by Matt Miller
Can college athletics programs censor student speech, even when the student isn’t being paid? The First Amendment says no, but the NCAA and University of Central Florida say yes.
Late last year, kicker Donald De La Haye sued UCF for violating his First Amendment rights after the University made him choose between his thriving business making YouTube videos and his place on the football team. Donald has been making YouTube videos since high school. His highly successful account currently has over 500,000 subscribers. His dispute with UCF arose over whether Donald could talk about kicking and his status on the UCF football team in his YouTube videos. UCF—upon a ruling by the NCAA—told Donald that he had to choose between his small business and his membership on the team. When confronted with this unconstitutional demand, the young entrepreneur chose to focus on his business and continue making videos.
Now that Donald is suing to defend the First Amendment rights of student-athletes, an important fact in the case is being misreported and misrepresented.
To understand this error, it is important to understand how social media entrepreneurs make money. When someone is successful enough on YouTube, the platform gives them an option to “monetize” their videos—meaning they receive a fraction of a penny for every view. Importantly, users can choose monetization on a video-by-video basis. On a single page, some videos may be monetized and others might be demonetized. Users receive no money for views of demonetized videos.
Some people are saying that Donald refused to demonetize his football videos, and that is the reason he was ultimately kicked off the team. Although this point does not matter from a First Amendment standpoint (for example, paid reporters enjoy the same free speech rights as volunteer reporters), the point seems to resonate with some listeners.
This version of events is false. Donald did not refuse to demonetize his football videos. Indeed, he offered to demonetize those videos, while continuing to receive modest compensation for his non-football videos. This is absolutely clear from a UCF email that was produced in response to a public-records request. The email is from UCF’s associate athletic director in charge of NCAA compliance. It was written to the University’s athletic director. It provides a summary of the University’s interactions with Donald regarding his YouTube videos. The email speaks for itself:
There you have it: Donald De La Haye was kicked off the UCF football team even after he offered to receive zero compensation for his football videos. In other words, a student-athlete was told to censor his speech even though he was not being paid for it. Whatever you think about amateurism in college athletics, public universities have no business telling athletes that they cannot speak about their lives as athletes, or their athletic skills, on their social media accounts.
The First Amendment protects everyone’s right to speak about their lives and to communicate with others in ways—like YouTube videos—that the Founders never could have dreamed of. That’s because speech is speech, no matter what form it takes.
The NCAA wouldn’t dare tell a student she could not give an interview to a reporter, or write an article about her experience for the student newspaper. A YouTube video is no different than these traditional kinds of speech. They are all protected by the First Amendment. That is why Donald sued the University to defend his free speech rights and the rights of all student-athletes to discuss their lives in creative and interesting ways. This kind of speech should be celebrated, not censored.
Matt Miller is a Senior Attorney at the Goldwater Institute. He leads the Institute’s free speech litigation efforts.