Paying NFL Teams to Salute the Troops: Is It Legal?

Jets' 'Hometown Hero' Tributes Part of $100,000 Contract

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Credit: Bloomberg News

On April 30, to coincide with the first day of the NFL draft, Arizona Senator Jeff Flake's office put out a press release shaming the Jets for "federally funded feel-good moments" that "fans may have assumed were genuine gestures to thank and recognize soldiers."

He cited the "statement of work" for a 2012 marketing contract between the New York Jets and the New Jersey Army National Guard, listing what the Jets will deliver in return for about $100,000: along with online banner ads and spots on the stadium video board, a "Hometown Hero" tribute to a pair of soldiers during each home game. "Their picture will be displayed on the video board," the document says, "their name will be announced over the loud speaker, and they will be allowed to watch the game, along with 3 friends or family members."

On May 7, Mr. Flake's senior Senate colleague from Arizona, John McCain, released an "America's Most Wasted" report targeting a "$225,000 deal between the New England Patriots and the Massachusetts and New Hampshire Guard" that includes "the 'True Patriot' program, in which the team recognized members of the Guard during half-time at home games."

Without disclosure, these practices might be against the law. Federal Trade Commission guidelines on the use of testimonials and endorsements in advertising state that:

...when there exists a connection between the endorser and the seller of the advertised product that might materially affect the weight or credibility of the endorsement (i.e., the connection is not reasonably expected by the audience), such connection must be fully disclosed.

Advertising that is not obviously advertising, in other words, has to be presented as such. In this instance, the NFL team would be the endorser; the National Guard, the seller; and the advertised product, military service. And that would mean an announcer at an NFL stadium declaring a tribute to the troops was paid for, in essence, by the troops.

But it might not be so clear.

"From an FTC standpoint, it's pretty grey," says Randy Shaheen, a partner at the law firm Venable LLP, who practices advertising law. While Coca-Cola has to tell viewers if, for instance, a guest on a talk show has been compensated to say nice things about its products, the military, says Mr. Shaheen, could argue that the categories do not apply here. "The government could say, 'We are not trying to sell anything here. We are just trying to get people to be patriotic, to have pride in those who serve their country. We are not trying to get people to go to Walmart to buy something.'"

There is no clear consensus, he says, over whether paid corporate messaging that makes no specific product claims or sales pitches (e.g. General Electric's "We bring good things to life" campaign) count as commercial speech.

In any case, "the government obviously is not going to go after itself," says Mr. Sheehan. Last year, he noted, the Consumer Financial Protection Bureau paid for an advocate to be in the audience at a public forum on lending regulation and did not disclose the arrangement.

The FTC declined to comment on whether the New Jersey Army National Guard had broken any rules and whether it can sue branches of the military.

The Jets are already busy defending themselves in the court of public opinion. The team put out a statement criticizing the media for "misrepresentations and blatant factual errors," calling attention to its record of uncompensated support for the U.S. military, and promising to "pay closer attention to ensuring that any arrangement we have with a government entity is clearly identified." The team did not dispute the contents of the documents turned up by Senator Flake's office. The Patriots have yet to respond to a request for comment.

Army National Guard spokesman Rick Breitenfeldt said tributes to the troops are not commonly a part of marketing agreements with teams. "We provided funds for marketing booth space, banners and website marketing, etc.," he writes in a statement. "Salutes are requested by the teams to the service's community relations/engagements division. These requests are sometimes planned out well in advance, such as flyovers and large number personnel requests for flag presentations and special salutes to returning veterans. Other times, requests are handled quickly and sometimes at the last minute based upon already established relationships." Mr. Breitenfeldt did not dispute the findings of Senators Flake and Mr. McCain.

Senator Flake is not letting the matter drop. Earlier this week, his office requested that the Department of Defense provide detailed information about all marketing agreements between the military and sports teams since 2009. From 2011 to last year, according to NJ.com, the Department of Defense spent $6 million on advertising with 15 NFL teams, most of it through the National Guard. Mr. Breitenfeldt says the Army National Guard has cut sports spending by 70% over the last two years (after complaints of wastefulness from lawmakers). There are now nine NFL teams doing business with the Guard. The largest contract is for $225,000 with the Patriots; what that money covers is not yet known.

~ Bloomberg News ~

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