By Ellen J. Staurowsky, Ed.D., Senior Writer & Professor, Sport Management, Drexel University, ejs95@drexel.edu
In Hancock v. National Collegiate Athletic Association (2018), five former men’s basketball players who competed at the University of Louisville raise questions many current and former college athletes contemplate when their victories and accomplishments have been erased as punishment for NCAA rules violations. First, can the courts provide relief to former college athletes who believe they have been unjustly implicated in the wrongdoing of others and suffered harms as a result of NCAA sanctions? Second, do college athletes have a legally protected interest in the individual awards and team victories they earn?
Background
In the fall of 2015, a businesswoman in Louisville, Katina Powell, released a book entitled Breaking Cardinal Rules: Basketball and the Escort Queen detailing salacious stories of parties she was paid to organize in Minardi Hall, the men’s basketball residence at the University of Louisville (U of L). Not surprisingly, the notion that a college men’s basketball team had regularly funded parties over the span of several years that offered the promise of sex to current players as well as recruits and their family members became fodder for the media and a target of NCAA enforcement staff. The embarrassing nature of the disclosure quickly blanketed the University of Louisville men’s basketball program, director of basketball operations Andre McGee (credited with managing the parties and paying Powell), head coach Rick Pitino, and athletic director Tom Jurich with scandal and charges of corruption.
Louisville officials were not blindsided by the release of the book. In August of 2015, a former player had been contacted for a media interview about stories that were circulating regarding adult entertainment hosted in Minardi Hall. The player passed the information along to the U of L athletic department. Ten days later, Coach Pitino and Athletic Director Jurich received requests for interviews which they declined. They did, however, reach out to the NCAA enforcement staff to alert them to the fact that the University was beginning an investigation into the matter.
While the University sanctioned itself by imposing a ban on participating in post-season play during the 2015-2016 season following its own internal review, the NCAA investigation into the claims made by Powell in her book resulted in findings that U of L personnel had violated several NCAA rules pertaining to the provision of impermissible benefits to three current athletes and 15 recruits (10 of whom were underage), unethical conduct, an expectation of cooperation, and head coach responsibility. According to the NCAA Infractions report (2017), this case involved the blatant and willful disregard of NCAA rules that caused athletes to be rendered ineligible.
Penalties assessed by the NCAA against the University of Louisville included four years of probation (June 15, 2017-June 14, 2021), return of monies received for four NCAA Division I men’s tournament appearances (2012, 2013, 2014, and 2015) for games in which ineligible players participated; suspension of Coach Pitino for failure to provide proper oversight of the program; a show cause order against the former basketball operations director; and a vacation of wins and individual awards earned by players in the program.
Former U of L Player Claims Against the NCAA
The Plaintiffs in this case, former Louisville players Luke Hancock, Gorgui Dieng, Stephan Van Treese, Tim Henderson, and Michael Marra focus their complaints on the unfairness of penalizing innocent players, robbing them of the legitimate stature that should accrue to them as a result of their accomplishments, and denying them the benefits of their property rights in the team’s wins and players’ awards. The players seek damages for the loss of economic opportunity as well as compensatory damages and “a declaration that they are completely innocent of any wrongdoing as implied by the NCAA” (Hancock et al. v. National Collegiate Athletic Association, 2018, p. 14).
In this civil action filed in Jefferson County, Kentucky, home of the University of Louisville, the Plaintiffs accuse the NCAA of casting the players in a false light, promissory estoppel, breach of contract, negligence, conversion, and trespass to chattels. As a foundational matter, the Plaintiffs assert that they “…were in full compliance with all provisions of the applicable NCAA Constitutions and Bylaws and all rules and regulations of the institution and conferences at all relevant times…” (Hancock v. National Collegiate Athletic Association, 2018, p. 4). To summarize, below are each of the counts with a brief explanation:
Count I — False Light: As per the complaint, the NCAA claims that it has the welfare of athletes at the core of what it does. And yet, the broad “declarations” of wrongdoing the NCAA made to the public and the indiscriminate punishment of Hancock and the other plaintiffs who engaged in no bad acts were guilty by association. In effect, the manner in which the NCAA meted out punishment encouraged a belief that the Plaintiffs had “engaged in lewd and lascivious behavior”, “received improper benefits”, “competed while ineligible”, and “are not champions” (Hancock v. National Collegiate Athletic Association, 2018, p. 6). The implication of this taint on character and reputations of the players is presented in the complaint as the factor that “led to the revocation of their victories, championships and individual honors…” (p. 6). For the NCAA to float such an implication allegedly distorts the facts and leads the public to a conclusion about the players that is false. The Plaintiffs did not engage in any of the behaviors (prostitution, receipt of improper benefits, participation in lewd and lascivious conduct) that precipitated the punishment and subsequent harm done to them. To have encouraged the public to consider such an erroneous scenario about these players demonstrated that the NCAA had acted with reckless disregard for the welfare of the Plaintiffs.
Count II — Promissory Estoppel: The allegation here is supported by the contention that “…the NCAA led the Plaintiffs to believe that any and all wins, championships, awards, honors and achievements the Plaintiffs earned as eligible student-athletes would be theirs, in perpetuity, absent a specific finding that they, individually, were ineligible” (Hancock v. National Collegiate Athletic Association, 2018, p. 9). Plaintiffs note that they upheld their end of the bargain by working an inestimable number of hours and making sacrifices to ensure that they achieved at high levels and remained eligible. According to the Plaintiffs, the NCAA both benefitted and profited from their efforts and are therefore entitled to recoup the value of that effort.
Count III — Breach of Contract: Although college athletes are not members of the NCAA and have no contract with it, the Plaintiffs allege they are third parties to the contract between the University of Louisville and the NCAA. Noting that all contracts in the state of Kentucky include an implied covenant of good faith and fair dealing, the Plaintiffs argue that the NCAA acted in bad faith and did not treat the players fairly when the decision was made to vacate Louisville’s 123 wins, a national championship and individual awards such as Luke Hancock’s most valuable player award for the 2013-2014 NCAA Division I men’s basketball tournament.
Count IV — Negligence: According to the Plaintiffs, when the NCAA set out to investigate alleged criminal activity, they lacked the necessary expertise to do so and the necessary authority. As a result, the NCAA allegedly abandoned its responsibility to responsibly conduct investigations into wrongdoing.
Count V — Conversion: The Plaintiffs argue that they possess “…an intangible property right/status for winning the games, tournaments, and championships…” (Hancock v. National Collegiate Athletic Association, 2018, p. 11) as set forth in the complaint. The vacation of win and awards by the NCAA deprived the Plaintiffs of their rightful property. As a result, the Plaintiffs have suffered damages from the loss of that property.
Count VI — Trespass to Chattels: The NCAA is accused of significantly impairing the Plaintiffs ability to use their property.
Count VII — Declaratory Judgment Act: Finally, the players seek vindication in a declaration that establishes their innocence, acknowledges their property right to the wins and individual awards they have deprived of as well as the value of those rights, and seeks to reestablish that they are in fact champions.
Potential Defenses
In its response to Hancock et al. (2018), the NCAA is likely to argue that the University of Louisville, like all member institutions, are obligated to comply with NCAA rules. The punishment of the University of Louisville flowed from that obligation, one that school officials as well as the athletes themselves firmly understand. The players challenge to the vacation of wins may be countered with the rationale that this type of punishment is intended to discourage bad behavior and to create an incentive for schools to pay serious attention to complyiance, particularly in terms of ensuring that the athletes who are competing are eligible when they compete. When athletes sign their compliance paperwork, they indicate that they understand that if an ineligible player competes anyway the vacation of wins is a possiblity.
The Plaintiff’s case, hinging as it is in part on the idea that the players were impugned by the NCAA declarations of wrongdoing may be vulnerable from a timeline perspective. Given that media inquiries started to be made to at least one former player in August of 2015, the NCAA did not move forward with an announcement about an inquiry into the case until October of 2015. Additionally, given the salaciousness of Powell’s book published in September of 2015, public perception may already have been getting shaped that linked scandal with the U of L program and its players before the NCAA weighed in on the matter. The NCAA may also note that in public documents and announcements regarding the case none of the Plaintiffs were expressly named.
The NCAA may further argue that the investigation was conducted in a careful and thorough manner and the result reasonable given the facts.
Conclusion
Does this case have little merit that predicts an easy dismissal for the NCAA or have the players presented a challenge that the NCAA will not easily shake? In interviews with Tim Sullivan (2018), a journalist with the Louisville Courier, several attorneys noted that Luke Hancock and the other players are sympathetic figures, but the NCAA is likely to have the better legal argument. If the case does go to trial, the NCAA risks the possibility of a jury that might be persuaded by the argument Hancock’s lawyer, John Morgan, made in a press conference that the NCAA is a morally bankrupt institution that profits off of economically disadvantaged athletes and is accountable to no one (Sullivan, 2018). Regardless of whether one finds such an argument wholly correct, merely hyperbolic, or somewhere in between, this case joins the growing list of lawsuits from current and former players who are well aware that the system does not serve their interests and are destined to seek relief in the courts because they do not have a players’ association and the rules, along with the implications of the rules, have been imposed on them unilaterally.
References
Bishop, G. (2011, August 1). N.C.A.A. penalties erase wins but not memories. New York Times. Retrieved from https://www.nytimes.com/2011/08/02/sports/ncaa-penalties-erase-the-wins-but-not-the-memories.html
Luke Hancock v. National Collegiate Athletic Association. (2018). Case No: 18-CI-003982. Retrieved from https://interactives.courier-journal.com/pdf/UofL-basketball-Lawsuit.PDF
NCAA Infractions Committee. (2017). University of Louisville public infractions decision. Indianapolis, IN: National Collegiate Athletic Association.Retrieved from https://web3.ncaa.org/lsdbi/search/miCaseView/report?id=102682
NCAA Staff. (2017). Men’s basketball records. Indianapolis, IN: National Collegiate Athletic Association. Retrieved from http://fs.ncaa.org/Docs/stats/m_basketball_RB/2018/D1.pdf
Powell, K. (2015). Breaking Cardinal rules: Basketball and the escort queen. Indianapolis, IN: IBJ Book Publishing. Retrieved from https://www.amazon.com/Breaking-Cardinal-Rules-Recruiting-Tactics/dp/1939550289
Sullivan, T. (2018, July 11). Ex-Card Luke Hancock sympathetic, but law seems to be on NCAA’s side. Louisville Courier Journal. Retrieved from https://www.courier-journal.com/story/sports/college/louisville/2018/07/11/louisville-player-lawsuit-luke-hancock-ncaa-tim-sullivan/775690002/
Tracy, M. (2018, February 20). Louisville must forfeit basketball championship over sex scandal. New York Times. Retrieved from https://www.nytimes.com/2018/02/20/sports/ncaabasketball/louisville-ncaa-title.html
