By: Kelsey Higgins
The Savannah Bananas are an exhibition baseball team based out of Savannah, Georgia, and they are taking both the world and social media by storm. The Savannah Bananas are known for their Tik Tok dances, fast pace of play, yellow tuxedos, and having their own senior citizen women’s dance team. [1] The Bananas founder Jesse Cole had a goal to make baseball fun again, and to emphasize games placing a focus on the fan experience. [2] Cole created his own rules to speed up the pace of play—the rules of banana ball. [3] Banana ball has nine rules, with the most notable being: a two-hour time limit on each game, the fact that batters cannot step out of the batter’s box, mound visits are not allowed, and if a fan catches a foul ball, it counts as an out.[4]
The players themselves are at the center of attention, and they do more than just play baseball. At any moment in time, there can be a pitcher on stilts, a dance routine, trick plays, or players in tutus. [5] As a result, many of the players have grown a large social media following. Third baseman Jackson Olson has amassed over one-and-a-half million [6] followers on Tik Tok, and over four-hundred thousand [7] followers on Instagram. Because of the platform provided by the Bananas, he has been able to combine his love for baseball along with being a content creator. [8] The Bananas promote these players on their social media accounts, which have amassed over six million followers.[9] Their Tik Tok account surpasses the MLB, MLB franchises, and every single franchise in the NBA, NFL, and NHL. [10]
This dynamic creates the question: Are the players considered employees or independent contractors as social media influencers? While the players are contracted as employees of the Bananas, they could arguably be considered independent contractors for any social media influencer deals they sign as Banana players.[11] There are many factors to take into consideration when deciding whether these players are employees or independent contractors for the brands they promote. In McDonald v. Hampton Training School, the Supreme Court ruled that the factors to be considered when deciding whether an individual is an independent contractor are (1) selection and engagement; (2) payment of compensation; (3) power of dismissal; and (4) power to control the work of the individual. [12] Furthermore, the Department of Labor and Social Security Administration rely on the economic reality test to determine whether a worker is an independent contractor or an employee. [13] This test focuses on two major factors when determining if a worker is an independent contractor: the degree of control there is over the work expected along with the nature of the work, and the worker’s opportunity for profit or loss. [14] As influencers, the players are expected to use the social media platform they have established to promote a brand’s products or services. [15] For example, Bananas pitcher Connor Higgins has promoted the brand “Chubbies” [16] on his account, while pitcher Zack Phillips has promoted the brand “Pitchers Only.” [17] While a brand will normally lay out parameters for what should be posted, it is entirely up to the players regarding when they will post and how much they want to post. [18] It is important to note that the players are still allowed to accept work from other brands, they can post in a manner they see fit, the posts are remote, and they are not treated like an employee. [19] Additionally, following the economic reality test, the degree of control over social media posts, along with the nature of the work, is minimal, and the players do not share an opportunity with the company for loss. [20]
When deciding whether Savannah Bananas players acting as social media influencers are independent contractors, the determination must be made under a totality of the factors. Here, it is fair to say that the Bananas are likely independent contractors. They have free reign to post on social media for multiple brands, they can post how they choose, and they are able to use their social media platform as Savannah Bananas players to attract these brand deals. It is likely that contracted athletes acting as independent contractor social media influencers is the future in sports.
[1] Gabe Hauari, Who are the Savannah Bananas? Everything to know about the exhibition baseball team, USA Today (July 21, 2023, 1:46 PM) https://www.usatoday.com/story/sports/2023/07/21/savannah-bananas-2023-tickets-schedule-what-to-know/70420085007/.
[2] Shep Hyken, How Jesse Cole Transformed the Savannah Bananas Into a Marketing Phenomenon, Forbes (May 21st, 2023, 9:01 AM) https://www.forbes.com/sites/shephyken/2023/05/21/how-jessie-cole-transformed-the-savannah-bananas-into-a-marketing-phenomenon/?sh=1ad614d183b0.
[3] Id.
[4] Id.
[5] Johnathan Liew, The Savannah Bananas show us that sport’s future may not look like sport, The Guardian (September 12th, 2023, 3:00 PM) https://www.theguardian.com/sport/blog/2023/sep/12/savannah-bananas-future-of-sport.
[6] Jackson Olson (@jacksonolson_), TIKTOK, https://www.tiktok.com/@jacksonolson_ (last visited, September 13th, 2023).
[7] Jackson Olson (@j_olson2), INSTAGRAM, https://www.instagram.com/j_olson2/ (last visited, September 13th, 2023).
[8] Scott Ericson, Jackson Olson turned love of baseball, TikTok videos into career: ‘I’ve never had more fun’, CT Insider (August 23rd, 2022, 1:01 PM) https://www.ctinsider.com/newmilford/article/Jackson-Olson-turned-love-of-baseball-Tik-Tok-17385306.php.
[9] Joseph Palmer, ‘More than baseball’: how the Savannah Bananas became the greatest show in sports, The Guardian (May 26th, 2023, 4:00 PM) https://www.theguardian.com/sport/2023/may/26/savannah-bananas-baseball-team-tiktok-banana-ball.
[10] Id.
[11] Chelle Law, Are Social Media Influencers Independent Contractors? | Influencers Contract, Chelle Law (August 13th, 2022) https://www.chellelaw.com/influencer-management-contract-attorney/social-media-influencer-independent-contractor/are-social-media-influencers-independent-contractors/.
[12] McDonald v. Hampton Training School 254 U.S. 79, 81 (1997).
[13] Sterling Miller, Employee vs. independent contractor: What’s the difference?, Thomson Reuters (March 21st, 2022) https://legal.thomsonreuters.com/en/insights/articles/independent-contractor-vs-employee-what-does-it-matter.
[14] Allen Smith, DOL Clarifies Definition of Independent Contractor, SHRM, (January 7th, 2021) https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/dol-final-rule-independent-contractor.aspx.
[15] Marissa Parisi, What Are Social Media Influencers (and Why Does Everyone Want to Become One, MUO (June 27th, 2023) https://www.makeuseof.com/what-are-social-media-influencers/.
[16] Connor Higgins (@higginsconnor), INSTAGRAM, https://www.instagram.com/higginsconnor/ (last visited, September 13th, 2023).
[17] Zack Phillips (@zackarie25), INSTAGRAM, https://www.instagram.com/zackarie25/ (last visited, September 13th, 2023).
[18] Ericson, supra note 8.
[19] Miller, supra note 11.
[20] Smith, supra note 12.
