The NCAA, Social Media Monitoring, Censorship, the First Amendment, the Supreme Court, and Video Games

Last week, the NCAA may have created a major legal liability quagmire for its member institutions when it alleged that the University of North Carolina failed to monitor the social media activity of its football players.

Social Media/Social Networking Monitoring may lead to Social Media Censorship. Social Media Censorship by NCAA institutions may be gaining acceptance in some schools. According to the Washington Post, the University of Maryland (UMD) may be actively monitoring and regulating the speech of the members of its football team. It appears that UMD is monitoring defensive lineman A.J. Francis' Twitter account. Does Maryland require all of its athletes to turn over their social media account names to their compliance staff? Or, is it only the men's football team?

Could there be a Title IX or a 14th Amendment Equal Protection clause violation if Maryland is only monitoring the men's football team and not treating other teams and/or genders equally? Are only a few athletes of the men's football team being singled out? How did Maryland obtain A.J. Francis' Twitter account information? Did Maryland's compliance department require A.J. Francis to provide it his social media account user names in order to continue to be on the football team and/or receive academic aid?

According to the Clarion Ledger, University of Mississippi signee C.J. Johnson deleted his personal Twitter account after speaking with the Ole Miss athletic department staff. Ole Miss has publicly stated that it did not force C.J. Johnson to close his Twitter account. C.J. Johnson's Twitter activity may be objectionable to some people and it may be best for him to stop tweeting for the time being; however, what if a school gives a student an ultimatum: stop your social media activity or lose your scholarship and/or be kicked out of school?

What if the University of Maryland told Larry David (Seinfeld Co-Creator), Jim Henson (Creator of the Muppets), David Simon (Co-Writer of The Wire), Sergey Brin (Co-Founder Google), Steny Hoyer (Former House Majority Leader), Carl Bernstein (Former Washington Post Watergate Journalist), etc... or the University of Mississippi told William Faulkner (Author), John Grisham (Author), Sheppard Smith (Host of the Fox Report), Gerald McRaney (Actor), and Bill Parsons (Director of NASA's John F. Kennedy Space Center) that they should stop publicly expressing their personal and/or political views while they attended their respective schools? If a public college and/or university starts regulating what its student-athletes express on social media what will stop it from trying to regulate what other members of the student body state online?

The NCAA 2010-2011 Division I Manual does not appear to discuss Social Media/Social Networking Monitoring and/or censorship so I am not sure how public schools thinks that it is acceptable to monitor and then censor its student-athletes.

In Brown v. Entertainment Merchants Association, the Supreme Court in a 7-2 majority recently ruled that "disgust is not a valid basis for restricting expression." Justice Scalia wrote, "[l]ike the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world)....That suffices to confer First Amendment protection.” Since video games are now constitutionally protected forms of expressive behavior will the First Amendment protect most types of social media activity no matter how offensive unless they defame and/or violate other areas of the law?

Any school that deploys a social media monitoring service to monitor its student-athletes may want to reevaluate their policy. Colleges and universities that utilize social media monitoring and receive government funding may also be creating further unanticipated legal issues. As I have stated over and over, academic institutions should be educating their students about social media and not monitoring and censoring them.

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

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

NFL Fights Over Access To College Game Day Content

The NFL is currently in a standoff with the company that video records college football games for eight conferences and then delivers it digitally to the NFL. The content is primarily utilized by the NFL's College Advisory Committee to form an official opinion on college juniors who are thinking about entering the NFL draft before their college eligibility is exhausted. The College Advisory Committee acts as another source for potential early entrants to the NFL draft because without this committee prospects would only be able to obtain information about their possible draft prospects from sports agents and their college football coaches.

The company that creates the content and then delivers it to the NFL, XOS Technologies, has reportedly made a mulit-million dollar rights fee request on behalf of the college football conferences it works with to the NFL for content that was previously delivered free. The College Advisory Committee is made up of participants from each NFL team and it provides a draft opinion of college underclassmen. This arrangement has provided college juniors an opinion that is not biased by the opposing interests that sports agents and college coaches inherently possess. The analysis that the College Advisory Committee provides is mutually beneficially to both the NFL and to underclassmen. Potential draft prospects are able to obtain a professional opinion about their readiness for the NFL while the NFL has been able to scout potential draft picks with free access to game day tapes.

From a legal and business perspective, there are several issues that need to be determined. What is the monetary value of the game tapes to the NFL? Who owns the rights to these game day tapes? Does the conference own the game day content or do the two schools who play the game own the rights? If the content is used for purposes other than talent evaluation, such as for entertainment or analysis on the NFL Network, what is the value of this use? If a college underclassman would like to obtain the game day tapes and post clips on a social media website to promote himself can the player also obtain the rights for this use? How much is the College Advisory Committee's talent evaluation services worth to college football programs and their players?

These questions need to be answered sooner rather than later because there is a high probability that a larger number of juniors than usual will declare themselves available for the upcoming NFL draft due to the possibility that a new NFL Collective Bargaining Agreement that is in the initial stages of negotiation may put some type of cap on rookie salaries.

In my opinion, the NFL should pay some type of fee for the game day tapes depending on the type of rights that are granted. Since NFL teams pay tens of millions of dollars to top draft picks, game day tapes are very valuable in the evaluation process. I do not believe it would be practical to charge potential draftees for an independent evaluation because most likely they could not afford the cost of the review. However, I think some type of deal should be worked out that would allow a player to obtain game day content that would allow them to directly promote themselves on social media websites.

Copyright 2009 by the Law Office of Bradley S. Shear, LLC. All rights reserved.