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Athletes give up constitutional rights

It's unlikely Georgia men's basketball coach Mark Fox expected to become the poster boy for the surprising and sometimes legally questionable lengths that some public universities go to monitor their athletes' social media accounts and other aspects of their behavior.

But that's what happened when it became public knowledge recently that Fox's team rules go far beyond setting a policy that requires players to register their Twitter accounts with him, under the threat of deactivation if he didn't like what they tweet. He also strayed into addressing what is expected regarding clothing ("[I] don't want sagging, should never see the crack of your ass"), hair styles ("shaven, no braids"), sexual practices ("Orgies and gang bangs are inappropriate. ... Hicky's [sic]/passion marks should not ever be noticed by coaches") and dating ("One. Not two or three girlfriends").

Fox's players are even warned that their dorm rooms or apartments are subject to spot searches because, "We're paying so we're inspecting. I can enter the dorm at any time."

Under other circumstances, finding out a major college team truly, seriously has an officially articulated "no hickey" policy might be almost -- almost -- funny until you read the rest of the just-published investigation that a group of University of Maryland student journalists did into the team policies at 83 public universities last semester. That's where the information about Fox appeared. The students obtained hundreds of documents that detailed how college athletes are treated at dozens of other schools, and the Student Press Law Center posted the findings here.

Their report was posted days before Texas Tech football coach Kliff Kingsbury appeared at the South by Southwest (SXSW) festival in Austin, Texas, and -- in addition to saying he goes by the mantra "all pub is good pub" -- said he has some of his staff post phony profiles of "cute girls" on Facebook and Twitter and then initiate online interactions with Tech's unsuspecting players.

(At least when Manti Te'o was the victim of an infamous "catfishing" scam while at Notre Dame, it was by someone outside his own football program.)

"You find out they're pretty quick to follow [the fake women]," Kingsbury laughed at SXSW, adding that his staff then decides which players should be talked to about their social media habits.

While the idea of a college coach yanking the choke chain on his players by controlling every detail of their lives is not really news, piling on some pervasive 24/7 monitoring of players' social media and instant messaging accounts in real time is a newer frontier.

And although the Maryland journalists initially set out to investigate only social media, one byproduct was their discovery of the highly arbitrary and far-reaching other rules many athletes are required to sign as a condition of playing. Quite often the school or coaches' self-interest and desire to build "the brand" trumps the athletes' freedoms.

"One of the things that stood out for me was when you sign some of these agreements, you're literally signing your life away for four years," says Scott Zlotnick, a senior broadcasting major and teaching assistant at Maryland who was involved in the project. "When we first started, we were saying, 'Wow, this is kind of ridiculous. What else is there to be found?'" A lot, as it turned out.

What makes the Maryland investigation really timely is the way it dovetails with college athletes' growing restlessness about their treatment, and athletes' increasing tendency to speak up -- even organize -- to assert their rights.

The other striking thing? There's a certain power evoked by seeing so much information documented in such detail for the first time in one place. Surprises -- many of them eyebrow raising -- abound when you drill down and click through the corroborating documents that are linked to in the Student Press Law Center's online piece about the report. For example, North Carolina (like many universities) paid a private firm $8,640 to police its athletes' social media accounts 24 hours a day last year and is among the many schools that require players to turn over all passwords and account names.

But the controls stretch far beyond that. Sylvia Hatchell's women's basketball team also has a policy that prohibits athletes from seeking medical treatment at a hospital emergency room until they speak first to a designated university employee -- or the bill will go unpaid.

At Ohio State, athletes are told administrators will keep track of "social networks of all kinds, including but not limited to Facebook, Twitter, MySpace, LinkedIn, YouTube, Tumblr, Instagram and Flickr" for posts that "do not foster ... positive team culture," or violate team or university rules. But Western Kentucky is even more comprehensive; it's among the schools where some athletes are required to stay offline during certain hours or turn in all social media-connected devices, period, on road trips.

Many athletes are told to avoid tweeting about the recruits visiting on campus. But the North Carolina men's lacrosse team has a rule that current players who are hosting a recruit better be prepared to get acquainted with sleeping on their sofa or a spot on the floor because "YOU ARE REQUIRED TO GIVE UP YOUR BED FOR PROSPECT" if need be.

Akron, Florida State and Oklahoma State warn their athletes: "Do not have a false sense of security about your rights to freedom of speech. Understand that freedom of speech is not unlimited."

But wait -- what about an athlete's First Amendment right to free speech, which public institutions are not permitted to limit for non-employees? How does the Fourth Amendment protect people from the kind of room searches Georgia's Fox warns he has carte blanche to make?

"Those First Amendment statements may be one of the most offensive things I've read in my life -- it's just so over the top," Howard Wasserman, a Florida International law professor who specializes in sports issues, said in a recent phone interview. "If a public university tried to apply that kind of rule to a regular student, I'm sure a regular student would win the inevitable First Amendment lawsuit."

What about reserving the right to search athletes' dorm rooms? "It's objectionable for the same reason we have the Fourth Amendment in the first place," Wasserman said. "The government shouldn't be able to search whenever it wants to. It says we recognize we have certain basic notions of privacy in this country we'd like to hang onto. The idea of playing sports at a school shouldn't mean having to waive any and all rights to privacy.''

Fox responded to an ESPN.com request for comment via a Georgia spokesman, who wrote in an email that Fox said "his policies are always evolving, so they are always subject to review and change."

Kingsbury declined to comment for this story because, according to an email response from a Texas Tech spokesman, "He is extremely busy this week."

University officials do, of course, have legitimate reasons for team codes of conduct. They say they want to encourage good behavior, and there is certainly nothing wrong with that. They say they're instituting safeguards to avoid running afoul of the NCAA's labyrinthine rules, which is another legitimate concern.

But doesn't it depart from the mission of a higher education institution when athletes are threatened with gag orders for unpopular opinions, or the North Carolina men's lacrosse team dress code barks, "We are not looking for individuality****...(No Bow Ties, Sunglasses, etc.)"? God forbid a university encouraged individuality or free-thinkers. To Wasserman's point, what's to prevent schools from going too far and violating the spirit of a little thing like an athlete's constitutional rights? As soon as an athlete signs one of these agreements, many coaches or universities have unnervingly broad discretion to define what constitutes "acceptable" or "negative" behavior -- sometimes for things as trivial as a tongue piercing. And coaches claim "sole discretion" to dole out punishments ranging from suspensions to ordering mandatory counseling to revoking scholarships.

Which raises a question: While universities are monitoring the athletes, who is monitoring the universities and coaches? "These schools can get away with because the athlete let them get away with it," Wasserman said. "Right now, there isn't much case law on how this applies to [college] athletes. A lot of this hasn't been tested in court. Realistically, there's a reason for that: It's very difficult for one athlete to stand up and say, 'No, I'm not going to stand for this.' But a group of students might."

College athletes and outsiders are indeed standing up to the NCAA on myriad fronts. They're not just repeating the decades-old complaints about how colleges rake in billions from March Madness or football national title playoffs while they get none of that windfall.

Connecticut senior guard Shabazz Napier controversially took a moment at the microphone during the Huskies' national title celebration to criticize the NCAA's Academic Progress Rating system that banned UConn from playing in the tournament last year, and to complain that school-provided benefits to athletes are so restricted that athletes have "hungry nights." Thus embarrassed, the NCAA announced Tuesday it would change its policies.

Ed O'Bannon's lawsuit against the NCAA for restricting athletes' ability to profit from the use of their likenesses continues to crawl through the court system, and college athletes are beginning to complain louder and louder about issues such as how they deserve a cost-of-attendance stipend, how they're monitored and treated for concussions, and how they're stuck with post-playing days medical expenses when their eligibility runs out for injuries they suffered while playing.

Last fall, some football players from Georgia Tech, Georgia and Northwestern wrote "APU" -- for "All Players United" -- on their gear for one game. It turned out to be a precursor to the case that Northwestern quarterback Kain Colter recently led before the National Labor Relations Board, which won the right for college players at private universities to unionize.

And WNBA star Brittney Griner has been frank since leaving Baylor, a private Baptist university, about how censored she felt there even as she was leading the team to NCAA title games, and how it negatively impacted her. In a wide-ranging ESPN The Magazine story with Kate Fagan, Griner said she felt unable to publicly discuss that she was gay, though it was an open secret, and she spoke about how head coach Kim Mulkey, whom Griner came out to when Mulkey was recruiting her, later required her to wear a long-sleeved shirt when she played to cover her tattoos. Griner also said when coaches noticed she had sent a tweet to an ex-girlfriend, she was told to delete the post.

But why? "Kim always said all of it would look bad for recruiting," Griner's former teammate Jordan Madden told Fagan.

It's not hard to see what's often going on here, says Hudson Taylor, who has the special perspective from being an All-American wrestler at Maryland, a volunteer assistant coach right now at Columbia and an activist who started Athlete Ally, an alliance of straight and gay athletes and their supporters who are trying to combat homophobia in sports worldwide.

"More often than not, these policies about social media or other things are not put in place to make athletes make good decisions, but to make sure the school or team is protected," Taylor says. "There's a concern it could have a negative impact on the brand of the university."

So God Save The Brand (if not the child)?

That temptation highlights another reason why the Maryland student journalists' project was so valuable.

Zlotnick, the teaching assistant, says there was definitely a snowballing feeling among the student journalists as the project went on that they were performing an important service for their peers who play sports. One student, Melissa Katz, was so determined that she peppered UNC officials with 75 messages until she finally got the public documents she requested.

"For me, one of the most important things we found was these student-athletes don't have the same rights as other students," Zlotnick said. "And their voices are silenced just because they play sports for their school."

Sandra Banisky, a professor in Maryland's school of journalism, says, "I'm surprised all the time by how passive athletes are in my classes when we discuss their treatment. A lot of them repeat how schools always tell them, 'Playing is not a right. It's a privilege.' "

But how much longer before more college athletes push back on that front, too? College athletes shouldn't have to choose between playing their sport or surrendering rights the rest of us treat as givens.