Wednesday, June 22, 2011

Does the NCAA Understand the Legal Implications of Social Media Montoring?

Does the NCAA understand the legal implications of social media monitoring? The Associated Press reported that the University of North Carolina (UNC) has been accused of unethical conduct, and failure to monitor its players. In particular, the NCAA is accusing UNC with failure to monitor its student-athletes' social media activity.

On page 21 of the Notice of Allegations against UNC (Case No. M357, June 21, 2011) 9. b. it states, "[i]n February through June 2010, the institution [UNC] did not adequately and consistently monitor social networking activity that visibly illustrated potential amateurism violations within the football program, which delayed the institution's discovery and compounded the provision of impermissible benefits in Allegation Nos. 4-a, 4-c, 4-d and 4-e." In 9. g. the NCAA is requesting, "[c]opies of materials posted on Twitter by football student-athletes..." Furthermore, in 9. h. the NCAA is requesting "[a] statement summarizing information reported by ______(left blank) regarding the institution's efforts to monitor the social networking activity of football student-athletes.

As I previously stated on June 9, 2011, social media monitoring is a futile effort that wastes resources since crowdsouring is already performing this service for free. If the NCAA is now going to require its members to actively monitor its student-athletes' social media accounts this will open up a Pandora's box.

Will the NCAA soon require each of its member schools to have a "minder" follow their student-athletes to listen in on every conversation, phone call; and review every email, text message, electronic communication, etc... of their student-athletes? Will the NCAA soon require every student-athlete list all of their social media accounts to maintain eligibility? What if a student-athlete changes his screen name or deletes a social media account and opens a new one? Will the student-athlete be forced to notify their school's compliance office within 24 hours of the change? If a student-athlete forgets to report a social media account change to the compliance office will the student-athlete automatically become ineligible and/or the member school be found in violation of NCAA rules? If so, what will be the punishment?

Will there be strict liability for failure to report? What if a student-athlete forgets or refuses to list an account due to privacy and/or political speech issues? Will a student-athlete lose his scholarship due to a refusal to turn over his social media account information? What if a student-athletes' Facebook wall is private and/or his Tweets protected? What if someone hacks into a student athletes' account and creates posts that may be rules infractions? What if a student-athlete has a rogue account that is not reported to its compliance office? Will the NCAA require its members to track down every possible unreported student-athlete social media account and/or post?

Would the NCAA strip a national championship from a member school for failure to properly report all of their student-athletes' social media accounts and/or ban students from participating in collegiate sports for refusing to turn over their personal social media/electronic account information? The NCAA is going down a very slippery slope that has major First Amendment and privacy implications. I believe the NCAA should rethink its social media compliance allegations against UNC.

Social media usage by student-athletes cannot be eradicated. As the Congressman Anthony Weiner matter clearly demonstrates social media monitoring is futile and is a reactive and not a proactive approach.

To learn more about these issues you may contact me at www.shearlaw.com.

Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.