Back in 2012, I drafted a law review article published by Ole Miss that focused on new concerns for colleges that emerged with the proliferation of student-athlete social media accounts, largely focused on Facebook.
See Student-Athlete.0 Regulation of Student-Athlete Social Media Use: A Guide to Avoiding NCAA Sanctions and Related Litigation, University of Mississippi Sports Law Review, Vol. 1, Iss. 1 (2011).
Fast forward to today, and social media of many different stripes have become an indispensable tool for student-athletes who desire to compete at the collegiate level. Specifically, social media affords student-athletes with ample opportunities to be recruited by colleges because social media platforms are commonly used as the medium for starting and maintaining the recruitment process between student-athletes and collegiate coaches.
In addition to being a valuable research tool into whether an athlete will be a good fit for a program and vice versa, colleges often utilize social media as a marketing tool to entice prospective student-athletes to enroll while also building and maintaining their athletic programs’ fanbases.
College social media accounts are becoming equally as important as a college’s website. A terminated college baseball coach recognized this value and is currently defending himself against allegations of trademark infringement and conversion after refusing to return his ex-employer’s Twitter account and subsequently creating an almost identically named account. Consequently, the Saint Xavier University ex-head baseball coach may have gone too far in demonstrating his dissatisfaction with the school.
According to a complaint filed in federal court earlier this year, Rocco Mossuto served as Saint Xavier’s head baseball coach from 2014 until his termination in 2020. After being terminated, the university alleges that Mossuto continued to publish tweets from its Twitter account, “SXUBaseball,” without its permission. Saint Xavier believes this conduct ultimately misrepresented the university’s position to current students, prospective students, university alumni and donors, as well as any member of the public who came across the unauthorized published material.
After multiple weeks, the SXUBaseball account was eventually returned to the university. However, Saint Xavier alleges that Mossuto did not stop there. Instead, the university claims that Mossuto created a Twitter account named “SXU_Baseball” as a second attempt to confuse the public into thinking the tweets published by Mossuto were, in fact, representative of the university’s positions and beliefs.
Shortly thereafter, the school filed a lawsuit against Mossuto in the U.S. District Court for the Northern District of Illinois alleging Mossuto is liable for federal trademark infringement and conversion. Saint Xavier University v. Mossuto, Docket No. 1:20-cv-05206 (N.D. Ill. Sept. 03, 2020).
Regarding the trademark infringement claim, this cause of action is brought under the Lanham Act. For this case specifically, the school alleges Mossuto violated 15 U.S.C. Sec. 1125(a). The statute provides the following:
“(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which —
“(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
“(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,
“Shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.”
The intent behind 15 U.S.C. Sec. 1125(a) is to afford trademark owners protection for their exclusive right to use their marks. Therefore, if Saint Xavier can demonstrate to the court that (1) it has a valid and legally protectable trademark; (2) it is the trademark owner; and (3) Mossuto used the mark on or in connection with goods or services to cause confusion and/or mislead the public, Mossuto will be deemed liable in this civil action brought by the university.
Of these three elements, demonstrating Mossuto’s deceitful conduct will likely be the most contentious point of the case. Saint Xavier claims that without the university’s authorization, Mossuto both commandeered the school’s Twitter account and created a strikingly similar account, “to disseminate disparaging and false communications about SXU and its athletics program in a deliberate attempt to confuse the consuming public into believing that his communications are from, or authorized by, SXU.”
More likely than not, the allegations set forth in this case provide a basis for federal trademark infringement. Taking the school’s allegations as fact, Mossuto intentionally published misleading material on an account he knew would be perceived by the public as coming directly from Saint Xavier, and consequently, had the potential to lead the public into believing the published material represents the current positions of the university. However, being able to demonstrate these damages may pose a significant hurdle for the university as the damages’ measurability may be inadequate.
Regarding the second cause of action, Saint Xavier alleges Mossuto wrongfully took control and possession of the SXUBaseball Twitter account. In order to succeed on a conversion claim, the plaintiff must establish that (1) it owns or has the right to possess the property; (2) the defendant intentionally interfered with the property; (3) this interference deprived the plaintiff of possession or use; and (4) the interference caused damages to the plaintiff. Of these elements, damages will, again, likely pose as a more significant burden than liability.
Despite the difficulty in quantifying damages, the continuously increasing influence social media has on the public strongly supports the conclusion that if liability is proven, Saint Xavier has measurable damages.
As alluded to at the onset, social media is no longer just a technology utilized by students to further their social lives, and thus requiring some regulation and monitoring by schools to avoid NCAA sanctions. Social media has become a crucial part of the recruiting process and ongoing branding efforts for both schools and athletes worthy of protection. As such, we can expect continued battles between athletes, coaches, schools, and other stakeholders over social media account ownership and usage.