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.
Copyright 2011 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Showing posts with label NCAA Social Media Compliance Seminar. Show all posts
Showing posts with label NCAA Social Media Compliance Seminar. Show all posts
Saturday, June 30, 2012
Friday, June 15, 2012
NCAA's New Social Media Recruiting Policy
The NCAA has updated its social media recruiting policy. The policy deregulates the number of texts, calls, and other forms of digital communication that coaches may have with potential recruits after they finish their sophomore year in high school.
While the previous policy was instituted with good intentions, it was very difficult to enforce and not flexible enough to adapt to the changing ways we communicate and interact. Unfortunately, there are some self-anointed sports social media consulstants who may try to convince schools that they understand social media, compliance, and the law and that schools should hire them to advise them on the NCAA's new policy. As I have written before, schools must perform due diligence on hiring companies who have incorrectly predicted future NCAA social media policy changes because some of these companies have been caught intentionally misrepresenting their credentials and lying to NCAA schools in order to obtain their business.
While coaches may now have the opportunity to send an unlimited number of digital messages to recruits, it would be wise not to over message and aggravate a high school student and/or his family. While social media and other forms of technology may help communicate with recruits, meeting a prospective future student-athlete face to face, shaking his hand, looking him in the eyes, and treating him with respect may still be the most productive way to determine if that person is a good fit for your program.
The bottom line is that schools should tread carefully in the social media space to avoid potential legal liability.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
While the previous policy was instituted with good intentions, it was very difficult to enforce and not flexible enough to adapt to the changing ways we communicate and interact. Unfortunately, there are some self-anointed sports social media consulstants who may try to convince schools that they understand social media, compliance, and the law and that schools should hire them to advise them on the NCAA's new policy. As I have written before, schools must perform due diligence on hiring companies who have incorrectly predicted future NCAA social media policy changes because some of these companies have been caught intentionally misrepresenting their credentials and lying to NCAA schools in order to obtain their business.
While coaches may now have the opportunity to send an unlimited number of digital messages to recruits, it would be wise not to over message and aggravate a high school student and/or his family. While social media and other forms of technology may help communicate with recruits, meeting a prospective future student-athlete face to face, shaking his hand, looking him in the eyes, and treating him with respect may still be the most productive way to determine if that person is a good fit for your program.
The bottom line is that schools should tread carefully in the social media space to avoid potential legal liability.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Friday, May 18, 2012
Are UDiligence and Varsity Monitor advising NCAA schools to violate the Stored Communications Act?
Over the past couple of years, companies with names like UDiligence and Varsity Monitor have been created to monitor the digital activity of student-athletes. At first glance it may seem like a good idea to require students to provide access to password protected social media content. However, once you understand what this means from a legal and financial perspective you may realize that this is a Pandora's Box that should not be opened.
UDiligence and Varsity Monitor appear to prey on the fears of college athletic departments even though the NCAA recently ruled that schools do not have a duty to monitor password protected social media content. Instead of helping NCAA athletic departments, these services may be exacerbating the situation because it appears they may be encouraging colleges to create new legal duties and violate the constitutional rights of their students along with multiple federal and state laws.
Within the past couple of weeks, both UDiligence and Varsity Monitor have taken down their client lists from their websites. Have the schools pressured them to do so? Or, did both of these companies take down their client lists because the media has started to ask in-depth questions about their services?
Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. 2009), is a case that appears analogous to the situation where schools are "requesting" that their student-athletes provide access to their password protected digital/social media accounts. In Pietrylo, an employee "did not feel free" to deny her boss access to a password protected MySpace account. The jury found that the employer violated the Stored Communications Act and the case was upheld on appeal. Therefore, since students "may not feel free" to deny their athletic departments and/or third parties access to their password protected social media accounts these services may be advising schools to violate the Stored Communications Act.
Since requesting employees to provide access to their password protected social media accounts has been found to violate the Stored Communications Act, it may also violate the Stored Communications Act for NCAA schools to "request" access to their students' password protected social media accounts. Requiring public school students to download applications and/or Facebook Friend university employees or agents may also violate the 1st and 4th Amendments along with the Electronic Communications Privacy Act, and multiple other federal and state laws.
The bottom line is that schools that engage UDiligence or Varsity Monitor may be paying $10,000 plus dollars per year for a service that may be creating more problems than it solves.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
UDiligence and Varsity Monitor appear to prey on the fears of college athletic departments even though the NCAA recently ruled that schools do not have a duty to monitor password protected social media content. Instead of helping NCAA athletic departments, these services may be exacerbating the situation because it appears they may be encouraging colleges to create new legal duties and violate the constitutional rights of their students along with multiple federal and state laws.
Within the past couple of weeks, both UDiligence and Varsity Monitor have taken down their client lists from their websites. Have the schools pressured them to do so? Or, did both of these companies take down their client lists because the media has started to ask in-depth questions about their services?
Pietrylo v. Hillstone Restaurant Group, 2009 WL 3128420 (D.N.J. 2009), is a case that appears analogous to the situation where schools are "requesting" that their student-athletes provide access to their password protected digital/social media accounts. In Pietrylo, an employee "did not feel free" to deny her boss access to a password protected MySpace account. The jury found that the employer violated the Stored Communications Act and the case was upheld on appeal. Therefore, since students "may not feel free" to deny their athletic departments and/or third parties access to their password protected social media accounts these services may be advising schools to violate the Stored Communications Act.
Since requesting employees to provide access to their password protected social media accounts has been found to violate the Stored Communications Act, it may also violate the Stored Communications Act for NCAA schools to "request" access to their students' password protected social media accounts. Requiring public school students to download applications and/or Facebook Friend university employees or agents may also violate the 1st and 4th Amendments along with the Electronic Communications Privacy Act, and multiple other federal and state laws.
The bottom line is that schools that engage UDiligence or Varsity Monitor may be paying $10,000 plus dollars per year for a service that may be creating more problems than it solves.
To learn more about these issues you may contact me at http://shearlaw.com/attorney_profile.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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