commentary
Olympians posing nude and showing more than gold medals
Published Thursday, 23-Mar-2006 in issue 952
BEYOND THE BRIEFS: sex, politics and law
by Robert DeKoven
Now that the 2006 Winter Olympics is over, one wonders what the celebrated athletes are doing. Sasha Cohen, for example, showed up at the Oscars, while some of the male speed skaters showed off their bodies and butts for photographers.
In some ways, it’s nice the Olympians pay tribute to the traditions of the Olympics. When it all began, athletes appeared in the nude, much to the admiration of male-only crowds that watched the events. What goes around comes around.
That’s why it’s nice to see that some of the celebrated Olympians are sporting more than just their medals for the camera. Some of the athletes have their own Web sites, where they feature calendars and signed photos. Can Web cam shows be next? Others appear in professional photographic depictions. (See the story in outsports.com.)
What’s remarkable about this is that corporate mores are changing so that athletes today, we hope, can appear nude without having to worry much about losing lucrative endorsement deals.
Their images are valuable. Under federal and California law, individuals can sue for misuse of their names, images and likenesses. Ironically, the same laws that apply to celebrities are also available to lay folk who want to sue for “identity theft.”
But businesses pay big bucks to use the images of celebrity athletes.
For example, Nike, Inc. is the nation’s largest employer of endorsers for athletic goods. Over the next few years, it will spend upward of $2 billion in payouts to athletes.
In most cases, the athletes agree to allow companies to use their names in backing a particular product or service. Sometimes companies develop a product associated with the athlete. The companies spend a fortune in preparing marketing plans with the athlete’s image in mind. Over time, consumers associate the athlete’s name with the product, even if they don’t really believe Tiger Woods prefers Buicks.
“When it all began, athletes appeared in the nude, much to the admiration of male-only crowds that watched the events. What goes around comes around.”
After the last summer Olympics, Michael Phelps, who won numerous medals in swimming, had his image everywhere. No question, Michael Phelps sold a ton of Speedos. But then he got arrested for underage drinking and driving. The squeaky clean boy was no more. His endorsers stayed with him. But they didn’t have to.
This is because companies include in their contracts with athletes what we call “morals clauses.” In short, the company has the right to cancel the contract if the athlete does something to “tarnish” his or her image.
I don’t need to go on here with all the examples of situations where a company has or has wanted to cancel a contract with an athlete. When a woman accused Kobe Bryant of rape, Nike wasn’t too thrilled.
The clauses first became popular in the movie industry during the 1920s. Studio execs signed actors and actresses to long-term contracts. But when the tabloids exposed an actor’s extramarital sex life, studio execs wanted the freedom to cancel the contract. They blamed the lack of ticket sales at the box office on the actor’s indiscretions. So, increasingly, they inserted morals clauses into contracts. Today, they are in just about every contract involving celebrities of all stripes, including contracts involving athletes. And the contract language is drafted so broadly that it covers such things as coming out as gay or lesbian.
Historically, the company could cancel if the endorser, for example, committed any act involving moral turpitude. Is admitting to engaging in homosexual acts moral turpitude? It was, at least until just a few years ago when the Supreme Court ruled 6-3 that states may not criminalize private sex acts between consenting adults.
Savvy lawyers are putting in more specific language in the contracts. For example, companies want to end the contract if the endorser becomes involved in “any situation involving the use of drugs or alcohol, or otherwise tends to bring oneself into public disrepute, contempt, scandal or ridicule.”
Such clauses are the standard. Athletes with more bargaining power would typically include a clause that would only allow the company to cancel if a court finds that the person has committed a serious crime.
Hopefully we are at a point, at least in California, where coming out does not, as one court in Massachusetts found, automatically expose one to ridicule, and is therefore not defamatory per se. But that may still be a hard sell to companies that pay for endorsements for athletes.
This is why most gay and lesbian athletes and performers remain in the closet. At the very least, the California Legislature should render illegal clauses in endorsement contracts that penalize endorsers for admitting their sexual orientation.
Robert DeKoven is a professor at California Western School of Law.
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