October 29, 2019 will either be remembered as the day that the NCAA signified a major shift in its position on whether college athletes should receive compensation in exchange for the commercial use of their names, images and likenesses, or it won’t. The bottom-line is that it is far too early to tell what the NCAA intended by way of the dissemination of a release titled, “Board of Governors starts process to enhance name, image and likeness opportunities.” It appears that was intentional. Read more “Stop Saying That The NCAA Will Now Allow College Athletes To Profit”
This past Tuesday, the NCAA and former athletes came to an agreement on a settlement that would appear to effectively put an end to the lawsuit filed by several former athletes approximately three years ago. Pursuant to the agreement, member schools of the NCAA will be required to amend their current concussion-management policies and enact return-to-play guidelines. Some of the specific provisions stated in the settlement agreement that place new demands on member schools include the following: 1) prohibiting players from returning to game action if the athlete has been diagnosed with a concussion; 2) requiring medical personnel to be available for practices for contact sports such as football, lacrosse, soccer and basketball and requiring their presence at all games; and 3) educating faculty on the academic accommodations needed for athletes with concussions. Additionally, the settlement agreement creates a 50-year medical program for all former and current athletes, with the NCAA providing $70 million in funding for screening for long-term damage and $5 million towards concussion research.
Most notably, the settlement agreement does not provide the plaintiffs with damages. Whereas the NFL concussion settlement will provide the members of that class action lawsuit with at least $675 million in compensatory damages to be determined by a payout formula that takes into account the individual’s age and illness, the NCAA settlement allows players to file separate personal injury lawsuits.
This last point is key. Personal injury lawsuits can result in a large windfall for the affected plaintiff. This is one reason why the NFL settlement permits those involved in the class action lawsuit to opt out of the agreement if they feel the compensation they would receive based upon the formula is not enough. There are a number of factors that go into the calculation of compensatory damages for personal injury cases; they include: 1) the cost of medical care associated with the injury such as reimbursement for treatment already received and compensation for the future cost of medical needs; 2) loss of income due to the inability to work as a result of the injury; 3) pain and suffering due and attributed to the accident; 4) emotional distress that result from the psychological aftereffects of the injury; 5) loss of enjoyment of day-to-day activities; and 6) loss of consortium. An NCAA athlete looking to initiate his or her own claim would have to prove the amount of each damage component in order to claim same against the Association.
An additional element needed to carry a personal injury claim is the ability to prove the opposing party was at fault. The most applicable defense the NCAA could assert is that the athlete knew and assumed the risk of injury that came with the sport that led to the concussion. The implementation of the settlement agreement makes this affirmative defense one likely to prevail in court based upon the many educational and preventative measures it incorporates. Nonetheless, the athlete may be able to assert negligence by the Association for failure to incorporate such measures at an earlier date.
The settlement agreed to by the NCAA and the former athletes is a double-edged sword. While it provides member schools with requirements to better protect their athletes, in the event athletes suffer, or have suffered, a concussion that results in long-term effects in the future, the settlement agreement provides no personal benefit. The settlement agreement may seem to be the end of the initial lawsuit, but it could also be seen as potentially opening the door for numerous individual lawsuits in the future, which may not be as fruitful for the plaintiff as imagined.
The following article was written by Benjamin Haynes, Esq.
“An institution’s head coach is presumed to be responsible for the actions of all assistant coaches and administrators who report, directly or indirectly, to the head coach. A head coach shall promote an atmosphere of compliance within his or her program and shall monitor the activities of all assistant coaches and administrators involved with the program who report, directly or indirectly, to the coach.”
I asked Jay Bilas his thoughts on this new rule:
@bhaynes32 Every person should be responsible for what is reasonably within their control. Note how presidents accept zero responsibility.
— Jay Bilas (@JayBilas) October 26, 2012
Legally speaking, this new NCAA rule is similar to the doctrine of vicarious liability. The concept of vicarious liability can be described as follows: “A person whose liability is imputed based on the tortious acts of another is liable for the entire share of comparative responsibility assigned to the other.” Restatement (Third) of Torts: Apportionment of Liability § 13 (2000). In layman’s terms, vicarious liability means that an employer is responsible for the actions of employees, when such actions were performed within the course of employment. This rule is also called the “Master-Servant Rule” and is recognized in both common law and civil law jurisdictions.
In order for this doctrine to apply, the court must find that the employee was acting within the scope of employment at the time the tortuous conduct occurred.
The NCAA’s new rule determines that a head coach will be presumed responsible for major/Level 1 and Level II (e.g. academic fraud, recruiting inducements) violations occurring within his or her program unless the coach can show that he or she promoted an atmosphere of compliance and monitored his or her staff. Therefore, the burden is on the coach to prove his or her innocence with regards to the violation. As noted by Jay Bilas, the President of the University has no responsibility, according to the NCAA rules, to make sure that the athletics department is complying with these NCAA regulations.
Promoting an atmosphere of compliance and monitoring one’s staff is extremely vague language, and leaves such up to interpretation. However, the new rule provides guidelines in which the NCAA will look to in order to determine whether a coach has promoted such an atmosphere. The NCAA has labeled this the “Action Plan”. There are three main bullet points that the NCAA highlights in the Action Plan. They are, 1)Communication; 2)Monitoring; and 3)Documentation.
For “Communication” purposes, the NCAA expects a head coach to do the following:
- Meet with the chancellor or president to discuss his/her expectations for NCAA rules compliance;
- Meet with the AD to discuss his/her expectations for NCAA rules;
- Meet with the compliance director to discuss his/her expectations for NCAA rules compliance (includes suggested talking points);
- Meet jointly with the president, athletics director and compliance director to discuss the institution’s and program’s compliance environment and expectations; and
- Meet with coaching and support staff to discuss head coach’s expectations for NCAA rules compliance. Including a written document, which outlines the head coach’s commitment to ethical conduct, along with various talking points.
For Monitoring purposes, the NCAA expects a head coach to do the following:
- Actively look for red flags of potential violations;
- Ask questions;
- Consult with the compliance director to create written procedures to ensure you’re the staff is monitoring the program’s rules for compliance. (Suggested procedures included); and
- Regularly solicit feedback from staff members concerning their areas of compliance and the program’s overall compliance environment in order to ensure that the systems are running properly.
For Documentation purposes, the NCAA suggests that a head coach should document the ways he/she has communicated or demonstrated such a commitment to compliance and should be able to produce documentation for the procedures in place.
One thing is certain – this new rule places even more responsibility on a head coach. In fact, this rule mandates that a head coach take on a compliance director’s role. Fair? Some will argue that a head coach is responsible for his staff’s actions to a degree, and rightfully so. Others will argue that this rule makes a head coach take on an investigator role, which surpasses the type of burden a head coach should have regarding such issues. In short, a head coach must now be proactive in complying with the NCAA’s “Action Plan” in order to cover himself from future penalties.
The following article is a guest contribution by Benjamin Haynes, Esq. Haynes is a former Division 1 Basketball Player at Oral Roberts University and currently practices law in the State of Florida.
It’s almost that time of the year, the time of the year when NCAA college football players all across the nation will be padding up and heading outside for unbearable two-a-day practices. There is no doubt that this is the hardest part of the year for these specific athletes. In states such as Texas, Florida, and California, the temperatures are usually in the 100’s. Throw humidity, heavy pads, and a helmet on top of that, while practicing from two to four hours out in the sun, and you have the potential for disaster.
This disaster became a reality for both Ereck Plancher and the University of Central Florida in 2008. During a UCF football practice, Ereck, a football player for UCF, went into cardiac arrest after going through severe conditioning drills. He later was pronounced dead at the hospital. An autopsy found that Plancher died because of a condition called Sickle Cell trait, which causes blood cells to become misshapen and disrupt the body’s vascular system when it’s put under extreme stress.
In 2009, Plancher’s parents brought a wrongful death action against the University. The Planchers’ attorneys argued that the combination of the grueling workout, and the trainer not knowing Ereck had the Sickle Cell trait, ultimately led to his death. While on the defense side, UCF’s attorney argued that it was an underlying heart condition that caused the death of the 19 year old. During trial, several UCF football players testified that the coach denied the players water during the harsh conditioning drills. Even more disturbing, another UCF player testified to seeing Ereck falling down after one of the sprints, and the coaches specifically telling the players not to help him back up.
After a two week trial, the jury deliberated and found in favor of Plancher’s parents, finding that the University was negligent and owed the Plaintiff 10 million dollars in damages. The jury found no evidence of gross negligence and therefore punitive damages were not awarded. In May of this year, UCF filed their appeal to the Circuit-Court’s ruling.
While the Ereck tragedy occurred during a spring workout in only 72 degree weather and 50% humidity, there is no doubt that the heat played a major part in Ereck’s death. If accidents like Ereck’s can happen during what Floridians would consider moderate conditions, Universities across the nation should observe this case and proceed with extreme caution.
In May of 2003, the NCAA implemented a mandatory five-day acclimatization period in order for these athletes to be able to adapt to the heat during these initial football practices. The period’s guidelines are as follows:
- On days one and two of the period, only helmets are allowed for the players.
- On days three and four, only helmets and shoulder pads are permissible
- On the last day, all pads are permissible.
- Practice time is not allowed to exceed 3 hours a day.
- Teams may have a one hour testing session and a two hour practice on one of the five days. However, three hours of recovery must be allowed between the testing session and the practice.
While this rule was implemented back in May of 2003, the NCAA has still seen 21 heat related deaths in college football since 2000. So then the million dollar question is asked, when does a coach know when to push an athlete harder and when to ease off of the gas? There is no doubt that all athletes need to be pushed both physically and mentally by a coaching staff. This is within the nature of sports in general. I have seen, first hand, athletes faking injuries or acting more tired than they really are in order to get out of further conditioning. This is the dilemma coaches and strength and conditioning personnel are facing every day in college athletics.
While there is no definite answer to the question presented, it is far better for coaches to air on the side of caution when determining whether a player needs to be further pushed, or whether it’s time to allow the player a water break. Especially in outdoor sports, such as football, the brutal heat and strenuous physical activity on a student athlete is not something coaches should take chances on. Coaches should give multiple water breaks and be extremely cautious and aware of any players who are showing any sign of true physical issues, and not just trying to get out of another sprint because they are lazy. Experienced coaches are usually pretty seasoned in having the ability to determine whether a player is truly on the border of physical injury, or just experiencing the fatigue that comes from sports conditioning, but like I stated above, it is best to air on the side of caution. Ask UCF.
Further, college football coaches need to make sure that they adhere to the five-day acclimatization period established by the NCAA in order to help their players adapt to the harsh conditions. As well as making sure that each player is being thoroughly examined in their preseason physicals. Football staff all across the nation needs to be aware of the seriousness of this issue in order to save young athletes lives and to avoid a poor public image. Oh, and avoiding 10 million dollar lawsuits aren’t a bad deterrent either.
Each Friday we will feature an article from our good friends at The Legal Blitz. Please enjoy the following piece and check out The Legal Blitz when you get a chance!
A recent New York Times Op-Ed about a “hockey exemption” to the NCAA’s prohibition on student-athletes hiring agents made it seem as if agents, schools and athletes openly flaunted the NCAA rules in college hockey. The author, Joe Nocera, argued that the NCAA looked the other way when it came to hockey agents because the use of agents is “ingrained in hockey culture.”
But is that true? Is the NCAA ignoring the blatant use of agents in hockey? If so, why? Do college hockey players really enjoy a special exemption from the NCAA amateurism rules? To answer these questions we turned to Legal Blitz friend and veteran sports lawyer Dan Fitzgerald, an associate at Brody Wilkinson and publisher of CTSportsLaw.com. Fitzgerald frequently provides counsel to clients concerning legal issues that arise in amateur, collegiate and professional athletics.
It is my understanding that the NCAA has a flat-out agent ban in that student athletes or soon-to-be student athletes can not sign with or have any contact with an agent. Is that correct? What is the policy?
Rule 12.3 of the NCAA Manual covers agents. Student-athletes are prohibited from entering into an agreement, written or oral, with an agent for future representation; accepting transportation or other benefits from any person who represents any other person in the marketing of his or her athletic ability; and accepting transportation or other benefits from an agent who has indicated that he or she has no interest in representing the student-athlete and does not represent athletes in the student-athlete’s particular sport. Student-athletes may receive legal advice from an attorney, so long as that advice does not involve direct negotiations for a professional sports contract with a professional sports team.
If a high school athlete is weighing the option of turning pro vs. going to college, particularly in hockey or baseball, who are they supposed to seek advice from?
Student-athletes can seek advice from parents, former coaches, so-called advisors (providing NCAA rules are not violated) and attorneys. Attorneys, however, may not have contact with the professional sports team to discuss a contract offer.
It seems as if it would be in the best interest of the student-athlete to get professional career advice before making such a huge decision, why is the NCAA against that?
In my opinion, the NCAA is fine with a student-athlete receiving advice. However, the NCAA is extremely protective of the concept of amateurism. Once a student-athlete has an attorney or agent negotiating with a professional team on his or her behalf, the student-athlete’s amateur status is compromised.
The NCAA does permit schools to form a Professional Sports Counseling Panel to assist student-athletes with such decisions. These panels may review proposed contracts, provide advice concerning the purchase of disability insurance, meet with representatives from professional teams and assist the student athlete in the selection of an agent. For example, Warren Zola leads Boston College’s efforts in this area and has been extremely effective in this role.
What is your take on the rule? Should it be changed?
I do not think that a parent or student-athlete should be negotiating directly with the seasoned negotiators of a professional team. An attorney should handle those negotiations. If the student-athlete and the professional team do not reach an agreement, the student-athlete should be free to compete collegiately. Also, it is problematic that the NCAA limits the extent to which an attorney can advocate on behalf of his or her client, an issue that was discussed in Oliver v. NCAA.
I know you are a leader in student-athlete rights. What rights do they have to seek advice and make informed decisions?
Student-athletes have some rights to seek advice under NCAA rules, but one could argue there are too many restrictions placed upon them. Ultimately, college careers are short and student-athletes find it more beneficial to play within the existing rules rather than challenge them.
The so-called “hockey exemption” is interesting. Could the NCAA start enforcing its rules on hockey at any time or is there some legal mechanism by which the accepted practice trumps the rules on the books?
I don’t think there is a hockey exemption so much as a lack of reporting. It is my understanding that the NCAA investigates allegations that are reported by its members, conferences and others, but is not proactively working to uncover violations. If a student-athlete makes a promise to an agent to hire that agent when the student-athlete turns pro, who is going to report that to the NCAA? The student-athlete won’t, because he or she could lose eligibility. The agent typically won’t report it, as the agent would be in violation of NCAA rules and perhaps anti-agent laws. A professional team that negotiates with an agent may not report it either, as it might eliminate their chances of signing the student-athlete. The case of Oliver v. NCAA is interesting in this regard, as Oliver’s former attorney-agents reported him once he decided to use a different agent.
I’ve noticed the growth of sports consulting agencies that supposedly help high school students navigate the recruiting process. How does that not violate the anti-agent rules?
These agencies typically do not market an athlete’s services in exchange for compensation. If an agency receives compensation for placing a student-athlete at a particular school as a recipient of financial aid, there would be a violation of NCAA rules.
Is there a danger to college athletes that get free advice from an agent expecting that to turn into a paid, professional relationship who then end up signing with a different agent? Could they be sued by the first agent?
First, there is danger that the student-athlete could be deemed ineligible if there is a promise of future representation. Second, an agent could claim an oral or implied contract with a student-athlete for representation once the athletes turns pro. But there is minimal risk for the student-athlete, because an agent would effectively admit breaking NCAA rules as well as certain agent laws that may be in existence in a particular state.
The following article was written by Spencer Wingate.
Before 2005, universities were not required by the NCAA to have medical insurance for injured athletes. The NCAA believes by now mandating universities to provide coverage, it is protecting itself from unexpected medical expenses and eliminating misconceptions about policies. It claims its requirements make lawsuits against universities less likely because insurance companies are paying for expenses. The NCAA’s rules compel universities to certify that athletes have insurance for athletic injuries before competing on the playing field. It does not matter if the insurance comes from the school, parent, or is even a personal policy. Therefore, schools ultimately get to determine what they will or will not pay on behalf of their athletes. Unfortunately, that has led to the level of responsibility for each school to widely vary.
In the Birmingham News, John Solomon explores the issue by pointing to the case of former Oklahoma Basketball player Kyle Hardick. His family has paid around $10,000 for medical treatment on his knee. Hardick’s father is terminally ill with cancer, but must continue to work to pay for the medical costs. Kyle’s mother Valarie states her son was misdiagnosed by the Oklahoma Medical Staff, which has allowed them to refuse to pay any costs. Since Kyle never missed any games and a personal doctor ultimately treated the injury, the school is according to NCAA rules not liable.
Kyle Hardick’s story might be a rare exception or a common occurrence. The NCAA is not required to detail the payments or care that it provides for injured athletes. California and Connecticut have recently put laws into place that require medical policies be in writing. However, at this point these are the only two states that require this documentation from their universities. Solomon also references the story of Tyrone Prothro and Derik Olvey to demonstrate certain institutions have paid for numerous surgeries even though the athletes might never play for their schools again. Naturally, a debate emerges concerning the responsibility of schools. Should schools have the right to determine their own system of payment? With financial means varying greatly depending on each school, holding everyone to the same payment requirements would be difficult. Nevertheless, the issue of liability needs to be clearly defined. It seems the NCAA needs to institute a system for medical insurance that enforces more transparency and accountability. Only then will hidden costs begin to be eliminated.
The following article was written by Spencer Wingate.
Former NCAA athletes were dealt a blow by US Magistrate Judge Nathanael Cousins in their attempt to show that the NCAA forces athletes to relinquish their publicity rights. Bill Russell, Oscar Robertson, and Ed O’Bannon were amongst a group hoping to obtain highly sensitive TV sports contracts and other documents. The items pertain to an ongoing lawsuit alleging NCAA members, conferences, and licensing partners are unfairly profiting billions of dollars through the exploitation of student-athletes. The far-ranging subpoena request sought to obtain numerous television contracts, licensing agreements, and revenue reports. Judge Cousins deemed the request far too broad and unduly burdensome.
The athletes are in an ongoing struggle against the NCAA regarding alleged exploitation. They argue the NCAA classifies athletes as amateurs to control and profit from them. They want to shed light on the big business and revenue of college sports. Through the US Judicial System, they are requesting access to sensitive and confidential documents. Judge Cousins’ ruling is disappointing, but a number of cases have yet to be decided. Some judicial success was recently found when Judge Cousins ruled NCAA President Mark Emmert must sit down for a three hour deposition in March 2012. NCAA policies of amateurism and competitive balance will be key topics explored. Mr. Emmert will most likely be required to address a number of controversial topics such as paying student athletes.
The following article was written by Cyle Kiger.
In “The Right Balance of Social Media,” I explained a few of the legal implications of how the NCAA and universities could look at monitoring social media. I came to the conclusion that there should be a moderate amount of monitoring, without a complete ban on social media usage for student-athletes. Meg Penrose’s “Free Speech versus Free Education: First Amendment Considerations in Limiting Student Athletes’ Use of Social Media” dives a bit deeper into the First Amendment issue that I touched on in “The Right Balance of Social Media.”
Student-athletes voluntarily take on greater responsibilities than the rest of the student body. Generally, students need not rid themselves of their First Amendment rights. But when looking at the issue of regulating social media, in the past, schools have had more power over regulating their own environment without legal ramifications.
The courts have actually grouped speech and discipline cases of schools and regulating agencies into a category called special needs. A university’s special needs have to do with safety, order and discipline.
Penrose went on to say that the most relevant special needs case was Veronica School District 47J v. Acton. Acton had a program where all student-athletes had to submit to a drug test. Students that refused were deemed ineligible to participate in any athletic event. By choosing to go out for the team, Justice Scalia noted, the athletes voluntarily subject themselves to more regulations. Although a Fourth Amendment issue, Penrose argues that courts may view First Amendment challenges the same way for social media regulation.
Universities enact student codes of conduct that can limit speech to certain times, places and things of that nature. But they cannot make content based limitations. As in the case above states, athletes choose to compete, and at the collegiate level it happens to be highly regulated. In a military First Amendment case (Goldman v. Weinberger), Goldman, an Orthodox Jew, desired to wear his yarmulke while on duty, but was disallowed. He sued based on his First Amendment right to practice his religious beliefs. The Supreme Court denied his challenge because the military requires conformity to conduct.
Goldman v. Weinberger relates to collegiate athletes because much like military members, they work in environments that require a strict code of conduct to achieve a goal. If the courts follow the Goldman case, they should provide universities with less scrutiny in the regulation of student-athletes’ usage of social media.
Penrose delivers three viable reasons that athletic departments should feel comfortable with regulating or banning social media usage for student-athletes:
- Constitutional rights in school are not identical to those in mainstream society.
- The rights of athletes have been limited and more heavily regulated than their fellow classmates.
- Like military personnel, athletes have uniform guidelines that ensure the good of the team before the individual.
Penrose poses a good question for student-athletes: “Touchdowns or Twitter?” I would hope nearly all the participants of the NCAA would answer touchdowns. Student-athletes are given a gift to play a sport at a high level; take advantage of it. Although I do not approve of full barring of social media usage to student athletes, Meg Penrose’s piece sure does make it seem plausible that the NCAA could regulate Facebook and Twitter with ease under the First Amendment.
The following article was written by Spencer Wingate.
Jerry R. Parkinson’s article “The Impact of Social Media on NCAA Infractions Cases” does an excellent job of analyzing the increasing importance of social media for the NCAA. The article demonstrates how new frontiers of communication serve as a mechanism to influence public perception and bring about possible infractions. However, social media serves as a double edged sword; at times wrongfully informing the public, but in other instances providing concrete evidence of infractions.
Parkinson was a member of the NCAA Division I Committee on Infractions from 2000-2010 (37). His experience enables him to note a number of specific instances social media has been involved in NCAA investigations. He notes that social media has led to a majority of people being ill-informed about how the NCAA works. It is a voluntary association that is self-policing. People often criticize the NCAA without realizing all of the NCAA’s power depends on the participation of its members. Therefore, communication is a fundamental necessity. Social media has made not only communication, but also miscommunication easier. Every fan now has a social media site to express his “expert” opinion (39). The masses can easily be influenced and develop an improper understanding of a scandal. The NCAA policy of not commenting on investigations only compounds the problem.
Social media can rapidly spread truthful evidence of NCAA violations just as quickly as misinformation is shared. Investigations have been spurned through information obtained via social media sites. Parkinson notes how the University of North Carolina administrators could have viewed their athletes’ social media sites to see their improper contact with agents (46). The evidence was clearly visible, but does that mean the university should monitor athletes’ social media sites? Parkinson believes the institutions are not responsible for monitoring, but they need to be proactive. If they are aware of an issue they need to take action.
Parkinson explains that the NCAA has little information about social media sites in its bylaws. The NCAA’s bottom-up structure makes rule alteration a slow moving process. Currently it is acceptable for a coach to privately Facebook message a recruit, but not publically post on his wall or send a text message. Coaches who committed the violation in the past have argued they did not know how the social media site worked. I contend the NCAA’s vague definitions leave the institution, coaches, and players often unaware of what is or is not a violation.
The NCAA’s responsibility is to provide for the welfare of the student athlete. NCAA infractions occur when a school attempts to gain an unfair advantage. Social media infractions have only been seen as secondary violations giving schools a minimal advantage. Parkinson’s conclusion is the NCAA expects schools to act in good-faith regarding social media. They cannot force fans or boosters to not interact with amateur athletes; the schools should just do their best to deter such contact. He believes as new cases emerge, new precedents will be set.
Parkinson’s time at the NCAA allows him to bring an interesting viewpoint, as he has been on the inside of NCAA investigations. However, in my opinion, I believe too much emphasis is placed on the school’s responsibility and not enough on the NCAA’s inefficient structure and conflicting double standards. The NCAA’s lack of rules regarding social media leaves infraction verdicts inconsistent. Schools do not know what they should be policing until another school commits an infraction. Then, the NCAA comes down on the school; so the lesson is everybody knows from now on? Not only should the university be educating its “representatives,” so should the NCAA. That begs the question, who exactly are university representatives? Parkinson determines a representative is someone who promotes, donates, or recruits for the school (58). Social media has made defining a representative very difficult. Is a fan creating a social media page clamoring for a recruit to commit to a school a violation? Furthermore, should fans not be allowed to friend potential recruits and post on their wall? Where does freedom of speech come into play? The NCAA rulebook generates more questions than it answers. The rules need to be clearly defined and not determined on a case-by-case basis with each new circumstance. I believe too much is expected from the institutions and not enough from the NCAA. The NCAA’s only source of information regarding possible infractions does not and should not come solely from the schools. Change and progression are important, but so is structure. The NCAA’s rules have too many shades of grey. The rules are meant to even the playing field for all schools, but naturally that is impossible. Some schools are bigger, generate more revenue, have more boosters, a better location, etc. The infractions structure must be transformed. Only then will it have meaning and provide guidance for the current state of affairs.
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:
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.
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.