College football and basketball players are often the most recognizable celebrities in their college towns (and for an elite few, well beyond). Their faces adorn media guides, and their likenesses and stats are featured in top-selling video games.
But is there ever a time when athletes go “off duty” and regain the full privileges of adulthood? Like, for example, freedom of expression?
Increasingly, the answer of college athletic departments is “no.” They’re asserting 24/7 control over the students they regard as “representatives” of their colleges’ “brand,” even when those students are goofing around on non-school social media accounts at home on at Saturday night.
At state colleges and universities, the policies that athletes must abide by in exchange for continued eligibility are a matter of public record. They’re worth a look.
It’s becoming increasingly commonplace to require athletes to turn over their social-media passwords to private monitoring companies that, for a price, will screen each athlete’s postings and report back to the institution on what they find. Through these vendors, colleges can set up customized “screens” that will trigger an alert anytime an athlete uses a “red-flag word.”
The University of Kentucky and the University of Louisville dug out their thesauruses — or maybe their Urban Dictionaries — and compiled a comically detailed list of hundreds of banned terms they consider cause for alarm, including the names of prominent sports agents, brands of beer, and a remarkably exhaustive collection of euphemisms for “breasts.”
Among the most recent to crack down on is the University of Michigan where, AnnArbor.com reports, athletes are now required to sign a contract agreeing to abide by athletic department guidelines for “appropriate and permissible” speech online. Violations can carry penalties up to removal from the team. The guidelines provide, in part:
Everything you do in these forums should positively represent the Block M on the front of your jersey and your name on the back of the jersey. … DO think before you post, tweet or retweet — Will this positively reinforce my brand?
Although courts have readily found that voluntary participation in athletics can waive a student’s constitutional rights — for instance, the right to be free from drug testing with no basis for suspicion — the boundaries of what colleges can permissibly punish when athletes speak off-campus on personal time have yet to be tested.
Because political and religious speech receive an extra measure of constitutional deference, it seems unlikely that a court would permit discipline merely for such speech that is controversial or divisive — at least one major college, for instance, included words like “gay” and “Muslim” among its red-flag social media terms.
The First Amendment also disfavors vague regulations that give those regulated inadequate notice of where the standards lie, or leave unchecked enforcement discretion for decisionmakers to make subjective judgment calls. An athlete kicked out of school for failing to “positively reinforce his brand” might have a valid vagueness challenge under the First Amendment.
But as a practical matter, a court’s analysis is likely to turn on the severity of the discipline. No federal judge wants to weigh into the judgment as to which point guard deserved to start and which belonged on the bench for a quarter. But if the punishment threatens the student’s ability to receive an education — if punishment is tantamount to expulsion from college entirely — then certain due process guarantees apply, and the judicial inquiry will be more rigorous.
College journalists should ask, at least once a year, to see a copy of any social media policies and contracts to which athletes must agree — including (if not provided in those documents) the range of penalties that apply.
At a public institution, any agreements that the college has signed with a monitoring company such as Varsity Monitor or UDiligence — including any “forbidden words” lists — are also matters of public record, as are the payment terms under those contracts. They’ll make for fascinating reading. Even if some of the contents are un-tweetable.