Thursday, June 13, 2013

Social Media Monitoring Companies May Be Creating Millions Of Dollars in Legal Liability for NCAA Athletic Departments

State legislatures around the country are banning public and private schools from being able to utilize social media monitoring companies to track the personal digital accounts of their athletic department personnel and student-athletes.  At least 11 states  (Arkansas, California, Colorado, Delaware, Illinois, Maryland, Michigan, New Jersey, New Mexico, Utah, and Washington), have enacted laws that ban schools from being able to verify the social media user names and/or passwords of their coaches and/or student-athletes.  Several other states have passed legislation that is waiting final approval by their state's governor.

At least 36 states along with Congress have introduced bills to protect schools and students from companies that are selling legal liability time bombs to NCAA schools.  Some of these companies may claim they are a "leader" in social media monitoring services and/or in "educating" student-athletes. Common sense and due diligence prove otherwise.

Varsity Monitor, UDiligence, JumpForward, and Fieldhouse Media each sell social media monitoring services that schools in at least 11 states may not utilize to track the personal digital accounts of either their coaches and/or their student-athletes because of new laws.  Schools deploying the social media monitoring services of these companies may be fined hundreds of thousands of dollars, and/or be sued for violating their student's first and/or fourth amendment rights, and/or lose millions of dollars in federal funding.

According to Deadspin, Varsity Monitor may have some troubling ethical and legal problems to address.  According to Time Magazine, UDiligence was monetizing the personal photographs of the student-athletes it was monitoring to advertise their services.  JumpForward has advertised that they utilize the usernames and passwords of student-athletes for their social media monitoring service.

The most troubling service may be Fieldhouse Media because it appears to be trying to differentiate itself as having less invasive tactics than the other companies.  NCAA athletic departments should not be fooled.  It appears that in order for Fieldhouse Media's social media monitoring service to properly work  student-athletes need to verify their social media username(s).  Arkansas, California, Delaware, Michigan, New Jersey, and New Mexico have already generally banned schools from being able to ask a student to verify this information.

Fieldhouse Media's Kevin DeShazo's business practices appear to raise serious ethical questions.  For example, last year Mr. DeShazo created a press release announcing his social media monitoring service that quoted me without my cooperation.  Did Mr. DeShazo ask for my permission to be quoted in a press release designed to sell his social media monitoring services? No. Why is Mr. DeShazo trying to associate my reputation with a practice that I along with lawyers and risk professionals from around the country believe may pose tremendous legal and financial risks to not only NCAA athletic departments, but also athletic directors and their employees?  

If you perform due diligence on Mr. DeShazo you may find some issues that warrant further explanation.  For example, according to his publicly available LinkedIn Profile from last year it states that before he started his social media monitoring firm he had no verifiable social media or NCAA compliance/advisory experience.  Interestingly, according to his recent publicly available LinkedIn Profile it now claims that prior to starting his social media monitoring company he was working for a social media marketing firm. If Mr. DeShazo was actually working for a social media marketing company before he started his social media consulting firm why wasn't it listed previously? Also, why do some of Mr. DeShazo's listed company creation and/or employment dates not match with filings with the Oklahoma Secretary of State?

In 2001, George O'Leary, Notre Dame's head football coach resigned five days after being hired because of "inaccuracies" in his published biography.  In other words, Mr. O'Leary was caught intentionally misleading NCAA athletic departments about his background.  After George O'Leary, Jayson Blair was caught creating a web of lies and was terminated from the New York Times, and then James Frey, the author of "A Million Little Pieces" was caught lying to Oprah.   

Anyone that approaches schools to sell services to track personal social media accounts is selling a legal liability time bomb.  If a school hires a social media monitoring firm to track the personal digital content of their students or employees and it misses an indication that there may be a crime committed it may cost the school more than $100 million dollars.  For proof, just review the Penn State emails regarding the Jerry Sandusky matter.  Does a school want to be on the hook for tens or hundreds of millions of dollars in legal liability because it was utilizing a social media monitoring service to track personal digital accounts?  

Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.

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