Penn State Sandusky emails prove NCAA schools should not social media monitor their student-athletes

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.

Penn State Sandusky guilty verdict proves NCAA schools should not hire social media monitoring companies to spy on their student-athletes or employees

The Penn State sex scandal is the worst scandal that any NCAA athletic department has ever encountered. Late last night, a jury found Jerry Sandusky, the former defensive coordinator of Penn State's football team guilty of 45 of 48 counts of child sex abuse.

Jerry Sandusky is by far the worst monster to have ever coached at an NCAA school. My heart goes out to all of Sandusky's victims. According to published media reports, it appears that Penn State may have known that Sandusky was a sexual predator since at least 1998 when he was initially investigated by Penn State Police. Unfortunately, at that time nothing was done to stop this predator from having access to Penn State facilities with young boys.

Since at least 2002, the Penn State athletic department knew about allegations that Sandusky may have raped a young boy at its athletic facilities but did nothing to report him to law enforcement or to stop him from having access to its facilities. Since it appears that the athletic department knew or should have known that Sandusky may be committing multiple sexual abuse crimes on its campus it may have significant civil legal liability. Administrators who lied about their knowledge of Sandusky's alleged criminal activities when questioned by police may also have criminal legal liability. In addition to potentially having criminal legal liability for lying about their knowledge of Sandusky's then alleged criminal activities, Penn State and its employees may also have significant civil liability for Sandusky's on and off-campus activities since it appears that Penn State knew that Sandusky may be committing multiple sexual crimes and did nothing to stop him.

If Penn State wasn't informed about Sandusky's alleged sexual abuse of young boys it would be very difficult to prove that Penn State and/or any of its employees should be held liable for not stopping these terrible activities. However, since it appears that Penn State coaches, athletic department members, and members of the university administration knew or should have known that Sandusky may be committing major crimes on and off campus Penn State and some current and/or former employees may have significant legal liability.

The Virgina Tech case should have been a wake up call that NCAA schools should not require their student-athletes or employees to provide access to their password protected digital content and/or to turn over their social media usernames. Next, the lawsuit by the family of a University of Virginia lacrosse player who was murdered by another student-athlete should have been another wake up call that athletic departments must stop these practices. Now, the Penn State guilty verdict appears to prove that if a university and/or its employees want to avoid legal liability for the digital content of their student-athletes or employees they must not require students or employees to provide access to their password protected personal digital content.

On November 15, 2011, I stated, if Penn State was aware of Sandusky's alleged criminal activities and failed to stop him the school may have major legal liability issues to defend against. Since it appears that Penn State knew about Sandusky's criminal behavior the economic cost of this matter to Penn State may be north of $100 million dollars due to court costs, litigation expenses, attorney fees, investigation costs, judgements, settlements, reputation costs, etc... It is premature to determine how much of these costs the school's insurance companies will pay but there is already litigation regarding the matter.

The Penn State sex scandal once again proves that NCAA schools need to ensure that their social media policies do not create unintended legal liability. Compliance personnel, coaches, or university employees who require their student-athletes or employees to turn over their social media usernames, passwords, or to download social media monitoring software, or to use any other unethical or illegal method to obtain access to their students' or employees' personal password protected digital content may create millions of dollars of legal liability for their schools and/or themselves.

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.