NLRB Refers To Northwestern's Illegal Social Media Policy in Ruling Student Athletes May Unionize

In a ground breaking ruling earlier today, the regional director of the National Labor Relations Board ruled today that Northwestern University scholarship football players are employees of the school and are eligible to form the nation's first college athletes' union.  According to ESPN's Lester Munson, the ruling is very well-reasoned.

As part of the rationale as to why Northwestern's scholarship football players are to be considered employees rather than student-athletes the ruling mentions Northwestern's illegal student-athlete social networking policy.  On page 5 it states, "[t]he players must also abide by a social media policy, which restricts what they can post on the Internet, including Twitter, Facebook, and Instagram.  In fact, the players are prohibited from denying a coach's "friend" request and the former's posting are monitored." 

Northwestern's student-athlete social networking policy is in clear violation of Illinois Public Act 098-0129.  This act states, "It is unlawful for a post-secondary school to request or require a student or his or her parent or guardian to provide a password or other related account information in order to gain access to the student's account or profile on a social networking website or to demand access in any manner to a student's account or profile on a social networking website."

On August 14, 2013, I wrote that Northwestern will be required to change its student-athlete social media policy before 1/1/2014 because of Illinois' new social media privacy law.  Unfortunately, this did not occur and its illegal policy was utilized against them in analyzing that a student-athlete is an employee and not a student.  

While this ruling may eventually be overturned, it should serve as a wake up call to NCAA schools that highly regulate their student-athletes' digital usage.  Athletic departments that enforce strict social media policies and/or utilize social media monitoring companies may soon have more legal and financial issues to confront than anticipated.  Continuing to deploy social media monitoring companies to watch student-athletes online may encourage other administrative and/or judicial bodies to conclude that student-athletes are not students but employees.

NCAA athletic departments should be careful for what they wish for.  With access comes responsibility.  Strictly regulating student-athletes' personal digital lives will create tremendous legal and financial problems. 

Copyright 2014 by the Law Office of Bradley S. Shear, LLC  All rights reserved.

NFL Star Roddy White Makes Season Ticket Offer on Twitter If Duke Loses and May Have To Pay Up

Are social media offers legally binding?  Yes.  R&B artist Ryan Leslie lost a $1 million dollar lawsuit in 2012 over his refusal to honor his YouTube offer.  Earlier this week, the Atlanta Falcons' Roddy White Tweeted: @DHoyt77 if mercer beat duke I will give you season tickets 50 yard line first row.  Duke lost the game and subsequently White Tweeted:  I lost a bet and I will give him tickets to the bears game since he is a bears fan done with this bet

There was an offer by White and an acceptance by @DHoyt77. If White refuses to honor his initial offer and @DHoyt77 decides to sue White for the offer of season tickets I believe @DHoyt77 has a valid claim.  The Leslie case may provide a strong precedent for @DHoyt77's position that may be utilized to demonstrate that a social media offer and acceptance is legally binding. 

While White's offer may sound reminiscent of the Aaron Rodgers Tweet last year that stated, " @toddsutton ya I'd put my salary next year on it," it is not.  Aaron Rodgers didn't state to another Twitter user "I will give you my entire year's salary".  There was no clear offer and acceptance in the Rodgers matter.  Here, there appears to be a straight forward offer and acceptance.  Therefore, I believe White owes for the entire season and @DHoyt77 has a strong claim that is legally enforceable. 

The bottom line is that be careful what you Tweet because it may be used against you in the future.

Copyright 2014 by the Law Office of Bradley S. Shear, LLC All rights reserved. 

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.

Michigan Bans NCAA Schools From Cyberstalking Student-Athletes

Michigan has joined the growing list of states that have banned schools from requiring their student-athletes to register and/or provide access to their personal email/social media credentials and content.  Michigan joins Delaware, California, and New Jersey in banning NCAA schools from requiring their students to verify their personal digital accounts in order to apply or attend school, keep their scholarships, or participate in intercollegiate athletics.

Michigan's legislation is the most comprehensive in the country because it also bans elementary, middle, and high schools from also requiring their students to turn over their personal digital account information.  In a nutshell, the new law generally bans all schools from requesting their students provide them access to their personal social media/digital media usernames, passwords and/or content.  This policy affirms that the state of Michigan will not allow its schools to act like China who is requiring its citizens to register their personal digital accounts so the government may "monitor" everything their citizens do online.

Michigan's legislation may save Michigan schools tens of millions of dollars per year that may have been utilized to contract with companies that offer cyberstalking services to track the digital activities of students, their families, and friends.  The companies that sell cyberstalking software to schools use terms like, "monitoring", "educating", and "leading" when describing their services, and/or companies.  In addition, if you perform due diligence on the founders of the companies that offer these so called "monitoring" or "educating" services you may notice they have no verifiable professional credentials that demonstrate that any sports (college, amateur, or professional) organization should engage them for social media or education related services.

Some of these companies are also stating that they support social media privacy legislation which if true means they support a ban on their cyberstalking services.  In order for any social media "monitoring" (cyberstalking) software to properly work it needs a student to verify his personal digital credentials.  Absent student verification these services will not work.
   
Any public school that engages a firm to "monitor" (cyberstalk) their students online may in the near future receive a letter from their state's attorney general, the U.S. Department Education, the U.S. Federal Trade Commission, or a law firm regarding their practices.  Schools that  "monitor" (cyberstalk) their students online may soon encounter steep fines, lawsuits, or a loss of education funding that may amount to tens of millions of dollars.  

The bottom line is that public schools that engage self-described "social media experts"/"social media education & monitoring services"/"social media protectors of reputation" may create tremendous personal safety and privacy problems for their student-athletes, and massive legal liability issues for their institutions and taxpayers. 

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

(Full Disclosure:  I advised Michigan Rep. Arc Nesbitt's office on HB 5523)

Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.

U.S. Court: Student-Athlete Social Media Monitoring Violates the 1st and 4th Amendment

A U.S. District Court in Minnesota has stated that public schools that require access to their students' password protected digital content are violating their students' 1st and 4th Amendment rights. In R.S. ex rel. S.S. v. Minnewaska Area Dist. No 2149 2012 WL 3870868, a student was allegedly intimidated into turning over her Facebook username and password, and her personal email username and password so the school could view her password protected digital content for references to a hall monitor whom the student felt was treating her unfairly.

On June 22, 2011, I stated that if the NCAA requires its students to turn over their social media credentials, "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."

and

on September 27, 2011, I stated "I believe UNC's new social media policy may violate the 1st, 4th, and 14th Amendments of the U.S. Constitution" because UNC's policy requires their student-athletes to provide the school access to their password protected digital content.

Public schools that require any of their students to register their social media usernames, or to provide access to their password protected digital content via required Facebook Friending or the installation of a third-party software application for any reason are in clear violation of the 1st and 4th Amendment. Therefore, any school that utilizes a social media monitoring company to track their student-athletes online may want to change their policy immediately before their legal liability exponentially increases.

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.

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.

Players Associations, Sports Leagues, the NCAA, and the Olympics Must Say No To Social Media Monitoring of Athletes

Professional and amateur sports must say no to forcing social media monitoring software (e.g. malware) on their professional, amateur, and student athletes. Criminals in prison and those under house arrest need to be monitored and tracked; however, young men and women should be provided social media life skills.

Institutions that deploy social media monitoring services are wasting their precious resources since crowdsourcing already performs this service for free. Monitoring athletes' social media usage is a reactive approach that is doomed to failure. A recent CBS Sports article touted social media monitoring of professional and amateur athletes as something that both labor and management could agree on. The article further states that within 2-3 minutes after an alleged inappropriate post a cautionary e-mail is sent to both the monitor (a school or franchise) and an athlete. What the article does not discuss is that once a Tweet or a Facebook post has been made it can never be deleted from the Internet. Within seconds, a Tweet can be re-tweeted and a Facebook post can be shared hundreds of times.

Therefore, how can social media monitoring help? It can't. Remember Congressman Weiner's accidental tweet that was meant to be a direct message. Within a few minutes after Mr. Weiner Tweeted a message to a college student that included a link to a photograph of himself in his underwear he tried to delete it. However, once content has been uploaded online it is too late. Mr. Weiner learned this the hard way (no pun intended). Thousands of people were following Mr. Weiner on Twitter so no social media monitoring service could have saved Mr. Weiner from his own stupidity.

Social Media monitoring is like using a condom after sex. It is too late to offer any protection. Once an alleged inappropriate message has been sent out via social media a monitoring service is worthless because it can't protect an athlete or an institution from the consequences of an alleged inappropriate post. Social Media monitoring services are unable to offer protection because they are reactive and not proactive. In other words, these services are fool's gold.

There are multiple major legal issues involved with social media monitoring of athletes. These may include First Amendment, employment, and tort liability issues. Those organizations that deploy social media monitoring of their athletes are not only wasting their time and money on a worthless reactive service, but they also are creating major legal liability issues. Furthermore, it is very easy to change a social media account name and there is the problem of fake accounts and hacked accounts.

The bottom line is that professional and amateur sports organizations along with colleges and universities should not deploy social media monitoring of their athletes unless they are interested in wasting their money and incurring unanticipated legal liabilities.

To learn how to avoid social media legal liability in professional and amateur sports you may contact me at www.shearlaw.com.

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