The NCAA Denies All Responsibility For Academic Fraud

Earlier this month, buried beneath the start of the conference basketball tournaments and the onset of its most anticipated, and profitable, event – the NCAA Men’s Basketball Tournament – the NCAA once again took the position that it bears no legal responsibility for academic fraud that may occur at its member institutions.  On March 2nd, the NCAA filed its initial pleading in a North Carolina state court matter that seeks to hold the NCAA liable for “carelessly and negligently” policing its member organizations. In this particular case, the member organization at issue is the formerly-vaunted University of North Carolina-Chapel Hill, better known as UNC.  Specifically, two former UNC athletes that attended the university during the time period in which the most widespread and prolific academic fraud in college sports history was in full swing have sued both UNC and the NCAA.

What Makes This Case Unique?

This case is different than the others filed against UNC by its former student-athletes in recent months because it also seeks damages from the NCAA under a negligence theory.  Indeed, some of the language used to describe the NCAA’s role (or lack thereof) in not sniffing out UNC’s systematic academic fraud is scathing; the suit alleges, in part, that the NCAA “sat idly by, permitting big-time college sports programs to operate as diploma mills that compromise educational opportunities and the future job prospects of student-athletes for the sake of wins and revenues.”   Ouch.  The fact that the NCAA had to be dragged back to UNC to reopen their previously-closed initial investigation of the school – only after the outcry and furor over the sordid details of what took place at UNC for over two decades became too much of a public relations embarrassment to ignore – probably isn’t helping them too much right now, either.

Purely on the merits, however, the NCAA appears to be on relatively solid ground here.  Indeed, according to the NCAA’s lead outside counsel, courts have repeatedly concluded in similar matters that standard-setting organizations – like the NCAA – cannot be held liable for the actions of their members.  The NCAA has a history of successfully arguing the legal equivalent of “what happens on campus, stays on campus,” at least when it comes to any kind of actual liability on the subject.   To quote the NCAA’s head legal honcho, “the law does not and has never required the NCAA to ensure that every student-athlete is actually taking full advantage of the academic and athletic opportunities provide[d] to them.”

Is There Any Case To Be Made Against The NCAA Here?

It’s my hunch that a procedural victory on the merits against the NCAA in this case isn’t really what the two plaintiffs/former student-athletes are after.   Rather, their complaint takes the NCAA to task for a myriad of things, from its “wink and a nod”  approach to the weekly “20-hour” rule to their charge that the NCAA is more concerned about simply showing progress toward a degree than actually ensuring that a quality education is made available.  And look no further than the words of one of their lead attorneys, Robert Orr (a former NC Supreme Court Justice and a guy who is likely pretty familiar with what the elements of a negligence claim are in NC state court), back in January of this year:  “It’s about a lot more than Chapel Hill. It’s about the system.”

Most interestingly, they have proposed a solution to improve NCAA accountability across its membership.   The lawsuit seeks – rather, demands – “the creation of an independent commission that would audit Division I programs to ensure that athletes are not victimized by academic fraud and that minority athletes are not receiving inferior education.”  Further, they argue that these independent commission audits even go a step further, mandating that they measure “post-graduation employment for college athletes and whether — as some NCAA advertisements suggest — playing sports helps the job prospects of college athletes.”  While the administrative burden associated with the creation, composition, and enforcement of this independent commission is obvious to anyone who has attempted to champion change in any organization larger than, say, the corner lemonade stand, the idea is nonetheless an intriguing one.  At the very least, this matter merits continued scrutiny as it winds its way through the legal system.   While the NCAA appears to be on terra firma right now in this matter, legally speaking, its safe to say that the “not our problem” approach as it regards the plight of the student-athlete is long gone in the court of public opinion.

 

Feature image courtesy of Chris Keane, Reuters