In July 2011, NFL running back Rashard Mendenhall sued Hanesbrands Inc. for terminating his million-dollar contract to promote Champion sportswear. Mendenhall's deal was canceled after he sent out controversial tweets on sociopolitical topics, including an attempt to temper celebration after Osama bin Laden was killed.
The lawsuit, the Pittsburgh Steelers star's lawyers presented at the time, involved the question of whether a "celebrity endorser loses the right to express opinions simply because the company whose products he endorses might disagree with some (but not all) of these opinions."
Now, after dodging Hanesbrands' attempt to tackle the lawsuit at the line of scrimmage, Mendenhall is running forward on claims that the company has breached his contract and now owes him millions of dollars. At trial, his lawyers are preparing to put Charlie Sheen front and center..
The actor also was a Hanesbrands endorser until recently and, like Mendenhall, has never been shy about voicing strong opinions. The running back has seized upon a comment Sheen made during a radio interview about the Sept. 11 terrorist attacks at the World Trade Center: "It seems to me like 19 amateurs with box cutters taking over four commercial airliners and hitting 75 percent of their targets feels like a conspiracy theory," said Sheen. "It raises a lot of questions."
So why would Hanesbrands pay Sheen to be its endorser? Mendenhall wants to know too.
To prevail in his lawsuit, Mendenhall will have to show that Hanesbrands went outside of the rights it enjoyed in the "morals clause" of the endorsement deal.
Morals clauses are common in Hollywood. Almost all studios that contract with actors, musicians and other entertainers have some protection that allows termination upon controversy. Mendenhall's contract with Hanesbrands has a typical morals clause that prohibits activities that would bring the company "into public disrepute, contempt, scandal or ridicule."
However, the language is quite broad and doesn't specify what Mendenhall could or couldn't say on Twitter. Thus, it's not surprising that the two sides disagree over whether Mendenhall's morals clause was violated when the NFL star tweeted about the 9/11 attack, "We'll never know what really happened," and tweeted about bin Laden's death: "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."
Perhaps the only surprise is that there hasn't been more litigation like this. Nearly every time a celebrity does something controversial, there's inevitably some discussion in the media about that celebrity's morals clause, and yet for all the hullabaloo over this legalese, most of these disputes are settled privately.
Fortunately for celebrities looking for some direction on whether they are allowed to say controversial things on Twitter, Mendenhall isn't backing down. The NFL star soon could be telling a jury that Hanesbrands has a double standard when it comes to allowing some opinions but not others from its celebrity endorsers. But first, his lawyers are looking for documents that show how the company has treated "endorsers such as Mr. Sheen."
Among the celebrities that Hanesbrands has paid to endorse its clothing over the years are Michael Jordan, Kevin Bacon, Christina Applegate, Jennifer Love Hewitt, Matthew Perry and Damon Wayans.
"If HBI treated Mendenhall differently than other endorsers without a good reason to do so, this evidence would be relevant to show that HBI's termination was unreasonable and arbitrary," Mendenhall's lawyers argue in a motion to compel production of documents.
Hanesbrands is resisting.
The company already has coughed up the Sheen endorsement agreement but says it's irrelevant to the dispute before the court because, unlike the morals clause in Mendenhall's deal, "under the terms of the Sheen agreement, Hanebrands' right to terminate could not be triggered by anything less than the filing of criminal charges against Mr. Sheen."
That response doesn't satisfy Mendenhall.
His attorneys recently told a judge that a look at Sheen's contract "revealed that HBI hired Mr. Sheen as an endorser after he had gone public to challenge the United States government's explanation for the attacks of Sept. 11."
The plaintiff goes on to say that "information obtained in discovery has revealed that HBI employees recognized the similarities between the public's response to Mr. Sheen's comments and those made by Mr. Mendenhall. Therefore, requests aimed at HBI's treatment of other endorsers such as Mr. Sheen are reasonable calculated to the discovery of admissible evidence."
In short, the lawsuit now is testing not only how far celebrities can go in making comments on Twitter without reprisal from their sponsors but also whether companies risk watering down morals-clause enforcement with discriminatory treatment from one celebrity to the next.
E-mail: firstname.lastname@example.org; Twitter: @eriqgardner