Is It Game Over For Balotelli After Controversial Instagram Post?

Timely Warning To Businesses Regarding Social Media Policies


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Liverpool FC forward Mario Balotelli’s alleged anti-Semitic and racist Instagram post could see him face a claim from Nintendo for both copyright and trade mark infringement, says leading national law firm Irwin Mitchell.

Balotelli has deleted the post, which contained Nintendo computer game character Super Mario, and since then both his club and the FA have confirmed that they are looking into the matter.

Under the FA's social media guidelines, the minimum ban for race-related breaches of rules is five games.

The law firm says that in addition to being fined by his club and the FA, unless he has Nintendo’s permission to use the image of Super Mario, he may be liable for copyright and trade mark infringement.

Georgie Collins at the London office of Irwin Mitchell said:

Expert Opinion
The use of Nintendo’s image for these purposes could get him into hot water for both copyright and trade mark infringement, especially given the content which could be said to bring Nintendo’s rights into disrepute or be denigrated.”
Georgie Collins, Partner

The Liverpool striker is not the first footballer to get into trouble from using social media. In 2012, former England defender Rio Ferdinand was fined £45,000 and found guilty of improper conduct for a tweet he sent about Ashley Cole.

In addition to the intellectual property issues that are at stake, employment lawyers from the firm have highlighted the importance for employers to remind employees about the dangers of social media.

Omer Simjee, an employment Partner from Irwin Mitchell, said:

Expert Opinion
It is absolutely vital that employers, including football clubs, provide guidance and clear policies on the use of such platforms which will give workers and their representatives a comprehensive understanding of what they can and cannot say via electronic communications.

“Employers should look to fully highlight to staff how seriously any abuse of platforms is viewed so that workers understand that if they overstep the mark there could be significant consequences. Even if comments are made outside of work and on personal accounts, it can be a disciplinary matter and this needs to be understood by workers. For example, this can be the case where the entries on social media relate to issues affecting colleagues or pose a reputational risk for the employer.

"An absolute must is that every complaint or matter which arises as a result of the use of social media or electronic communication should be dealt with in a consistent manner. Acting leniently in one case then more strictly in another can only leave employers open to potential legal action.

“If Balotelli was an employee of one of our clients, we would be advising the employer to take disciplinary action in this matter.”
Omer Simjee, Partner