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Social Media and Student Athletes: Legal Issues are Quirky

Expecting student athletes to interpret terms such as 'inappropriate' in the same fashion as administrators is naive and shortsighted.


Janet Judge

What do Facebook, Twitter and Instagram have in common? They all have the potential to promote good or to cause great harm.

Coaches, athletic directors and even some college presidents see these tools as new opportunities for positive branding. If each athlete sent one tweet about a good thing, the thinking goes, look at all of the good PR it would generate for their schools?

“All this social media is a sports information program on steroids,” admitted Janet Judge, a sports attorney and president of Sports Law Associates LLC in Cumberland ME.

But as administrators have discovered, social media can also become a huge embarrassment to their schools.

Judge has worked with more than 300 colleges and universities, educating student athletes on everything from sports ethics to the risks associated with the irresponsible use of social networking.

At the National Association of Collegiate Women in Athletics Administrators (NACWAA) conference, she spoke on the legal issues surrounding social media. The conference was held in San Diego in October 2013.

Fluctuating social mores

Social mores are definitely in flux. What would have caused lifelong shame for an earlier generation barely ripples across the consciousness of today’s students.

Shame is not a word in their vocabulary even when it comes to sexting—sending naked photos to another person. When three female student athletes sexted a male coach, they were surprised to find out people considered their behavior to be a problem.

The golf team photo at a private, religious school in Kansas showed the male athletes attempting to cover themselves with only their golf clubs.

Granted, athletes are proud of the hard work that has built their bodies. Many see nothing wrong with sharing the results of that work with others, especially loved ones, with or without clothes.

As an administrator, ask yourself what would you do if one of your student groups went for the nudist look in its annual picture?

Would you see it as an educational opportunity? Would you consult with legal counsel? What about demanding that the picture be taken down? Or would you defend students’ First Amendment rights?

Social media and legal issues

While wading into the brave new world of social media, administrators can run headlong into both the NCAA and the First Amendment. As a private group, the NCAA may make rules that are unenforceable at public schools.

Public schools must follow the constitutional protections of due process, prevent unreasonable searches and support free speech and free association. Private schools often extend “Constitution-like rights to students through policies and handbook language that may rise to the level of contracts,” said Judge. But they’re not bound by the Constitution.

The NCAA doesn’t get involved in social media, nor does it make coaches monitor their athletes’ communication.

Some schools have decided to ban social media for their student athletes, while others intentionally monitor them. The legality of monitoring has yet to be determined, so those that do it take the risk of future legal challenges.

Bans are considered appropriate if they are seen as reasonable and specific. They must be narrowly tailored to serve a school’s “legitimate, content neutral interests,” according to Judge.

When banning social media, administrators must consider the consequences and limitations. For example: Judge said it’s inappropriate to ban the use of social media throughout the entire sports season at a public school. It’s okay to ban it if the student athlete is on the coach’s time, such as on the bus to and from a game, when emotions run high and temptations are great, or during practice.

Monitoring: See no evil?

Monitoring comes with a different set of issues. Some schools use outside companies to monitor their student athletes. Or they have students “friend” the coaches.

If you’re considering monitoring, think ahead. There’s a good chance you will be privy to conversations that could put you in a difficult position. What will you do then?

There’s also the likelihood that you’ll see things you won’t like that have nothing to do with athletic participation. For example, a federal judge ruled that an Indiana school district violated the First Amendment rights of two, female high school volleyball players who were punished for publicizing sexually explicit photos on MySpace that took place during a sleepover.

The youngsters staged photos of themselves playing with penis-shaped lollipops and posing in lingerie. Even though the photos were posted online with privacy settings, they went viral and their school found out.

The incident cost the two players 25% of their volleyball season and required them to apologize to an all-male coaches board. Their parents, unhappy about the decision to bench their daughters, sued the school district.

The court ruled that the photos were protected by the First Amendment and fell under rules governing a planned parody or skit, so it was okay. The school district won’t appeal.

At the University of North Carolina, Judge said a football player sending a photo of a pile of receipts for expensive meals indicated NCAA violations, leading to a huge scandal that has cost the athletics department dearly.

The institution self-reported and the NCAA investigated. The infractions panel discussed requiring the school to monitor student athletes’ social media sites and postings, but decided against it.

An ounce of prevention

Training student athletes about what is and isn’t appropriate can go a long way in preventing a major embarrassment. When seeking to educate, real stories with real people and real consequences capture their attention. This axiom is confirmed in a blog in The Chronicle of Higher Education on November 6, 2013.

The article “Training Versus Monitoring: A Qualitative Examination of Athletic Department Practices Regarding Student-Athletes and Twitter” describes a study with interviews of 20 football, basketball and baseball players at a midsized, private Division I university. The athletes reported having received no training about Twitter and its potential for harm.

While some student athletes made some “common sense” assumptions about using the tool, researchers, Jimmy Sanderson, assistant professor of communication studies at Clemson University and Blair Browning, assistant professor of communication at Baylor University, felt that lack of training was like the fox guarding the hen house.

“Student athletes are left to guess at the boundaries for using Twitter,” they wrote. “Expecting student athletes to interpret terms such as ‘inappropriate’ in the same fashion as administrators is naïve and shortsighted.”

When stuff happens, disciplining student athletes for content found on social media can be murky. Decisions should be run past legal counsel before applying consequences. It’s safer to know the rules and the process beforehand than to have to scramble later when a team posts naked pictures of itself on Facebook.

Make policy and procedure decisions early, not when staring down a crisis, Judge advised. Plan on how to deal with tweets that go awry or are patently false. Communicate the plan to all coaches. Be prepared.

Good team rules are the key prevention tool. Put them in writing along with the consequences for breaking them. This set of rules should cover not only NCAA-mandated ones, but team initiations, dress codes, missed practices and classes, and availability. Look at each rule and see if it substantially or materially interrupts a program. Put language in your policy against certain actions.

Remind student athletes that playing sports is a privilege, not a right. On or off the field, players represent the team, the coach and the school. They’re required to show good sportsmanship and respect for opponents and referees.

When faced with a problem, make sure you don’t tread on a student athlete’s due process. You must give the accused notice and a meaningful opportunity to be heard. Above all, be fair, Judge cautioned.

Tell the student athlete what rule(s) she violated. Allow her time to respond. Understand the source of the rule that was broken. Is it a serious NCAA violation or a dress code?

Get your ducks in a row and don’t try to make it go away quickly with a knee-jerk reaction. Tell the student you’ll get back to her in a specific period of time. Consider your long-term policy and how your decision affects it.

As social media becomes as ubiquitous as pen and paper, schools must scan the horizon for future changes that will affect their policies and procedures.

Contact:
Jjudge@sportsmedia.com


Santovec, Mary Lou. (2013, December). Social Media and Student Athletes: Legal Issues are Quirky. Women in Higher Education, 22(12), 25-26.

 

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