In connection with its coverage of national signing day, ESPN.com recently highlighted that social media is increasingly being utilized by coaches to contact, recruit and gather information about players. For players, it’s a way to get recruited, control the message and interact with fans and other recruits at unprecedented levels.  And, like in the workplace, misuse of the media can have unfortunate consequences. A New Jersey high school prospect recently found this out when he was expelled from Don Bosco Preparatory after questionable posts were viewed on his Twitter account.  We have noticed similar trends and similar missteps in the employment context, where social media is often being utilized by companies and employees without first being well thought out. 

While the NCAA does provide some social media regulations, online interaction is far less regulated than more “old fashioned” forms of communication. According to Gregg Clifton, Co-chair of the Jackson Lewis’ Collegiate and Professional Sports Industry Group, “The days of face-to-face interaction between coach and recruit have been forever transformed. While the NCAA limits direct phone contact and texting by coaches to recruits, current NCAA regulatory freedom still permits coaches to use social media to contact, recruit, and gather information about players they are considering for their programs.” Similarly, both state and federal employment law struggle to keep up with the ever expanding social media realm.  This was most recently highlighted by the NLRB General Counsel’s report on social media. Consequently, even for employers that do have social media policies, they often do not address key issues such as the company’s presence on-line, regulatory requirements that apply in their industry, and how managers and supervisors should and should not be using the medium. In fact, as shown by many of the NLRB’s rulings discussed in the recent report, many policies contain overbroad proscriptions that violate a variety of laws.  

To keep up with social media, some schools are hiring individuals to monitor the social media of prospective student-athletes and to make sure that improper interaction is not occurring, as well as to ensure confidential information, such as under FERPA, is not being disclosed.  Employers too are seeking to hire individuals to not only assist in utilizing social media for marketing, but also individuals who can monitor how social media is and should be utilized in employment decisions.  This is particularly true for statutes and regulations which one may not necessary link with social media.  For example, employers often don’t realize that they may improperly acquire genetic information in violation of the GINA by “friending” or “following” employees or applicants. 

Of course, schools also are employers…so, while universities and colleges need to institute effective policies and procedures to address their use of social media in recruiting, they also must address social media usage in the employment context.