Bite the Hand That Feeds: Holding Athletics Boosters Accountable for Violations of NCAA Bylaws

Author:Sean Sheridan
Position:Capital University Law School, J.D., May 2012
Pages:1065-1103
 
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BITE THE HAND THAT FEEDS:
HOLDING ATHLETICS BOOSTERS ACCOUNTABLE
FOR VIOLATIONS OF NCAA BYLAWS
SEAN SHERIDAN*
I. INTRODUCTION
Success by a key athletic program at the National Collegiate Athletic
Association (NCAA) Division I level often “translates into millions of
dollars and immense pride” for collegiate institutions.1 Accordingly,
colleges and universities justify their athletic departments’ substantial
expenditures “as a means to achieve a wide range of legitimate objectives,”
such as improving facilities, gaining school recognition, or attracting
faculty and students.2
Because Division I athletics are often viewed “as the first step towards
professional sport,”3 the recruitment of prospective student-athletes (PSAs)
is highly competitive.4 Accordingly, it is no surprise that collegiate
institutions place considerable emphasis on recruiting PSAs.5 While
Copyright © 2013, Sean Sheridan.
* Capital University Law School, J.D., May 2012. I would like to thank all of the
people who provided me with advice and support. I would especially like to thank Jeff
Chilcoat, founder of Sterling Sports Management, LLC, for providing his expertise
throughout this process.
1 Maureen A. Weston, NCAA Sanctions: Assigning Blame Where It Belongs, 52 B.C. L.
REV. 551, 551–52 (2011).
2 Matthew J. Mitten et al., Targeted Reform of Commercialized Intercollegiate
Athletics, 47 SAN DIEGO L. REV. 779, 781 (2010).
3 Colleges Have to Meet Certain Standards to Compete in Each Division, COLLEGE
SPORTS SCHOLARSHIPS, http://www.collegesportsscholarships.com/ncaa-d ivisions-
differences.htm (last visited Nov. 23, 2012).
4 Id. (“Division I is home to many of the country’s biggest universities. There are many
scholarship opportunities and the competition is cut-throat.”).
5 See Bruce Feldman, Recruiting’s Importance Keeps Growing, ESPN,
http://sports.espn.go.com/ncaa/recruiting/football/columns/story?columnist=feldman_bruce
&id=4453458 (last updated Sept. 8, 2009). Feldman commented on the changing recruiting
dynamics and the new pressures involved in the process:
Perhaps an even stronger pull in the perceived recruiting power of a
school is that if other blue-chippers see that some upstart program is
starting to snag prized prospects, it tend s to create an avalanche effect.
Most kids want to be part of a big turnaround. For these reasons, some
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1066 CAPITAL UNIVERSITY LAW REVIEW [41:1065
unethical tactics for attracting PSAs—including providing current student-
athletes with impermissible benefits—have been used since the NCAA’s
inception, the recent dishonest conduct by athletics boosters has become
one of the foremost issues in major intercollegiate athletics.6 In light of the
current rules and regulations relevant to boosters who elect to conduct
themselves with disrepute, the purpose of this Comment is to suggest the
drafting of a uniform law to enhance the regulation of athletics boosters.
Part II of this Comment discusses arguably the most notable violation
of NCAA rules violations involving athletics boosters, which occurred at
Southern Methodist University. Part III examines the rapid economic
growth of major intercollegiate sports. Part IV considers the power
boosters possess to influence academic institutions through financial
contributions. Part V summarizes the current federal, state, and
institutional procedures that regulate individuals associated with
intercollegiate athletics. Part VI provides recent examples of improper
conduct by boosters and the detrimental impact these acts have had on
colleges and universities. In Part VII, this Comment contends that the
current regulatory scheme is insufficient to deter and punish athletics
boosters when they contribute to NCAA rules violations. Part VIII
provides recommends how to supplement the current regulations to
effectively combat unscrupulous behavior by these individuals. Finally,
Part IX concludes.
II. THE “DEATH PENALTY CASE
Much has been discussed recently regarding the improper conduct of
student-athletes, coaches, and athletics boosters.7 In particular, due to the
high-profile institutions involved, a number of incidents involving NCAA
rules infractions have recently come under public scrutiny.8 These cases
have had an adverse impact on the athletic programs and institutions
schools now give their coaches bonuses based on their recruiting
rankings.
Id.
6 See discussion infra P art VI.
7 Doug Lederman, Half of Big-Time NCAA Programs Had Major Violations, USA
TODAY, http://usatoday30.usatoday.com/sports/college/2011-02-07-ncaa-infractions_N.htm
(last updated Feb. 7, 2011) (“The review finds that 53 of the 120 universities in the
NCAA’s top competitive level, the Bowl Subdivision, were found by the Division I
Committee on Infractions to have committed major rules violations from 2001 to 2010.”).
8 See, e.g., George Dohrmann with David Epstein, The Fall of Jim Tressel, SPORTS
ILLUSTRATED, June 6, 2011, at 40.
2013] BITE THE HAND THAT FEEDS 1067
involved.9 However, serious rules infractions committed by boosters have
occurred for several decades.10
Arguably, the most infamous episode of NCAA rules infractions
involving boosters occurred in the late 1980s at S.M.U. The S.M.U.
Mustangs football program was one of the most successful football
programs of the 1980s.11 The highlight of the program’s success occurred
during the 1981 and 1982 seasons in which the Mustangs won back-to-
back National Championships.12 However, in 1985, the NCAA placed the
football team on a three-year probation for recruiting violations.13 Later, in
1987, the NCAA cited the university for additional major rules infractions,
deemed S.M.U. a “repeat violator,”14 and imposed the “death penalty.”15
9 See, e.g., Boise State Cited for Major Violations, NCAA, http://www.ncaa.com/news/
ncaa/article/2011-09-13/boise-state-cited-major-vio lations (last updated Sept. 27, 2011)
(reporting that penalties included a multi-year show cause orders for coaches, which
restricted recruiting activities, a postseason ban for women’s tennis, recruiting restrictions,
scholarship reductions, vacation of wins, fines, and probation).
10 Lederman, supra note 7.
11 2010 SMU FOOTBALL FACTBOOK 48 (2010), http://grfx.cstv.com/photos/schools/smu/
sports/m-footbl/auto_pdf/10-factbook-complete.pdf.
12 Id. at 84.
13 Randy Harvey, SMU Banned from Playing Football in ’87, L.A. TIMES, Feb. 26,
1987, at Part III.1.
14 Glossary of Terms, NCAA, http://www.ncaa.org/wps/wcm/connect/public/NCAA/
Enforcement/Resources/Glossary (last updated Jan. 21, 2013) (“For this provision to apply,
at least one major violation must have occurred within five years after the starting date of
the penalties in the previous case.”).
15 Glossary of Terms, NCAA, http://web.archive.org/web/20101218213643/
http://ncaa.org/wps/wcm/connect/public/NCAA/Issues/Enforcement/Rules+Enforcement+
glossary+of+terms (last visited Nov. 23, 2012). The link provided is to an archived version
of NCAA’s Glossary of Terms. The NCAA formerly d efined the “death penalty” as
follows:
[A] phrase used by media to describe the most serious NCAA penalties
possible. It is not a formal NCAA term. It applies only to repeat
violators and can include eliminating the involved sport for at least one
year, the elimination of athletics aid in that sport for two years and the
school relinquishing its Association voting privileges for a four-year
period. A school is a repeat violator if a second major violation occurs
within five years of the start date of the penalty from the first case. The
cases do not have to be in the same sport.
Id.

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