The NCAA, and history repeating

Key part from this interesting article about the academic fraud suit filed against the NCAA and UNC this week:

As he did in the O’Bannon case, Hausfeld has designed McCants v. UNC to compel sweeping and historic changes to college sports. Hausfeld 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. Audits would also measure post-graduation employment for college athletes and whether — as some NCAA advertisements suggest — playing sports helps the job prospects of college athletes. Hausfeld also seeks monetary damages for all former and current NCAA athletes who didn’t receive the meaningful education they were promised by the NCAA, conferences and member institutions.

In what is already a transformative era of college sports, McCants v. UNC has the potential for further disruption. Race bubbles close to the surface of most discussions about college sports. But McCants v. UNC is the first of the recent high-profile college sports cases to link race to the law. It is also unique in that it raises claims on behalf of both men and women who played college sports, highlighting problems in the relationship between big-time college sports and academic integrity beyond football and men’s basketball programs.

McCants v. UNC is the educational bookend of O’Bannon v. NCAA, which will be reviewed by a federal appeals court later this year. O’Bannon highlights what NCAA critics regard as the economic “exploitation” of college athletes’ name, image and likeness rights. One of the NCAA’s key defenses in O’Bannon is to champion its system of amateurism, which encompasses NCAA rules designed to safeguard the educational experience of college athletes. In McCants v. UNC, Hausfeld attacks the NCAA’s educational defense head-on and asserts that amateurism damages rather than enhances education. The 100-page complaint details a history of college athletes receiving inferior education so that they can remain eligible and generate revenue for their schools, conferences and the NCAA. Justifications for the McCants and O’Bannon cases are thus joined at the hip.

This is going to be a tough case for the plaintiffs to win.  But, then again, that was the early perception of O’Bannon, and look how that’s turned out.  In any event, we should expect the same steady Chinese water torture drip of unflattering information and admissions emerging from plaintiff’s discovery in this case as we saw in the earlier one.

This is just beginning, but even at this early stage, does anyone think the NCAA and the schools will emerge unscathed from this?  And with that in mind, does anyone think the NCAA and the schools will do the smart thing and look to settle the case instead of risking that?

Yes, I know, Mark Emmert.  That was a rhetorical question.

43 Comments

Filed under Academics? Academics., The NCAA

43 responses to “The NCAA, and history repeating

  1. Unlike O’Bannon where the plaintiff went after a restraint of trade in violation of antitrust law, I don’t see how this lawsuit sees the light of day. Ms. McCants signed up for classes likely knowing that they weren’t worth anything to an education other than to keep her eligible to participate in basketball.

    Does this mean that every medieval literature major can go out and sue their university because they can’t get a job in their field of choice and instead are working as an assistant manager at a convenience store? According to her attorney, this should be academic fraud as well.

    I’m not a lawyer, but if I were a judge, I would lean toward throwing this suit out as frivolous.

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    • Look at the bigger picture, ee. This is not a complaint that the university offered a real, academically sound major available to any student such as medieval literature. The complaint is that the university set up a sham course and guided a certain segment of the student body into it not to educate the student but to serve the Athletics program. That is a big difference. I do not know if the plaintiffs can prove that claim or not, and I do not know without researching if the university would be violating a duty to the students imposed by law if the university did do that. I am a lawyer and I do see a real difference in these claims and the hypothetical claim you analogized.

      I agree with you that if the students registered for the classes knowing the classes were shams it would create a big hurdle to their case. If the university misrepresented the classes it could (did not say would) impact that defense.

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      • Gaskill, I think we see this thing similarly especially your last point. You would have to be really clueless to step into those classes and not think they were shams. If these classes were only available to student-athletes, I would have a big problem with it from an NCAA compliance standpoint but still not sure how the student-athlete has a civil claim against UNC.

        I just don’t see where the law applies in this case where the student-athlete would have a civil claim as opposed to the Kemp case where the professor was dismissed for blowing the whistle on the developmental studies program and student-athletes.

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        • SCDawg

          Well most states got rid of contributory negligence in favor of comparative negligence many years ago. So the question may become how much the perspective student athlete understood whether that major was essentially horseshit or legitimate-meaning whether it was real or made up to push student athletes into to keep them eligible and keep that sweet $ flowing like water.

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  2. Lrgk9

    Err, can you say ‘Jan Kemp’ ?

    NCAA needs to settle the damn thing.

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    • Scorpio Jones, III

      God, Large, I thought I was seeing ghosts. With the current atmosphere of rightful suspicion about the NCAA I don’t see how UNC gets out of this without looking guilty. The NCAA may settle, I don’t see how UNC can.

      But I would suspect Bluto would have a better read.

      The plaintiff in Kemp really had no particular desire to hammer UGA, she just wanted her job back. The beans were spilled in court.

      It seems to me the beans in this case are already spilled, its just a matter of how much the beans cost.

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      • Reservoir Dawg

        “The plaintiff in Kemp really had no particular desire to hammer UGA, she just wanted her job back. The beans were spilled in court.”

        This. She saw something wrong, tried to fix it, was fired, and fought for herself. She was ruined by the whole mess. Lost her family. The institutional result was a bad patch for UGA football but we have rebounded and run a much cleaner program than the vast majority of schools. Adams’ butt buddy Jim Harrick just about screwed that up.

        We bitch about the Georgia Way, which is a direct result of her fight, but are we ready to be all in? I hope they name it the Jan Kemp IPF. She needs a statue.

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        • Mayor

          BS RD. Kemp was a malcontent who got fired because of her own lack of merit. Shen ended up spending YEARS in jail because of her willful failure to comply with a court order in a domestic matter. Not exactly evidence of normal behavior. In short, she was a nut. It is a shame that the Administration mishandled her case resulting in the problems we still experience today with Georgia athletics operating at a disadvantage.

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          • That’s it Mayor. That’s poor form sir. I’m officially at odds with you. YEARS? In Jail? That is mean spirited and below standard. She spent stretches in psychiatric wards and went to jail for almost a year for contempt of court. Let’s be certain here. I just won’t tolerate someone with such a hateful attitude as you display here. I honestly just don’t get the venom you spew toward that woman.
            After the trial Kemp spoke to The New York Times, saying, “All over the country, athletes are used to produce revenue. I’ve seen what happens when the lights dim and the crowd fades. They’re left with nothing. I want that stopped.” Kemp retired from teaching in 1990 and was named a hero of the 1980s by People magazine.

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            • All over the country, athletes are used to produce revenue. I’ve seen what happens when the lights dim and the crowd fades. Jan Kemp.
              She sounds very familiar.

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              • Scorpio Jones, III

                Mayor you are very much in the wrong both philosophically and factually here.

                You are right about the university administration mishandling her situation, but damn little else.

                Really, you are better than this.

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  3. The other Doug

    The NCAA can’t go to the discovery phase. Seriously.

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  4. This is an interesting development that could affect the antitrust cases. The antitrust issue is whether the obvious restraints of trade in the football and men’s basketball players’ market is reasonably necessary to the markets. The NCAA claims that the educational experience and opportunity makes players different from assistant coaches when it come to the antitrust law (several years ago the NCAA rule limiting certain assistant basketball coaches salaries was ruled to violate the antitrust laws.)
    The NCAA ultimately figures it’s ace in the hole is congress. Embarrassing facts from this case could scuttle any chances in congress.

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    • Scorpio Jones, III

      What you say is almost certainly true, Gaskill, but I wonder what would happen if the story moves from, say the crawler on ESPN, to say….CNN?

      While this story is not as overtly sexy as the Patriots letting air out of footballs, if somebody at CNN…a UNC grad, say, got this into the morning show it could be real trouble for both the NCAA and UNC.

      If what you are saying about congress is that their participation depends on the direction of the breeze de jour, I absolutely agree.

      Boy, the times they sho are a-changing.

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  5. stick jackson

    Well, Hausfeld is no dummy, and he’s not a philanthropist either. I suspect that at least part of what this is about is the Senator’s point about this being a means getting at some supremely embarrassing discovery as a means of buttressing a broader PR and litigation strategy.

    Airing of academic dirty laundry puts heat on university presidents in a way that even the most unseemly of the money stuff doesn’t quite. It can’t be shrugged off with “Uh, that’s regrettable, but blah blah.” It cuts right at the heart of what a university is supposed to be about, the faculty immediately goes bonkers, and the president has to respond with more than halfhearted platitudes. This suit could bring things to a boil with that important constituency of the status quo really quickly.

    In other words, could be a nightmare for the NCAA even if Hausfeld doesn’t get particularly close to winning on the merits.

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  6. Mayor

    How come Georgia is still suffering from the 20+ year old Jan Kemp BS while every other school (UNC, etc.) is wearing Teflon? Just askin’.

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    • Bulldawg165

      Forgive me because I’m not well versed on everything that went down at UNC, but did they actually fire a professor for not complying and then have that professor attempt suicide? If not, then there’s your answer.

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      • Scorpio Jones, III

        Please don’t take this the wrong way, but Kemp was not fired for not complying, and if memory serves, her suicide attempt was long after the case had been adjudicated, so I am not sure I understand your correlation.

        Kemp’s contract was not renewed because her review was negative.

        Reservoir Dawg is right, above, about the impact of the case on Georgia and on Jan Kemp.

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  7. Bulldawg165

    “Hausfeld also seeks monetary damages for all former and current NCAA athletes who didn’t receive the meaningful education they were promised by the NCAA”

    This seems like a high hurdle to clear without solid, undeniable proof that a student-athlete was strictly prohibited from a particular major due simply to being an athlete. Plenty of folks go to college and don’t receive a meaningful education.

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    • Exactly this – I don’t even see where the lawyer could name the NCAA in its suit with a straight face. I don’t see where the plaintiff can sue UNC without opening the door for every student who doesn’t succeed in his/her field of study to sue as well. That’s why I believe the suit is frivolous.

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      • Gaskilldawg

        I have not read the lawsuit so I have no idea what the claim is against the ncaa is but the fear that a successful suit against unc for setting up a sham course and steering a majority African American segment of the student body into it equals allowing classics graduates to recover damages because they couldn’t get a job shows a complete lack of understanding as to how courts work.

        You have better arguments against the plaintiffs. Don’t ruin it with the silly position that it is the same as a classics major suing because he can’t get a job.

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        • Bulldawg165

          There are sham majors at UGA made up predominantly of minorities who will never, EVER get a job in that field (except for the 1 in 1,000 that get their PhD and get a job as a professor of the sham courses).

          Nearly all universities have added a TON of “sham” majors so they can get hope scholarship dollars from the students while paying a professor/lecturer $50k/year tops. A good bit of those sham majors are overrepresented by minorities.

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        • Gaskill, I wouldn’t use that as a legal argument in a court of law. I’m only saying what I would be thinking if I were that classics major working at the convenience store and watching this lawsuit run its course.

          I don’t think there’s any way that a student-athlete would have a claim against the NCAA in this case, and I want the NCAA burned to the ground by Kessler and O’Bannon together.

          If UNC didn’t allow Ms. McCants or other student-athletes to major in anything but basketball (disguised as a sham major), I would agree that she has a valid claim against the university and its athletic department and deserves her day in court. If not, this looks like a lawsuit that is “I made a dumb decision, and now, I want someone to be financially responsible for that decision.”

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          • Gaskilldawg

            I took the time to read the lawsuit. By the way, it has nothing to do with a complaint by a student that she cannot get a job despite earning a degree.

            The lawsuit alleges in detail facts such as UNC advertising certain courses in its handbook as lecture courses and, after students enrolled, the courses never met. Instead the administrative staff asked the students to simply submit what we used to call a term paper. No faculty member would grade the paper. Instead, a certain member in the department would contact the athletic support staff for the student’s sport and find out what grade the student needed and the staff member (who was not a faculty member) would assign that grade. The athletic department got upset when that staff member of the academic department announced she was going to retire. The athletic support staffs for the sports warned players to get their papers into her while she was still there. She graded papers in a foreign language class advertised to students as a lecture course requiring a final paper written in the language. The course never met. She graded the papers, not a faculty member and awarded passing grades needed by the athletic support staffs on papers written in English. The football team had a power point at a football staff meeting in which it noted that the retiring person facilitated courses for athletes in which they did not have to stay awake in, or attend, or do any work, and discussed maintaining that advantage.
            The lawsuit alleges that UNC has an implied duty to provide the courses as advertised and represented, and it breached that duty. It alleges that UNC committed fraud by advising the students that course is a lecture course taught by and graded by faculty when in fact it is a no show course graded by a non faculty .

            Its claim against the NCAA is based upon a multitude of NCAA documents, NCAA position papers and Executive Director speeches. Read the lawsuit and the number of statements the NCAA and it’s directors make about its role in making student-athletes’ meaningful academic success, and that being the organization’s overriding issue. The lawsuit claims that the NCAA therefore undertook a duty to protect student-athletes’ educational opportunities. It alleges the NCAA knew of academic shenanigans, could have taken steps to prevent paper classes that do not operate as advertised in the student handbook and award grades based upon maintain eligibility and achievement but violated that duty by taking no steps to prevent UNC from doing what it did. The suit also contends that the NCAA, having made itself the protector of the students ‘ educational opportunities, had a duty to warn students about UNC operating sham classes.

            This has nothing to do with a graduate with a degree in classic who took real, academically sound classes and earned a degree and has to work in a convenience store.

            The real issues are, of course, issues of fact. Did the NCAA and UNC do what the plaintiffs said they did?

            Next, what duties did the NCAA owe to the students to stop what UNC was doing or to warn the students? What duty did UNC owe the students to deliver the academic courses advertised?

            Importantly, what duty did the students owe themselves in regard to their academics? If they owed a duty to themselves, how did UNC’s actions affect the students ability to protect themselves.

            The fact issues, if the judge determines there is a genuine issue as to material facts, are for the jury. The extent of the duties the defendants owe the plaintiffs and the plaintiffs owe themselves, are for the judge.

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            • Scorpio Jones, III

              Facts….NCAA?

              So Gaskill, what chu think, there…this thing gonna fly?

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              • If you are asking if the plaintiffs will ultimately win, I do not know. The allegations of fact in the complaint include a lot of facts already in public record or reported in the media. Other allegations of fact, especially allegations suggesting that students were mislead as to the content of the courses, will probably be contested facts. I have no idea how those factual issues will come out. My off the cuff thought is that there are at least two issues that will be crucial.

                What duty does the NCAA owe to students to make the academic experience meaningful, if any?

                What duty did UNC have to make sure the courses were legitimate courses, if any?

                What was the extent of the students’ duty to themselves to determine the worth of the course?

                Interesting legal issues as to the duties owed.

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      • I disagree because the university doesn’t make millions of dollars off of regular students who take classes that aren’t in their future best interest. They do, maybe, for football and basketball players who they only want to keep eligible, not educate, so they can keep the $$$ flowing. Me being at UGA did nothing for the school, although it may have saved a bar or two from closing. A big time athlete, that’s another story entirely.

        Also as a lawyer i love this blog. There is no better mix of law and sports than here,so thanks Bluto from one law nerd to another.

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        • I don’t see the connection between the law and the complaint here. It’s about the money and nothing more. As I said above, I’m not a lawyer and don’t claim to understand how the system works. As opposed to O’Bannon where the plaintiffs had a real complaint based in antitrust law, this suit seems to forget that the plaintiffs are adults who had the ability to select a different field of study and, for whatever reason, did not. I’m also fully behind Jeffrey Kessler’s lawsuit after reading the Senator’s well-reasoned arguments here.

          Oh, by the way, the universities do make millions of dollars off regular students (it’s called tuition and fees).

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          • If you read the complaint you would see the lawyers’ arguments as to how the complaint alleges a claim recognized by law. I am not saying that the plaintiffs will prevail. I am not saying that the court will or will not decide the defendants owe the duties the suit alleges. I am saying that if you read it you will at least be aware of the material issues. At this point you are not informed as the the material issues.

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  8. Russ

    But what does Stacy have to say?

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  9. W Cobb Dawg

    “…does anyone think the NCAA and the schools will emerge unscathed from this?”

    I do. Like Wall Street banksters, they’ll admit no guilt, write a fat check or two, and continue raking in money. The players won’t see much, if any, change until the day comes when they all walk off and don’t come back til they have a contract (and probably a union, like the big leagues have).

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  10. F’n money grab! UNC screwed up but these guys are full of it, too. Make bad choices and struggle in life- meh, just sue someone. All aboard the Bill Cosby train to free money…

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    • Gaskilldawg

      The Bill Cosby Free Money train obviously hasn’t left the station because no one made a dime. No one will. The statue of limitations expired long ago for all these women.

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      • Maybe the lure of 15 minutes of fame, tv show appearances, book deal, National Enquirer? There has been more than a dozen women so far. Maybe he is guilty. But it seems he has already defended this once. One thing for certain. Cosby’s lawyer is not working pro bono

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      • This is true and I feel for any woman who has actually been raped our sexually abused. I just find it very odd that they all came out at the same time after the first got the ball rolling, so to speak.

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