Privacy Rights of Collegiate Athletes
By: Zoe Wen
Abstract
This paper examines three critical privacy issues in the context of collegiate sports through the Supreme Court’s evolving right to privacy jurisprudence, federal statutes governing collegiate athletes’ privacy, and trends in university regulations and practices. The three pressing privacy concerns are (1) bodily privacy and the use of biometric information tracking devices and drug tests; (2) informational privacy concerning the release of academic and injury information and social media monitoring; and (3) collegiate athletes’ right to publicity and changing name, image, and likeness protocols. Although these privacy concerns also impact professional athletes, the lack of collective bargaining in collegiate athletics under the National Collegiate Athletics Association (NCAA), the amateur nature of college sports, and the intersection of academics and athletics put collegiate athletes in a particularly vulnerable position. Sports teams and athletic departments across the U.S. must balance the privacy rights of their student-athletes, the team’s commercial goals, and the public’s expectations of public figures. Therefore, to protect collegiate athletes’ right to privacy, universities, athletic departments, and the college sports industry must prioritize informed consent, develop up-to-date disclosure agreements, and refrain from compelling students to add school officials to their social media networks.
Supreme Court on the Right to Privacy
Through cases involving various fundamental decisions regarding bodily autonomy, the Supreme Court has shifted its focus on analyzing unenumerated privacy rights from the penumbras theory established in Griswold v. Connecticut to a substantive due process approach. Within the U.S. legal tradition, the intellectual concept of the right to privacy was first articulated by Samuel D. Warren and Louis D. Brandeis in their 1890 Harvard Law Review article. Warren and Brandeis frame common law protections of private thoughts, sentiments, and emotions as expressions of the more general “right to be left alone.” They emphasized that social and legal understandings of the right to privacy must evolve with the invention of new technologies. However, the right to privacy is not all-encompassing: materials of public interest and those published with the individual’s consent are not protected. This fundamental understanding that certain expressions are private and privileged from the public view is consistent with the First and Fourth Amendments’ protections against government censorship of speech and press and unreasonable searches and seizures. Starting in the mid-20th century, the Supreme Court has extended this notion of privacy surrounding individual expressions to private decisions and conduct vital to individual liberty and autonomy.
The Supreme Court first addressed the right to privacy in 1965 when it ruled in Griswold v. Connecticut that a Connecticut statute criminalizing the use of contraceptives was unconstitutional. The Court reasoned that the First, Third, Fourth, Fifth, and Ninth Amendments created various zones of privacy through their respective protections of the right of association, the prohibition of the quartering of soldiers in civilian homes, the right to be secure in one’s persons and belongings, and the right against self-incrimination. The resulting “penumbras” generated areas of privacy protected from governmental intrusion, under which the right of marital privacy and the use of contraceptives fell. This rationale was then extended to unmarried individuals in Eisenstadt v. Baird (1972) as the right to privacy belongs to the individual, rather than marriage as an institution. These foundational cases demonstrate how the right to privacy was originally grounded in these unenumerated zones of privacy within the Bill of Rights, which included the right of individuals to make key personal decisions free of state encroachment.
However, since Griswold v. Connecticut and Eisenstadt v. Baird, the Court has moved from privacy to liberty as the constitutional basis for the right to make fundamental life decisions. In 1997, the Court held in Washington v. Glucksberg that a substantive due process analysis is necessary to determine which unenumerated fundamental freedoms are protected by the Constitution. The Glucksberg test asks whether the asserted right is objectively “deeply rooted in this nation’s history tradition” and “implicit in the concept of ordered liberty.” A similar move away from privacy-based language is apparent in precedents surrounding marriage and intimate conduct as well: Lawrence v. Texas (2003) overturned the Texas statute criminalizing consensual same-sex sex, and Obergefell v. Hodges (2015) grounded same-sex couples’ right to marry in the fundamental liberty interests under the Fourteenth Amendment’s Due Process Clause. This shift from the penumbra theory to a question of which conceptions of liberty are deeply rooted in the nation’s history and tradition illustrates that a general appeal to the notion of privacy is not enough to safeguard fundamental liberties such as the right to marry. This trend is consistent with the Court’s movement to historical and original meaning analysis in other areas of constitutional law as well.
Although issues surrounding access to contraceptives, the right to marry, and the freedom to engage in consensual sex are not directly related to collegiate athletes’ privacy concerns, this broader context is critical to understanding how privacy has mostly moved into tort and statutory law. Even though the Supreme Court has weighed in on issues of mandatory drug testing for student-athletes and the constitutionality of NCAA rules, federal and state statutes and court cases provide more insights into how various jurisdictions are reconciling privacy interests with other factors at play. The Restatements by the American Law Institute, a widely respected legal treatise, has recognized four common invasion of privacy claims in tort law, including the intrusion of solitude, appropriation of one’s name or likeness, public disclosure of private facts, and portraying someone in a false light. These categories of privacy intrusions demonstrate how the law protects individuals from infringements into their private lives and public disclosures of personal matters that a reasonable person would find offensive. However, collegiate athletes’ unique status in between amateur and professional sports, their dual identity as students and athletes, and their lack of collective bargaining power raise unique privacy concerns. Compared to professional athletes in major sports leagues, who have unions and players associations that help them negotiate with the league and generate collective bargaining agreements, there is no established infrastructure within collegiate sports for collective bargaining.
Relevant Federal Statutes and Interpretations
Two federal regulatory frameworks are consequential to collegiate athletes’ privacy: the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act (HIPAA). FERPA, also known as the Buckley Amendment, prohibits the release of students’ educational records by any educational agency or institution receiving federal funding without their consent; importantly, students and their parents have the right to review and inspect their academic records, and institutions must notify all students of their rights under FERPA. In 2002, the Supreme Court clarified in Gonzaga University v. Doe that individual students do not have a private cause of action against their university for violating FERPA. Instead, students must go through the complaint process under the Secretary of Education because the standard remedy for failing to comply with federal spending regulations is not civil suits but federal action terminating state funding.
On the other hand, HIPAA tasks the Department of Health and Human Services with improving continuity of care. Title II of HIPAA contains the Privacy Rule, which covers all organizations that bill for medical services or transmit personal health information, including athletic trainers and student medical and health centers. Under HIPAA, personal health information, which includes all demographic and personally identifiable data relating to an individual’s physical or mental health conditions or the provision and payment of healthcare, can only be released to the media with the student’s authorization. This rule shapes norms around how athletes’ injuries and other information surrounding their medical conditions or status are shared with the public and the media, which is especially prevalent in the modern age of social media and instantaneous news.
Questions of when athletic staff decides to share students’ academic records with the public and which university departments are considered “covered entities” under HIPAA involve distinguishing between information relevant to the athlete’s performance and safety from personal information that the student may want to remain confidential. The dual identity of collegiate athletes plays a significant role in this necessary balancing test as the NCAA and collegiate sports industry have long used the amateur quality of student-athletes to justify existing non-education-related compensation rules. These norms and differences in the rights of professional and collegiate athletes raise privacy concerns about the reputation of the player and their team.
Bodily Privacy: Drug Testing and Biometric Data Tracking
With a broad understanding of the Supreme Court’s privacy jurisprudence and the governing federal regulations established, this inquiry now turns to privacy controversies in collegiate sports that have led to policy debates and legal disputes in recent years, starting with the most basic form of privacy: bodily autonomy. As the baseline, the Supreme Court and lower circuit courts agree that student-athletes have reduced privacy expectations due to their voluntary participation and accepted norms in sports. In 1995, the Supreme Court held in Vernonia School District 47J v. Acton that requiring public school students participating in athletic programs to complete drug tests is permissible under the Fourth Amendment because athletes know to “expect intrusions upon normal rights and privileges, including privacy,” and school officials have a legitimate interest in detecting drug use and to reduce the likelihood of sports-related injury. Similarly, the 7th Circuit Court held in Joy v. Penn-Harris-Madison School Corporation (2000) that compared to students participating in other extracurricular activities, student-athletes have a diminished expectation of privacy due to norms of communal undressing and required physical exams. The Supreme Court confirmed this rationale in Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls (2002), where it ruled that requiring all students to participate in competitive extracurricular activities to submit to drug testing is constitutional because the school’s policy was a reasonable means for advancing its interest in preventing and deterring drug use among students.
Importantly, the NCAA requires universities to obtain signed forms from all student-athletes before they can compete each season, which includes a provision authorizing the disclosure of positive drug tests, academic transcripts, and financial aid records to the university, the athletic conference, and the NCAA. Considering how coaches and other athletic staff have a legitimate interest and obligation to ensure the safety of their student-athletes, drug tests are typically permissible, assuming that athletes have been notified of their rights and provided informed consent. One significant difference between the precedents on drug testing and the issue at hand is that Vernonia and Earls involved public high schools. However, a similar reduced expectation of privacy applies in the higher education setting for collegiate athletes since there are reasonable concerns about safety and performance.
On the other hand, universities should proceed with more caution when dealing with biometric information tracking through wearable devices, such as Fitbit and Apple Watch. The market for wearable devices in athletics was worth $80 billion in 2021 and is expected to grow to $213 billion by 2029. These devices collect biometric data like blood oxygenation levels, blood pressure, and muscle strain. Many athletes rely on this technology to be more competitive and may voluntarily choose for their coaches to track and analyze their data. However, some collegiate programs now require students to wear these devices to participate in athletic programs. Scholars have evaluated the issue of athletic biometric data (ABD) tracking within the Fourth Amendment framework to understand if these requirements violate the right against unreasonable searches and seizures. For instance, Pepperdine University sports law professor Alicia Jessop argued that school officials cannot compel public university NCAA athletes to wear ABD tracking devices as it violates both the trespass test established in Olmstead v. United States (1928) and the reasonable expectation of privacy test set out in Katz v. United States (1967). Jessop highlighted how, in Grady v. North Carolina (2015), the Court ruled that a search occurs when the state attaches a device to an individual’s body without their consent to track their movements. Similarly, if athletes do not consent to wearing ABD devices, this compulsion violates their Fourth Amendment rights. From a reasonable expectation of privacy perspective, Jessop also posited that athletes have a subjective and legitimate expectation of privacy for their bodies and any resulting biometric data since one cannot assume that student-athletes are wearing these devices for biometric tracking purposes.
Due to the lack of collective bargaining capabilities, universities may punish student-athletes for refusing to wear biometric tracking devices, such as by granting less playing time. Unfortunately, federal and state legislatures are attempting to catch up to various aspects of rapidly evolving technologies, including biometric tracking devices. There are no federal privacy laws concerning the biometric data collection of student-athletes. Some states, such as Illinois, have passed general biometric privacy statutes that require informed consent from the user. Similar to how university officials may be concerned about drug use among athletes, some posit that athletic teams and departments have a legitimate interest in utilizing biometric technology to maximize their athletes’ competitiveness and performance. For instance, studies found that ABD collection is associated with better performance and reduced likelihood of injury. Yet the public and advocates for student-athletes must remain observant of how athletic programs have formed contracts with technology companies to provide wearable devices in exchange for athletes’ biometric data. In 2016, for example, Nike and the University of Michigan executed an agreement in secrecy where Nike provided apparel in return for personal data measured with wearable technology. Due to the third-party nature of these tracking devices, they are not considered covered entities under HIPAA. To be consistent with the Fourth Amendment, universities must provide detailed and up-to-date consent forms regarding the collection and analysis process of collegiate athletes’ biometric data and refrain from punishing athletes for refusing to share their biometric data with the team.
Informational Privacy: Release of Personal Records and Social Media Monitoring
The second area of privacy revolves around public disclosures of academic and medical records, as well as attempts to monitor collegiate athletes’ social media presence. On top of FERPA and HIPAA protections, the Supreme Court has also recognized a constitutionally protected right against public disclosures of personal information in Whalen v. Roe (1977). Concerning the disclosures of academic records, critics tend to focus on inconsistencies in the records universities are willing to share with the public. For instance, schools do not hesitate to disclose which student-athletes have a 4.0 GPA; the lower the GPA, the more concerned university officials appear to be about FERPA. When collegiate athletes perform well in their dual identity as students and athletes, their universities want the public to know their star player also excels in the classroom. These discrepancies align with the university’s interest in maintaining a positive image for itself and student-athletes. However, to be consistent with FERPA and respect its intended goal of preserving student privacy, school officials should be cognizant of the privacy concerns even well-performing student-athletes may have and ensure the media and public do not gain access to academic information that is irrelevant to athletic participation.
Moreover, there are higher stakes concerning disclosures of medical and injury-related information, involving a crucial distinction between professional and collegiate athletes. Health and injury information is relevant for employment purposes for professional teams, and injured professional athletes are contractually required to share their injury status; the same does not apply to student-athletes. Athletic organizations also qualify as covered entities under HIPAA when they release students’ private, identifiable health information to third parties, such as the media. This requires the balancing of three stakeholders: the student-athlete, the sports organization, and the public. Athletes may prefer certain information about their medical conditions or injuries to remain private, particularly if those disclosures could damage their free-agent or trade value. Sports teams, on the other hand, are interested in maintaining a sense of community and inclusion with their stakeholders and fan base, so they may feel obligated to keep the fans and the media informed about the health status of their players. Lastly, as the general principle, the public may assume that student-athletes have a reduced expectation of privacy since they frequently perform in the public eye. However, there should be different levels of scrutiny and protection for sports-related injuries and conditions compared to those irrelevant to collegiate athletes’ participation in the sport or the conference. Athletes live independent and meaningful lives beyond the field, and the public and the sports organization must respect those boundaries.
The third area of informational privacy pertains to collegiate athletes’ use of social media and different universities’ approaches to advising or monitoring their content to maintain institutional reputation. Professor Lauren McCoy of Kinesiology, Recreation, and Sports at Western Kentucky University compellingly demonstrated how universities must consider evolving privacy laws when evaluating how to monitor students’ online presence. In a 2011 study, researchers examined various social media policies at Division I universities and found that 159 institutions have some form of social media policy in their student-athlete handbook. Most prohibited particular types of content and warned students of potential dangers online; 10% of these policies specifically required student-athletes to befriend their coaches or athletic departmental staff responsible for monitoring their content. The findings of this study are consistent with the College Sports Information Directors of America’s 2012 survey of more than 450 universities, which reported that 55% of schools monitored collegiate athletes’ activities on social media. More than 50% of universities removed one social media post by a coach or a student-athlete during the past 12 months. In the modern age, student-athletes use social media for various purposes; many may be interested in building their brand and benefit from educational resources from their institution about the productive uses and potential dangers of social media. McCoy highlighted how various state legislatures have limited employers’ access to prospective employee’s social media accounts out of privacy concerns. Notably, Delaware has prohibited colleges and universities from requiring students to share their social media login information or add institutional representatives to their network. These statutes demonstrate the significant differences between passively observing publicly available information students choose to post on social media and requiring them to share their accounts with school officials. Such mandatory requirements fail to promote the principles of free speech and free expression, especially within the context of public universities. Schools should model their social media monitoring policies based on existing regulations on employers’ access to employees’ social media accounts to ensure that they do not substantially chill collegiate athletes’ speech on social media.
Right to Publicity: Image, Name, and Likeness
The last application of the notion of privacy to collegiate athletics is the evolving norms surrounding compensation for using collegiate athletes’ name, image, and likeness (NIL). NIL relates to the broader concept of the right to publicity, which refers to the right to control the commercial use of one’s identity. Over time, most jurisdictions have come to view the right to publicity as a property right. However, it still has significant privacy implications because it involves unique and identifiable information about public figures from which they could profit. For decades, under NCAA regulations, individual student-athletes have not been able to monetize their NIL like professional athletes and other celebrities due to their amateur status — yet, collegiate athletes’ universities, teams, and leagues have profited from the popularity of teams and individual players.
This shifted when the NCAA adopted a set of interim rules in July 2021, allowing collegiate athletes to be compensated for their NIL. This change occurred right before numerous state laws addressing NIL rights for student-athletes were about to take effect and one week after the Supreme Court issued its ruling in NCAA v. Alston (2021), which held that NCAA’s compensation rules were subject to the rule of reason test under the antitrust Sherman Act. Though the Court did not explicitly address the issue of non-education-related compensation rules and whether student-athletes can profit from their NIL, the ruling clarified that the Sherman Act’s standards apply to the NCAA. Some observed that public opinion and industry norms have shifted regarding collegiate athletes’ compensation, forcing the NCAA to balance new demands for fair compensation with its tradition of prohibiting collegiate athletes from receiving athletic salaries. Depending on the state’s NIL regulations, student-athletes can now profit from NIL deals such as product endorsements, merchandise licensing, personal appearances, and autograph signings. Across states and universities, student-athletes must disclose all NIL compensation and deals. However, the NCAA maintains that “pay-for-play” is prohibited for collegiate athletes. Therefore, all NIL deals must require athletes to do something in return and cannot merely require their participation in the sport.
The rapidly changing legal landscape surrounding NIL has implications for collegiate athletes’ right to publicity. Currently, 30 states have passed NIL statutes; multiple bills have been introduced into the House of Representatives and Senate, but there is currently no federal legislation on collegiate athletes’ NIL. One of the key distinctions between professional and collegiate sports has remained: universities still cannot provide NIL compensation for their student-athletes. NIL deals must operate through third parties, and compensation must be from non-institutional sources irrelevant to students’ athletic eligibility or performance. The privacy implications of the debates around NIL revolve around the balance between collegiate athletes’ primary role as students at an academic institution and their right to control and commercially benefit from their public image. The current NCAA framework, which allows student-athletes to monetize their NIL through third-party, quid-pro-quo deals while ensuring that their athletic eligibility is independent of their NIL seems to strike a proper balance. Student-athletes can profit from their public image and fame, while universities, conferences, and the NCAA can maintain the divisions between collegiate and professional sports.
Policy Implications and Conclusion
This paper explores three applications of the right to privacy for collegiate athletes. The first issue of bodily privacy involves the current reasonableness standard and the reduced expectation of student-athletes in the context of drug testing and the Fourth Amendment concerns surrounding mandatory biometric data collection. The second topic of informational privacy revolves around collegiate athletes’ rights under FERPA and HIPAA and how universities can balance their interest in maintaining their institutional reputation when monitoring players’ social media accounts. Lastly, the recent debates surrounding collegiate athletes’ right to publicity and the NCAA’s changing NIL norms highlight changing public opinions and increasing pressures to acknowledge their unique position as students and public figures. All three areas and their underlying legal principles illustrate how collegiate athletes’ unique status as public figures necessitates a reduced expectation of privacy for their bodily autonomy and informational disclosures. New technologies, including the productive uses and potential harms of social media and the growing market of biometric tracking devices, require interdisciplinary legal and policy research to understand how to protect individuals’ privacy in the modern age. Universities, conferences, the NCAA, and society are responsible for appropriately balancing competing interests of collegiate athletes’ privacy, the commercial model of collegiate sports, and the public’s interest in staying up to date on athletes’ performance and injury status. Student-athletes are particularly vulnerable due to their lack of collective bargaining abilities. Thus, informed consent through authorization forms and explicit emphasis on the voluntary nature of social media monitoring and biometric information tracking are necessary to protect their fundamental privacy rights.
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