Endorsements vs. Influences vs. Social Justice
We live in a celebrity-obsessed culture that I admittedly love and enjoy watching with amusement and occasional annoyance. Who doesn’t like a binge weekend of Keeping Up with the Kardashians? I proudly follow NBA’s Steph Curry and LeBron “King” James on Instagram and Facebook. As Americans continue to consume social media at exorbitant rates, global advertisers, elite brands, and national media companies are actively looking for ways to feed our appetite for more celebrity-endorsed products. This hunger has created a unique climate that has produced some of the most lucrative endorsement deals on the planet.
For instance, LeBron James has endorsement deals—Coca-Cola, Beats by Dre, Kia Motors, Intel, Verizon, and Nike—that earn him more than $55 million annually. (I clearly should have played more sports as a kid!) But the most interesting endorsement deal this year is for an athlete who hasn’t played in a professional sport in nearly two years—former NFL quarterback Colin Kaepernick.
For the last two years, Kaepernick has made global headlines for his peaceful protests at NFL games against repeated incidents of police brutality against unarmed African Americans across the country. His silent protests have endeared him to many fans, but the backlash has also prevented him from playing in the NFL since 2016, making his recent Nike endorsement deal unique.
Kaepernick became the official face of Nike’s “Just Do It” 30th anniversary campaign. The campaign is just the first step in Nike’s new partnership with Kaepernick, an extension of a deal he’s had with the company since he entered the NFL in 2011. In less than 24 hours after Kaepernick first revealed the ad on Twitter, Nike received more than $43 million worth of media exposure. The ad depicts Kaepernick’s face with the phrase “Believe in something. Even if it means sacrificing everything.”
While some details of the partnership have been unveiled—an apparel line for Kaepernick and a contribution to his charity, Know Your Rights—I’m still left wondering what else could be in his Nike endorsement agreement. According to Jaia Thomas, a Los Angeles–based sports and entertainment lawyer, the whole idea behind endorsement agreements is to grant a company the right to use the athlete’s name, image, or likeness in relation to advertising the company’s products or services.
Overall, these agreements have the typical sections, such as duties and obligations, compensation, marketing, and breach of the agreement. The breach section typically includes language about unbecoming conduct, which essentially allows sponsors to terminate an agreement if they are not pleased with an athlete’s behavior on or off the field. Obviously, this language is very subjective, and it is a powerful clause to be used by a sponsor. And, I would guess in most cases, national sponsors could use a clause such as this to terminate Kaepernick’s sponsorship deals because of the negative press and backlash his protests have received. But Nike must view his social activism as a virtue, and they must see his image and actions as socially acceptable and highly profitable. “It will be interesting to see not only how Kaepernick’s deal unfolds but also if any other companies or brands follow suit in the coming months,” says Thomas.
This article appeared in the November 2018 edition of the Young Lawyer Magazine