Maybe Laing Kennedy, the athletic director at Kent State University, had it right all along.
Earlier this summer, he banned his student athletes from creating personal web sites on the popular FaceBook Internet portal. Kennedy told the Columbus Dispatch that “we’re really concerned about the safety of our student-athletes and some of the personal information some of them have on there.” Another reason for the decision, stated more obliquely, was that such exposure could hurt the image of the student athletes and the athletic department.
Neither reason held up very long, however, as Kennedy rescinded the ban weeks later. But did he have to?
Apparently not. A couple legal experts on the issue have told Sports Litigation Alert that the reasons proffered by Kennedy may have been enough to insulate the school from significant legal exposure.
Mike Straubel, the director of the Sports Law Clinic at the Valparaiso University School of Law, suggested to the Alert that the athletic department holds the leverage to enforce such a policy, noting that any student who participates on a team, even walk-ons or Division III athletes, “agrees to follow the rules of the university and team.”
Broadly construed, a typical athlete participation contract that the student-athlete signs may offer enough legal cover to support such a ban. This is founded, at least in part, on the premise that participating in collegiate athletics is a privilege, not a right, which gives schools an element of control over student-athletes. Supporting this is the 2002 U.S. Supreme Court case Board of Ed v. Earls in which the high court held that schools could conduct random drug tests on students participating in extracurricular activities.
The athlete participation contract would almost certainly be enforceable if a prohibition against participating on such sites is specifically addressed from the outset.
“Whether a school can include such a contract clause, is governed, at the start, by the general principle that the parties may include any clause that is not illegal. That being said, the first question is whether such a clause would violate the protections of the First Amendment. Because ‘state action’ would be necessary to trigger First Amendment protections, state school, but not private schools, could face limits on such a clause in the ‘athletic participation contract.’ However, as long as an athlete is clearly made aware of the restrictive clause at the beginning of term of the contract and manifests his consent to the clause, it should be possible for a State school to include restrictions of First Amendment rights.” Afterall, “people can waive Constitutional Rights.”
Straubel added “that the courts will narrowly construe any restraint on speech contained in a pledge for public policy reasons. The courts will probably look at the purpose behind such a restriction on speech, which so far falls into two categories: (1) the protection of athletes and (2) the protection of the school’s public image, though this reason may not be expressly stated in a pledge. I believe that the challenged speech should reasonably touch upon these two areas.
“Further, I believe that the courts will look at the decision in the MLB involving the John Rocker arbitration in which the arbitrator held that MLB could discipline pure speech off the field if it affected the business of baseball.”
In fact, the economic rationale or image issue addressed above may carry as much weight as the safety issue at some schools, notes Timothy Liam Epstein, Esq. of SmithAmundsen in Chicago.
“Keep in mind that schools may interpret Internet expression outside of personal websites as reflecting negatively on the school, giving that school leave to bring disciplinary action against said student-athlete,” Epstein told the Alert. As an example, he cited Florida State University’s Student-Athlete Code of Conduct/Discipline Policy:
“As the University’s most visible ambassadors, student-athletes at Florida State are expected to uphold, at all times, high standards of integrity and behavior which will reflect well upon themselves, their families, coaches, teammates, and the Department of Athletics and Florida State University. Student-athletes are expected to act with propriety, to respect the rights of others, and abide by all rules and regulations of Florida State University, the ACC, and the NCAA. Failure to do so may result in suspension from the team or even the university.”
One AD, John Planek of Chicago’s Loyola University, believes there is enough meat in the contract that student athletes sign at his school to legally support a ban. While Planek did not respond to requests for an interview, he has told the Associated Press that “parents entrust the well-being of their student-athletes with the university and with the athletic department. I look at it as protecting and maintaining the well-being of the student-athletes, and making sure they’re in a safe environment.”
While Planek and the aforementioned attorneys see legal support for a ban, others aren’t sure, pointing to potential pitfalls.
Safety Excuse Is ‘Preposterous’
Michael S. Cohen of Wolf Block in Philadelphia believes the claims of Planek and others about safety are mostly a red herring. “The idea that we’re trying to protect these kids is preposterous. Your telling me that the 6-foot-3, 240-pound linebacker needs more protection than 5-foot-4 Suzie.”
Cohen added that a school had better be prepared to police all student athletes. “You better not treat the male gymnast any different then you do the football player. The same argument applied within a team, between the star player and a walk-on. It’s another layer of compliance with legal risks.”
Compliance challenges aside, there is enough negative publicity around the safety issue that schools may have a free pass to treat the networking sites harshly, at least until they can get even better language in the participation contracts. The trick, however, is to impose the will of the athletic department in a tactful manner.
How should athletic directors approach this issue in the present and in the future? In next month’s issue, we will review the various policy options.
