NCAA braces for round of lawsuits from all sides
Posted: Wednesday, January 16, 2013 7:00 pm
By MICHAEL MAROT
AP Sports Writer
INDIANAPOLIS (AP) — The NCAA will open its annual convention this week with a host of reform measures on the agenda, part of President Mark Emmert’s push to address several years of high-profile scandals.
It may turn out that attorneys will have a lot of say in what the NCAA does in coming years — perhaps as much as any athletic director or school president: The NCAA is facing more than a half-dozen lawsuits in what could signal a new era of legal complications for the largest governing body in collegiate sports.
“It’s a much more litigious period than we’ve seen in the past, and sports in general have become more litigious. Athletes are more willing to do it now, and that’s something we haven’t seen in the past,” said Michael McCann, director of the Sports Law Institute and a professor at Vermont Law School. “I think the NCAA will be dealing with litigation for years to come.”
The list runs from the mundane, a wrongful termination suit stemming from an investigation into Arizona State’s baseball program, to the recent headline-grabbing lawsuit from the Pennsylvania governor over the $60 million in sanctions against Penn State for the Jerry Sandusky scandal. But there are also intriguing cases involving brain injuries, scholarship limits and a case in which Ed O’Bannon and other former players accuse the NCAA of operating a monopoly because they are required to sign away their commercial rights to play collegiate sports.
Going to court is nothing new for the NCAA.
There have been huge wins such as the Supreme Court ruling that reinforced the NCAA’s right to discipline its member schools, throwing out a decade-old injunction allowing ex-UNLV coach Jerry Tarkanian to continue coaching, and a federal appeals court win when an SMU alum alleged the NCAA violated antitrust laws by imposing the “death penalty” on the Mustangs’ football program.
There have also been costly losses. The NCAA agreed to pay $54.5 million to settle a case challenging the “restricted earnings” rule for non-football coaches and in 1984, the Supreme Court ruled that the NCAA was improperly restricting the ability of its member schools to negotiate television rights.
The impact of the latest round of litigation remains to be seen.
Two weeks ago, Pennsylvania Gov. Tom Corbett filed suit and said the NCAA overstepped its authority when Emmert punished Penn State for Sandusky’s child sex-assault crimes by imposing a four-year postseason ban on the football team and the unprecedented $60 million fine on the school.
There are questions about whether a governor has the statutory authority to file suit, but some familiar with the NCAA workings believe the governing body could be at risk because Penn State did not go through the normal disciplinary procedures, including a hearing in front of the committee on infractions.
“The problem I had with it is there is a procedure set up within the NCAA structure to handle violations of NCAA rules. There was nothing set up for the president to decide this on his own,” said University of Oklahoma law professor David Swank, a former infractions committee chairman. “There was some authority to impose monetary penalties, but generally it was related to money from TV or bowl games. I’m unaware of any time the committee on infractions imposed monetary penalties like they did in the Penn State case.”
Still, the Pennsylvania case may not prove the most costly to the NCAA.
There is at least one case from former college athletes holding the NCAA accountable for alleged brain injuries suffered during play. And there is the O’Bannon case, which alleges antitrust violations against the NCAA for licensing their images to third parties, including video game manufacturers.
“It could be disastrous for the NCAA,” McCann said. “I don’t think this is going to happen but in theory it could be billions of dollars.”
Emmert and the NCAA are not backing down.
“It goes without saying that we are a very litigious society and people turn to the court system to address the grievances they do have. We do that all the time, and I don’t expect that to diminish any going forward,” Emmert said. “I don’t put any particular meaning on the level of suits we have right now. We feel the actions are defensible and will continue to fight them.”
That won’t stop Emmert from pushing new reforms.
Since the summer of 2011, the NCAA board of directors has approved tougher academic standards for eligibility, given conferences the choice of allowing student-athletes to collect up to $2,000 from the school toward the full cost of enrollment and four-year scholarships instead of one-year scholarships, as well as a new penalty structure. The stipend has since been after a sufficient number of schools signed on to an override measure, though Emmert has repeatedly supported bringing it back.
The next big move could come Saturday when the board is expected to approve a sweeping set of changes that will include eliminating rules about how coaches communicate with recruits, how often they communicate with recruits, and allow college and high school players to accept money for travel expenses and prize money at non-scholastic events.
Some also want the NCAA to step into the turbulent whirlwind of conference realignment, something Emmert has repeatedly avoided for legal reasons.
If the NCAA doesn’t get involved, other changes could be coming.
“That could very well happen and I think that’s something that has to be hashed out legislatively within the NCAA,” said Matt Mitten, a law professor and director of the National Sports Law Institute at Marquette University in Milwaukee. “I could foresee another division within the NCAA. It looks like we might be moving toward four or five new superconferences and maybe the membership decides these schools on relative equal footing on economic terms that they create another division.”
Will it lead to more time in court?
Emmert is ready if that happens, and the legal experts expect the case load to increase, not decrease, over the next few years.
“I think that’s a pretty good characterization but 2013 could as well,” McCann said when asked whether he would call 2012 the NCAA’s year of litigation. “With something like law, I don’t think it’s really one year because it takes years to resolve.”
Published in The Messenger 1.16.13