swatting is the false reporting of a crime. In New York, falsifying the report of a crime is a serious offense, as it can be classified as an A Misdemeanor (the most severe misdemeanor), E felony (the least severe felony charge), or a D felony. Also, such offenses are not looked upon kindly by Courts, who obviously want to discourage such behavior. When examining the severity of the charges, this means people found guilty of such offenses are likely facing jail time. If convicted of the most serious of these crimes in New York, the Defendant could be facing up to seven years in jail. Granted, different States will vary in terms of their punishments of these offenses, but the importance of preventing such conduct from occurring is universal. Additionally, as swatting has expanded beyond the gaming community, some States have sought to increase the criminal penalties associated with swatting. For instance, a New Jersey lawmaker has proposed that people who engage in swatting be punished by ten to 15 years in jail and a $150,000 fine. Unfortunately, the lawmaker who made this proposal was then swatted himself. Such misguided action isn’t going to deter the push for stricter punishments, but will likely reinforce the efforts. Business consequences Being swatted is a double edged sword for a person’s business endeavors. On one hand, news of being swatted would likely translate into an increase in views for a streamer’s channel, likely resulting in increased revenue. However, the viewership bump may fade. The increase in views can also be seen when the swatting is faked, as was the case with Trick2G. Since his fake swatting eighteen days ago, the followers of Trick2G's channel have increased by roughly 37,000. In raw numbers alone, the increase in followers could potentially help Trick2G gain more sponsorships (assuming the sponsor does little to no research on how the followers were gained), which could lead to increased revenue. On the other hand, swatting also makes brands very nervous, and perhaps limits their involvement in sponsoring streamers. Given that being swatted creates an intensely pressurized situation, there is no telling how people will react under those circumstances. No brand wants to be associated with someone who does something stupid, much less a person who does something stupid with an armed swat team in their presence. Being swatted can amount to bad publicity for a sponsor, especially if someone becomes physically injured. Additionally, should a sponsored person fake that they were swatted, a sponsor could consider such activity brand damaging behavior, and invoke a sponsorship’s morals clause to exit the agreement. Further, a history of faking being swatted may discourage brands from sponsoring that individual. TL;DR Swatting is not pulling a prank on someone, but is actually criminal activity. Falsifying the report of an incident is a crime across the country that Courts do not look favorably upon, and will likely result in significant jail time. While being swatted may cause a viewership bump that could result in additional revenue, brands are uncomfortable with their potential sponsees being swatted for fear of the damage it can cause the brand. Swatting is not something that should be taken lightly, whether real or fake. Although Twitch banned Trick2G for a day, thereby costing him streaming income for that day, the legal severity of swatting should have necessitated a harsher penalty so as to discourage such behavior in the future. No one should engage in such behavior, whether real or fake.
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Performance enhancing drug (“PED”) use in esports has long been an issue whispered about within the gaming community. These PEDs are not steroids and human growth hormone as we know from other sports, but are instead prescription drugs known as psychostimulants or neuroenhancers. These kinds of drugs (Adderall, Ritalin, Selegiline, etc.) are abused by players as a means of enhancing focus, calmness, or to otherwise act as a stimulant. However, due to the lack of drug testing by professional esports leagues and tournament bodies, there have been very few instances of confirmed PED use during matches. Unfortunately, there is now another example of such drug use.
On July 12, 2015, a Youtube video was posted where professional Counter Strike: Global Offensive player Kory “Semphis” Friesen asserted during an interview that he and his team took Adderall during a major ESL tournament. The relevant portion of the interview is as follows: Friesen: “The ESL [team communications] were kinda funny in my opinion. I don’t even care, we were all on Adderall [laughs]” Interviewer: “Really? [laughs]” Friesen: “I don’t even give a fuck, like its pretty obvious if you listen to the [team communications]. I don’t know, people can hate it or whatever.” Interviewer: “Everyone does Adderall at ESEA Lan right?” Friesen: “Yea” Interviewer: “Just throwing that out there for the fans, that’s how ya get good” In addition to the disappointing language encouraging others to violate tournament rules and abuse prescription medications, such PED use can impact the player and team’s contractual relationships. Many contracts, especially sponsorship agreements, contain morals clauses. This type of clause allows a contracted party the opportunity to cancel their remaining obligations under the contract should the other party act in a way that is harmful or damaging to its own brand. The reasoning behind such a clause is that by cancelling the contract, a party can protect themselves from being associated with the brand damage caused by the other party. In the sponsorship context, this allows a sponsor to exit a sponsorship should the sponsee player or team be engaged in a scandal or otherwise illicit activity. Although there has not been a reported contractual exodus in this matter like when Lance Armstrong was found to have been using PEDs, the use of PEDs in esports can trigger a contract’s morals clause in the following ways:
It is unknown whether or not Friesen and his team obtained the Adderall licitly and for a valid medical purpose. However, in the event that the individuals obtained the substance for an illicit purpose such as those described above, that action would likely be enough to satisfy a morals clause. Importantly, a morals clause can also be placed in a player-team contract, thus putting the players’ livelihood at stake should they utilize PEDs. Additionally, the team itself could face legal backlash over its players’ PED use from sponsors, as sponsorship agreements routinely contain morals clauses. Depending on how the morals clause is drafted in the team’s sponsorship agreements, the actions of all players (or even a substantial number of them) may be sufficient to trigger the morals clause and permit the sponsor to cancel the sponsorship agreement. As Friesen’s admission has caught the attention of many people in the esports industry at large, time will tell if there is any sponsor backlash. Eventually, the esports industry is going to have to implement effective methods for curbing its PED problem. Until then, teams should keep in mind that any PED use can impact the sponsorships that they have worked hard to obtain, and thus discourage any PED use by its players. No team or player would want to lose their contracts because a morals clause was triggered in an effort to gain a competitive advantage. Even worse, potential sponsors or teams may be hesitant to sponsor or employ a player and/or their team due to past PED use. Statements referring to taking Adderall as how you “get good” are not only irresponsible for encouraging activities that may cost players and their teams contracts, but also because they effectively encourage criminal behavior. Social Media and athletes have a tricky relationship. On one hand, interacting with fans and other athletes on social media can have a positive effect on the athlete's brand. On the other hand, misstatements, insults, or inflammatory comments can cause immense harm for the athlete's brand. This damage can be especially evident if a company the athlete endorses determines the statement to violate a morals clause in their contract. In some cases, negative social media posts may impact an individual's career as a professional athlete before it even starts.
It has been standard practice for college athletes to have their social media accounts monitored by their team. College sports teams also monitor/review the social media accounts of prospective athletes. Three years ago, an unnamed college coach was recruiting two basketball prospects from Fairport High School. However, upon reviewing the recruits' social media accounts, the college coach determined that one of the recruits did not represent the College's values and standards. Subsequently, the college coach ceased recruiting the athlete. Interestingly, the recruit's Twitter was not filled with illegal activity, but contained frequent use of vulgar language and made several references to partying. Those posts were enough to cost the young man a potential scholarship. Undoubtedly, athletes are public figures. In the hyperconnected world of today, aspiring professional athletes must be prepared to act as professionals at an early age. Young athletes must realize/be instructed that anything they have ever posted on a social media account is available to anyone that wants to dig deep enough. Here are some tips for aspiring, young athletes to easily control their public image by navigating the minefield of social media:
Social media can be tricky for the young athlete, but following some of these best practices will help enhance their budding brand as they progress in their careers. Recently, strong allegations have surfaced that esports is suffering from a performance enhancing drug ("PED") use problem. These PEDs are not the steroids and human growth hormones of other sports, but are instead neuroenhancers.
These kinds of drugs (Adderall, Ritalin, Selegiline, etc.) are known as "smart drugs" due to their abilities to enhance focus, calmness, and act as stimulants, which debatably enhance performance in professional gaming. Although there appears to be much confusion as to whether such neuroenhancers are banned from professional gaming (a quick Google search reveals many questions on the topic and few actual answers), if it is banned, there appears to be little enforcement as noted in the link above. Irrespective of neuroenhancers' status as potentially banned substances in professional gaming, utilizing such substances can have an impact upon a player's/team's existing sponsorship agreements. As I noted previously, sponsorship agreements generally contain morals clauses. A morals clause allows a sponsor the opportunity to cancel a sponsorship should the athlete or team act in a way that is harmful or damaging to the sponsoring brand. In other words, morals clauses allow sponsors a means of exiting a sponsorship agreement with an athlete engaged in a scandal or otherwise illegal activity. The use of neuroenhancers in pro-gaming, regardless of whether the substance is banned, can trigger a sponsorship's morals clause in several ways:
Any of the above reasons, which certainly is not an exhaustive list, could also be the cause of a scandal within the sport. Although scandals could be sufficient to independently trigger a morals clause, when combined with any of the above points, a scandal makes it much more likely. Similarly, a team sponsorship may be impacted by a team member's use of neuroenhancers. Depending on how the morals clause is written, a single team member's actions may be sufficient to trigger the morals clause and permit the sponsor to cancel the sponsorship agreement. As the esports industry determines methods for curbing its PED problem, teams should keep in mind that any PED use can impact the sponsorships that they have worked hard to obtain. No team would want to lose its sponsor because a morals clause was triggered in an effort to perhaps gain a competitive advantage. Even worse, future sponsors may be hesitant to sponsor a player and/or their team due to past PED use. The ongoing saga of Donald Sterling's attempts to regain, or retain, ownership of the Los Angeles Clippers continues. Last night, Donald filed a lawsuit against Shelly Sterling (his estranged wife), the Los Angeles Clippers, the NBA, and NBA Commissioner Adam Silver. This lawsuit alleges 12 causes of action, including:
This lawsuit is the third that Donald has filed in his attempt to regain, or retain, ownership of the Clippers. His original two lawsuits focused on the propriety of the NBA's sanctions against him and the propriety of Donald being declared mentally incompetent, resulting in his supposed loss of ownership of the team to Shelly. Legal issues in this new case aside, what this does entail is that the ownership of the Clippers will not be a settled matter (according to the courts) for some time. Attorneys for Sterling have stated that this case may take several years to resolve. But what does that mean to the Clippers organization? Dick Parsons, the interim CEO of the Clippers, testified in court yesterday that he fears if Donald were to remain owner of the team, it would plunge the organization into a "death spiral." He indicated that in the event Donald remains owner, Doc Rivers would not want to continue as head coach of the team. Further, Parsons testified that he has spoken with many of the team's players and sponsors who do not wish to remain with the Clippers should Donald remain Owner. Specifically, Parsons testified that sponsors who have yet to commit to the team for next year have indicated "We're in so long as Donald Sterling is out." Sponsors generally have the ability to cancel their sponsorship agreements through the use of morals clauses in their contracts. Players don't have that option, although they can request to be released and/or traded. Parsons testimony echoed the scenario that began when the Sterling audio tape was first released in April. In a few short weeks, sponsors canceled or paused their sponsorship agreements with the team. Further, rumors of a team-wide, and league-wide, boycott surfaced prior to Commissioner Silver banning Donald for life. Parsons statements should not be taken lightly, as they are illustrative of the reality the Clippers will find itself in should Donald remain Owner. Unfortunately, Donald Sterling's three lawsuits can result substantial harm to the clippers. If the litigation is not voluntarily dismissed before the season commences, or if Donald manages to prevail in his litigation, then Parsons' "death spiral" comment will be realized. That is, unless the NBA takes action. The NBA has yet to commence its formal proceeding to remove Donald Sterling as Owner from the Clippers and force the sale of the team. Pursuant to Article 13 of the NBA's Constitution and Bylaws, an Owner can be removed by a vote of three-fourths of the Board of Governors (made up of other team Owners) if an Owner commits any of the following:
Donald disputes in his first lawsuit against the NBA that he has not violated any of these provisions, although he has likely violated provisions numbered 1, 3 and 4 noted above. In particular, he has at least violated provision 4 by refusing to pay the $2.5 million fine. (Note: For a full analysis of the propriety of Sterling's sanctions, see my upcoming publication Not So Sterling: Assessing Donald Sterling's Breach of Contract Claims Against the NBA [Forthcoming Summer 2015]) The NBA had planned to have the Board of Governors vote to remove Donald's ownership of the Clippers on July 15, 2014. This date was set to be following the conclusion of the trial between Donald and Shelly Sterling about Donald's mental capacity. However, the trial has run long. The NBA intends to have Donald removed as owner prior to the start of next season, and has set a deadline of September 15 for any transfer of ownership through sale. Presumably, the NBA fears the "death spiral" that Parsons testified would occur should Donald remain Owner. However, if September 15, 2014, comes to pass and the team is not sold, the NBA will seek to remove ownership from Sterling and auction the team. Although Donald Sterling's latest lawsuit delays the court's determination of ownership of the team, the NBA could move forward and remove Donald's ownership interest, even if the lawsuit about Donald's mental capacity is not resolved. Once the team is sold, the NBA could commence an action for interpleader, where Donald and Shelly can sort out who is entitled to the proceeds, or just await the determination of the suit between Donald and Shelly. Donald Sterling's litigation tactics may be designed to delay the sale of the Clippers, but the NBA has the ability to initiate a proceeding to remove his ownership. Only time will tell if the NBA is able to accomplish its goal of removing Sterling prior to the start of next season. If the NBA fails to do so, we may see the "death spiral" of the Clippers that Parsons is warning about. Lance Armstrong won the Tour de France seven times and an Olympic bronze medal during his career. This success brought him fame and substantial sponsorships. However, as evidence mounted that Armstrong used illicit substances to better his performance, sponsors quickly disassociated themselves by likely utilizing a morals clause in the sponsorship contract.
As in the case of Lance Armstrong, morals clauses allow a brand or business the ability to cancel a sponsorship with the athlete/celebrity should they act in a way that damages their own brand substantially enough to hurt the sponsoring business or brand's reputation. Importantly, morals clauses are not reserved for the elite sponsors. Morals clauses can also be found in TV show contracts, teachers' contracts, and appearance contracts. Oftentimes, sports businesses schedule athlete appearances to boost their brands and bring in consumers. Regardless of the size of the sports business, a morals clause should not be overlooked in the appearance contract. In today's hyper-connected society, all it takes to start a controversy is a singe Tweet, which probably takes less than a minute to create and send. No business, especially a small business, wants to be stuck with an appearance by a controversial athlete amidst a scandal for fear that the business would be associated with the athlete. |
AuthorQuiles Law is an esports-focused law firm based in New York City. Archives
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