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  • Breaking down the five Louisville players' lawsuit against the NCAA and determining if it could leave the NCAA liable for more lawsuits down the road.
By Michael McCann
July 12, 2018

Can college athletes successfully sue the NCAA when they are unfairly linked to team scandals and accompanying NCAA sanctions? Are those players legally harmed when they detrimentally rely on NCAA assurances that they’ll be fine so long as they follow the rules? And do these athletes have legally protected interests in the preservation of individual records and team victories?

These and other questions serve as the basis of a new lawsuit filed by five former Louisville basketball players in Jefferson County (Kentucky) Circuit court. Luke Hancock, Gorgui Dieng, Stephan van Treese, Tim Henderson and Michael Marra each played for the Cardinals when they won the 2013 NCAA championship. Each also saw the NCAA vacate 123 of their victories—including that 2013 championship and 14 other tournament wins—and wipe out individual honors that were earned from 2011 to 2014. The vacating was part the NCAA’s recent sanctioning of Louisville. The Cardinals were punished for a scandal that involved striptease dances and sex acts for prospects and student-athletes.

The five former players demand monetary damages for loss of economic opportunity and compensatory damages. They also seek a judicial declaration that they are completely innocent of any wrongdoing. The players’ attorney, John Morgan of the national law firm Morgan & Morgan, is a well-known advocate. He hopes that Hancock v. NCAA will lead to the reinstatement of NCAA-vacated wins and “get those players’ good names back.”

Revisiting Louisville’s problems with the NCAA

Louisville basketball has frequently been in the news in recent months, and usually not for favorable reasons. The Cardinals’ program has been closely linked to the ongoing federal prosecution of college basketball corruption. Specifically, the father of former five-star recruit Brian Bowen was allegedly paid thousands of dollars to help the secure the commitment of his son to play at Louisville in 2017. The alleged payment—which would have obviously violated NCAA amateurism rules—is considered part of a broader conspiracy between representatives of Adidas, NBA agents and others to direct star recruits to attend college basketball programs sponsored by Adidas and to induce those recruits into signing endorsement deals with Adidas once they turn pro. The corruption scandal led to Bowen being declared ineligible. It also played a crucial role in Louisville firing coach Rick Pitino “for cause,” meaning on grounds of misconduct. In turn, Pitino has sued Louisville for breach of contract, arguing the school owes him the $39 million remaining on his deal.

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Louisville basketball also attracted unwanted headlines in February when the NCAA's Infraction Appeals Committee upheld a July 2017 ruling by the NCAA Committee to vacate 123 wins, place Louisville on four years probation and suspend Pitino for the first five ACC games. Pitino was accused of failing to supervise an assistant coach, Andre McGee, who allegedly masterminded a “sex-for-play” scheme where prostitutes and strippers were hired to entertain Louisville recruits and players. Many salacious details came to light in the book “Breaking Cardinal Rules: Basketball and the Escort Queen” by former escort Katina Powell.

To put it mildly, the sex scandal tarnished the reputation and brand of Louisville basketball. And, fairly or unfairly, every coach and player on those Louisville teams is to some degree linked to the scandal.

Understanding the legal claims against the NCAA

The five former players who are suing the NCAA do not claim that the “sex-for-play” scheme never took place. The players’ contention is simply that they had nothing to do with the scandal and yet their reputations have been stained by how the NCAA punished Louisville.

To that end, the players’ complaint stresses that they “were all in full compliance with all provisions of the applicable NCAA Constitutions and Bylaws and all rules and regulations of the institution and conferences at all relevant times herein.” Further, one of the players—Hancock, who was named the 2013 Final Four’s most outstanding player—told media Wednesday that, to his aggravation, he is frequently associated with a reputation-damaging scandal in which he played no role. “It’s been five years,” Hancock observed, “and I can't tell you two days where I've gone without having someone coming to me to ask me if I had strippers or prostitutes in the dorm.”

The players’ first claim is for false light. A false claim arises when the defendant portrays the plaintiff in such a misleading and harmful way that it places the plaintiff in a proverbial false light. False light is distinguishable from defamation in that the latter requires an untrue statement—a defamatory statement must be false—whereas the former does not. In fact, a statement that gives rise to an actionable false light claim might be literally or technically true. Nonetheless, it is made with reckless disregard for the truth and is framed in such an out-of-context manner that it tricks the reader or listener into drawing an adverse and inaccurate inference about the plaintiff. For instance, a newspaper might correctly report that one person shot another person. However, if the newspaper implies that the shooting was an act of murder when it was only an accident, a false light claim might be viable.

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Here, the players contend that the NCAA’s “declarations” to the public about Louisville “imply” that these five players “engaged in lewd and lascivious behavior ... received improper benefits ... competed while ineligible ... and are not champions.” Stated differently, by criticizing an entire program, the NCAA allegedly imputed wrongful acts on members of the program who were innocent. Morgan argues that “many people” in Jefferson County and more broadly in Kentucky believe the NCAA has cast these five players in a false light.

The players' second claim is for promissory estoppel. Such a legal claim is sometimes used when a breach of contract claim is unavailable because no enforceable contract was reached. In this situation, the plaintiff clearly relied on a promise from the defendant and the defendant’s failure to satisfy the promise detrimentally impacted the plaintiff. Here, the players contend that the NCAA “led [them] to believe that any and all wins, championships, awards, honors and achievements the plaintiffs earned as eligible student-athletes would be theirs, in perpetuity, absent a specific finding that they, individually, were ineligible.” In other words, the players interpreted NCAA rules and assurances to mean that so long as they adhered to the letters and principles of amateurism, none of those players’ accomplishments would be forfeited. The players’ reliance proved detrimental, Morgan argues, because his clients “worked innumerable hours and endured other, numerous sacrifices in order to maintain their eligible status.” Morgan insists that his clients are now “entitled to recoup the value of their work, sacrifices and achievements, because the NCAA has wrongfully deprived them of the benefits of same.”

The players’ third claim is for breach of contract. While the players do not argue that they were under “contract” with the NCAA, they stress that their school, Louisville, had a membership contract with the NCAA and that they were third-party beneficiaries of that contract. In certain situations, third-party beneficiaries—who are not parties to a contract but who have a legally protected interest in the contract—can successfully sue for breach. The players assert that the NCAA breached its contract by failing to act in good faith and by refusing to engage in fair dealing while vacating Louisville’s wins and records. Along those lines, the players contend the NCAA acted in bad faith by punishing players whom the NCAA knew had nothing to do with the scandal.

As a fourth claim, the players maintain that the NCAA was negligent. The players argue that “the NCAA has no experience, ability or authority to conduct a criminal investigation” and yet “undertook to investigate and penalize wrongdoers associated with the University of Louisville Men’s Basketball team for alleged criminal activity.” The NCAA, the players charge, failed to meet its duty to reasonably investigate wrongful conduct. This was because the NCAA’s investigation allegedly injured the good names of innocent student-athletes.

The players’ complaint contains three other claims as well. Two are for conversion and trespass to chattels. Conversion and trespass to chattels concern a defendant intentionally interfering, destroying or damaging the defendant’s personal property. For instance, driving a car and running over someone’s mailbox could give rise to a winning conversion or trespass to chattels claim. In terms of distinguishing the two, conversion contemplates more consequential inference or damage than does trespass to chattels. Both, however, contemplate the same kind of underlying conduct.

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Although conversion and trespass to chattels have traditionally involved damage to personal property, the players argue that intangible property should count too. In this case, relevant intangible property includes the players “possessing” wins, championships and awards in the various record books.

As a final claim on behalf of his clients, Morgan demands that the court declare that the five players “are completely innocent of any wrongdoing as implied by the NCAA.”

How the NCAA will answer the complaint

In its forthcoming answer to the players’ complaint, expect the NCAA to insist that each of the players’ legal claims is frivolous. The NCAA will argue that it clearly had the legal right to punish Louisville. As a member NCAA school, Louisville was obligated to comply with NCAA rules and policies. Its failure to do so empowered the NCAA to impose sanction.

One type of punishment available to the NCAA was to vacate Louisville’s wins and records. The NCAA would maintain that such a harsh and unpopular punishment is needed as a meaningful deterrent: schools know that if they engage in wrongdoing and are later caught, one potential consequence is that cherished and beloved achievements will be erased from history. This knowledge, the NCAA hopes, incentivizes schools to aggressively enforce NCAA compliance rules and relevant laws. Further, the NCAA would rationalize a penalty involving vacating wins on grounds that had the school been caught while it engaged in wrongdoing, the school would have been punished earlier and those games either would never have occurred or would have involved different coaches and players.

The vacating, therefore, erases a history that shouldn’t have happened.

The NCAA will probably acknowledge that some players on the Louisville team partook in no wrongdoing and were, in fact, upstanding student-athletes. However, the NCAA was under no obligation to identify which students may have been gained improper benefits through sexual relations and which did not. To that point, the NCAA normally sanctions entire teams or programs when there are findings of pervasive misconduct.

The NCAA might also stress that the dynamic of punishing everyone on a team isn’t unique to college sports. When the International Olympic Committee banned Russia from the 2018 Winter Olympics in Pyeongchang due to state-sponsored doping, it meant that Russian athletes who had done no wrong lost a chance to compete on behalf of their country (those athletes were allowed to compete under a neutral flag). To be sure, this was an unfair and reputation-damaging outcome for the Russian athletes who had played by the rules. Yet the logic for punishing everyone was that it deters a country from allowing or acquiescing to cheating.

In addition, the NCAA is poised to contend that some of the players’ legal theories do not pass muster. The NCAA will aver that false light is inapplicable because the five players never appeared in any NCAA statement about the scandal’s culprits. In other words, the NCAA will insist there was no out-of-context remark about these players because there was no remark about these players. The NCAA will likewise question whether these players have suffered guilt by association when, unlike Pitino and McGee, they have never been linked by name to the underlying misconduct.

The NCAA will also refute the promissory estoppel and breach of contract claims on grounds that the players voluntarily accepted the duties and responsibilities of NCAA athletes. An NCAA athlete knows that his or her eligibility to play is contingent upon their program being allowed to play. If a program is, post hoc, found to have broken NCAA rules, the program may have played games it shouldn’t have. From that lens, vacating wins and records reflects the fact that those wins and records wouldn’t have occurred if rules had been followed.

Further, the NCAA will assert that it acted responsibly in taking months to investigate Louisville and that it provided Louisville with multiple opportunities to defend itself. Along those lines, the NCAA will stress that it ensured “procedural fairness” appeared at every relevant juncture of the investigation. The NCAA will also insist that conversion and trespass to chattel do not apply to intangible rights like being the person or team who holds a particular record or statistic.

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The stakes are high for the NCAA

Although the NCAA is armed with a number of defenses, it realizes that the players have hired a prominent attorney whose law firm has more than 420 attorneys. They likely have the financial wherewithal to take the long-view with this litigation. The players will be in no rush. If the NCAA plans to strike a fast settlement by offering modest financial terms to the players and their lawyers, they may encounter resistance.

Also, the NCAA will be defending itself in a Jefferson County court, where potential jurors might have close ties to the University of Louisville and also not be fans of the NCAA. Further, the judge will be an elected official. These dynamics might worry the NCAA, which could attempt to move the case to federal court (the U.S. District Court for the Western District of Kentucky would be the applicable federal court).

The NCAA also knows that if the five former Louisville players are successful in court, former players of other schools whose records have been vacated could detect a winning game plan. They could then file their own lawsuits in other jurisdictions. This could discourage the NCAA from using vacating wins as a penalty.

Likewise, the NCAA is mindful that Hancock v. NCAA fits into a broader paradigm of current and former player litigation against the NCAA over the treatment of student-athletes. This paradigm includes O’Bannon v. NCAA, where the NCAA was found to have violated antitrust law by preventing players from licensing their names, images and likenesses, and Jenkins v. NCAA, which is currently in litigation and which involves the legality of caps on athletic scholarships. The more this kind of litigation occurs, the harder it will be for the NCAA to maintain amateurism.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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