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.

New Mexico Bans NCAA Student-Athlete Social Media Monitoring Firms

New Mexico recently joined Delaware, California, New Jersey, Michigan, Arkansas, and Utah in protecting their schools, school employees, students, and taxpayers from the potential costs and legal liability issues associated with social media monitoring students.  Under New Mexico SB 422, it is unlawful "to demand access in any manner to a student's, applicant's or potential applicant's account or profile on a social networking web site."

The enactment of SB 422 will greatly benefit schools, school employees, students, and taxpayers because collectively post-secondary schools in New Mexico may save millions of dollars in potential compliance costs and tens or hundreds of  millions of dollars in potential costs associated with social media related lawsuits.  SB 422 along with similar laws around the country appear to negatively affect the following companies that offer social media monitoring services:  UDiligence, Varsity Monitor, Fieldhouse Media, and Jump Forward.

It appears that the only way for the above mentioned social media monitoring services to properly function is if a student either downloads an application onto his personal account(s), provides a username(s) and/or password(s) to his personal account(s), or if a student authenticates his social media account(s).  These services may claim that all they need to properly work is a student's name or alias to search for a public social media account.  However, performing an Internet search and guessing that an account belongs to a particular student just because it is on the Internet may put you in the same position as one of the people portrayed in this hilarious State Farm Commercial.  According to CNN, as of last August, Facebook may have at least 83 million fake accounts and according to PRWeek, Twitter may have as many as 20 million fake accounts.

Any company that approaches schools to sell social media monitoring services to track students' personal digital accounts is selling a legal liability time bomb.  If a school is monitoring the personal social media content of their students and 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 their students personal digital accounts?      

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

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

Utah Bans Student-Athlete Social Media Monitoring Firms

Utah recently became the latest state to enact legislation that bans schools from deploying social media monitoring firms that require students verify their social media user names and/or passwords. Utah joins Delaware, California, Michigan, and New Jersey in protecting their schools, students, and taxpayers from social media snake oil salesmen who are selling legal liability time bombs. 

The Utah legislation appears to have been prompted because of a Time Magazine article that discussed the student-athlete social media policy of one Utah school.  This academic institution appeared to require student-athletes sign a social media policy that stated, "To the extent that any federal, state, or local law prohibits the Athletic Department from accessing my social networking accounts, I hereby waive any and all such rights and protections."  According to constitutional law expert Professor Phil Closius, this student-athlete social media policy was "clearly suspect".  Under Utah's new law (H.B. 100), this policy is not just clearly suspect but against the law.

What does Utah's new law along with similar laws across the country mean for schools?  In short, academic institutions need to re-examine their student-athlete social media policies and education programs to ensure compliance with all applicable state and federal laws.  Athletic departments need to understand that social media is not just a public relations issue but a serious legal matter that requires the counsel of social media law experts who understand college athletics and NCAA compliance.  Drafting and implementing improper student-athlete social media policies may create millions of dollars in legal liability. 

Consultants who sell "student-athlete social media monitoring services" to athletic departments are selling legal liability time bombs.  Deadspin has already exposed several companies as having no connection to college athletics before starting their "social media monitoring firms". Some companies that are approaching colleges appear to be making material misrepresentations to market their services.  For example, how does someone transition from being a health care recruiter to a social media student-athlete compliance and education consultant overnight? 

The bottom line is that states across the country are banning schools from being able to deploy firms to monitor and archive their students' personal digital content.  These laws may cumulatively save schools around the United States hundreds of millions of dollars in monitoring, legal, compliance, and insurance costs.

In order for social media monitoring services to properly function students must at least verify their social media user names.  Absent student verification these services are unable properly work.  Furthermore, athletic departments should not be fooled into believing these services are compliant with all state and/or federal laws.  In general, these companies also claim their services are educational tools while others claim they want to protect the online reputation of schools and/or students.  Has anyone asked those who are approaching schools for their teaching credentials?

It appears that the founders of these companies have no verifiable experience that would lend any credibility to their claims.  Consultants who are marketing student-athlete social media monitoring services to athletic departments do not understand social media, NCAA compliance, public policy, or the law; and they apparently care more about making a sale than protecting schools and student-athletes.     

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

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