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Social media has schools on defense


Many colleges and universities are monitoring student athletes' social media accounts for unsavory content, but some legal experts warn that such practices could expose the schools to litigation.

The schools, some using third-party firms (see related story), scan social media posts for content that could cause image problems or draw punitive action from the NCAA.

Pictures or comments depicting the athletes—especially high-profile ones—drinking excessively, in a sexually suggestive manner or otherwise behaving irresponsibly can inflict serious harm on a student or school's reputation. Even worse, athletes bragging about inappropriate gains or business relationships could jeopardize their own eligibility and expose their team to substantial fines and penalties from the NCAA for violation of its amateurism rules.

Some athletic directors and coaches tout proactive monitoring as a way to protect the students and the institutions, even if it carries the risk of being sued for negligence, reputational harm or discrimination.

“Any school that is right now actively monitoring any of its students' social media accounts is probably looking at major legal liabilities,” said Bradley S. Shear, Bethesda, Md.-based managing partner of the Law Office of Bradley S. Shear L.L.C., who handles social media cases and blogs on the subject.

In June, the NCAA notified the University of North Carolina at Chapel Hill of several allegations against its Division I football team and staff, including academic fraud and receipt of improper benefits. Also included in the notice was a citation for failure to “adequately and consistently monitor the social media activity” of its players.

The NCAA does not require its member schools to monitor social media accounts of student athletes. Rather, it “encourages schools to do so,” said a spokesman for the association.

“Their oversight can only help ensure individuals associated with the institution (i.e. staff, student athletes, etc.) are not violating NCAA rules nor jeopardizing the eligibility of student athletes on these platforms,” the NCAA spokesman said.

But, as Mr. Shear and other experts noted, the NCAA's encouragement to monitor social media coupled with its apparent willingness to punish schools for not “adequately and consistently” doing so seems to put schools in the awkward position of choosing between risking a failure-to-monitor sanction from the NCAA or potential legal liabilities from students and third parties.

“It opens up such a huge Pandora's box, and I don't think the NCAA really realizes what they've done here,” Mr. Shear said.

The NCAA declined comment on the implications of its allegations against UNC.

The circumstances under which a school might find itself in court over an item of social media content are fairly easy to predict, experts said.

If a university athletic department actively monitors its students' social media accounts and fails to recognize or act on information that could have predicted or prevented a loss—property damage, personal injury or death—the school could be sued for negligence or dereliction of duty, said Stephen Marcellino, a partner in the New York and White Plains, N.Y., offices of Wilson Elser Moskowitz Edelman & Dicker L.L.P.

“Once you take on that kind of policing activity, it creates an obligation,” Mr. Marcellino said. “One could easily posit a liability theory in terms of discharge of duty. It's almost a case of "Be careful what you wish for.'”

On the other hand, acting too swiftly on information obtained through social media monitoring also might not be advisable. Even if every post by every student under surveillance were authenticated, experts worry whether school and athletic administrators can correctly interpret the content of each post.

Jennifer Whittington, executive director of the Bloomington, Ind.-based University Risk Management & Insurance Assn., said a student suspended or kicked off a team for a post that he or she did not author or that was taken out of context could file a claim against the school for reputational damage or lost future financial benefits linked to their athletic talents.

A university also could face litigation based on how it determines which students to monitor. Sheheryar Sardar, a partner at the New York-based Sardar Law Firm L.L.C. and author on using social media, said a school that monitors only some of its students—such as athletes—and not the rest could be accused of discrimination or violating students' 14th Amendment right of equal protection.

“It's just not advisable for any school to regularly monitor a student's social media use,” said Alyssa Keehan, senior risk counsel for the Chevy Chase, Md.-based United Educators Insurance, a Reciprocal Risk Retention Group. “Social media, really, is just another medium for behavior; and just as you can't feasibly monitor every student's behavior 24/7, it's unreasonable to try to do that with social media postings.”

“They're essentially assuming a duty of care that they can't enforce,” Ms. Keehan added.

How universities have interpreted the NCAA's recommendation to monitor athletes' social media postings differs by campus.

After the NCAA's investigation in spring and summer 2010, UNC established a policy for all athletic programs mandating that each team designate a coach or administrator “who is responsible for having access to and regularly monitoring the content of team members' social networking sites and postings.”

Kevin Best, a spokesman for the university's athletic department, said the policy is intended to catch content that could draw fines and penalties from the NCAA and to protect the reputation of the school and its students. However, he admitted the practice could create other legal exposures for the university.

“There is the potential for liability there, certainly,” Mr. Best said.

The NCAA's recommendation notwithstanding, some schools choose not to monitor any student accounts, regardless of their extracurricular activities.

“We're not in the business of policing their activities as if they were at home,” said Gary Langsdale, risk officer at Pennsylvania State University in State College, Pa. “If people want to post a comment about us or about whatever it is they want, they have to be accountable for it individually. We're not their parents.”

Mr. Langsdale described the NCAA's position on social media monitoring as “an interesting conundrum.”

Student athletes' social media postings at Oklahoma State University in Stillwater also are not actively monitored, said Mike Bale, the school's director of risk management.

Instead, the school's athletics handbook tells players that they ultimately are responsible for any content posted on their accounts, and are warned that coaches and school administrators—as well as future employers and graduate programs—can view it “just as easily as their peers.” Mr. Bale said the NCAA's recommendation to monitor student athletes' use of social media is bound to cause confusion until the rule, and its intent, are better defined.

“Certainly, anytime you have instructions that are vague or aren't clear, they will be misinterpreted and they will be cause for concern to those affected,” Mr. Bale said. “Terms like "adequately and consistently' can and will be broadly interpreted. We may have to wait and see how the NCAA rules on several cases before we really know what it means for compliance purposes.”