Over the last several months, the NCAA has taken enormous heat relating to student-athlete reinstatement decisions.   The NCAA has been scrutinized and criticized for decisions relating to Heisman Trophy winner Cam Newton and the treatment of six (6) Ohio State University (“OSU”) football student-athletes.  In both cases, the media and fans criticized the NCAA for looking out for its commercial interests, rather than protecting against purported violations of NCAA legislation.  Putting aside whether there should be legislation that does not allow a student-athlete to exchange his property (i.e., a conference championship ring) for a service (i.e., a tattoo), NCAA rules were broken yet student-athletes were allowed to compete.  The question is: where is the line?

For years, the NCAA has been provided substantial deference from courts when student-athletes challenge NCAA legislation.  Courts have gone as far to say that judges should not and will not supplant their judgment for the NCAA’s judgment and act as “super referees.”  Until Oliver v. NCAA, it was almost a given that rules pertaining to student-athletes will be upheld when challenged as opposed to rules pertaining to external relationships (i.e., Board of Regents v. NCAA).  Ultimately, a student-athlete would have to show that the NCAA acted in an arbitrary and capricious manner, which is no easy task.

Perry Jones, by all reports, is a likeable and humble student-athlete, which is often not the norm for a basketball player expected to be an NBA lottery pick.  He makes good grades and does the right things.  Although the rules involved in the Perry Jones’ decision are somewhat questionable to those outside of the NCAA structure, nonetheless, rules were violated.  Sure, Perry Jones’ mother needed help paying rent and a family friend made sure the family was able to do so and the reported loans were promptly paid back, this decision strikes a nerve at the central level.  If no recruiting inducement took place (Perry Jones committed to Baylor University in the eighth grade) and Perry Jones was not compensated for his play as a college student-athlete, why is the legislation at issue necessary? 

It seems to reason that Perry Jones’ reinstatement case falls somewhere between that of Cam Newton’s case and the OSU matter.  The NCAA has consistently argued that Perry Jones’ case is much different than the above-referenced matters.  Of course, a distinction can be drawn with any fact pattern.  There is never a legal matter or NCAA reinstatement matter that has identical facts, yet in the legal community we draw from cases that are close.  The NCAA argues that Cam Newton did not accept a benefit, thus his case is much different than Perry Jones’ case.  OSU student-athletes were cleared to compete in the Sugar Bowl as a result of a rare interpretation (i.e., kudos to OSU’s compliance staff) that allowed for such competition.  In accordance with the process, Perry Jones is going to have to serve some penalty for attending a professional football game and not checking his mother’s bank statements, but let’s put it all on a level playing field.  If applying some kind of barometer (i.e., a common sense application) to Perry Jones’ case and the other cases referenced above, there is no parallel.  Perry Jones’ involvement was pedestrian in comparison, but his actions were punished substantially.

This scenario brings up the ghost of Christmas past.  In the mid-2000s, we all remember Jeremy Bloom’s fight with the NCAA to allow him to compete as professional skier and obtain endorsement money to fund his training and remain a member of the University of Colorado’s football team.  Jeremy Bloom was a student-athlete who received good grades and was an Olympian.  He is the kind of guy who appears on a Wheaties box.  Bloom attempted on multiple occasions to obtain relief from the NCAA, but was denied.  Therefore, he filed suit and ultimately lost his battle with the NCAA. 

In Bloom’s case, there appeared to be a scenario involving former NFL player and football and track student-athlete at the University of Iowa Tim Dwight.  After competing in one (1) NFL season and receiving endorsement income, Tim Dwight returned to the University of Iowa to compete on the track team.  He requested reinstatement from the NCAA for violating NCAA legislation pertaining to the promotion of commercial items and was ultimately reinstated.  Tim Dwight publicly indicated he never repaid the amounts he received from endorsements and card signings, but still competed without question from the NCAA.

The NCAA’s response in Bloom’s case to Dwight’s case was simple.  The cases are not the same.  Apparently, the fact that Jeremy Bloom filed an ARS and was attempting to use endorsement income to pay for his costly skiing training was vastly different than being a professional football player who accepted endorsement funds.  As an additional distinction, Tim Dwight filed for reinstatement rather than using another waiver.  In Bloom’s case, the moral of the story appears to be: do first and ask for forgiveness later.  NCAA legislation should be applied uniformly regardless of the vehicle used to seek relief.

In sum, the distinctions asserted are too bright line and cloaked with uncertainty.  The process simply has to be augmented to handle situations more uniformly.  I would recommend allowing the student-athlete to seek reinstatement through the current channels, but moving to a special master or arbitrator for appellate review.  With this change, it would allow the parties (i.e., NCAA and aggrieved student-athlete) to present the case to a neutral party for decision.  Indeed, this would allow the aggrieved student-athlete to make a live presentation that could be rebutted by the NCAA.  There is always going to be a thorn in the process when a student-athlete’s fate is decided by administrators from his competitors with the NCAA office discussing the matter without rebuttal from the aggrieved student-athlete.  Changes are necessary.

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.com.