Category Archives: Social Media

What’s in a John(ny) Hancock?

What’s in a John(ny) Hancock?

By: Robert Peel

            When Johnny Manziel allegedly signed autographs for money, he did much more than make a quick dollar or two if the allegations were actually true. He did something far more profound than he ever could have realized: he popularized the modern movement against the hypocrisy of the National Collegiate Athletic Association (NCAA).[1] Because of Johnny Manziel’s high public profile, the advent of social media, and the recent drastic missteps of the NCAA in their enforcement divisions, namely overreaching against the University of Miami and going well outside their bylaws for Penn State University[2], the furor has reached fever pitch against the organization that has “guided” amateur athletics for over 100 years. So what does Johnny Manziel and the NCAA have to do with a blog on civil rights and civil liberties? While even the vast majority of the people who followed the autograph “scandal” closely likely do not know why Manziel’s inability to profit from his own signature is important, the right implicated is the right to publicity, and namely the right to profit under that publicity which is the central issue in a class action lawsuit of former players against the NCAA and EA Sports.

The facts of the story involving Johnny Manziel and his alleged autographing pictures for pay are simple. Several media outlets began reporting over the summer that Johnny Manziel had accepted five-figure payments for his autograph on several photographs, and that his friend had brokered the arrangement with several different autograph dealers.[3] While the autograph dealers would speak to the media outlets, they refused to speak to the NCAA, which essentially rendered their investigation impotent. The motivations of the autograph dealers for disclosing the alleged NCAA violations to the media, but not to the NCAA is unclear. After a lengthy investigation (though certainly brief by NCAA standards), NCAA found Johnny Manziel guilty of a lesser violation (a plea deal of sorts) and deemed him ineligible to play in the first half of Texas A&M’s season opening game against Rice.[4] At contention with the well-known right of publicity is the fact that the alleged NCAA violation occurred because Johnny Manziel was supposed to have known that by signing so many autographs, even without receiving compensation, someone could have profited off of his image.[5] While the public’s reaction was largely that the NCAA’s rules were yet again proven to be ridiculous, the public outrage against the NCAA and its rules against a player profiting off of his own image or autograph was unmistakable.[6]

The outrage began during the NCAA investigation when several media members, notably Jay Bilas, decided to go to the NCAA apparel store online and simply type in the name “Manziel” in the search function of the website which brought up a number two Texas A&M jersey.[7] He then repeated the search with the last names of several big NCAA college football stars including Jadeveon Clowney, Teddy Bridgewater, and AJ McCarron which brought up their respective jerseys as well.  Upon completing his search, Bilas went to social media to post his findings, and the messages went viral.[8] While public outrage compelled the NCAA to remove quickly the search feature from the website, the hypocrisy of the NCAA had finally been exposed on social media given the popularity and polarizing nature of Johnny Manziel. Additionally, several reports came out that Texas A&M was selling tickets for several thousand dollars for the privilege of sitting at a table with Johnny Manziel at booster events.[9] Furthermore, Texas A&M, along with most other major universities, profit nicely from the jersey sales of their current star players (no names are allowed on the jerseys, but there is little doubt whose jersey is being purchased by the fans).[10]  While the NCAA rules prevent the amateur athlete from profiting from his own likeness or image, apparently nothing in the rulebook prevents the NCAA or its member institutions from profiting immensely from their players’ images, either directly, by jersey and other apparel sales, or indirectly from the billions of dollars that flood into the athletic departments of major universities annually from ticket sales and television deals.[11]

Additionally, the NCAA is currently embroiled in a major lawsuit involving EA Sports’s college football videogame which features the likenesses of the college football players given that the vital statistics of those players, while not given names, but merely numbers, match up favorably with most of the college players who that number on the given year of release for the game.[12] While the NCAA has said that no players’ likenesses were used on the game, it ended its association with EA Sports[13] because of the pending lawsuit, and many major college conferences have refused to let their member schools license their logos for future college football games from EA Sports.

So why is all of this such a big deal? It is because of the well known right that celebrities have to their publicity, or in other words, the right of a person to make money off of his own image or likeness.[14] The NCAA’s rules and hypocrisy violate two major provisions of this rule: first, the rules prevent a player from earning publicity off of his own image, and two the rules apparently allow for someone else profit off of the amateur athlete’s image. While law review articles have written arguments that question the wisdom of this policy, the right of publicity is well entrenched in American societies with over twenty states having codified the provisions in statutes, and common law generally favoring the rights of publicity for public figures.[15] While the rights of publicity can be minimized if a story about a public figure is “newsworthy” such as ESPN making money off of story involving a football game in which Johnny Manziel had participated because of its newsworthy status, a company could not conceivably do as the NCAA and its institutions do, sell a Johnny Manziel jersey without paying him some kind of royalty for the right to use his name.[16] While the jersey may not have his name on it, a simple search of “Manziel” in the previous search engine on the NCAA’s apparel website would bring up his jersey (as discussed previously).[17]

The rights of publicity have been long entrenched in American society, with some sources dating the origins of the philosophy to the founding of this nation[18], and the NCAA should modernize its statue to allow players to profit from their success, especially given the impoverished status of many of the biggest stars in the NCAA, Manziel and his family’s wealth notwithstanding. The NCAA cannot enforce its rules consistently and effectively, despite the good faith efforts of its member institutions and their coaches. With so many wealthy boosters and agents tempting young college kids who in many cases were impoverished or suffered some kind of hardship such as being a Katrina refugee[19], or the coach who does the morally correct thing in buying a hungry (and insolvent) football player some tacos so that he can eat[20], the NCAA’s rules need to be updated for the modern world, and by embracing the age-old right to publicity for its athletes, the NCAA may be able to do the correct thing for its players, while being lauded for finally approaching an issue with common sense.


[1] Clay Travis, Manziel Episode Could Stagger NCAA, FOX SPORTS, (Aug. 30, 2013, 2:06 AM) http://msn.foxsports.com/collegefootball/story/johnny-manziel-autograph-payment-episode-could-stagger-ncaa-going-forward-080613

[2]  George Schroeder, Analysis: The Johnny Manziel Autograph Case, USA TODAY, (Aug. 16, 2013, 7:47 PM) http://www.usatoday.com/story/sports/ncaaf/sec/2013/08/15/johnny-manziel-texas-am-ncaa-investigation-autographs-for-money/2662257/

[3] Id.

[4]  Peter Berkes, Johnny Manziel Briefly Suspended, Ending NCAA Autographs Investigation, (Aug. 28, 2013 3:10 PM) http://www.sbnation.com/college-football/2013/8/28/4668634/johnny-manziel-suspended-texas-a-m

[5] Id.

[6] See generally supra, Travis

[7] Andy Staples, Online Jersey Sales Highlight NCAA’s Hypocrisy on Amateurism, SPORTS ILLUSTRATED, (Aug. 7, 2013 12:14 AM) http://sportsillustrated.cnn.com/college-football/news/20130807/jersey-ncaa-sales-manziel-clowney/

[8] Id.

[9] See generally Gregg Easterbrook, NCAA Can’t Allow Elite to Stand Apart, ESPN, (Aug. 13, 2013). http://espn.go.com/college-football/story/_/id/9559558/letting-johnny-manziel-other-stars-work-own-deals-harm-college-sports

[10] Id.

[11] Id.

[12] See generally NCAA to End Deal with EA Sports, ESPN, (Jul. 17, 2013, 7:54 PM) http://espn.go.com/college-football/story/_/id/9486048/ncaa-not-renewing-contract-ea-sports-video-games

[13] Id.

[14] See generally Michael Maddow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 Cal. L. Rev. 127, (Jan. 1993).

[15] Id.

[16] Id.

[17] Supra Staples

[18] Supra Maddow

[19] Ty Duffy, D.J. Fluker, Tyler Bray, and Fletcher Cox Accepted Improper Benefits, According to Yahoo Sports (Sep. 11, 2013, 6:13 PM)

[20] Chip Patterson, Arian Foster: “I was getting money on the side” at Tennessee, CBS SPORTS, (Sep. 20, 2013 2:13 PM)

You Posted What?! “Private” Social Media Posts Are NOT Private Under Fourth Amendment

Vish Shah, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

Vish Shah, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

We all have those friends with constant Facebook updates:

“Getting ready for Singles Awareness Day… :(”

“OMG, I have the best boyfriend ever!”

“Facebook is changing again?! I just got used to it!”

Aside from minor annoyances, Facebook’s good far outweighs the bad. Like other social networking sites, Facebook allows its users to stay “connected” to old friends and family. But for Christine Rubio, a Facebook post cost Rubio her job, at least temporarily. Rubio, a 38-year-old woman, taught fifth grade math at Brooklyn Public School 203. With 15 years under her belt, Rubio enjoyed tenure. She had no disciplinary issues or U-Ratings aside from an unrelated incident.

On June 22, 2010, a New York public school student fatally drowned during a field trip to the beach. The next morning, Rubio logged on her Facebook profile. She posted a message about how awful it was that the twelve-year old girl had drowned. But after a rough day of school, she later logged back on at her home, stating, “After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are devils (sic) spawn!” One of Rubio’s Facebook friends then commented on the post, “oh you would let little Kwame float away!” Rubio responded, “Yes, I wld (sic) not throw a life jacket in for a million!!”

Although she removed the posts three days later, the damage was already done. One of Rubio’s Facebook friends, who also worked at PS 203, contacted the school’s assistant principal and expressed concern about the propriety of the postings. After showing the posts to the principal, an investigation began. The investigator recommended that Rubio be terminated. The principal met with Rubio to discuss the situation and showed her the report. Rubio responded that she did not remember the postings and that a friend, Joanne Engel, had access to her Facebook account. Rubio provided contact information and the investigator re-opened the investigation, which included an interview with Engel.

During this interview, Engel admitted responsibility for the postings. But when the investigator expressed disbelief and warned that she could be incarcerated for perjury, Engel came clean. She confessed that the Rubio had asked her to take responsibility for the postings so Rubio would not lose her job. When asked about Engel’s confession, Rubio repeatedly denied having asked her friend to take the blame. She apologized numerous times during her New York School District hearings.

But that wasn’t enough to save her job. The hearing officer, in a 52-page opinion, found that Rubio had posted the messages, emphasizing that she had engaged in conduct unbecoming a teacher by posting offensive comments in a forum that is not truly private. Rubio was later terminated.

On appeal to the New York State Supreme Court (a trial court hearing appeals from the Department of Education), Judge Jaffe reduced Rubio’s penalty. In evaluating whether Rubio’s “punishment fit the crime,” Judge Jaffe credited Rubio’s unblemished record and the fact that Rubio posted the comment outside of school after school hours. She added, “Ending [Rubio’s] long-term employment on the basis of a single isolated lapse of judgment teaches otherwise.” Rubio successfully won her job back.

What’s most interesting about Rubio’s case is her defense. Because her profile was set on the private setting, Rubio’s post only was distributed to her Facebook friends – a small, private, adults-only audience. Thus, she expected that only her friends would see the postings. Regardless of her claim, one of Rubio’s Facebook friends turned her in. The important (and more interesting) implication is the scope of “privacy” of Facebook and other social networking.

With the boom of social media, the intersection with the law has become a topic of conversation. Most people assume that the information they send through their “locked” or “private” profile is actually private. Behind the veil of a computer screen, people are actually emboldened to post otherwise questionable material. Perhaps that is why Rubio and millions of others use Facebook to rant when angry.

Federal Rule of Civil Procedure 26(b)(1) allows a party to discover “any nonprivileged matter that is relevant to any party’s claim or defense.” And as more people put more of their personal life on Facebook and other sites, litigants are increasingly using the sites for discovery and evidentiary purposes. See Mackelprang v. Fidelity National Title Agency of Nevada, Inc., 2007 WL 119149 (D.Nev. 2007) (recognizing defendant’s right to request discovery of private MySpace messages relevant to plaintiff’s sexual harassment allegations).

In “locking” the profile or making it “private,” a user’s intent that the profile be shielded from the public may not be a legitimate basis for exclusion. But the actual release of information, whether or not it is set to private, may depend on where you live. In fact, as some law review articles have analyzed, U.S. courts have issued inconsistent holdings with different analyses and results. These holdings range from requiring the litigant to turn over all social networking information including logins and passwords, to enlisting the judge in the case to “friend” the litigant to obtain access to information and perform an in camera (“behind closed doors”) review, to allowing discovery of any information that fulfills narrowly tailored discovery requests.[1] The analysis may be further confused if litigants are trying to obtain information directly from social media sites.

For example, Facebook lets you know that it may reveal information when requested legally. Here’s a Facebook page that you have likely never seen:

We may share your information in response to a legal request (like a search warrant, court order or subpoena) if we have a good faith belief that the law requires us to do so. This may include responding to legal requests from jurisdictions outside of the United States where we have a good faith belief that the response is required by law in that jurisdiction, affects users in that jurisdiction, and is consistent with internationally recognized standards. We may also share information when we have a good faith belief it is necessary to: detect, prevent and address fraud and other illegal activity; to protect ourselves and you from violations of our Statement of Rights and Responsibilities; and to prevent death or imminent bodily harm.

But until the discoverability rules materialize into a set form, social media users need to be aware that their content is not as “private” as they think it is. Furthermore, users may need to be more selective in accepting friend requests. After all, it was a Facebook friend of Rubio’s that turned her in. Whatever the specific parameters of the discoverability of social media, one thing is clear: the information is available, making courts more susceptible to using your own posts against you. Use at your own peril.

Sources

Evan E. North, Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites, 58 U. Kan. L. Rev. 1279 (2010)

http://www.abc15.com/dpp/news/now_at_nine/teacher-burned-over-facebook-post

http://www.huffingtonpost.com/2012/02/07/christine-rubino-teacher-who-said-kids-deserved-to-drown-getting-job-back-city-vows-to-fight_n_1260144.html?ref=new-york&ir=New%20York

http://www.dailymail.co.uk/news/article-2096955/Teacher-Christine-Rubino-allowed-KEEP-job-despite-tasteless-joke-Facebook.html?ito=feeds-newsxml

http://www.nydailynews.com/new-york/education/city-vows-appeal-manhattan-judge-decision-give-drown-teacher-christine-rubino-job-back-article-1.1018080

http://nycrubberroomreporter.blogspot.com/2012/02/true-story-of-teacher-christine-rubino.html

http://www.facebook.com/about/privacy/other

http://publicintelligence.net/facebook-law-enforcement-subpoena-guides/

[1]Kelly Ann Bub, Privacy’s Role in the Discovery of Social Networking Site Information, 64 SMU L. Rev. 1433, 1442 (2011).

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