When an internal report detailing UNC’s widespread academic fraud was released in October, administrators publicly hoped that it would conclude this unsavory chapter in the school’s history. Not so fast.
In a lawsuit filed today in a North Carolina state court, former Tar Heel women's basketball player Rashanda McCants, the sister of former men's star Rashad McCants, and football player Devon Ramsay claim that UNC was clearly negligent and badly in breach of basic duties to its student-athletes. Specifically, they are alleging that, as student athletes steered to so-called “paper classes,” they received an inferior education. In their complaint, McCants and Ramsay contend that a “shadow curriculum” at UNC steered student-athletes “toward programs and courses that lacked rigor so as to free up as much time as possible for athletic commitments while ensuring continued academic eligibility under NCAA rules (through inflated grades).”
Represented by Michael Hausfeld -- Ed O’Bannon’s lead attorney in his prominent lawsuit against the NCAA -- McCants and Ramsay have also named the NCAA as a co-defendant. The plaintiffs will seek class certification to represent other former UNC athletes who were enrolled in non-existent classes in the Department of African and Afro-American Studies. Other universities’ administrators and faculty should also be nervous: the intended class action could grow to include current and former athletes at all Division I institutions who’ve been denied a meaningful education. All together, hundreds of thousands of current and former college athletes could end up suing more than 350 universities and conferences across the country.
As he did in the O’Bannon case, Hausfeld has designed McCants v. UNC to compel sweeping and historic changes to college sports. Hausfeld demands the creation of an independent commission that would audit Division I programs to ensure that athletes are not victimized by academic fraud and that minority athletes are not receiving inferior education. Audits would also measure post-graduation employment for college athletes and whether -- as some NCAA advertisements suggest -- playing sports helps the job prospects of college athletes. Hausfeld also seeks monetary damages for all former and current NCAA athletes who didn’t receive the meaningful education they were promised by the NCAA, conferences and member institutions.
In what is already a transformative era of college sports, McCants v. UNC has the potential for further disruption. Race bubbles close to the surface of most discussions about college sports. But McCants v. UNC is the first of the recent high-profile college sports cases to link race to the law. It is also unique in that it raises claims on behalf of both men and women who played college sports, highlighting problems in the relationship between big-time college sports and academic integrity beyond football and men’s basketball programs.
McCants v. UNC is the educational bookend of O’Bannon v. NCAA, which will be reviewed by a federal appeals court later this year. O’Bannon highlights what NCAA critics regard as the economic “exploitation” of college athletes’ name, image and likeness rights. One of the NCAA’s key defenses in O’Bannon is to champion its system of amateurism, which encompasses NCAA rules designed to safeguard the educational experience of college athletes. In McCants v. UNC, Hausfeld attacks the NCAA’s educational defense head-on and asserts that amateurism damages rather than enhances education. The 100-page complaint details a history of college athletes receiving inferior education so that they can remain eligible and generate revenue for their schools, conferences and the NCAA. Justifications for the McCants and O’Bannon cases are thus joined at the hip.
Factual allegations in the lawsuit center on paper classes that never met and lacked faculty oversight. These classes only required that an enrolled student turn in a paper at the end of the semester. Someone other than the enrolled student often wrote the paper, which in most cases was graded by a department administrator rather than by a faculty member. Approximately 3,100 UNC students took paper courses in the Department of African and Afro-American Studies between 1993 and 2011; a disproportionately high percentage of them were student-athletes. While student-athletes comprised only about four percent of the UNC student body, they comprised 48 percent of the enrollment in these paper courses. The student-athletes also tended to play on the major revenue-generating sports teams. About half were football players and approximately 12 percent were basketball players.
The disproportionately high percentage of UNC student-athletes enrolled in paper courses was anything but mere circumstance. As revealed in a UNC-sponsored investigation led by former FBI general counsel Kenneth Wainstein, UNC academic counselors directed student-athletes to take paper courses, as athletes would receive higher grades and remain eligible to play. In his report, Wainstein labeled the paper class system “a scheme” that led to “artificially high grades.”
This is not the first suit UNC is facing from a former athlete over academic fraud. In November, former UNC football player Michael McAdoo filed a claim in U.S. District Court for the Western District of North Carolina asserting that UNC committed fraud, unfair and deceptive trade practices and breach of contract against him. Like the McCants, McAdoo cites the report compiled by Wainstein as key evidence. McAdoo insists UNC forced him to take paper classes instead of courses in criminal justice, a subject he had hoped to study. Meanwhile the NCAA, which sanctioned UNC in 2012 for academic fraud related to the football team, has launched an investigation into UNC and additional sanctions are possible.
Like McAdoo, McCants and Ramsay say they were victimized by the paper class scheme. Until this lawsuit, Rashanda McCants had refrained from public comments on academic fraud at UNC. She was a star forward on the UNC women’s basketball team between 2005 and 2009, winning ACC Player of the Year honors in her senior year. She later played for the WNBA’s Minnesota Lynx and Tulsa Shock. On Twitter, she has deflected criticism directed at her due to comments made by her brother, Rashad McCants, about UNC. Rashad, the second-leading scorer on the UNC basketball team that won the 2005 NCAA championship -- later a reserve guard on the Minnesota Timberwolves and Sacramento Kings -- has been an outspoken critic of UNC academics. In June 2014, he leveled serious allegations against UNC to ESPN’s Outside the Lines, contending that he and other “premier players” never wrote papers at UNC and were steered by advisors to take paper classes. He added, “When it was time to turn in our papers for our ‘paper classes,’ we would get a call from our tutors, we would all pack up in one big car, or pack up in two cars, and ride over to the tutor’s house, pick up our papers and go about our business.” Strangely, despite speaking out strongly against UNC's academic fraud and claiming he was a victim, Rashad McCants was not a party to his sister's suit. Interestingly, after her brother was interviewed on Outside the Lines, Rashanda tweeted, “My brother is his own person next person tweet me with a threat we will have issues...... You wanna kill somebody over the love of a school.”
McCants v. NCAA incorporates several areas of law, including negligence and breach of fiduciary claims against the NCAA. The plaintiffs assert that the NCAA failed to warn student-athletes about “the risk of cognitive harm from academically unsound classes” and how to raise concerns about those classes without retaliation. They also contend the NCAA breached various legal duties, including loyalty and honesty, by allegedly failing “to protect the education and educational opportunities of student-athletes (including the provision of academically sound courses).” These are compelling but also challenging claims to prove. Watch for the NCAA to belittle McCants’ legal theories as speculative concepts that emanate from policy debates and social commentaries rather than from actual laws. The NCAA is also poised to emphasize policies that, in its view, encourage academic achievement. The NCAA’s recent decision to investigate 20 schools for academic fraud will also receive notice.
Several other angles that could make this an intriguing case:
• Taking stock of the other claims: McCants and Ramsay also allege that UNC breached an implied contract and an implied duty of good faith to student-athletes to adequately educate them, and that UNC’s system of fake classes constituted fraud. These will be very challenging claims to establish under the law. In 1991, a Drake University basketball player, Terrell Jackson, brought suit against his school.
Jackson argued that Drake had breached his scholarship “contract” because he was denied educational benefits as a basketball player. (Jackson insisted his coach told him not to do school work and let others write his papers). An Iowa court dismissed Jackson’s case on grounds that student-athletes are not in contract with their universities. Other courts have rejected contract suits with similar reasoning. McCants’ claim that UNC breached a fiduciary duty to its student-athletes likewise faces long odds. McAdoo tried a fiduciary duty argument against UNC and it was dismissed out of court. Lastly, fraud claims are notoriously hard to prove, and the NCAA has defeated them in the past.
• O’Bannon also faced long odds and yet won: While UNC and the NCAA may be favored going into the litigation, remember that many commentators initially dismissed O’Bannon’s lawsuit as farfetched and incompatible with precedent. But with Hausfeld litigating his case, O’Bannon prevailed in court last August. Barring a reversal by a federal appeals court or the U.S. Supreme Court, O’Bannon will remain victorious. This should provide hope to McCants and Ramsay that they too can win.
• Possibility of pretrial discovery should worry college professors and motivate settlement talks: McCants and Ramsay do not necessarily have to “defeat” UNC and the NCAA in a trial to compel serious change. They are also poised to make many college deans and professors very nervous. Here’s why: if McCants and Ramsay are able to overcome a motion to dismiss by the defendants, a judge will order pretrial discovery, which would require UNC and other institutions to share academic information that they want keep private. How many other schools and faculty have used fake classes? How many other schools have adopted academic policies that raise concerns about treatment of minority students who play sports? These are not the sorts of questions that college deans and professors want to answer, and neither do conference executives and NCAA administrators if they collaborated. This highlights how McCants v. NCAA is a more threatening lawsuit to college educators than O’Bannon v. NCAA. While professors could easily distance themselves from O’Bannon v. NCAA despite the fact that their employers were co-defendants, the same won’t be true with McCants v. UNC. For that reason, among others, McCants seems much more likely to extract a settlement than did O’Bannon.
• Class actions take a while to develop: Other former and current UNC players may join as named plaintiffs, but it will take months before the case is converted into a class action. This means, for the time being, the lawsuit won’t be on behalf of players who haven’t formally joined the case.
• Watch for other defendants to be named: Not dissimilar from O’Bannon v. NCAA, McCants v. UNC could quickly grow to include other schools and conferences.
• NCAA’s investigation of UNC takes on odd dynamic: The NCAA is now in an awkward spot with respect to investigating UNC. As of today, the NCAA is a co-defendant with the school in a potentially game-changing class action lawsuit. Is the NCAA conflicted out in trying to investigate UNC since it now has incentives to not find fault? This could prove to be a difficult question for Mark Emmert, Oliver Luck and other NCAA leaders to answer in the months ahead.
If O’Bannon v. NCAA was about the future of college sports, McCants v. UNC is about the future of college education. The stakes couldn’t be higher and it will be fascinating to follow.