The Jerry Sandusky sex abuse scandal at Penn State was horrific. More than 2 dozen young men were molested by former Penn State football coach Sandusky. Their lives were forever changed because it appears that some members of the Penn State community tried to cover up the situation instead of stepping in to help those abused.
Last year, a jury found Sandusky guilty of 45 charges of sexual abuse and he will most likely spend the rest of his life in prison. The fallout from the matter has included numerous lawsuits against Penn State. Earlier today, Penn State announced that it had agreed to pay almost $60 million dollars to 26 plaintiffs who alleged they were molested by Sandusky.
It was also recently disclosed that Penn State has so far spent more than $50 million dollars in legal fees and fines defending its conduct in this matter and the university still owes $48 million dollars of a $60 million dollar fine to the NCAA. While it is too soon to speculate on the overall economic loss to the entire Penn State community, this cost may reach hundreds of millions of dollars. While we may never be able to fully measure the precise human toll this scandal has caused, we can put a ball park figure on the economic toll so far and it appears to be north of $150 million dollars ($60 million dollars in settlements, $50 million dollars in legal fees/fines, etc.., $48 million dollars over the next 4 years in NCAA fines).
Strong eye witness testimony at trial that Sandusky was a sexual abuser appears to have swayed the jury. Interestingly, there was not much evidence that appeared to demonstrate that Penn State knew or should have known that they were allowing a child molester to roam free throughout its football facilities. The main evidence that appears to prove Penn State officials turned a blind eye to Sandusky's illegal activities was a handful of emails more than ten years old.
On November 10, 2011, I warned that the Sandusky scandal may cost Penn State more than $100 million dollars. On June 30, 2012, I wrote, "[d]igital 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...." On July 23, 2012, I stated, "[i]t appears that this scandal may end up costing Penn State closer to $150-$200 million dollars now that the NCAA has taken unprecedented action.
Many of the social media monitoring companies that approach schools lie about their founder's background/experience and/or monetize the personal student data they are collecting. Schools that engage these social media monitoring companies may be on the hook for tens or hundreds of millions of dollars in legal liability if they continue to engage these companies.
The Obannon vs. NCAA case demonstrates that schools are very vulnerable to legal liability issues regarding a student-athletes' image and likeness rights. The Obannon case along with the Penn State sex abuse scandal should put schools and the NCAA on notice that once they are aware of an issue but do not act to properly resolve it they may be liable for tens or hundreds of millions (or more) of dollars in damages.
Schools that utilize social media monitoring services to track their student-athletes' and/or employees' personal digital activities are treading on thin ice. Engaging these companies may not only lead to lawsuits, but to punative damage settlements that are designed to deter this behavior in the future. Does every school need to experience a major scandal before realizing the legal liability issues inherent with digital evidence?
Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Showing posts with label Social Media and Athletes. Show all posts
Showing posts with label Social Media and Athletes. Show all posts
Monday, October 28, 2013
Thursday, August 29, 2013
New Jersey Bans NCAA Social Media Monitoring Companies
New Jersey Governor Chris Christie proclaimed that New Jersey employees have an expectation of privacy in the digital age when he signed A2878 into law earlier today. New Jersey has joined the growing number of states that are protecting the personal digital privacy of their employees and students. At least 13 states have enacted similar laws and 36 states along with Congress have introduced bills to protect
NCAA schools, students, employers, employees, etc... from companies that are selling social media monitoring legal liability
time bombs.
Some social media monitoring companies may claim they are a "leader" in social media monitoring and/or in "educating" student-athletes. Does the NSA claim they are monitoring personal digital accounts to educate? No. Therefore, any claim by Varsity Monitor, UDiligence, Fieldhouse Media, etc...that they are monitoring to "educate" is absolute *&%%&*$%.
Varsity Monitor, UDiligence, and Fieldhouse Media each sell social media monitoring services that NCAA schools in at least 13 states may not utilize to track the personal digital accounts of their coaches and/or student-athletes. Schools deploying the social media monitoring services of these companies may be fined hundreds of thousands of dollars, and/or may be sued for violating their student's first and/or fourth amendment rights, and/or may lose millions of dollars in federal funding.
According to Deadspin, Varsity Monitor may have some troubling ethical and legal problems to address. The Courier Journal reported that Varsity Monitor's Centrix Social service was caught last year monitoring University of Kentucky student-athletes for using the terms "Arab" or "Muslim" online. Why did Sam Carnahan, the owner of Varsity Monitor allow this to occur?
According to Time Magazine, UDiligence was monetizing the personal photographs of the student-athletes it was monitoring to advertise its services until it was confronted about this troubling practice. Unfortunately, UDiligence's founder Kevin Long only removed the offending photos from his UDiligence web site but not another one of his company web sites (I have screen shots if he claims otherwise). This demonstrates that schools, student-athletes, and sports related entities should think long and hard before trusting any entity that Mr. Long owns or controls.
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 at least authenticate their social media username(s). Arkansas, California, Delaware, Illinois, Michigan, New Jersey, and New Mexico have 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 professional from around the country believe may create tremendous legal and financial risks?
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? Why has Mr. DeShazo recently claimed he launched Fieldhouse Media in 2010 (I have screen shots if this is denied) which conflicts with his LinkedIn Profile claims and the information on file 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 $100 million dollars. For proof, just review the Penn State emails regarding the Jerry Sandusky matter. Does a school want to be on the hook for tens or hundreds of millions of dollars in legal liability because it was utilizing a social media monitoring service to track personal digital accounts?
Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Some social media monitoring companies may claim they are a "leader" in social media monitoring and/or in "educating" student-athletes. Does the NSA claim they are monitoring personal digital accounts to educate? No. Therefore, any claim by Varsity Monitor, UDiligence, Fieldhouse Media, etc...that they are monitoring to "educate" is absolute *&%%&*$%.
Varsity Monitor, UDiligence, and Fieldhouse Media each sell social media monitoring services that NCAA schools in at least 13 states may not utilize to track the personal digital accounts of their coaches and/or student-athletes. Schools deploying the social media monitoring services of these companies may be fined hundreds of thousands of dollars, and/or may be sued for violating their student's first and/or fourth amendment rights, and/or may lose millions of dollars in federal funding.
According to Deadspin, Varsity Monitor may have some troubling ethical and legal problems to address. The Courier Journal reported that Varsity Monitor's Centrix Social service was caught last year monitoring University of Kentucky student-athletes for using the terms "Arab" or "Muslim" online. Why did Sam Carnahan, the owner of Varsity Monitor allow this to occur?
According to Time Magazine, UDiligence was monetizing the personal photographs of the student-athletes it was monitoring to advertise its services until it was confronted about this troubling practice. Unfortunately, UDiligence's founder Kevin Long only removed the offending photos from his UDiligence web site but not another one of his company web sites (I have screen shots if he claims otherwise). This demonstrates that schools, student-athletes, and sports related entities should think long and hard before trusting any entity that Mr. Long owns or controls.
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 at least authenticate their social media username(s). Arkansas, California, Delaware, Illinois, Michigan, New Jersey, and New Mexico have 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 professional from around the country believe may create tremendous legal and financial risks?
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? Why has Mr. DeShazo recently claimed he launched Fieldhouse Media in 2010 (I have screen shots if this is denied) which conflicts with his LinkedIn Profile claims and the information on file 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.
Tuesday, August 13, 2013
CA School District Lodi Implements Unconstitutional Student Social Media Policy
Colleges and high schools across the country are implementing unconstitutional social media policies that are requiring state legislatures, Congress, and the courts to show them the error of their ways. For example, Utah State and Northwestern University implemented clearly unconstitutional social media policies directed at their student-athletes. Due to these policies, Utah and Illinois enacted legislation banning these schools' social media policies.
The Lodi Unified School District in California recently enacted a student social media policy that infringes on the 1st amendment rights of those who participate in extracurricular activities. This new policy covers student-athletes, student newspaper reporters, band members, chess club members, the glee club, the lesbian, gay, bisexual and transgender club, etc... The policy clearly violates the First Amendment. As Tinker v. Des Moines states, "students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
In addition to violating the First Amendment, this new policy violates California Education Code Section 48907 that protects students' free speech rights in California. The bottom line is that K-12 schools and post-secondary schools must be more aware of the policies that their administrators are implementing to ensure they don't create tremendous legal liability.
Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.
The Lodi Unified School District in California recently enacted a student social media policy that infringes on the 1st amendment rights of those who participate in extracurricular activities. This new policy covers student-athletes, student newspaper reporters, band members, chess club members, the glee club, the lesbian, gay, bisexual and transgender club, etc... The policy clearly violates the First Amendment. As Tinker v. Des Moines states, "students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
In addition to violating the First Amendment, this new policy violates California Education Code Section 48907 that protects students' free speech rights in California. The bottom line is that K-12 schools and post-secondary schools must be more aware of the policies that their administrators are implementing to ensure they don't create tremendous legal liability.
Copyright 2013 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Thursday, May 9, 2013
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.
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.
Monday, April 1, 2013
University of Maryland Law School's Symposium on Social Media and the Law
On
Friday, April 5, 2013, from 9:00 am to 3:30 pm the University of
Maryland Francis King Carey School of Law's Journal of Business &
Technology Law is sponsoring a symposium titled, "Social Media and the Law: An Exploratory Look into the Legal Effects of Online Interconnectedness." The event is free, open to the general public,
and lunch will be provided to those who RSVP.
Speakers
will present on a range of topics, including: the constitutionality of
student athlete social media policies; the relationship between social
media interfaces and copyright law; and how social media laws are
developing with respect to employment law, contracts, and privacy
matters. Our speakers include private practitioners, a higher education
media relations representative, and professors of law
and communications. To RSVP please visit the Journal's website: http://www.law.umaryland.edu/academics/journals/jbtl/symposia.html .
Saturday, December 29, 2012
China's Internet Policy Should Not Be Followed By NCAA Athletic Departments
China is a communist country and enacts laws that are designed to keep its political system intact. Many countries enact legislation that is designed to keep the power status quo.
The United States' First Amendment provides its citizens the strongest freedom of speech protections available in the world. It states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
Even though our First Amendment rights have some limitations, our ability to be able to be anonymous when speaking is well grounded in our history. China recently enacted legislation that strips its citizens of these rights online. While this law may be acceptable in China it has no place in the United States.
Unfortunately, some NCAA schools are following China's lead and believe it is legal to require its student-athletes to register their digital usernames and/or passwords and/or download cyberstalking software onto their personal accounts and electronic devices to keep their scholarships and/or participate in intercollegiate activities.
There is no valid reason for any public academic institution to require their students to provide their social media credentials to play intercollegiate sports. These types of policies have no place in the United States. At least 4 states have recently enacted legislation to ban this activity and Congress has introduced a ban on this practice.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
The United States' First Amendment provides its citizens the strongest freedom of speech protections available in the world. It states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
Even though our First Amendment rights have some limitations, our ability to be able to be anonymous when speaking is well grounded in our history. China recently enacted legislation that strips its citizens of these rights online. While this law may be acceptable in China it has no place in the United States.
Unfortunately, some NCAA schools are following China's lead and believe it is legal to require its student-athletes to register their digital usernames and/or passwords and/or download cyberstalking software onto their personal accounts and electronic devices to keep their scholarships and/or participate in intercollegiate activities.
There is no valid reason for any public academic institution to require their students to provide their social media credentials to play intercollegiate sports. These types of policies have no place in the United States. At least 4 states have recently enacted legislation to ban this activity and Congress has introduced a ban on this practice.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Thursday, September 6, 2012
10 tips to determine if a sports social media consultant is a fraud
In the past couple of years, multiple consulting companies have suddenly appeared on the scene to claim they are sports social media experts, gurus, leaders, trainers, etc... These firms are pitching colleges and universities to hire them to monitor their student-athletes' Tweets, Facebook posts, YouTube videos, and/or to "educate" student-athletes, coaches, administrators, etc... about social media matters.
To claim one is a sports social media consultant the barrier to entry is very low. From looking at the lack of credentials from most of those selling themselves as social media experts it appears that the only tools needed are: Internet and phone access, and a Slideshare account. With these three things you can create a free or low cost website and/or a free blog, open a free Twitter account, and create social media presentations based upon the work of others. Some of these "self anointed social media experts" may also buy a software package or create an application to track the online activities of student-athletes that may create tremendous legal problems for the schools that utilize these programs.
To claim one is a sports social media consultant the barrier to entry is very low. From looking at the lack of credentials from most of those selling themselves as social media experts it appears that the only tools needed are: Internet and phone access, and a Slideshare account. With these three things you can create a free or low cost website and/or a free blog, open a free Twitter account, and create social media presentations based upon the work of others. Some of these "self anointed social media experts" may also buy a software package or create an application to track the online activities of student-athletes that may create tremendous legal problems for the schools that utilize these programs.
The Tweets, blog posts, and presentations of these self-called experts may appear to indicate that these consultants are the real McCoy. However, once due diligence is performed on these "social media experts" it becomes evident that almost none of them have any bona fide credentials or knowledge that demonstrates they should be advising NCAA schools, student-athletes, coaches, administrators, etc... on social media and/or any issues pertaining to college athletics.
To ensure that NCAA schools do not fall victim to these self-anointed experts who do not have the best interests of schools, athletic departments, and student-athletes in mind, below is a list of characteristics to help determine if a self described NCAA social media consultant, expert, guru, trainer, leader, etc... is a fraud:
1) The consultant advises schools to buy his social media monitoring software to track and/or archive student-athletes' password and/or non-password protected online activity.
2) The consultant advises schools to request or require students to register their social media user names and/or passwords with athletic departments and/or third parties.
5) The consultant incorrectly predicted how the NCAA's social media monitoring allegation against the University of North Carolina would be resolved.
6) The consultant follows more people on his professional Twitter account than are following him back.
7) The consultant's social media credentials appear too good to be true which may indicate social media credential fraud.
8) The consultant claims that schools that utilize his social media monitoring program will not be violating any current/future laws or creating the potential for tremendous legal liability.
9) The consultant has no verifiable professional social media experience prior to 2011.
To ensure that NCAA schools do not fall victim to these self-anointed experts who do not have the best interests of schools, athletic departments, and student-athletes in mind, below is a list of characteristics to help determine if a self described NCAA social media consultant, expert, guru, trainer, leader, etc... is a fraud:
1) The consultant advises schools to buy his social media monitoring software to track and/or archive student-athletes' password and/or non-password protected online activity.
2) The consultant advises schools to request or require students to register their social media user names and/or passwords with athletic departments and/or third parties.
3) The consultant advises schools to request or require that student-athletes Facebook Friend schools and/or third parties.
4) The consultant has no verifiable professional social media and/or sports experience before starting his sports social media consulting company.
5) The consultant incorrectly predicted how the NCAA's social media monitoring allegation against the University of North Carolina would be resolved.
6) The consultant follows more people on his professional Twitter account than are following him back.
7) The consultant's social media credentials appear too good to be true which may indicate social media credential fraud.
8) The consultant claims that schools that utilize his social media monitoring program will not be violating any current/future laws or creating the potential for tremendous legal liability.
9) The consultant has no verifiable professional social media experience prior to 2011.
10) The consultant has public Twitter conversations that may be better suited via direct message and/or another more discreet format.
If a social media consultant approaches an NCAA institution and has more than one of these characteristics it most likely indicates that the consultant is not the expert, leader, guru, etc... that he claims to be but a fraud whose advice may put the safety of a university and/or its students at risk and may create tremendous legal liability for universities, coaches, athletic department administrators, and/or student-athletes.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
If a social media consultant approaches an NCAA institution and has more than one of these characteristics it most likely indicates that the consultant is not the expert, leader, guru, etc... that he claims to be but a fraud whose advice may put the safety of a university and/or its students at risk and may create tremendous legal liability for universities, coaches, athletic department administrators, and/or student-athletes.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC All rights reserved.
Monday, July 23, 2012
NCAA Penn State sanctions prove schools should not social media monitor their students or employees
The Penn State Jerry Sandusky child sex abuse scandal is the worst scandal in the history of college athletics and has now drawn unprecedented NCAA sanctions. The sanctions were handed down by the NCAA because the evidence from the Freeh Report along with the criminal trial of former coach Jerry Sandusky indicated that "Penn State's leadership failed to value and uphold institutional integrity, breaching both the NCAA Constitution and Division I rules."
On November 10, 2011, I stated that, "between legal fees, settlements, judgments, possible fines etc... it is possible that this scandal may cost Penn State $100 million dollars or more. This does not factor in the damage to its reputation along with the loss of future economic opportunities." It appears that this scandal may end up costing Penn State closer to $150-$200 million dollars now that the NCAA has taken unprecedented action.
Digital evidence from more than ten years ago appears to have persuaded former FBI Director Louis Freeh that there was a systematic cover up regarding the Sandusky matter. The emails that the Freeh Report uncovered may have been the determining factor that led to the NCAA's sanctions against Penn State.
According to the NCAA's website, Penn State's sanctions include:
-$60 million fine. The NCAA imposes a $60 million fine, equivalent to the approximate average of one year's gross revenues from the Penn State football program, to be paid over a five-year period beginning in 2012 into an endowment for programs preventing child sexual abuse and/or assisting the victims of child sexual abuse.
-Four-year postseason ban. The NCAA imposes a four-year postseason ban on participation in postseason play in the sport of football, beginning with the 2012-2013 academic year and expiring at the conclusion of the 2015-2016 academic year.
-Four-year reduction of grants-in-aid. For a period of four years commencing with the 2013-2014 academic year and expiring at the conclusion of the 2016-2017 academic year.
-Five years of probation. The NCAA imposes this period of probation, which will include the appointment of an on-campus, independent Integrity Monitor and periodic reporting as detailed in the Corrective Component of this Consent Decree.
-Vacation of wins since 1998. The NCAA vacates all wins of the Penn State football team from 1998 to 2011.
-Waiver of transfer rules and grant-in-aid retention. Any entering or returning football student-athlete will be allowed to immediately transfer and will be eligible to immediately compete at the transfer institution, provided he is otherwise eligible.
-Individual penalties to be determined. The NCAA reserves the right to initiate a formal investigatory and disciplinary process and impose sanctions on individuals after the conclusion of any criminal proceedings related to any individual involved.
The Big Ten has also weighed in on the matter. According to The Patriot-News, Penn State will not be eligible to receive at least $13 million dollars in bowl revenue over the next four years. Therefore, Penn State will lose at least $73 million dollars in revenues related to the Sandusky matter before legal fees and expenses, civil settlements, judgements, etc... are factored into the entire cost of the situation.
This matter should be a warning to every NCAA institution. If a school employs a social media monitoring company to track its students and/or employees and it learns about a Tweet or post that may indicate illegal activity and the university does not immediately report it to the proper legal authorities it may be fined tens of millions of dollars by the NCAA.
The bottom line is that schools that listen to self-described experts/leaders/consultants, etc... who create fancy marketing materials and digital presentations that provide the false impression that they understand NCAA compliance, public policy, student education issues, and the law, may be in for a huge shock in the near future.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
On November 10, 2011, I stated that, "between legal fees, settlements, judgments, possible fines etc... it is possible that this scandal may cost Penn State $100 million dollars or more. This does not factor in the damage to its reputation along with the loss of future economic opportunities." It appears that this scandal may end up costing Penn State closer to $150-$200 million dollars now that the NCAA has taken unprecedented action.
Digital evidence from more than ten years ago appears to have persuaded former FBI Director Louis Freeh that there was a systematic cover up regarding the Sandusky matter. The emails that the Freeh Report uncovered may have been the determining factor that led to the NCAA's sanctions against Penn State.
According to the NCAA's website, Penn State's sanctions include:
-$60 million fine. The NCAA imposes a $60 million fine, equivalent to the approximate average of one year's gross revenues from the Penn State football program, to be paid over a five-year period beginning in 2012 into an endowment for programs preventing child sexual abuse and/or assisting the victims of child sexual abuse.
-Four-year postseason ban. The NCAA imposes a four-year postseason ban on participation in postseason play in the sport of football, beginning with the 2012-2013 academic year and expiring at the conclusion of the 2015-2016 academic year.
-Four-year reduction of grants-in-aid. For a period of four years commencing with the 2013-2014 academic year and expiring at the conclusion of the 2016-2017 academic year.
-Five years of probation. The NCAA imposes this period of probation, which will include the appointment of an on-campus, independent Integrity Monitor and periodic reporting as detailed in the Corrective Component of this Consent Decree.
-Vacation of wins since 1998. The NCAA vacates all wins of the Penn State football team from 1998 to 2011.
-Waiver of transfer rules and grant-in-aid retention. Any entering or returning football student-athlete will be allowed to immediately transfer and will be eligible to immediately compete at the transfer institution, provided he is otherwise eligible.
-Individual penalties to be determined. The NCAA reserves the right to initiate a formal investigatory and disciplinary process and impose sanctions on individuals after the conclusion of any criminal proceedings related to any individual involved.
The Big Ten has also weighed in on the matter. According to The Patriot-News, Penn State will not be eligible to receive at least $13 million dollars in bowl revenue over the next four years. Therefore, Penn State will lose at least $73 million dollars in revenues related to the Sandusky matter before legal fees and expenses, civil settlements, judgements, etc... are factored into the entire cost of the situation.
This matter should be a warning to every NCAA institution. If a school employs a social media monitoring company to track its students and/or employees and it learns about a Tweet or post that may indicate illegal activity and the university does not immediately report it to the proper legal authorities it may be fined tens of millions of dollars by the NCAA.
The bottom line is that schools that listen to self-described experts/leaders/consultants, etc... who create fancy marketing materials and digital presentations that provide the false impression that they understand NCAA compliance, public policy, student education issues, and the law, may be in for a huge shock in the near future.
To learn more about these issues you may contact me at www.shearlaw.com.
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Thursday, July 12, 2012
Penn State Freeh Report on Sandusky proves NCAA schools should not social media monitor student athletes
"The Report of the Special Investigative Counsel Regarding the Actions of the Pennsylvania State University Related to the Child Sexual Abuse Committed by Gerald A. Sandusky" was released today. The author of the report, Louis Freeh stated, "the most powerful men at Penn State failed to take any steps for 14 years to protect the children who Sandusky victimized".
The report's findings are more troubling than imagined. The report and Louis Freeh's public statements after the report's release indicate that Penn State engaged in a massive cover up to protect its reputation. I believe the linchpin of these findings was the digital evidence. Since the investigators were unable to interview former Penn State President Graham Spanier, former Athletic Director Tim Curley, former Vice President Gary Schultz, and former head coach Joe Paterno after emails indicating a cover up may have occurred a reasonable person may conclude a cover up happened.
Without the emails that indicated that all four men were aware of Sandusky's criminal activities in 2001, it would have been difficult to conclude that a cover up occurred. However, the digital evidene appears to indicate that a cover up went from the head coach through the athletic director to the president of Penn State.
This scandal demonstrates that schools should not hire social media monitoring companies to follow their student-athletes' or their employees' social media accounts. With access or knowledge comes responsibility. Companies with names like UDiligence, Varsity Monitor, Jump Forward, etc... are trying to persuade schools that they need to monitor their student-athletes in the digital world in a manner that they don't do so in the real world. Some companies claim that because they only monitor public and not password protected student-athlete content their services are better for universities. Unfortunately, the people who run these social media monitoring companies don't understand social media, NCAA compliance, or the law.
Once a school has been put on notice that one of their student-athletes has committed a crime they must follow the Clery Act and report it. What happens if a school is social media monitoring a star student-athlete and becomes aware that the student has or may have committed a crime or an NCAA infraction before a big game? Will the school suspend the student for the game or allow the student to play?
The bottom line is that athletic directors who continue to listen to self-described social media consultants may be putting not only their programs, but also their schools, and themselves at risk for tremendous legal liability. Did Joe Paterno ever think that emails from 10+ years ago could destroy his reputation and create tremendous legal liability for Penn State and/or his family? Therefore, why would any coach or athletic director want to create more digital evidence that may be utilized against his program and/or himself in the future?
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.
Tuesday, July 3, 2012
Delaware passes student-athlete social media privacy legislation
Delaware is the first state to pass student social media privacy legislation. While HB 309: An Act to Amend Title 14 of the Delaware Code Relating to Education was passed by both the Delaware General Assembly and Senate over the weekend, it still needs to be signed by Delaware's governor to become law.
Delaware's HB 309 utilized Maryland's SB 434 as a template. Maryland's SB 434 passed the Maryland Senate 46-0 but died at the end of the legislative session due to the logjam created when the legislature was unable to pass a budget. Despite the setback in Maryland, multiple other states and Congress have introduced legislation that may protect schools from social media related lawsuits while also protecting the personal digital privacy rights of students.
HB 309 is needed because colleges and universities across the country are requiring some of their students to download social media monitoring software onto their personal electronic devices or accounts in order to keep their scholarships. This practice has become an epidemic. The CEO of one social media monitoring company has boasted that requiring students to provide access to password protected digital content “is the new drug testing — it will be as common as being asked to take a drug test in the next two years."
Under Delaware's HB 309, colleges and universities may not:
Require a student to provide his Facebook username and/or password to a school employee or agent of the school to obtain or keep a scholarship
Require a student to download social media monitoring software onto their personal iPhones, computers, accounts, etc...
Require a student to Facebook Friend a school employee or agent of the school
In return, Delaware colleges and universities may have a legal liability shield against claims that they have a legal duty to monitor their students' personal social media accounts. This legal liability shield may become extremely important in the near future in light of the recent lawsuit against the University of Virginia, its coaches, and athletic director for failing to properly monitor one of their star student-athletes.
Hiring social media consultants who advocate monitoring students' personal social media/digitial accounts may lead to lawsuits and judgements that may financially harm public schools and taxpayers. The bottom line is that colleges and universities in Delaware and across the country need to reexamine their general student and student-athlete social media policies to ensure that they do not violate state and/or federal law.
To learn more about legal student social media policies and how to properly educate your students and employees about social media you may contact me at http://shearlaw.com/attorney_profile.
(Full Disclosure: I advised Rep. Brady and Sen. Bushweller's offices on HB 309 to ensure that it would mutually benefit colleges, universities, and students.)
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
Delaware's HB 309 utilized Maryland's SB 434 as a template. Maryland's SB 434 passed the Maryland Senate 46-0 but died at the end of the legislative session due to the logjam created when the legislature was unable to pass a budget. Despite the setback in Maryland, multiple other states and Congress have introduced legislation that may protect schools from social media related lawsuits while also protecting the personal digital privacy rights of students.
HB 309 is needed because colleges and universities across the country are requiring some of their students to download social media monitoring software onto their personal electronic devices or accounts in order to keep their scholarships. This practice has become an epidemic. The CEO of one social media monitoring company has boasted that requiring students to provide access to password protected digital content “is the new drug testing — it will be as common as being asked to take a drug test in the next two years."
Under Delaware's HB 309, colleges and universities may not:
Require a student to provide his Facebook username and/or password to a school employee or agent of the school to obtain or keep a scholarship
Require a student to download social media monitoring software onto their personal iPhones, computers, accounts, etc...
Require a student to Facebook Friend a school employee or agent of the school
In return, Delaware colleges and universities may have a legal liability shield against claims that they have a legal duty to monitor their students' personal social media accounts. This legal liability shield may become extremely important in the near future in light of the recent lawsuit against the University of Virginia, its coaches, and athletic director for failing to properly monitor one of their star student-athletes.
Hiring social media consultants who advocate monitoring students' personal social media/digitial accounts may lead to lawsuits and judgements that may financially harm public schools and taxpayers. The bottom line is that colleges and universities in Delaware and across the country need to reexamine their general student and student-athlete social media policies to ensure that they do not violate state and/or federal law.
To learn more about legal student social media policies and how to properly educate your students and employees about social media you may contact me at http://shearlaw.com/attorney_profile.
(Full Disclosure: I advised Rep. Brady and Sen. Bushweller's offices on HB 309 to ensure that it would mutually benefit colleges, universities, and students.)
Copyright 2012 by the Law Office of Bradley S. Shear, LLC. All rights reserved.
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