A Kentucky appeals court has affirmed a ruling that a booster and a booster organization supporting the University of Louisville men’s basketball program do not have sufficient standing to sue the NCAA over its decision to, in their opinion, excessively punish the basketball program for NCAA rules violations.
The court began by noting that the NCAA is a voluntary, unincorporated association made up of approximately 1,200 public and private colleges and universities located across the country. It is responsible for promulgating, interpreting, and enforcing bylaws governing intercollegiate athletics. Regulations passed by the NCAA govern the conduct of intercollegiate athletic programs of member institutions. The NCAA Committee on Infractions (COI), which is made up of volunteers from member institutions and the general public, is tasked with determining when violations of NCAA regulations occur and imposing appropriate sanctions.
Louisville is a public university and a member of the NCAA and is therefore subject to NCAA regulations. In 2015, the NCAA initiated an investigation into the school’s basketball program regarding alleged improper activities which violated several NCAA regulations related to recruiting and improper benefits. At the conclusion of the inquiry, on June 15, 2017, the COI issued a decision finding multiple major infractions of NCAA regulations. The COI imposed penalties requiring Louisville to vacate all regular season and conference tournament wins in which ineligible student-athletes competed from the time they became ineligible through the time they were reinstated as eligible for competition through either the student-athlete reinstatement process or through a grant of limited immunity. This meant Louisville had to vacate 123 wins and its tournament appearances from 2011 to 2015, including its 2012 and 2013 trips to the Final Four and the 2013 National Championship.
Tony Cotton is a fan of the program. The University of Louisville Protection and Advocacy Coalition (ULPAC) is ostensibly an organization “comprising at least 400 members, all of whom by their assertions to ULPAC have detrimentally relied on promises made by the NCAA to Louisville.” Cotton and ULPAC brought the action asserting multiple claims against the NCAA alleging damages resulting from its treatment of the school’s men’s basketball program. Specifically, they claimed the NCAA induced them to purchase tickets to witness the 2013 National Championship game by the NCAA promising the game would determine the champion “for the year 2013 for the rest of known time.” They asserted they purchased tickets because the school was one of the teams playing in the game. Claims for relief sounded in “tort, equity, breach of contract, trust, unjust enrichment and equitable and promissory estoppel.”
The NCAA and Louisville separately filed motions to dismiss the action for failure to state a claim upon which relief could be granted pursuant to CR2 12.02(f).
The NCAA asserted that:
Cotton and ULPAC were not entitled to assert claims for violations of any rights belonging to Louisville regarding penalties imposed by the COI;
purchasing a ticket to a sporting contest does not entitle the purchaser to contest subsequent penalties;
spectator disappointment in a sporting contest result is insufficient to satisfy the requirements of standing;
Louisville was an improper party to the suit; the COI’s decision was neither arbitrary nor capricious; Louisville owed no fiduciary duty to Cotton or ULPAC;
NCAA did not violate any rights held by Cotton or ULPAC;
NCAA was not unjustly enriched;
no claim for promissory estoppel existed; and
no viable claim for equitable estoppel had been presented by Cotton or ULPAC.
The lower court granted the motions to dismiss, noting that in “Powers v. Ohio, the United States Supreme Court established the contours through which a third party may obtain standing. The litigant must have suffered an ‘injury in fact,’ thus giving him or her a ‘sufficiently concrete interest’ in the outcome of the issue in dispute; the litigant must have a close relation to the third party, and there must exist some hindrance to the third party’s ability to protect his or her own interests.” Furthermore, the Kentucky Supreme Court has held “standing to sue means that a party has a sufficient legal interest in an otherwise justiciable controversy to obtain some judicial decision in the controversy.” Kraus v. Kentucky State Senate, 872 S.W.2d 433, 439 (Ky. 1993).
The appeals court noted that “the act of viewing a basketball contest or purchasing merchandise related to that basketball contest, regardless of the ultimate outcome or its status in history, does not create standing. … The internal punishment scheme of the NCAA as applied to the University of Louisville does not create the ‘injury in fact’ required by the Supreme Court under Powers.”
The appeals court went on the empathize with the pain felt by the plaintiffs, to a point.
“The imposition of penalties on the University of Louisville’s Men’s Basketball program by the NCAA caused a great deal of pain to many associated with the University,” it wrote. “However, that angst does not provide an avenue for a group of fans to attack the disciplinary actions of the NCAA, an association of which the plaintiffs are not members. The plaintiffs’ collective disappointment does not provide an avenue to assert claims against the NCAA when they cannot establish that they have a legally cognizable injury for which they may seek redress.”
The appeals court continued: “Although Cotton and ULPAC are clearly disgruntled by NCAA’s actions, try as they might, they simply cannot show entitlement to pursue an action against NCAA for the remedies they seek as they do not have a personal, particularized or concrete injury. The rights they seek to enforce belong to Louisville —rights Louisville itself chose not to pursue in litigation following NCAA’s imposition of sanctions. The thinly veiled attempts to convert Louisville’s rights into Cotton and ULPAC’s personal rights are simply unconvincing. Wrapping them in different cloth does not change the true nature of the claims. In the absence of a justiciable controversy, Cotton and ULPAC had no standing to bring this action in the first instance and, therefore, could not have stated a claim upon which relief could be granted. The trial court correctly dismissed the action.”
Cotton v. NCAA; Ct. App. Ky.; 2019 Ky. App.; LEXIS 180, NO. 2018-CA-001665-MR; 10/11/19
Attorneys of Record: (BRIEFS FOR APPELLANTS) Robert A. Florio, Louisville, Kentucky.
(BRIEF FOR APPELLEE NATIONAL COLLEGIATE ATHLETIC ASSOCIATION) Edward H. Stopher, Raymond G. Smith, Charles H. Stopher, Michelle L. Duncan, Louisville, Kentucky.
(BRIEF FOR APPELLEE, UNIVERSITY OF LOUISVILLE) Craig C. Dilger, Thomas G. French, Louisville, Kentucky.
