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Sports Law
University of Kansas School of Law
DeLaTorre, Phillip E.

FALL 2012
NCAA Basics
In General
·   Organization of colleges and universities, includes other groups related to intercolleg. athletics
·   Represents ≈ 360,000 student-athletes and ≈ 1,000 member schools
·   Purpose is to regulate intercollegiate athletics
·   Most dominant intercollegiate regulatory organization
Membership Procedure—Constitution Article 3
·   Membership is Voluntary
·   7 year probationary period
·   Administrative cabinet determines if school meets all requirements for membership
·   Leadership council votes on entry after probationary period (must get 2/3 vote)
1.      Made up of representatives from conferences, schools, etc.
Eligibility to enter NCAA Championship Competition
·   School must be an active member of NCAA and in good standing in appropriate division of NCAA
·   School must be eligible under rules of their conference and paid membership dues
Functions of NCAA
·   Regulate athletic competition among members
·   Set academic and amateur eligibility for members
·   Establish restrictions and guidelines for recruiting
·   Conduct championship events
·   Enter into media agreements
·   License NCAA name and logos
Structure of NCAA
·   3 Divisions
1.      Division I—big schools, allowed to offer full scholarships
·         DI Football divided up into FBS (I-A) and FCS (I-AA)
2.      Division II—smaller schools, allowed to offer scholarships
3.      Division III—smallest schools, do NOT offer scholarships
·   Division I Qualifications
1.      Offer 7 men’s and 7 women’s sports (OR 6 men’s and 8 women’s)
2.      Sponsor 2 team sports from each gender
3.      Play 100% of minimum games against other D-I schools, 50% above the minimum must be against other D-I schools
4.      Play all except 4 games against other D-I schools
2 Key Concepts of NCAA
·   Amateurism- Bylaw 12
1.      No pay—includes any salaries, stipends, or benefits to parents as well
2.      Hiring an agent or declaring for the draft jeopardizes status
3.      Restrictions on ind. promotional activities benefiting the athlete based solely on athletic abilities- Bylaw 12.5
4.      Restrictions on employment independent from athletics if on full schol’p- Bylaw 12.4
·   Importance of Education
1.      Stds for initial eligibility for athletes entering college
2.      Progress stds for continuing athletes towards getting a degree
3.      Four years of eligibility—complete in 5 calendar years
4.      Restrictions on # of hours for practice and times of yr for comp- Bylaw 17
Day-to-Day Operations of NCAA
·   Overseen by hierarchy of 18 member governing Board
1.      Admin Cabinet- 1 rep from each major conference (3 votes), certain mid-major (1.5 votes) and certain minor conferences (1.2 votes)
·   Permanent professional staff for administration: Compliance, Publishing, Recruiting
1.      Recruiting Activities- Bylaw 13
·         Limit on number of visits by coaches to athlete
·         Limit on number of visits by athlete to school
·         Restriction on when visits can occur
Institutional Control (Capstone Offense)
·   Failure to maintain institutional control over a program. Chancellor or President is responsible 
Conference Basics
Article 3.3—provides for conferences
·   Voluntary associations consisting of at least 6 institutions
·   Voting Power—must conduct competition for at least 4 men’s and 4 women’s sports
·   Rules and Regulations can be stricter than NCAA rules, but not more lenient
·   If conference consists of >40 members, at least 90% must be members of NCAA
Relationship Between the Athlete and the University
Contractual- The relationship b/w school an athlete is contractual, an its not w/ a coach
·   Express Contract arises out of:
1.      Letter of Intent
·         School violation of NCAA or conference rules cause LOI to be void
2.      Statement of Financial Assistance
3.      University Publications (catalogues bulletins etc. become part of the K)
·   Letter of Intent- Students binding promise to:
1.      Attend a particular university; AND
·         Penalty for enrolling with another school:
                                                                                                                                      i.      Cannot play for a year (year counts against eligibility)
2.      Participate in a particular sport for the university
·   Statement of Financial Assistance
1.      Binding promise by Univ to provide financial aid (tuition, fees, room & bd, books); AND
·         Scholarship (Financial Aid)-Bylaw Art. 15
                                                                                                                                      i.      Year to year, Not automatically renewed
                                                                                                                                    ii.      Can be reduced or removed if:
1.      Student renders himself ineligible
2.      Student fraudulently represents himself on an schol application
3.      Student engages in serious misconduct warranting sub disciplinary penalty
                                                                                                                                  iii.      Scholarship Cannot be reduced or removed for:
1.      Student’s contribution to team success (ability)
2.      Injury that prevents athlete from otherwise participating
2.      Student Agrees to comply w/ rules
Oral promises not covered, usually 
·   Taylor v. WF- Oral K unconvincing. Univ. decides reasonable academic progress (min gpa req). Two prongs to Contract- Athletics & Academics. The student athlete must participate in both. Taylor breached his K w/ WF for failing to remain physically ready for practice and games, so the WF is not liable to him.
1.      Example (p138): Coach promises to stop recruiting a different player, will make him the center of the team, won’t leave to go to a different school.  Player signs NLI, coach leaves the school, another center signs.
·         Consider fraud theory: Must have relied reasonably upon what the coach said.
                                                                                                                                      i.      Was the reliance reasonable?
                                                                                                                                    ii.      Intent: Did coach intend to deceive?
·         Ed’l Mal- Prob not
·         Breach of Contract: Breach of specific promise made by Inst- Ross case
·   Ross v. Creighton- (Ross Exception/Provision/Test)
1.      Breach of K- To assert a breach of K claim, you must assert a specific identifiable promise that the school failed to honor. (this allows for an obj. assessment of whether Univ. made a good-faith effort to honor that promise.)
·         Don’t want to examine a college’s instruction or teaching methods
2.      Neg. Admission claim- Cts don’t want to get involved w/ admissions process
3.      Application of Ross: Promised set # of hrs of instruction- could be enforced; Promised to qualify him as a journeyman, and failed to offer courses to do so- could be enforced
·   Jackson v. Drake- (Promises of stardom and adequate academic support)
·         Breach of K claim- rejected /c P admitted D fulfilled fin’l agmt. Neg claim- lack of appropriate std, cts don’t want to micromanage ed’l mgt
·         Negligent Misrepresentation Elements:
                                                                                                                                      i.      In the course of its business, profession or employment
                                                                                                                                    ii.      D supplied false information
                                                                                                                                  iii.      For the guidance of others in their business transactions
                                                                                                                                  iv.      Which was justifiably relied upon by P
                                                                                                                                    v.      & D failed to exercise reas care/competence in communicating the info
·         Fraud elements:
                                                                                                                                      i.      A material misrepresentation (stmt of false info)
                                                                                                                                    ii.      Knowingly made by D
                                                                                                                                  iii.      w/ intent to induce P to act
                                                                                                                                  iv.      upon which P justifiably relies
                                                                                                                                    v.      resulting in damages to P
·   Searles v. St. Josephs- Oral promise to pay medical bills after permanent bball injury. Not enforceable k b/c offer needs to state all the terms of the K, not fair for one party to say everything. No consideration here.
Possible Causes of Action Against University-
·   Breach of K- Ross Case
1.      Legal barrier to oral- SOF, PER, K need to include all K terms, consideration lacking if only 1 talks
·   Ed’l Mal- Most states don’t recognize, often rejected by jury. No std to judge educator
·   Neg Admission- Often rejected. No uniform st of care to judge educator
·   Negligence
·   Negligent Misrepresentation & Fraud (above)
·   Negligent Hiring- If reas. foreseeable that an ee will work directly w/ 3rd parties, special duty of care owed to 3rd parties in hiring that ee. – Requires P to be physically injured as a result
Special Relationship between Athlete and University?
·   Fid. Duty- Hendricks v. Clemson says “no, these kinds of relat. should be recognized only in the context of legal or bus. settings in which money or a property interest is entrusted to another.”
·   Resd. Sup- Hanson v. Kynast says “no, because the univ does not exercise control over the SA.  The student-athlete is a buyer of educational services and is not an agent of the univ.” – was voluntarily playing lacrosse, not on school. Fin’l aid docs don’t create an employment rel’sp.
Academic Reform Legislation
Two Categories:
·   Initial Eligibility Standards
1.      Requirements incoming freshmen must satisfy to qualify as a SA
2.      Based upon:
·         Standardized Test Scores
·         High school GPA and Core HS Course Requirements
·   Satisfactory Progress Rules
1.      Requires student-athlete to achieve certain academic steps toward a degree
2.      Must declare a major by a certain point (junior year)
3.      Must complete so many credits per semester toward the degree (see below (b)(2))
Academic Progress Rate (APR)- Measures a school’s academic progress
·   Min goal is 60% graduation rate
·   NCAA reviews status of each scholarship athlete at each institution to determine if student remains academically eligible and whether student is still enrolled
1.      One point per

             i.      Anyone Well Known By Public (Celebs, Athletes, cadidates for office, Gov ees (even police or military))
                                                                                                                                    ii.      Someone who voluntarily places themselves in the public eye
2.      Modern Rule—states free to set standard default rules, but unconstitutional to apply strict liability
·         Minority of states require Δ to have acted in reckless disregard
·   Rights of the Media Regarding Sports Figures
1.      Bilney v. The Evening Star Newspaper Co. (p. 162)(Coach reveals bad grades)-
·         RSt 652- Invasion of Privacy- unreas publicity given to another’s private life. Publicity must be highly sensitive to a normal person and not of legit public concern. (Public Figuress- malice Standard)
·         Ps must show that publicitys highly offensive to a reasonable person of ordinary sensitivities & not of a legit public concern
·         Players were public figures, which lessens the legit public concern req.
·         Ability to play bball is contingent on grades, there4 grades were public concern
Religious Freedom Rights
·   Common Issues
1.      Accommodation of religious interests of competitors, coaches, and institutions
2.      Team prayer in the locker room—generally only at high school level
·   Court Decisions
1.      Accommodation typically not required
2.      Preferential treatment of particular religious groups is prohibited
·   Example—End-zone celebrations
1.      NCAA prohibits these, but more willing to allow an individual to kneel and pray or point toward the sky
Freedom of Speech by Individual Student-Athletes
·   Right to be free from retaliation
1.      May include employee’s right to report NCAA violations without retaliation
·   Different legal standards for college and younger students
1.      Younger students can be regulated more
·         In loco parentis—school is acting in capacity of parents
2.      In loco parentis disappears when student reaches college
·   Case
1.      Ridpath v. Board of Governors Marshall University (p. 169)
NCAA Regulatory Authority and Legal Limits
Federal Constitutional Law
·   NCAA v. Tarkanian (p. 170)- NCAA is not considered a “State Actor”. If a Pub Inst delegates its authority to the NCAA, and the NCAA makes an action, NCAA is an agent of the Inst, making NCAA’s action state action.
1.      Listening to NCAA, but not delegating any power to them, does not make NCAA a St Actr
2.      University adopting NCAA rules does not make NCAA state actor.
3.      Typically, private party makes last decision & actions constitute “state action” by delegation of authority. Here, UNLV made last decision (a reversal scenario)
NCAA Rules Enforcement Process
Institutions and the Infractions Process
Two Committees:
·   Committee on Infractions (COI)
1.      Acts as a combo of trial ct and admin agency
2.      Interprets NCAA rules and imposes penalties on member institutions
·   Infractions Appeals Committee
1.      Means of addressing Due Process concerns
2.      Like a ct of appeal for COI. Std of review is showing of info that might have supported a contrary result clearly outweighs info that COI based its findings on.
Mission of NCAA Enforcement Program- Bylaw 19.01.1
·   Eliminate violations and impose penalties when they occur
·   Commitment to fairness and timely and equitable resolution to infractions cases
Requirements of NCAA Member Institutions- Bylaw 19.01.2
·   Cooperate with NCAA in investigation of compliance issues—failure to cooperate is its own viol
Major Issue
·   Does conduct alleged amount to a failure to maintain institutional control?
1.      Constitution § 6.01.1
2.      Failure to supervise and monitor programs is a violation—more than just one single act
NCAA Constitution
Institutional Control & Responsibility (p.180)
·   2.1.1- Schools are responsible for compliance w/ NCAA rules
·   2.1.2- Institution’s responsibility includes responsibility over actions committed by others engaged in activities promoting the program (i.e. boosters)
Institutional Governance
·   A Board can be created for advising and making policy decisions, but 1 is not required (6.1.2)
·   Faculty Athletics Representative (FAR) (6.1.3)
1.      Must designate faculty member outside athletics department
2.      Job is to represent univ and faculty in its reltships with NCAA and other conferences
·   Student-Athlete Advisory Committee (6.1.4)
1.      Must create in order to provide advice to student-athletes