CONCERNED FANS FOR
May 31, 2010
UK Should Fight The NCAA
On March 28, 2010, the New York Times reported “N.C.A.A. Is Looking Into Former Kentucky Player.” Some say that the New York Times would not go to press with such a story without having the sources and the evidence to support their allegations against Eric Bledsoe, John Calipari, and the Kentucky Basketball program. However, the NY Times and other members of the press have a track record of not doing their "work" in a proper manner. This track record supports suspicions that the NY Times may be driven by an agenda or a bias in publishing this story at all, much less the timing of the report given Connecticut's recent disclosure of NCAA violations.
About one year ago, the NCAA handed down sanctions against Memphis in the Rose case that required Memphis to return NCAA Tournament monies, forfeit wins because the NCAA determined after the fact that Rose was ineligible to play college basketball. The NCAA applied these sanctions even though the NCAA Clearinghouse had reviewed Rose's record and declared him eligible to play. Calipari and Memphis acted in reliance upon this NCAA finding, and just as any program in the NCAA would have done, played Rose.
The NCAA declared in its Memphis decision that playing an ineligible player is a strict liability offense. That means that the NCAA will sanction any school simply for playing the ineligible player even if the school was not negligent in doing so. In addition, even though the school used the NCAA's own independent certification of the kid's eligibility to establish the reasonableness of its decision to play the kid, the NCAA can and will punish the school when the NCAA subsequently determines that the kid was actually ineligible. No negligence, no knowledge, and no intention need be present.
Negligence occurs with a person or organization failed to exercise "reasonable care" in an action. In this type of case, a school would exercise reasonable care in my opinion when acting in reliance upon the NCAA Clearinghouse's certification. That is what Memphis did, and that is what UK did. This is a lower standard than knowingly violating a rule, or intentionally violating the rule. Under such a negligence standard, acting in a reasonably prudent manner would be a successful defense against the allegation of playing the kid when the NCAA subsequently declares the player ineligible. However, in the Memphis decision, there was no evidence of which I am aware that Memphis acted negligently, much less intentionally or knowingly. Rather, the evidence of a reasonableness standard, e.g. relying upon the Clearinghouse's certification, was not sufficient for the NCAA to conclude that Memphis was not culpable.
As applied to the Memphis case, reasonableness would be, “What would a reasonably prudent NCAA D1 member school, in good standing have done under the same circumstances as Memphis?” For member schools to support the NCAA's position, in my opinion, they would have to accept the premise of the rule that each member school has its own duty of due diligence with respect to every player they recruit and offer a scholarship before allowing that player to enter a single basketball game. No school has the resources, not even the schools like Kentucky, North Carolina, or Kansas, to comply with such a rule. Yet, that remains the “law” of the NCAA because of the Memphis decision, and I do not recall a single NCAA President or AD speaking publicly last summer in support of Memphis and against the NCAA's decision. Where is the outcry from the member schools over the Memphis ruling?
The logical consequence of this rule, if evenly enforced against all member schools, is that no school can afford to take a chance recruiting any player that is borderline eligible. Therefore, only clearly eligible players will get an opportunity to play college basketball at the D1 level. Regardless of actual eligibility, kids like Eric Bledsoe will effectively be locked out by this system. For the vast majority of NCAA Member schools, that application has a practical level of tolerance because they are never in the running for the services of an Eric Bledsoe, a prime D1 basketball prospect with a borderline academic record. Therefore, the vast majorities of the NCAA D1 Members can, and have, turned a blind eye on the Memphis ruling
Therefore, we end up with strict liability, e.g. violation of the rule results in punishment regardless of absence of negligence, knowledge, or intention.
The Memphis decision is awful because no school can protect itself completely from violation. Unless and until some member school takes the NCAA to court over that ruling, or the principle it stands for, it stands as precedent within the NCAA. Memphis appealed within the NCAA system, but apparently, Memphis decided to move on with its program's life and not challenge the NCAA's authority to do this in a court of law. Without that legal challenge, the NCAA member schools largely will ignore the broad consequences of the rule and allow the NCAA to use it as a weapon against preferred targets. Call me paranoid, but many within the NCAA want to bring down Calipari, and want to bring down a powerful Kentucky basketball program that Calipari now directs. Only a court challenge can stop this tyranny.
I do not know how a court would view this question, because the NCAA is a private member based organization, whose members make and enforce its own rules upon its members. The complaining party will probably have to show some broad public interest in seeing the Memphis standard taken down. However, if a member school could get this issue before the Federal Courts, there would be no place for the other 346 member schools to hide with respect to taking a public position about their ability to comply with the Memphis rule. Sure, some would take a position supportive of the NCAA's Memphis rule, but I do not believe the majority would do that to their detriment to simply allow the NCAA a mechanism to selectively punish other members.
In my opinion, if the NCAA sanctions UK over the Bledsoe situation, and if UK was not negligent in playing Bledsoe, it is my opinion that UK should be the school to take the NCAA to the mat over their application of strict liability in this manner.
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