Watch That Tweet! Monitoring of Student Athletes’ Social Media
by John G. Browning
Facebook, Twitter and other social media platforms have forever changed the landscape of communications and information sharing. Over 65 percent of all adult Americans have some kind of social media presence, with over a billion people on Facebook worldwide and over 340 million tweets every day. Modern sports have embraced social networking as well, providing athletes with a means of sharing with family, friends and fans worldwide.
But as a plethora of incidents with athletes at every level has shown, exercising poor social media judgment can lead to lost scholarships, lost endorsement deals and lost fans (witness U.S. Olympic hurdler Lolo Jones and her tweets about “shooting sports” after the Aurora, Colorado, massacre). To protect their brands, virtually every major sports league and governing body now imposes rules on the use of social media by its athletes.
Nowhere was this more evident than during the 2012 London Olympics, dubbed by some sportswriters as “the first social media Olympics.” While the London Games marked the first time Olympic athletes and volunteers were given clearance to post, tweet and blog during competition, both the International Olympic Committee and the U.S. Olympic Committee imposed sometimes draconian-sounding rules in an effort to protect valuable sponsors. The IOC issued a 4-page set of comprehensive guidelines aimed at protecting the Olympic brand and protecting official sponsors who had paid for the right to be associated with the Olympics.
Heightened regulation and monitoring of amateur athletes’ social media activities has taken on new meaning at the collegiate level, where the NCAA already regulates the use of social media in recruiting. In an era in which big-time football or basketball programs can generate tens of millions of dollars in annual revenue through ticket sales, lucrative TV contracts, and licensing apparel, colleges and universities are protecting both a valuable brand and the school’s reputation by policing the social media musings of student athletes. For some this may take the form of coach-imposed restrictions or a broad social media policy that applies to all students, but a growing number of universities are turning to third-party vendors to monitor the social media accounts of student athletes. The vendors use proprietary technology to scan and filter for key words that might point to discussion of drug or alcohol use, offensive comments or references to potential NCAA violations. The student athletes are required to install the monitoring software, and the monitoring vendors report any flagged content to a coach or compliance official within the athletic department.
Such monitoring raises a host of legal issues. First, putting the university in charge of what words warrant a red flag can be problematic. Two universities recently got in trouble when it was learned that, in addition to filtering for references to drugs, agents and cheating, their 400 or so word list included words and phrases like “Arab,” “Muslim” and “gay.” Monitoring also violates most social networking sites’ terms of service. Facebook, for example, explicitly forbids a user from sharing his password with a third party. In addition, the practice could lead to unanticipated civil liability. The family of Yeardley Love, the University of Virginia women’s lacrosse player who was murdered by her ex-boyfriend (a member of the men’s lacrosse team), is suing athletic department officials for $30 million in a negligence suit alleging that they ignored previous violent behavior of her attacker and other warning signs.
Besides such civil liability exposure, there are also constitutional issues. The landmark case Tinker v. Des Moines Independent Community School District made it clear that students do not leave their First Amendment rights at the schoolhouse door. Although courts have justified certain invasions of a student-athlete’s Fourth Amendment rights in cases involving random drug testing, recent decisions in the digital age have protected a student’s right to expression via social media. In addition to these constitutional concerns, a number of states have passed or are considering laws forbidding schools from requesting or requiring login information or from installing monitoring software. California and Delaware were the first states to adopt such laws, and they will not be the last.
The NCAA made it clear that a school would only have a duty to monitor social networking sites if it had some reasonable suspicion of rules violations, saying that the NCAA “declines to impose a blanket duty on institutions to monitor social networking sites.”
While it is true that universities have both reputations and tangible investments at stake in their athletic programs, student-athletes are still students first and foremost and, as such, they have rights. Instead of undermining constitutional protections, risking civil liability or potentially violating privacy laws, colleges concerned about social media fallout should focus on what they do best by educating student-athletes about the dangers of misusing social media.
John G. Browning is a Partner at Lewis Brisbois Bisgaard & Smith LLP and can be reached at email@example.com.