Law Experts: Stalking Student-athletes' Twitter, Facebook Presence Increases Universities' Liability


BALTIMORE - A university that stalks or bans student-athletes' Facebook and Twitter accounts may be legally out of bounds, sports law experts say.

University athletic departments are following the trend set by professional sports teams to regulate social media. But university officials who ask student-athletes for social media passwords or registered handles to monitor their activity or prohibit them from using social networking sites are violating freedom of speech rights and exposing schools to lawsuits by increasing legal liability, law experts said at a recent sports law symposium.

"If you're a public school, there's no way (you can say) I'm banning Twitter or I'm banning Facebook," said social media and sports law attorney Brad Shear. "You just can't do it. It's clear prior restraint."

At a global leaders forum in Toledo, Ohio, on Feb. 1, University of Michigan Athletic Director Dave Brandon admitted that the university hired consulting firms, which would “friend” and “follow” student-athletes using a bogus account, then monitor their activity on Facebook and Twitter—essentially "catfishing" before the term became synonymous with Notre Dame linebacker Manti Te'o, who maintains that he was duped into an online relationship with a woman who never existed.

"What one could call catfish is hacking," said Shear, who has advised federal and state legislators and called the practice of hiring "cyber-stalk companies" a violation of Michigan's Social Media Privacy Act. Catfishing is the practice of creating a bogus social media account to connect with someone in order to monitor their online activities.

Maryland in 2012 became the first state to pass legislation prohibiting employers from asking employees to disclose social media credentials. It is unclear if scholarship athletes qualify as employees under the state law, but federal legislators are aiming to extend protection for students and employees nationwide.

On Feb. 6, Rep. Eliot Engel D-N.Y., reintroduced a Social Networking Online Protection Act, which prohibits employers and schools from requesting employees’ and students' social media usernames and passwords on Facebook, MySpace and Twitter or punishing them for refusing to provide these credentials.

“The lack of clarity in the law puts individuals in a position where they either have to give up vital, private information, or risk losing their job, potential job, or enrollment in school and involvement in the school’s sports programs," Engel said.

For former University of Maryland soccer captain Olivia Wagner, 21, who was previously required by her coach to accept his friend request as part of team policy, social media monitoring is a small tradeoff.

“Being an athlete at Maryland you have to represent Maryland and your team and that’s just kind of a price you have to pay,” said Wagner, a senior invited to train with the Washington Spirit professional women’s soccer team. “The school doesn’t want to be in the headlines.”

The issue of monitoring student-athletes extends beyond public relations, said Shear. "This is a legal issue and it's a compliance issue."

The NCAA has rules against using social media as an athletic recruiting tool, but it is less definitive on student-athletes’ use of social media.

"It's kind of a grey area for the NCAA," said Salisbury University Athletic Director Michael Vienna. Vienna admitted that dealing with social media issues has been "a daunting task" for a "guy who doesn't even have a Facebook site."

A University of Maryland head coach may prohibit the use of social media immediately before, during and following competition, according to the school's 2011 "Social Media Guidelines." Immediately is not defined.

The university's guidelines resemble the NFL policy implemented in 2009, which bars players from using social media 90 minutes before kickoff until the end of traditional post-game interviews.

Contracted professional football players are fined for breaking social media policy, but penalties at the University of Maryland are determined by head coaches.

In February of 2012, University of Maryland basketball guard Terrell Stoglin apologized and deleted his tweet: "Loved sittin that bench today. [Smh] wow," within an hour of posting it after a loss against Duke. By then, Stoglin’s tweet was widely publicized, but the basketball standout was not suspended for any games.

An Ohio State quarterback and Boston College women's soccer forward each were suspended for a game for tweets that made national headlines in 2012.

Like many athletes, Wagner safeguards against negative repercussions by self-monitoring.

“I would never write something (about) an opinion on a game or referees. You just don’t know who’s going to read it and who’s going to be offended by it,” she said. “Everyone pretty much censors themselves.”

Making scholarship student-athletes turn over their social media credentials is a “clear violation of the First Amendment,” Shear said.

Shear argues that the decision to monitor athletes' social media activity does not make financial sense. "It's absolutely insane for a school to get into the policing business of digital and social (media) online because of costs, resources. The liability is just incomprehensible."

Shear maintained that the responsibility of tax-funded universities should be education, rather than a legal duty to review what "kids" are doing on personal accounts.

Towson's athletic department requires all of its athletes to sign a social media document each year, handling each issue case by case, using the university's Code of Conduct. Athletic Director Tricia Turley Brandenburg characterized it as "advice."

"It's trying to encourage, you know, good-behavior-on-and-off-the-court-type issues," she said.

Turley Brandeburg emphasized that the social media advice is the “best” the university can do.

"Educating the athletes is much more effective than buying a program or assigning coaches to see what's out there," she said. "It's part of our job as educators."

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