Saturday, June 30, 2012

Penn State Sandusky emails prove NCAA schools should not social media monitor their student-athletes

With access comes responsibility. For more than a year, I have been stating that NCAA schools do not have a duty to social media monitor their student-athletes' password protected social media/digital content. Earlier this year, the NCAA stated loud and clear that its member schools do not have a blanket duty to monitor their student-athletes' public social networking accounts in the University of North Carolina Public Infractions Report.

The latest twist in the Penn State Jerry Sandusky child abuse scandal proves once again that NCAA schools must be careful when drafting their student-athlete social media policies. According to a new CNN report, it appears that Penn State's Athletic Director Tim Curley, Vice President Gary Schultz, and President Graham Spanier discussed via email how to handle their knowledge that Jerry Sandusky may have sexually abused a child on Penn State's campus. The CNN report appears to indicate that according to emails it has obtained, Coach Joe Paterno was not in favor of reporting the information about an alleged sexual assault by Sandusky to the police.

According to the e-mails obtained by CNN, Spanier emailed Curley on February 27, 2001 and stated, "The only downside for us if the message isn't heard and acted upon, and then we become vulnerable for not having reported it". If this email is authenticated, it clearly demonstrates that with access/knowledge comes responsibility. Spanier appears to admit in the email that Penn State may have potential legal liability for intentionally not reporting Sandusky to the police.

These e-mails CNN allegedly obtained were written in 2001. Digital evidence from eleven years ago may be the smoking gun that demonstrates that Penn State knew about Sandusky but intentionally did nothing to stop Sandusky because it chose to protect its reputation instead of children who were preyed upon by Sandusky. This digital evidence appears to be extremely damaging to Penn State and may help plaintiff's lawyers successfully argue that Penn State should pay tens of millions of dollars for intentionally covering up the Sandusky matter. Therefore, why would any university want to create more opportunities for lawsuits by monitoring and archiving the digital content of their student-athletes or employees?

Unfortunately, some schools are listening to companies with names like UDiligence or Varsity Monitor. According to Deadspin.com, Varsity Monitor has multiple credibility issues and both Varsity Monitor and UDiligence appeared to lack any connection to college athletics or social media before their formation. What if a school finds out or has a strong reason to believe that their football superstar who is a leading candidate for the Heisman Trophy is engaging in illegal activity because of social media monitoring? What if the illegal activity harms a third party and the school did nothing to stop their star athlete because the school wanted the prestige of a Heisman Trophy winner or a national championship? The legal liability of the school may be tremendous.

The bottom line is that NCAA schools must create sensible social media policies that do not put them in a position that may create tens or hundreds of millions of dollars in legal liability.

To learn more about these issues you may contact me at http://shearlaw.com.

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