Law Review/Journal Articles

The Right Balance of Social Media

The following article was written by Cyle Kiger.

Facebook and Twitter rule the technology and social media world.  The growing popularity of such sites get student-athletes into some murky waters and the NCAA hasn’t failed to notice.  Regulation is what the National Collegiate Athletic Association is known for by formal fans, and the entity universities look towards for guidance on the regulation of social media. Student-Athlete.0 provides an in-depth guide to avoiding NCAA sanctions and litigation.

Pete Thamel from the New York Times says social media, more specifically Facebook, is the primary tool used to communicate with potential recruits.  With the emergence of Facebook, the NCAA has had to take steps in regulating how universities can utilize social media.  Recruiting is the first aspect the NCAA looked into regulating, and has done a good job on where to draw the line.  Currently, coaches and collegiate student-athletes are not allowed to post comments about future recruits.  Coaches, on the other hand, are allowed to contact the recruits via social media by using the messenger functions because it acts like e-mail.

Though a good tool for coaches, social media can produce a negative image on student-athletes, universities, and the NCAA.  For instance, a number of vulgar tweets occurred at Mississippi State, where head coach Rick Stansbury kicked DJ Gardner off the team for “repeated actions deemed detrimental to the team.” Monitoring social media could have prevented Gardner from getting kicked off the team, but could also help with disciplinary problems.  In 2006, the Northwestern Women’s soccer team was suspended after there were photos on Facebook of hazing.

I refer to the balance of social media as to how much or little the NCAA and universities can restrict a student-athlete’s basic right of speech.  Facebook and Twitter are tools for everyone to use, but for the NCAA it is a nightmare.  Social media is an entire category that needs to be regulated by the highest power in college athletics so universities do not sued over constitutional rights.

Why the NCAA and universities are subject to litigation:

[supertagline]1st Amendment[/supertagline]

The First Amendment in the United State’s Constitution states that “Congress shall make no law ….abridging the freedom of speech.”  Public universities and the NCAA are susceptible to litigation if they feel it necessary to restrict the athlete’s freedom of speech.  There are four types of protected speech including: political, religious, corporate and commercial speech.  Unprotected speech promotes unlawful ends like fighting words, hate speech and obscenity.

Timothy Epstein said in Student-Athlete.0, “If the social media policy for student-athletes is to survive a constitutional challenge, the proscribed language must be limited to those categories of speech that are unprotected by the First Amendment. What’s troubling for universities is the fact that the type of speech that schools would want to restrict in order to avoid NCAA scrutiny is likely protected speech. Short of advocating unlawful behavior, the type of speech that would incur NCAA punishment is unlikely to be offensive outside of the NCAA context.”

[supertagline]No Contract Requirement[/supertagline]

If a contract exists between the student-athlete and a public university about the restriction of social media usage, an action against the university based on the First amendment will most likely be dismissed.  The relationship of a college student and university can be considered contractual, thus if a policy was in the student-athlete handbook it could become a natural part of the contract between the two parties.

[supertagline]4th Amendment[/supertagline]

The 4th Amendment could be a cause for action against colleges and universities for illegal searches and seizures on the athlete’s social media accounts.  Monitoring the social media use is the main issue with the 4th Amendment argument.  Is the information public? A person creates an account and posts about whatever he feels, when he feels it.  That person voluntarily gave the information to the public, so would monitoring social media be a violation of the 4th Amendment? The 4th Amendment may protect some of the information given by the user, but not all.

A student-athlete may sign a few forms and waivers to participate in a sport, that waive the right to their likeness.  In Fox Fights Discovery, I wrote about the NCAA and EA Sports, Inc., in a suit with former NCAA athletes for using their likenesses in video games and other media.  But because the students sign waivers they have almost no expectation of privacy.


Social media monitoring would protect students’ health and the safety of the student-athlete. If social media was regulated and an event much like the Women’s soccer team (see above) in 2006 went unpunished, the school would be held accountable for negligence because it would have a duty to monitor social media.  A school who does not monitor social media activity would be immune to a suit for negligence, however the NCAA could take action.

I think that there needs to be a balance of regulation in regard to social media usage, because of the consequences school’s face if one of its student athlete’s speak on controversial topics.  I do not think a complete ban on social media is necessary, because it is a large part of a college students four year experience.  Student-athletes should have to go through some type of social media training, and if the rules aren’t followed, there can be some type of punishment.  The NCAA needs to implement some type of social media policy regarding speech so the colleges and universities do not bear the load of young chat-happy athletes.