Just a Heads Up
It is my hope to have the recruiting board completed by the end of next week. Time has been tight, but I hope to crank it out by next Thursday. Also, the basketball recruiting board will be forthcoming. July is an observation period for basketball. We will have a better understanding of who the priority targets are by the end of July, so I will roll that out just as Fall practice gears up for the football team.
McAdoo's Day in Court
You know what is funny? My Cousin Vinny is funny. Just check it out.
You know what is not funny? Taking away a kid's future over relatively minor violations. You know what is fucked up? Declaring a kid permanently ineligible for a little more than $100 in improper benefits and having a tutor complete your APA citations and "Works Cited" page for a short paper when a father is found to have shopped his son's services in a pay-for-play scheme, but allowing the son to compete in the National Championship game and win the Heisman. That is fucked up!
This past Friday Micheal McAdoo filed suit against the NCAA and UNC. UNC is a necessary party and UNC is believed to be supporting and assisting McAdoo's attorneys as much as legally possible.
Now, I am a novice tax attorney, but I will try to breakdown claims and merits as simply as possible.
McAdoo Timeline
The following is a timeline written by Greg Barnes and Ben Sherman from InsideCarolina.com. Greg Barnes has been one of the best reporters on the NCAA situation in Chapel Hill and this timeline is a continuation of his good work. The following is a link to Inside Carolina: McAdoo Timeline.
Summer 2008 -- McAdoo enrolls as a full-time student at North Carolina to play football. The school’s Deparment of Arts and Sciences assigns then-student Jennifer Wiley to work with McAdoo as his academic tutor and mentor. Wiley is McAdoo’s tutor for every class in the fall of ’08 and they work together every weeknight in study hall – a mandatory requirement for McAdoo.
Fall 2008 -- Wiley assists McAdoo with a paper he was writing for AFRI 266. Among other editorial comments and suggestions, Wiley helps McAdoo with in-text citations and a “Works Cited” page for the paper.
Summer 2009 -- Wiley assists McAdoo in separate papers for AFAM 428 and SWAH 403 during summer school classes. According to the lawsuit, Wiley had graduated from UNC by the second summer session in ’09, but agreed to continue to work with McAdoo during the second summer session. McAdoo claims that he was unaware that Wiley was no longer a student and therefore had no reason to believe that her assistance was improper during that summer.
July 15, 2009 -- McAdoo emails Wiley his SWAH 403 paper on the night of July 15 and roughly two hours later, Wiley responds. While she makes no changes to the book reference on his works cited list, Wiley does re-format the citations for the websites listed into APA format. The NCAA deems this to be one hour of improper benefits valued at $11.
April 2010 -- McAdoo joins Marvin Austin and Greg Little on a trip to the Washington, D.C. area. Austin tells McAdoo that he is paying for the trip expenses, including hotel and meal costs. The hotel room rate is $89 for two nights. McAdoo is also comped a $10 cover charge at a night club during the trip. The lawsuit states that McAdoo was unaware at the time that those travel costs were paid for by an individual tabbed by the NCAA as a prospective agent.
Sept. 3, 2010 -- UNC announces that McAdoo is ineligible to play in the season opener against LSU on Sept. 4 due to violations of NCAA Bylaw 12.3.1.2 (benefits from prospective agents) and NCAA Bylaws 16.02.3 and 16.11.12 (extra benefits, from his tutoring assistance from Wiley). UNC directs McAdoo to make a charitable donation equaling his extra benefits -- $99 from the D.C. trip and $11 from Wiley – and the senior has since made that donation.
Sept. 28, 2010 – UNC petitions the NCAA to reinstate McAdoo’s eligibility, citing procedures set forth in the NCAA Bylaws and recognizing the NCAA’s reinstatement guidelines that identify recommended punishments for receiving $110 in improper benefits to be a loss of at least 10 percent of a season or two football games. UNC also reports that McAdoo violated NCAA Bylaw 10.1- (b) (knowing involvement in academic misconduct) in three courses over three academic semesters.
Oct. 14, 2010 – The UNC Honor Court unanimously finds McAdoo not guilty with respect to his AFRI 266 course. The UNC Student Attorney General declines to bring formal charges against McAdoo for his AFAM 428 paper due to insufficient evidence. The Honor Court does find McAdoo guilty of representing another’s work as his own with respect to his SWAH 403 paper. McAdoo is placed on probation for the fall 2010 semester and is suspended for the spring of 2011. The Honor Court rules that McAdoo can re-enroll in the summer of 2011 and play football in the fall.
Nov. 12, 2010 - NCAA denies UNC request for reinstatement for receiving "impermissible assistance on multiple assignments across several academic terms," making him permanently ineligible for NCAA competition. McAdoo's lawsuit claims this claim of "several academic terms" is inconsistent with the rulings of the UNC Honor Court and Student Attorney General, which found him not guilty with regard to the first two courses.
Dec. 2010 - UNC appeals declaration of permanent ineligibility via telephone. McAdoo's lawsuit claims the NCAA moved forward with the appeal at this point despite its written procedure stating otherwise with regards to when facts are in dispute.
Jan 27, 2011 - NCAA denies UNC's appeal regarding McAdoo's permanent ineligibility.
Mar. 2011 - McAdoo engages legal counsel, having been without legal counsel up until this point.
June 3, 2011 - McAdoo's counsel sends detailed information to the NCAA, requesting his eligibility be restored. As of July 1, 2011, no response had been received from the NCAA and subsequent phone calls had not been returned.
June 21, 2011 - UNC announces receipt of NCAA's Notice of Allegations, including the previous claims about McAdoo that produced the permanent ineligibility verdict.
July 1, 2011 - Lawsuit is filed by McAdoo's attorney in Durham County Superior Court "for a writ of mandamus and preliminary and permanent injunctive relief from the prohibition on his eligibility to play intercollegiate athletics, and for the compensatory relief for damages."
July 15, 2011 - Hearing to be held at Durham County Courthouse before Judge Orlando Hudson.
The Claims
There are essentially four claims: (1) breach of contract by UNC and the NCAA; (2) breach of fiduciary duty by UNC; (3) negligence and gross negligence by the NCAA; and several North Carolina Constitutional claims, primarily equal protection and due process.
If you are really interested, you should read the pleading. It is pretty long (59 pages) so I won't blame you if you don't. At a minimum, read the facts section. It is appalling that McAdoo had to file this complaint based on the facts presented in the pleading. The following is a link:
It took me a while to digest the whole complaint and the merits of the arguments presented. It is a lengthy complaint without a lot of law, but the claims are legally fascinating and I can't wait to see how this unfolds.
First of all, the complaint is drafted in such a way as to give the NCAA an easy out and reverse their decision on McAdoo's eligibility. As such, I will be surprised if this ever makes it to court beyond the July 15 injunctive relief hearing. The language that the NCAA has used throughout this process pertaining to McAdoo's academic fraud is McAdoo "accepted impermissible academic assistance from an institutionally-assigned tutor on several occasions during 2008-09 and over two summer terms in 2009." The UNC Honor Court found McAdoo guilty of only one instance of academic fraud. Therefore, McAdoo only has one instance of impermissible assistance during one academic term. However, the NCAA has failed to recognize that. The NCAA has relied on the initial findings from UNC's investigation which were based on the NCAA's interpretation of their own rules prior to McAdoo's case being either heard or decided by the Honor Court. As a result, the NCAA can back off its current stance and blame UNC for not providing it with complete information without loosing face. UNC will happily accept this result. Some have accused UNC for not being strong enough in the defense of our athletes, but the reality is that UNC Athletics and Administration expected fair dealings from the NCAA and that has not been the case. Going forward in the future, you can expect UNC to be cooperative with any NCAA investigations; however, UNC will hold the NCAA accountable for their dealings with our athletes and their requests for information.
Some Relevant Legal Precedent
There are two major cases:
(1) NCAA vs. Tarkanian (federal jurisdiction)
- 14th Amendment only applies to a state action, not a private action
- NCAA is private entity that has voluntary membership. Therefore, the 14th amendment does not protect against to the actions of the NCAA.
(2) Oliver v. NCAA (Ohio jurisidiction)
- Andy Oliver Decision - short synopsis of case
- Important advisory precedent because it recognized a contractual relationship between athlete and NCAA
General Observations About the Claims
- Jurisdiction - Best hope for success will be if the proceedings remain in Durham County. By raising NC Constitutional issues, McAdoo has made it more difficult for the NCAA to remove the case to federal jurisdiction in Indianapolis. The claims (contract and constitutional) are based in state law and North Carolina is best suited to address them.
- Constitutional Claims - McAdoo's complaint raises constitutional issues under the North Carolina Constitution. If McAdoo is able to succeed and establish this precedent, the NCAA could conceivably have 50 different standards across the the 50 different states. While due process rights guaranteed by the 14th Amendment are not recognizable at the federal level against a private entity such as the NCAA, every state has a constitution with similar language that could be enforceable against the NCAA as a violation of state constitution rights if McAdoo is successful. This is an outcome that the NCAA will likely seek to avoid, which makes me think McAdoo will ultimately regain his eligibility. It is hard to believe that the NCAA manual and rule book is void of a student's rights sections, but it is and the result is heavy handed and unchecked sanctions against students. Remember, regardless of their athletic prowess, these are young men that may or may not have made a mistake and do not have the experience that the NCAA investigators or university compliance officers have in dealing with legal minutia and process. At a minimum, athletes should have a forum to challenge the allegations. Funny how a Notice of Allegation is followed by a meeting with the Committee on Infractions (COI). Typically, student athletes do not appear before the COI. Where is the trier of fact? Secondly, athletes should be notified of their rights and assigned someone skilled/expert in protecting them throughout the process. Shifting gears - I do have one lingering question with regards to the constitutional claims - does a student athlete have a right to play intercollegiate football? Football is more of a privilege than a right and how protected is that privilege when it could very well become someone's livelihood. A very well-paying livelihood.
- Breach of Contract - Oliver establishes important precedent that the NCAA can be held to have entered into a contractual relationship with student athletes. Seems ridiculous, but the NCAA has argued in the past that there is a lack of privity between the athletes and the NCAA because the agreement that is entered into granting the NCAA authority over college athletics is between the NCAA and the member schools. However, Oliver establish that athletes are third party beneficiaries with contractual privity. With privity, there is a duty of good faith and fair dealings between the parties. If the NCAA is found to have acted in a capricious and arbitrary manner, it will have violated it's duty of good faith and fair dealings. Therefore, in order to successfully challenge the NCAA's ruling, McAdoo must show that their is a contractual relationship and that the NCAA acted in a capricious and arbitrary manner in holding McAdoo permanently ineligible. This will not be difficult. The value of the improper benefits received by McAdoo typically results in a 1-2 game suspension. As for the academic fraud, the FSU cheating scandal resulted in guilty athletes being suspended for 30% of season. The FSU cheating scandal encompassed athletes from nine different sports where athletes were literally given the answers to on-line tests over a significant period of years. McAdoo wrote his own paper, just not his citations or "Works Cited" page. Not crafting your own citations is definitely inappropriate, but I don't think it is comparable to receiving answers for a test.
Stay tuned.
Obviously there is more to the case including the NCAA's 19.7, but we will cross those bridges as they come. I just wanted to provide a quick overview of the broad strokes of things I found interesting and important.
No comments:
Post a Comment