Photo credit: https://www.flickr.com/photos/diligent/

Photo credit: https://www.flickr.com/photos/diligent/

by Sarah Ebersole*

On September 16, 2015, Rutgers University suspended its football coach, Kyle Flood, for three games after he was caught violating a university policy regarding academic fraud.[1]  The coach violated the policy by contacting a faculty member on behalf of a student athlete on his team.[2]  The University president made the decision to suspend the coach, but the University also reported that it is investigating whether the coach’s actions violated National Collegiate Athletic Association (“NCAA”) rules.[3]  If the coach’s behavior turns out to be an NCAA violation, the case will fall into the category of the many academic fraud scandals that have been reported and gone half-heartedly addressed by the Association, which have led to skepticism about the NCAA’s motivation and consistency in disciplining such cases.[4]  If the NCAA does not engage in more effective sanctions or policy reform, the future threatens a vicious system where athletes are used for their performance and left to graduate with hardly an education at all.

NCAA and its Universities’ Incentives to Play Against the Rules

Under the NCAA bylaws, academic fraud occurs when a university employee arranges any extra benefit for a student athlete; such a benefit may include false academic credit, a falsified transcript, or support services outside of what the university deems appropriate.[5]  The most common types of academic fraud are providing exam answers and completing writing assignments for student athletes.[6]  Those involved with such indiscretions have purported that maintaining athlete eligibility and generating revenue results in pressure to retain elite athletes, contributing to the commission of academic fraud.[7]  Indeed, academic advisers at the University of North Carolina (“UNC”) admitted that their behavior was motivated by their desire to keep players’ grades high enough to stay eligible to play.[8]

Given the status of athletic departments at Division I schools, the pressure that university employees feel to contribute to the success of their student athletes is not all that surprising.[9]  While the universities rely on their athletic teams’ successes, the NCAA may be even more dependent on the financial success of prominent men’s athletic teams at their member institutions.[10]  Accordingly, there has been speculation that the NCAA may not impose proper sanctions in the UNC case, even if they may be the most effective way to prevent future instances of academic fraud.[11]  Further speculation suggests that the NCAA is unlikely to implement penalties solely for punishment purposes.[12]

A History of Standing on the Sidelines

Whatever the dynamic between the NCAA and its Division I schools, the NCAA’s disciplining of academic fraud so far has not achieved any reduction in incidents of student athletes receiving extra benefits from professors or academic advisors.[13]  However, the UNC case may be different. The publicity resulting from the news of the lawsuit against UNC has caused a snowstorm of investigation and reporting on just how many scandals like these have gone on at Division I schools across the country, with the NCAA turning a blind eye.[14]  One of the lawyers in the UNC case cited NCAA policies that undermined academic success goals and promoted academic fraud, such as allowing teams to report whole team grades, rather than individual athletes’ grades to the Association.[15]

In 2013, Michael McAdoo, a student athlete at UNC, filed a lawsuit against UNC and the NCAA, alleging that the University had breached its contract with him by preventing him from developing his skills and becoming a promising NFL draft pick, and that the University and the NCAA had negligently sanctioned him for academic fraud.[16]  McAdoo was declared ineligible to play football for the remainder of his career at UNC after the University discovered that a tutor provided by the school had written part of an assignment for him that he later handed in as his own work.[17]  The court refused to address McAdoo’s allegations on justiciability grounds.[18]  This lawsuit was just one of many that have been brought by a student-athlete based on academic fraud violations at NCAA member colleges, where the NCAA has maintained an unpredictable and unfettered pattern of discipline.[19]

As the Scandals Continue, Will the NCAA Step Up its Game?

The McAdoo decision raised concerns about the latitude the NCAA has in deciding punishments for academic fraud violations, and the havoc its inconsistency has wreaked on student-athletes’ academic and athletic careers.[20]  Courts have given the NCAA complete deference in enforcing its policies, with student-athletes becoming collateral damage. Courts have repeatedly deferred to the NCAA’s judgment in its enforcement decisions, so that when the NCAA oversteps its bounds with unjustly harsh punishments, student-athletes have no opportunity of redress for their loss of academic and/or athletic benefits.[21]  In light of the McAdoo decision and other decisions that have rendered students without proper education, athletic opportunity and adequate redress, the NCAA’s purported goals of academic and athletic integrity continue to be challenged, and without significant change, it is unlikely these goals will hold up for much longer.[22]


 

* Staff Writer, Jeffrey S. Moorad Sports Law Journal; J.D. Candidate, May 2017, Villanova University School of Law.

[1] See Marc Tracy, Rutgers Suspends Football Coach for Three Games, N.Y. Times (Sept. 16, 2015), http://www.nytimes.com/2015/09/17/sports/ncaafootball/rutgers-coach-kyle-flood-suspended.html (announcing suspension of Rutgers football coach and continuing investigation).

[2] See id. (describing incident that led to coach’s suspension).

[3] See id. (reporting on university’s follow up investigation pertaining to NCAA violations).

[4] See, e.g., Emily James, Weber State Math Instructor Assists With Academic Dishonesty, NCAA.org (Nov. 19, 2014, 11:38 AM), http://www.ncaa.org/about/resources/media-center/news/weber-state-math-instructor-assists-academic-dishonesty (announcing three-year probation of professor and reduced football scholarships after professor completed assignments for student athletes); Andy Thomason, NCAA Slaps U. of Georgia With $5,000 Fine For Coach’s Effort to Keep Athlete Eligible, Chronicle of Higher Education (Dec. 16, 2014), http://chronicle.com/blogs/ticker/ncaa-slaps-u-of-georgia-with-5000-fine-for-coachs-effort-to-keep-athlete-eligible/91307 (describing fine imposed on coach who orchestrated cheating scheme to keep student athletes eligible); see also Brad Wolverton, Confessions of a Fixer: How One Former Coach Perpetuated a Cheating Scheme That Benefitted Hundreds of College Athletes, Chronicle of Higher Education (Dec. 30, 2014), http://chronicle.com/article/Confessions-of-a-Fixer/150891/ (exposing nationwide cheating scandals involving hundreds of college athletes).

[5] See Nat’l Collegiate Athletic Ass’n, 2009-10 NCAA Division I Manual, arts. 10.1, 16.3.1.1, 16.11.2.1, available at http://www.ncaapublications.com/productdownloads/D110.pdf (setting forth NCAA bylaws).

[6] See generally Bradley David Ridpath, Gerald Gurney & Eric Snyder, NCAA Academic Fraud Cases and Historical Consistency: A Comparative Content Analysis, 25 J. Legal Aspects Sport 75 (2015) (providing background on occurrences of academic fraud in NCAA institutions).

[7] See id. at 75-77 (discussing NCAA’s impact on member colleges as contributing to pressure to engage in fraudulent behaviors in order to maintain academic and athletic standards).

[8] See Sarah Lyall, A’s for Athletes, but Charges of Fraud at North Carolina, N.Y. Times (Dec. 31, 2013), http://www.nytimes.com/2014/01/01/sports/as-for-athletes-but-charges-of-tar-heel-fraud.html (describing faculty involved in scheme to create classes fraudulently passing student athletes with academic credit).

[9] See Ridpath, supra note 6, at 75-76 (describing that success of athletic department drives public notoriety, enrollment and revenue for universities).

[10] See id. at 76 (asserting that success of division I teams directly impacts NCAA’s financial stability and existence of the association).

[11] See Jon Solomon, UNC’s Unprecedented Academic Fraud Case Will Test NCAA, CBSSports (Oct. 24, 2014, 10:54 AM ET), http://www.cbssports.com/collegefootball/writer/jon-solomon/24765822/uncs-unprecedented-academic-fraud-case-will-test-ncaa (suggesting NCAA president’s weak position on sanctions for academic violations).

[12] See id. (referencing NCAA president’s comment that only standard discipline procedures will be used).

[13] See Tom Ley, NCAA Investigating Academic Fraud at 20 Colleges, Deadspin (Jan. 1, 2015), http://deadspin.com/ncaa-investigating-academic-fraud-at-20-colleges-1680928515 (discussing NCAA’s past enforcement of academic fraud as mere slap on the wrist type punishment that has been ineffective).

[14] See Stewart Mandel, NCAA’s Response to Damning UNC Report Will Define its Future, Fox Sports (Oct. 22, 2014) http://www.foxsports.com/college-football/story/north-carolina-academic-scandal-wainstein-report-investigation-ncaa-102214 (discussing NCAA’s decision to reopen investigations at UNC despite formerly deciding not to intervene on grounds that issue was solely academic).

[15] See Ben Strauss, Claiming Academic Fraud, Ex-Athletes Sue North Carolina and the NCAA, N.Y.Times (Jan. 22, 2015), http://www.nytimes.com/2015/01/23/sports/former-athletes-sue-north-carolina-over-academic-fraud.html (describing NCAA policies as allowing universities to hide certain athletes’ poor academic performance and progress).

[16] See Katherine D. Tohanczyn, Note, Fumble! How the North Carolina Courts Dropped the Ball in McAdoo v. University of North Carolina at Chapel Hill, 21 Moorad Sports L.J. 385, 407-10 (2014)  (describing student athlete’s claims that university and NCAA breached duty in enforcing academic fraud policies).

[17] See id. at 393 (describing McAdoo’s academic violation revealed in UNC’s investigation).

[18] See id. at 385 (discussing the North Carolina Court of Appeals’ failure to address possible NCAA encroachment on reasonable sanctions for policy violations).

[19] See Sarah Lyall, U.N.C. Investigation Reveals Athletes Took Fake Classes, N.Y. Times (Oct. 22, 2014), http://www.nytimes.com/2014/10/23/sports/university-of-north-carolina-investigation-reveals-shadow-curriculum-to-help-athletes.html (listing investigations of academic fraud at twenty different institutions).

[20] See Tohanczyn, supra note 16 at 389 (describing NCAA’s unfair treatment of athletes in restrictions and punishments); see also Lyall, supra note 19 (describing NCAA’s lack of enforcement of academic fraud resulting in inadequate education of student athletes).

[21] See Tohancyn, supra note 16, at 385 (describing how NCAA’s inconsistent, unchecked and unreasonable punishment decisions have cost students benefits NCAA was designed to provide).

[22] See, e.g., id. at 389 (describing criticism of NCAA’s enforcement procedures); Wolverton, supra note 4 (describing academic fraud perpetuated by inconsistent NCAA sanctions); Strauss, supra note 15 (describing NCAA’s questionable treatment of student’s unfair treatment claims based on academic fraud committed by university).

 

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