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Business, the Law and the NCAA


(Editor’s Note.  In late January, 2012 the Digest posted an article concerning the lack of due process in NCAA enforcement cases.  This article follows up on ideas presented in that article).

“In America, a person is presumed innocent until proved guilty.  Unless, that is, he plays college sports”.  These words were written by Joe Nocera, a New York Times reporter who has written over 11,000 words about college sports since December, 2011.  (see, for instance, his article).  Nocera has apparently gotten the attention of NCAA leaders, who have recently taken to blasting him in various releases.

Are such criticisms of the NCAA fair?  An excellent book on this topic has just been published.  The Supreme Court and the NCAA:  The Case for Less Commercialism and More Due Process in College Sports, by Brian L. Porto is a detailed examination of two U.S. Supreme Court cases involving the NCAA that have shaped the current landscape of college sports.

The two cases were decided by the Court in the 1980s.  In Board of Regents v. NCAA (1984) the Court essentially ruled that the NCAA’s policy of controlling broadcast rights to all college sports was a violation of anti-trust law.  This decision directly led to various TV outlets broadcasting all sorts of college sports events.  The competition for the right to televise these events and the growth of cable TV has allowed NCAA schools to sign contracts worth millions of dollars per year.  Indeed, the Southeastern Conference in 2010-2011 distributed some $19.5 million to each of its 12 member schools, mostly money from TV contracts for football and basketball games.

The potential to bring in all of this money has led to intense competition among member schools to field winning teams.  Salaries for head coaches have increased to the point where the top coaches in football and basketball command salaries similar to those paid to professional team coaches.  This pressure to win has also, in the eyes of many, led to a major increase in incidents of schools willing to violate NCAA rules in the race to recruit and keep “student-athletes” capable of making teams into big winners.  College sports have become a billion dollar commercial enterprise.

The second important case was Tarkanian v. NCAA (1988).  That case grew out of the NCAA’s long investigation of men’s basketball coach, Jerry Tarkanian.  In that case the Court held that the NCAA was not sufficiently linked to public schools to be considered a “state player” and therefore was not subject to due process considerations of the 14th Amendment when conducting investigations.  This case paved the way for the NCAA to use sometimes dubious investigative strategies when going after suspected cheating among coaches, players and boosters.

NCAA hearings are held before people who typically are college professors or administrators with little or no legal background.  Hearings are held in a compressed time frame.  Discovery opportunities for those accused of wrongdoing are limited and the standards of proof and evidence are not clear, and often seen as inconsistent.

It is hard to understand how an organization could conduct hearings whose outcomes can have tremendous ramifications on schools and individuals and yet use standards that are at best murky and at worst, clearly unfair.  A recent example can be found in the transfer case of Todd O’Brien (see the January, 2012 Digest article cited above).  O’Brien graduated from St. Joseph’s College in May, 2011 and wanted to play his senior year of basketball at UAB in Birmingham while pursuing a graduate degree not offered at St. Joseph’s.  The NCAA has had a rule for several years allowing these types of transfers without requiring a student-athlete to sit out a year.  Yet O’Brien has yet to play for UAB this season.  St. Joseph’s head coach, Phil Martelli, refused to sign off on the transfer.  O’Brien’s first appeal was denied without comment by the NCAA and his second appeal has simply been ignored.  No one involved with the NCAA has ever provided any kind of clear reasoning for the denial of the transfer rule waiver.

Porto has pointed out that school employees are often used as sacrificial lambs and have no right to mount a defense before the NCAA.  Schools frequently pick out younger employees with less time on the job and fire them to show the NCAA that they are serious about cleaning up their athletic departments.  Employees are branded as cheaters and never given a chance to defend themselves.  Their only recourse is the go to court, an expensive and time consuming process.

Professor Porto recommends that Congress pass a federal law granting the NCAA a limited educational exemption from anti-trust laws.   In exchange for this accused parties would be given greater procedural protections and the NCAA would have to adhere to some clear standard in terms of how hearing would be conducted and what evidentiary standards would apply.  Hearing officers would be drawn from a pool of retired judges used to hearing evidence in an adversarial setting.

This is certainly a debate worth having.   The current status of NCAA enforcement policies arguably does not consider the welfare of student-athletes.  Many critics believe that the NCAA really has little appetite for true reform.  The fear is that if student-athletes are granted certain rights they will want more; and that ultimately they will demand to be given greater financial benefits.  The people such as coaches and athletic directors who have a vested financial stake in the current system are always going to resist significant change.

Anyone working in the field of sports today must understand the legal environment that surrounds and influences sports.  These areas are explored in courses taught at every degree level at the United States Sports Academy.  For more information go to http://ussa.edu.


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