Our MIT8 Presentation: The Interaction Between Public and Private Identities and Social Media Policies

We are sharing the written version of our MIT8 Presentation with everyone who wasn’t able to come to this amazing conference. We (at least one of us) have presented earlier versions before at several other conferences, including the Third Annual Internet Law Work In Progress Symposium. As always, we are open to comments and suggestions – and we thank all that have helped shape this conversation.

Introduction

The line between personal and professional identities is often blurred – and the increasing use of social media networks makes the line only more blurred. We are using the example of athletes not as the endpoint for this discussion, but instead as a starting point; athletes, especially team-based athletes, are at the nexus between public and private: never truly representing only themselves, even online.

Social media allows athletes a unique opportunity for athletes to connect directly with their fans, but it also allows for the risk for athletes – and all social media users – to share statements are best not be shared publicly – ranging from threats to racist or sexist statements (like two 2012 Summer Olympic athletes), to inappropriate statements, to NFL player Houston Texan Kareem Jackson tweeting pictures of cock fighting.

Major League Baseball’s  (MLB) policy demonstrates that professional sports sees the overall value in using social media,

“recogniz[ing] the importance of social media as an important way for players to communicate directly with fans. We encourage you to connect with fans through Twitter, Facebook, and other social media platforms. Along with MLB’s extensive social media activities, we hope that your efforts on social media will help bring fans closer to the game and have them engaged with baseball, your club and you in a meaningful way.”

Limitations by teams and organizations ranges on their members’ social media usage occurs from school-age athletes up,  but this essay primarily focuses on limitations imposed on adults in both professional sports and (technically) amateur sports, such as college athletes.

Some teams ban athletes and coaches from using social media during game time (including practice time).  However, many of the restrictions are much more limiting to the lives of athletes. To continue participating in college athletics, college athletes at many schools cannot use a list of banned words on their social media accounts — and these accounts are monitored by third-party applications.  The banned words can have multiple meanings, including entirely innocuous ones, such as ice, monkey, nine, slant, Spiderman, and zipper.

While some claim the purpose behind such bans and limitations on social media by athletes is to “help the athletes protect themselves,” the larger overall concern is based around branding and marketing of the teams (and schools). And the teams are willing to admit this: the University of Kentucky athletics spokesperson has said that “the only content of concern is what the public can see because that is what affects ‘the brand’ of the university and the athlete.”  Thankfully, some academic institutions, including public academic institutions do have social media policies that mention not only athletes, but also the difficulty in separating out personal and professional lives, including for athletes.

However, there are now an increasing number of state laws and National Labor Relations Board decisions that address how much an employer or educational institution the social media use of employees and others. The types of issues that employers and educational institutions face with athletes are often true in similar, broader cases.

We chose to use athletes as a case study on the complications of creating a social media policy for those that wish to limit social media use by employees, students, or others that can damage a brand.

Separation between personal and professional

Social media users sometimes share inane and inappropriate things. But this is true for anyone who uses social media, whether an athlete or not.

While social media can improve a company’s branding efforts, it can also damage brands in various ways. Each professional sports league has a social media policy, but so do specific teams. NFL teams have stricter social-media policies limiting players’ use of social media.  However, of the professional leagues, Major League Baseball is the most specific about specific branding protections in its policy, including:

•             “Displaying or transmitting Content via Social Media that reasonably could be construed as an official public communication of any MLB Entity without obtaining proper authorization.

•             Using an MLB Entity’s logo, mark, or written, photographic, video or audio property without obtaining proper authorization.

•             Linking to the website of any MLB Entity on any Social Media outlet without obtaining proper authorization.

•             Displaying or transmitting Content that contains confidential or proprietary information of any MLB Entity or its employees or agents, including, for example, financial information, medical information, strategic information, etc.”

These limitations are all related specifically to the intellectual property of the league and teams, such as trademarks and service marks, but there are also limitations closer to limitations based on actions – such as bans on insulting statements.

Time and place limitations

Many leagues and teams have limitations on using social media within certain time frames, usually within a certain amount of time close to game time. If these limitations are analogized to other types of workplaces, they make sense – athletes and others involved with the game are supposed to be focusing on the work at hand – and not communicating with others. For example, the NFL forbids the use of social media by players and coaches within a social media-free bubble from an hour-and-a-half before kickoff, including halftime, until after the game following media interviews. The limitations are not only for the players, but for anyone representing them during this prohibited time on social media accounts. Therefore, planned tweets scheduled to appear during this time (ex. “Piggers will go all the way today now I’m back in the game!”) are banned.  Even assuming that these restrictions exist for college athletes at state schools, these types of restrictions are likely acceptable under First Amendment principles.

Many professional athletes have been fined by their teams or leagues for violating time and place restrictions, including just in the NFL, several players being fined for violating the timeframe rule (including Michael Oher, Chad Ochocinco, Terrell Owens & Darnell Dockett). In addition, in 2009, the San Diego Chargers fined their quarterback Antonio Cromartie for tweeting about “nasty food” at training.

Taking a position

One example of the blending of multiple concerns regarding athlete social media use is one of the most retweeted tweets ever, as of September 27, 2012, the third most retweeted tweet ever behind Barack Obama and Justin Bieber.  On Sept. 25, 2012, replacement refs gave the Seattle Seahawks a winning touchdown through a controversial call leading to a 14-12 victory over the Green Bay Packers. In response to the call, Green Bay Packers’ guard TJ Lang tweeted from his verified Twitter account several angry tweets, including two tweets after game time – “Got fucked by the refs.. Embarrassing. Thanks nfl” , retweeted over 68,000 times and “Fuck it NFL.. Fine me and use the money to pay the regular refs.”, retweeted over 97,600 times.

On his Twitter page, both his profile picture and the background images are of Lang in his Packers uniform on the playing field. While other players have been fined for these types of statements, Lang was not.  His statement about the call was part of a larger call for the return of the regular NFL reps during the lockout, including the possibility of a players’ strike by the Packers.

Do these profanity-laden tweets make the team – or the league look bad, damaging the brand? Considering the high number of retweets and the general controversial nature of the game call, very likely not in this circumstance. However, Lang like many other athletes, celebrities, and general members of the public expresses himself in a variety of ways on Twitter – ranging from “Hope everyone is having a great Tuesday!”  to “Imagine if football was like hockey… Dudes just squaring up at mid field non stop… Except @jsitton71.. He’s a b*tch”  Lang also tweeted a response to his original tweets, saying that the “Only thing I regret from my tweets are the F bombs.. Sorry bout that.”

Lang did not receive any sanction for his post-Seahawk game tweets.

Federal Law

National Relations Labor Board

Assuming that athletes are indeed employees – a controversial issue when it comes to student athletes – then the National Relations Labor Board can be involved in limiting restrictions on social media policies. The Office of the General Counsel for the National Labor Relations Board (NLRB) has issued several reports regarding investigations involving the use of  social media and employers’  social  and general  media  policies. These reports show that employers have a right to protect their reputation and can fire an employee for their use of  social  media. However, the circumstances are limited – the employee’s actions on social media must be unrelated to working conditions, following a warning, and where the actions were of a sole employee. Companies can prohibit employees from sharing confidential information in  social media.  However, employees do have protection to discuss their work conditions on  social  media . Therefore, the closer the action is to workplace organizing, the greater likelihood that firing the employee would violate the Labor Relations act – and the closer the action is to simple griping the greater possibility that the firing would be legal.

Possible Federal Law

On Feb. 6, the Social Networking Online Protection Act (SNOPA) was reintroduced, which if enacted. would limit employer and school access to the log-in credentials of personal social media accounts of employees, job applicants, and current or prospective students. SNOPA also would regulate educational institutions’ access to current or potential students’ social media accounts, and would amend the 1965 Higher Education Act and 1965 Elementary and Secondary Education Act. In a Feb. 6 statement announcing the bill, Representative Eliot L. Engel said SNOPA was essential to preventing employer or school requests for personal accounts from becoming routine:

“The lack of clarity in the law puts individuals in a position where they either have to give up vital, private information, or risk losing their job, potential job, or enrollment in school and involvement in the school’s sports programs… Frankly, when there are no laws prohibiting institutions from requiring this information, it becomes a common practice.”

The bill would allow the secretary of labor to impose a fine of up to $10,000 against companies that unlawfully request user names, passwords, or other log-in credentials from employees or job applicants. A fine also could be imposed if employers retaliated against employees or applicants for refusing to provide login information or for filing a grievance after such a request. SNOPA would allow the secretary to bring an action in federal district court for injunctive relief requiring a company to comply with the law.

Laws Related to Social Media Access by Employers of Educational Institutions – As of January 2013

Many states are considering legislation this term regarding protecting social media accounts from prying eyes, whether from employers or educational institutions.

On August 1, 2012, the Illinois Governor Pat Quinn signed H.B. 3782 (Public Act 097-0875),  effective on January 1, 2013.  The new law amended the Right to Privacy in the Workplace Act,  providing that it shall be unlawful for employers to ask prospective employees information related to their social networking websites in order to gain access to such accounts or profiles.  This prohibition does not affect the usage and monitor the usage of the employers’ electronic equipment, nor affect employee’s information which can be obtained under other laws, such as information that is the public domain.

Similarly on Sep.27, 2012, California enacted social media privacy laws affecting employers and post-secondary educational institutions, effective Jan.1, 2013.  One law prohibits employers from requiring or requesting social media related information from their employees or respective employees.  It also prohibits employers to retaliate against an employee or applicant for not complying with a request or demand by a violating employer.  The other law prohibits similar activities by public and private post-secondary educational institutions, employees and representatives as to their students, prospective students or student groups.  It also requires institutions ensure compliance with these provisions and post the social media privacy policy on their web site.

As of January 2013, California, Delaware, Illinois, Maryland, Michigan, and New Jersey have limitations on how schools and/or employers can access social media accounts.

Best practices for social media from the perspective of leagues and teams

While social media employee behavior becomes a wider concern for businesses, the development of formal social media policies and guidelines in the workplace remain inconsistent. Issues regarding whether student athletes are indeed employees and whether restrictions on student athletes can be more limiting than on that of employees remain highly controversial.

Likewise, there have been inconsistencies in social media policy setting between United States- based professional sports teams and leagues which has made identification of “best practices” complicated at best:

•             The National Football League (NFL) prohibits game officials from using social media and prohibits players and coaches (and their representatives) from using social media 90 minutes before kickoff and may only update post-game after media interviews

•             The National Basketball Association (NBA) bans social media use starting 45 minutes before game time until post-game interviews are completed. The use of social media devices are also banned during the time period.

Major League Soccer (MLS) lacks a formal league-wide social media policy and instead institutes policies by team, while offering general guidelines on employee behavior in regards to overall league policies.

Major League Baseball has very specific policies for athlete social media activity, including:

o             Players cannot make official league statements without permission.

o             Players cannot use copyrighted team logos without permission

o             Players cannot link to any MLB website or platform from social media without permission.

o             No criticism of umpires or questioning their integrity.

o             No racist, sexist, homophobic, anti-religious, violent or sexually explicit content

The National Hockey League is even more specific in its policies:

o             Social media use by Hockey Operations personnel is prohibited on game day (including all Preseason, Regular Season and Playoff Games, but excluding All-Star events or other special purpose events or exhibitions) beginning at 11 a.m. on the day of the game and ending after post-game media interviews.

o             Social media use is prohibited beginning two (2) hours prior to the opening face-off and ending upon cessation of post-game media obligations.

o             All League/Club personnel and Players are reminded that giving, making, issuing, authorizing or endorsing any statements (including through social media) that: have or are designed to have an effect prejudicial to the welfare of the League, the game of hockey or a Member Club; or are publicly critical of officiating staff may constitute a violation of the NHL By-Laws and/or Constitution and may subject them to potential discipline.

•             Conversely, the National Collegiate Athletic Association (NCAA) has no league-wide social media policy, though some individual teams have banned social media use of players, such as Washington State University or closely monitor their use, such as the University of Kentucky and University of Louisville, who use social monitoring tools to automatically notify coaches when student-athletes use trigger terms such as “beer,” “porn,” or “robbery” on social media.

Individual professional teams have utilized marketing and communications departments to educate players on social media best practices and team or league–wide social media, for example, the New York Mets takes a “live and let live” policy with player social media accounts but educates players on social media etiquette.

Considerations in instituting a social media policy for athletes

Sports teams and leagues should take the following issues into account when instituting a social media policy:

1.)           Internal/league wide athlete codes

Social media policies should reflect and enforce the league-wide conduct policies and should be written with such policies as a guideline in order to remain consistent. When developing a social media policy, stakeholders should be mindful of corporate partners, community organizations, administrators and other important team relationships. An example of how such a relationship may be jeopardized is when Phoenix Suns player Steve Nash publicly vented annoyance with US Airways, a corporate partners of the Suns.

2.)           Local Laws and Requirements

As stated earlier, local laws and requirements vary from state to state and policy developers should keep these requirements in mind while developing policies. Any failure to comply to these requirements could negatively affect the sports organization through fines, legal action or other restrictions.

3.)           Confidential Information

Sports teams and all companies should be concerned with protecting confidential team information and personal information about athletes, coaches, referees and their families.

4.)           Personal versus professional

Athletes, like everyone else, have a right to a personal life. If what they are doing doesn’t have the possibility of negatively impacting the team or the league, such as in the athlete codes, the policy should not go out of its way to forbid expression.