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Cam Newton has been torching the SEC field so far this year, throwing for over 2,000 yards with twenty-one touchdowns, and rushing for another 1,300 yards and seventeen touchdowns. As the quarterback of the Auburn Tigers, Cam has led the team to an undefeated record, a birth in the SEC championship, and a #2 ranking in the BCS polls. If Auburn wins out, they are certain to play in this year’s National Championship game — or are they?
Just as quickly as Cam is able to streak down the field, two weeks ago controversy engulfed the (former?) Heisman Trophy front-runner. Allegations were released in a flurry on both traditional and social media, revealing evidence of his past indiscretions while a freshman at the University of Florida, and allegations of a pay-for-play recruitment scheme. As the allegations continue to swirl, sports commentators around the country have already begun to speculate that Cam Newton will be declared ineligible. Many have also come to Cam’s defense, calling the allegations a “witch hunt,” and a “modern day lynching.”
While the allegations are undoubtedly of great importance to fans of the SEC and college football in general, the story also presents a remarkable myriad of legal issues involving federal privacy law, regulatory law, and the role of the public figure in the twenty-first century. Because of the complexity of the issues involved, it is certain that the case will continue to take several twists and turns over the next several weeks. However, one thing is certain, laws have been broken during this saga.
Before Cam became the star of the Auburn Tigers, he first went to the University of Florida in 2007. Cam stayed at Florida for two years, and then surprisingly transferred after the 2008 season to Blinn College, a junior college in Texas. He then played one season at Blinn before ultimately ending up with the Auburn Tigers this season. But what were the reasons behind the transfer from Florida? We now know that Cam Newton had three different instances of academic cheating while attending the University of Florida, facing potential expulsion from the university. While the story about Cam’s indiscretions is no doubt interesting to the college football fan, especially the one who might like to get on his moral high-horse when his team gets crushed by Auburn, it’s also interesting because the source who revealed these indiscretions broke federal privacy laws.
The Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) is a federal law that protects the privacy of student education records. The law applies to all schools that receive funds under an applicable program of the U.S. Department of Education. Under FERPA, schools must have written permission from the parent or eligible student in order to release any information from a student’s education record unless they meet one of several narrowly-tailored exceptions (found in 34 CFR § 99.31). None of these exceptions were met in this case and it’s unlikely (try impossible) that Cam himself gave permission to have these allegations released (he claims he left Florida because he did not want to sit on the bench behind Tim Tebow). Thus, whoever revealed this information violated FERPA.
As this case continues to play out, it will be interesting to see what penalties Florida may face for the revelation of this confidential information. Under FERPA, the Secretary of Education has the authority to take appropriate actions to enforce this section and to deal with violations of this section. Assistance to the school may be terminated, but only if the Secretary finds there has been a failure to comply with this section (which there clearly has), and he determines that compliance cannot be secured by voluntary means (which he will not find).
What can Cam Newton himself do about the breach of his privacy? While there is generally no private cause of action directly under FERPA, students may seek to hold the University or individuals liable under other statutes or common law tort theories. This is one avenue Cam could pursue. In addition, faculty, staff, administration or students who violate the University’s FERPA policy may be subject to corrective or disciplinary action, depending on the individual circumstances. Thus, while it is unclear what actions will be taken, it seems clear that the law has been broken and someone will be punished.
In conclusion, the Cam Newton saga represents a fascinating case study both from a legal perspective and a twenty-first century “Blue Chips” scenario. While Cam may not be perfect or blameless, he certainly does not deserve to have his federal privacy rights violated in the name of college football. Here’s hoping (full disclosure, I’m a Vandy fan) that he will remain eligible, come back next year, and personally punish Florida!
– Blake Carter
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