This past summer, the University of North Carolina was hit with a bevy of NCAA sanctions stemming from several members of its football team having received improper benefits from sports agents in violation of the NCAA’s amateurism rules. Scandals like the one that hit UNC are nothing new to college football, as the University of Southern California, the University of Miami, the Ohio State University and others have likewise faced the wrath of NCAA sanctions for their student-athletes’ impermissible relationship with agents and receipt of money, cars, houses…you name it. What’s notable about the UNC scandal is the role that social media played in the whole fiasco. In its Notice of Allegations, the NCAA cited UNC for its failure to properly monitor the social media activity of its football players. One player in particular had several Twitter posts that indicated that he was receiving impermissible benefits, to which the UNC athletic department was oblivious and which reportedly initiated the investigation.
In light of the NCAA’s decision in the UNC case, it is clear that NCAA member institutions bear considerable risk to their reputations and good-standing with the NCAA if student-athletes’ social media use is not addressed in some manner. But what are schools to do?
Some schools have chosen to allow student-athletes to continue to use social media sites, subject to monitoring by the school’s athletic department. To assist with this task, a number of schools have turned to third-parties whose business platform is based on monitoring student-athletes social media use. One site, Udiligence, describes itself as “the industry leading social network monitoring service that helps collegiate athletic departments protect against damaging posts made by student athletes.” Potential First Amendment and privacy issues are largely avoided in this realm in that student-athletes must consent to being monitored by taking the affirmative step of downloading an application that monitors their use. Still, when schools make submission to monitoring a condition of participating in athletics, one could argue that such consent is not freely given.
Other schools have taken a more radical approach to mitigating the potentially damaging effects of unbridled social media use by banning student-athletes from using it altogether. While the risk of NCAA violations and damage to a school’s reputation is diminished, if not altogether extinguished, by this approach, a public university that institutes a complete ban of social media use could potentially face a legal challenge from a student athlete on First Amendment grounds. The Supreme Court has held that university students are afforded the same First Amendment protections as the general population of adults. When a university institutes a total ban for the use of social media for student-athletes, the act is tantamount to a prior restraint on speech. According to Black’s Law dictionary, a prior restraint is defined as “any scheme which gives public officials the power to deny use of a forum in advance of [the] actual expression.” Under prior restraint analysis, the public university defendant faces a steep burden in proving the need for such a restraint on speech and must meet certain constitutional requirements mandated by the Court.
In light of the potential for litigation that exists with a total ban, and the inherent creepiness/Big Brother aspect of using a site like Udiligence, the most sensible approach to student-athletes’ and social media involves educating student-athletes on the risks of social media use and distributing guidelines about what constitutes acceptable usage.