Greg: NCAA Bylaws Lack Student Rights
NCAA Attorney Paul Sun (r)
NCAA Attorney Paul Sun (r)
Inside Carolina
Posted Jul 20, 2011


CHAPEL HILL, N.C. – The NCAA’s stated goal is to protect and empower its student-athletes. But the non-profit organization’s actions and decisions, including telling statements in Congress and the court of law, suggest otherwise. North Carolina senior defensive end Michael McAdoo is the latest example.

NCAA President Mark Emmert was emphatic in declaring his No. 1 priority during an interview with PBS Frontline in February.

“The students,” Emmert said. “The students and their success, their success as students, in their academic progress, their success in their ability to compete and perform in their sport at the very highest level they're capable of, and their success in growing and developing as people.”

The irony in his declaration, of course, is that the term “student-athlete” has been a misnomer since its creation in the early 1950s. Walter Byers, the NCAA’s executive director from 1951 until 1987, wrote in his 1995 book Unsportsmanlike Conduct: Exploiting College Athletes that the “student-athlete” phrase was coined to counter the threat of players being considered employees by state industrial commissions and the courts.

“We crafted the term ‘student-athlete,’ and soon it was embedded in all NCAA rules and interpretations as a mandated substitute for such words as players and athletes,” Byers wrote.

When Kansas track and field coach Bob Timmons retired more than a decade ago, he founded the National Student-Athlete Rights Movement in May 2002 and promptly created a bill of rights to protect the welfare of any student-athletes entering college at a NCAA-governed school. While the NCAA verified two months later that it had reviewed the proposal, the organization also indicated that it had no plans of pursuing the option.

The 2010-11 NCAA Division I manual contains 434 pages and there is not a list detailing a student-athlete’s rights on any of the pages. The only voice student-athletes have with the NCAA is through the Student-Athlete Advisory Committee, a group made up of one student-athlete from each conference that is consulted by the NCAA but carries no voting capabilities.

The reason is simple – student-athletes are not members of the NCAA and the organization has no intentions of extending invitations any time soon. This notable lack of basic rights and corresponding due process has left a handful of student-athletes with no other choice but to take the NCAA to court in an attempt to protect their rights.

The NCAA has been effective in defending itself against lawsuits by arguing that since it is a voluntary association, the court has no right to interfere unless the organization is operating outside of constitutional law. And that determination is where the legal line in the sand has been drawn.

U.S. Olympic skier and Colorado football player Jeremy Bloom’s case against the NCAA after he was ruled permanently ineligible due to an endorsement deal resulted in a U.S. House Sub-Committee on the Constitution hearing in 2004 focused on due process and the NCAA.

Gary Roberts, then a member of the NCAA's Division I Academics, Eligibility, and Compliance (AEC) Cabinet, testified in that hearing that while the organization’s methods may be viewed as questionable, the end result justified the means.

“I also am firmly convinced that while some of the procedures employed by the NCAA seem rather severe and out of step with traditional American notions of due process and fairness, in fact the NCAA's enforcement process is remarkably accurate,” Roberts said.

In 2008, Oklahoma State University pitcher Andy Oliver was suspended for violating a NCAA bylaw that prohibits a hired attorney from being present during negotiations with a professional team. The judge hearing the case blasted the NCAA for allowing legal representation in some instances and then attempting to prohibit the attorneys from doing their job in other instances. With a pivotal court defeat imminent, the NCAA settled with Oliver for reportedly $750,000 before the case went before a jury.

Less than a year later the NCAA went after University of Kentucky pitcher James Paxton for violating the same legal representation rule that the judge in the Oliver case criticized.

Paxton refused to be interviewed by NCAA investigators, and that’s where the NCAA’s true power comes into play. Innocent until proven guilty doesn’t apply in the NCAA’s world, meaning that member institutions are often put in the difficult position of choosing between protecting one student-athlete’s rights or protecting a team of student-athletes’ rights. Kentucky suspended Paxton and issued the following statement after he decided to leave the program in February 2010:

“The University of Kentucky is very disappointed in James Paxton’s decision to not meet with the NCAA about a potential amateurism issue. Due to the possibility of future penalties, including forfeiture of games, UK could not put the other 32 players of the team and the entire UK 22-sport intercollegiate athletics department at risk by having [Paxton] compete.”

NCAA Bylaw 10.1 requires that institutional employees and student-athletes furnish information relevant to possible violations. Not doing so is defined as unethical conduct and therefore warrants ineligibility under NCAA guidelines. Paxton’s refusal to meet with the NCAA put Kentucky’s entire athletic program in jeopardy.

In February, UNC senior fullback Devon Ramsay had his eligibility reinstated after missing the final nine games of the 2010 season. Ramsay enlisted the help of former N.C. Supreme Court judge Robert Orr to advise him after the NCAA determined that he was permanently ineligible after a three-page paper with minor revisions from a tutor came into question.

The NCAA issued a ruling that new information had determined that Ramsay did not violate any rules and that he was immediately eligible to return to competition for his senior season. The Ramsay case represented Orr’s first significant dealing with the NCAA and promptly inspired him to become an outspoken advocate for student-athlete rights.

“Truly, I was shocked as a lawyer and 18 years as a judge to see the lack of due process, the lack of protection, the sort of cavalier attitude the way these student-athletes are treated any time an alleged violation occurs,” Orr told News 14 Carolina earlier this month.

McAdoo is the latest student-athlete forced to travel this judicial route after being deemed permanently ineligible for receiving $99 in impermissible benefits during a two-night stay with teammates in the Washington, D.C. area, as well as getting improper assistance from a tutor. He subsequently lost his appeal in January.

McAdoo’s permanent ineligibility after the NCAA’s reinstatement process was complete represents a rare ruling by the reinstatement staff. During the 2004 congressional hearing, then-vice chair of the NCAA Committee on Infractions Josephine R. Potuto testified that "in only about one percent of the cases is the violation so serious and the responsibility of the student-athlete so significant that reinstatement is not warranted.”

Potuto indicated that in the other 99 percent of the cases, eligibility was either fully reinstated or reinstated with conditions.

McAdoo’s attorney, Noah Huffstetler III, argued during an injunction hearing on July 13 that “the NCAA decision was based on erroneous facts and represented a failure to follow its own procedures.”

NCAA attorney Paul Sun made it clear during the hearing that McAdoo has no standing with the NCAA.

“Mr. McAdoo, of course, is not a member of the NCAA,” Sun said. “He goes at great lengths… to figure out how he can state claims against the NCAA when he’s not a member and has no relationship directly with them.”

Huffstetler claimed that McAdoo was entitled to due process rights as a student and the university ignored his rights when it declared him ineligible. He also highlighted Bylaw 19.7, which states that the NCAA can penalize an institution if an injunction is reversed or determined not to be justified in the interest of restitution.

In other words, if Durham County Superior Court Judge Orlando Hudson had granted the injunction and forced UNC to reinstate McAdoo’s eligibility until his lawsuit is resolved, the university would have found itself in a precarious position – play a court-ordered eligible student-athlete or risk being hit with penalties by the NCAA if the injunction is later overturned.

“It is intended to intimidate the university from doing what the university knows to be right,” Huffstetler said.

Assistant Attorney General Stephanie Brennan, the university’s legal counsel, admitted that the school was caught in the middle of the ordeal and that fear of repercussions due to Bylaw 19.7 forced the school to oppose the injunction.

“What the plaintiff doesn’t note and what’s significant is that by its nature, the court can’t protect the university against Bylaw 19.7 because it applies only when an injunction is reversed and that’s something that is beyond Your Honor’s control,” Brennan said.

The NCAA’s absolute power over student-athletes without having to be held accountable for those student-athletes places the onus on the member institution. And when the NCAA places a gag order on a school – as it did against North Carolina last July and again last month – criticism shifts away from the NCAA to the school.

Richard Johnson, one of Paxton’s attorneys, opened a lengthy statement after his client left Kentucky’s baseball program by writing that the situation wouldn’t have occurred “if [Kentucky] was not scared to death of the NCAA.”

Former Tar Heel defensive lineman Marvin Austin lashed out against UNC officials on Twitter in the hours after McAdoo’s injunction was denied by tweeting the following:

“I just wish the administration stood and stop the cowardly acts when the are in front of the ncaa just tell them what you told us...don't turn and twist your story to look appealing to the Ncaa and pressure the 21 year old athlete to say and do things that aren't in there best interest.”

In addition to Ramsay, six Tar Heels were also held out of last season’s opener against LSU while the school worked with the NCAA to determine their eligibility. Tailback Shaun Draughn was cleared to play after missing one game, safety Da’Norris Searcy was cleared after missing three games and running back Ryan Houston was cleared after missing five games.

While the Tar Heels were hesitant to discuss their situations during the season, Searcy opened up after being drafted by the Buffalo Bills with the 100th pick in the NFL Draft.

Searcy told reporters during a conference call in late April that he sat out three games while the school tried to track down his professor in Africa concerning an outline he received help on from a tutor.

“It was frustrating because I knew I didn’t do anything wrong,” Searcy said. “But I can’t get mad at the university because they were just doing it out of precaution. They didn’t want the rest of the team to suffer and I didn’t want the team to suffer either if anything came back that it was a violation.”

So the current system breaks down like this – student-athletes don’t have a viable voice to address due process rights concerns with the NCAA and member institutions are often put in a position that makes it difficult to fight for its student-athletes, instead being forced to weigh the potential of penalties against hundreds of other student-athletes at the risk of defending one individual.

Therefore, the only opportunity for corrective change exists beyond the NCAA’s boundaries.

David Ridpath, a member of the Academic Requirements sub-committee of the Coalition on Intercollegiate Athletics, testified in the 2004 congressional hearing that it would take external pressure by the government and court system to force meaningful change within the NCAA.

“The only time the NCAA has examined its procedures and instituted effective change was by government intervention,” Ridpath said.

Until that occurs, student-athletes will continue to be viewed as little more than a third party entity under NCAA control.



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