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Hastings Communications and Entertainment Law Journal

Abstract

This article argues that the NCAA and its universities should not have any form of social media policy as it creates First and Fourth Amendment violations, as well as a liability for both the NCAA and its member schools. A social media policy should not limit constitutional rights, but rather any policy should educate the youth about important issues such as cyber-bullying, versus limiting constitutional rights. This article will focus on several issues: 1) whether the relationship between the NCAA and its student athletes constitutes an employer-employee relationship; 2) an evaluation of the social media policies concerning private employers and their employees as opposed to universities and their student athletes; 3) federal and state statutes concerning social media; and 4) constitutional violations which may arise from restrictive social media policies.

This article’s empirical analysis uses data collected from questionnaires—used to gain insight to the role of social media for student athletes—completed by compliance directors, a former student athlete, and a general counsel member of the National Football League to evaluate the present and future social media policies of the NCAA and several of its member schools’ athletic departments.

The NCAA tries to evade the labeling of an “employer-employee” relationship between itself and its student athletes because employers must pay their employees. Because the NCAA wants to evade paying wages, the NCAA resists being labeled as an employer. Due to this evasion, restrictive social media policies are inappropriate. Even if an employeremployee relationship does not exist, social media policies still have numerous First and Fourth Amendment potential violations as well as a host of other legal issues.

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