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      How a Little-Known NCAA Rule Shuts Athletes Out of the Legal System
      Aaron Doster-USA TODAY Sports
      December 20, 2016

      How a Little-Known NCAA Rule Shuts Athletes Out of the Legal System

      Imagine you're a college athlete. You've just been suspended by the National Collegiate Athletic Association for a reason that you think is, well, bullshit. Maybe you played games in more than one summer basketball league. Maybe your old AAU coach loaned you $200 to buy food.

      Whatever the case, you're also an American citizen, and you want your day in court—an opportunity to make your case, and possibly win an injunction that would allow you to keep playing. Because, you know, that's how justice works.

      Only your athletic department won't back you up.

      Your school won't back you up.

      Federal judges won't back you up.

      No, you're on your own. Not because you don't have the facts or the law on your side, but because everyone else is afraid of what will happen if you don't win your case. More specifically, they're terrified of how the NCAA can and will punish your school for merely permitting you to suit up in the meantime.

      Read More: Four Years a Student-Athlete: The Racial Injustice of Big-Time College Sports

      If this all sounds a bit unfair, that's because it is. It's also how modern college sports work. Thanks to a little-known but hugely consequential NCAA bylaw known as the Restitution Rule, the association has for decades been able to dissuade and intimidate college athletes from attacking it in court in situations involving alleged wrongful suspensions and erroneous eligibility violations.

      Buried in the NCAA's voluminous rulebook, the Restitution Rule is a unique weapon in the association's arsenal, one specifically designed to make the organization above the law. In a nutshell, it works like this: If any college athlete ruled ineligible by the NCAA is allowed to participate thanks to a court order, and said order is later vacated, stayed, or reversed, then the association can force the athlete's school to forfeit victories, surrender television revenue, pay fines, and endure postseason bans.

      In effect, the Restitution Rule potentially penalizes athletes who believe they have been wrongly suspended for going to court, and potentially punishes schools for following court orders.

      "The Restitution Rule is the NCAA's nuclear rule," said Richard G. Johnson, a Cleveland-based attorney who has litigated against the NCAA on behalf of current MLB pitchers Andy Oliver and James Paxton. "The potential penalties of following the court order are so severe that nobody is willing to risk it.

      "It is a form of extortion: If you follow the court order, we are going to ruin your coach and all the other kids on the team. So who is willing to risk the whole team and the coach's record for one kid?"

      Given that most athletic seasons last less than six months and that the judicial system rarely reaches final decisions so quickly, the Restitution Rule places potentially innocent athletes in no-win situations. How so? Again, imagine you've just been suspended by the NCAA. You take your case to court, and ask for an injunction that allows you to play until a final decision has been reached. A judge may deny your request, fearing the potential harm the rule can inflict upon schools. And even if judge rules for an injunction, your school likely will refuse to obey it for fear of the rule's wrath.

      "What is most interesting is that the NCAA regulatory structure denies athletes rights as citizens under U.S. and state law," said Ellen Staurowsky, a professor of sport management at Drexel University. "It denies athletes the benefits of what those favorable court rulings could be. If you get an injunction that would allow you to play and then you are barred from playing because of the fact that the school fears they may have to pay restitution later on, it traps you in a space where you effectively have no citizenship."

      It's a trap! Photo by Kyle Terada-USA TODAY Sports

      For former Olympic skier and University of Colorado football player Jeremy Bloom, the Restitution Rule was not an abstract concern. After competing in the 2002 Winter Olympics and becoming a moguls world champion, Bloom enrolled at Colorado in the fall of 2002 to live out his childhood dream of playing college football. He earned Freshman All-American honors while still competing as one of the top skiers in the world.

      Like most Olympic athletes, Bloom relied on endorsements to fund his training. To compete in the 2006 Olympics, Bloom had to seek skiing sponsors—a violation of NCAA amateurism. The association declared Bloom ineligible to play football during his final two years at school.

      Believing that the NCAA had acted hypocritically by forbidding him to accept skiing endorsements after allowing Drew Henson to receive a $2 million signing bonus from the New York Yankees while playing football at Michigan, Bloom filed for an injunction in the Boulder County Court. Since the NCAA has never incorporated, it is subject to lawsuits in any jurisdiction.

      Unfortunately for Bloom, the Restitution Rule reared its ugly head—much to the surprise of his own lawyers. Due solely to the potential Restitution Rule penalties that could hurt Bloom's teammates and coaches, the Court concluded that the harm to these third parties outweighed the harm to Bloom individually, and his injunction request was denied.

      "At first, when we found out that the judge was a [Colorado] season ticket holder, we were all high-fiving," Bloom told VICE Sports. "Then, one of the first things out of the judge's mouth was a question asking where the university stood because he was worried about the Restitution Rule. All of us were looking around like, 'What the hell is that rule?'

      "At the end of the day, [the judge] didn't feel confident enough in his ability to rule in my favor if it was going to put [the University of Colorado] in greater jeopardy at a future date. Because if he would have granted me injunctive relief and then years later, if it was overturned, then the university would have to forfeit any game I played in, forfeit revenue, and give up any records that might have been set.

      "It became very obvious that the Restitution Rule was going to be an insurmountable bylaw to get any type of fair ruling. It was frustrating. The Restitution Rule made it impossible to win."

      When you're beating your head against the floor looking for the perfect visual metaphor for the NCAA's Restitution Rule. Photo by Casey Sapio-USA TODAY Sports

      That seemingly insurmountable barrier was erected by design. Fearing insolvency in the 1970s due to its ever-increasing legal fees, the NCAA sought ways to reduce litigation involving perceived due process violations against athletes.

      The obvious solution? Reform the NCAA's disciplinary proceedings to provide full due process rights to athletes, including basic notice and a hearing in any infractions action. Indeed, the NCAA's top outside lawyer, George H. Gangwere, authored a 1973 memo to the association's executive director Walter Byers advocating for exactly that.

      Instead, the NCAA tabled the due process idea and adopted the Restitution Rule. During the association's 1975 convention, Muskingum College athletic director Edgar Sherman bragged that the rule "would help to discourage legal actions against the NCAA in several ways."

      The truly masterful element of the rule is that it discourages both judges and schools from providing relief to athletes. In order to gain a preliminary injunction that would allow an athlete to play while her case is litigated, the athlete generally must prove that such an order won't harm third parties or disserve the public interest. By creating harm to third parties that previously did not exist—via potential fines and sanctions—the NCAA has given courts a new and damaging element to account for.

      "They create this rule that would have a negative impact on the team, coach, and all the other players," said Johnson, who wrote the seminal law review article on the topic, "Restitution Rule, Submarining Due Process: How the NCAA Uses its Restitution Rule to Deprive College Athletes of Their Right of Access to the Courts ... Until Oliver v. NCAA." "Then they tell the judge when he or she is considering the injunction, 'Look at the harm that will happen to all these third parties ... we want you to consider our terrorism as a valid factor in not granting the injunction.'"

      Although the Restitution Rule only states that the NCAA Board of Directors may levy its various penalties, the mere threat of that action has proved enough to gain full compliance and coerce member schools to ignore court orders. The NCAA has detonated its nuclear bomb only once, when Oregon State had to forfeit 15 basketball games in 1976 after the Ninth Circuit Court of Appeals reversed a lower court's injunction in favor of future NBA forward Lonnie Shelton.

      There's no way to know how many potential lawsuits against the association have never been filed solely because of the rule's silencing effect.

      "The NCAA is not technically forcing anyone to disobey a court order," Johnson said. "What they are doing is dis-incentivizing the schools in a threatening manner for the intended purpose of having them not follow the court order and it results in them not following the court order. So the NCAA will never admit that they intended that, but everyone knows that is why they are doing it.

      "If you go back to the legislative history, that is what they said they were doing it for. They said that is what they wanted to do, they did it, and it worked. It worked spectacularly. It worked so well they only had to use it once."

      When the real madness is the way you've rigged the system against college athletes. Photo by Rick Osentoski-USA TODAY Sports

      Following Bloom's loss at the appellate level and the growing concern over the lack of due process afforded to athletes, Congress convened a 2004 hearing (featuring the likes of Mike Pence and Anthony Weiner!) to explore "the fairness the NCAA displays in enforcing its rules."

      Gary Roberts, the former dean of Indiana University's law school, defended the NCAA's disciplinary system during the hearing, cautioning Congress from meddling in the association's affairs and arguing that the Restitution Rule only seemed "fundamentally unfair at first blush."

      The NCAA declined a VICE Sports request to discuss the rule.

      "On closer analysis its value becomes apparent," Roberts said. "If an institution were not subject to penalties in such a situation, coaches could recruit a number of ineligible players, seek short-term injunctions just before important contests from local judges who often act out of partisan or parochial interests, and then allow the player to participate to the substantial competitive advantage of the team (and unfair disadvantage to its opponents), all without any fear of subsequent penalty when the appellate courts inevitably reverse the injunction."

      In other words, the NCAA's member schools need the rule; without it, they'd stack their teams with academic ne'er-do-wells and paid ringers, and then rely on fanboy and fangirl judges to keep those players eligible just long enough to steal wins from more honorable competitors.

      Johnson, who has litigated against the NCAA on multiple occasions, believes the threat of biased judges is illusory, and that invoking it to justify the Restitution Rule only highlights its true purpose—placing the association's decisions beyond the reach of the judiciary.

      "They believe that they are above state court judges," Johnson said. "In my experience, they believe that they are the 51st state and are sovereign and are not subject to anybody."

      In 2008, the NCAA ruled Oklahoma State pitcher Andy Oliver ineligible for allegedly violating its now repealed "no agent rule," which prohibited high school baseball players drafted by Major League Baseball from hiring an agent to negotiate with the team that selected them—effectively forcing players and their families to make a life-changing, college-or-pros decision without professional guidance.

      Oliver sued the NCAA with Johnson as his lawyer, and an Ohio court issued a temporary restraining order restoring the pitcher's eligibility. In his decision, Judge Tygh M. Tone slammed the Restitution Rule, writing that:

      "Student-athletes must have their opportunity to access the court system without fear of punitive actions against themselves or the institutions and teams of which they belong.... The [NCAA] may title Bylaw 19.7 'Restitution,' but it is still punitive in its achievement, and it fosters a direct attack on the constitutional right of access to courts. Bylaw 19.7 takes the rule of law as governed by the courts of this nation and gives it to an unincorporated business association. The bylaw is overreaching."

      Andy Oliver sued the NCAA, and the judge was not too happy with the Restitution Rule. Photo by Kim Klement-USA TODAY Sports

      Oliver later settled his case against the NCAA, which means Judge Tone's seemingly commonsense ruling is not binding authority. In turn, that means it will take self-reform by the NCAA or an act of Congress to produce any real change.

      Since 1965, Congress has held nearly 30 hearings and produced more than a dozen reports on the NCAA, but has not acted to regulate the organization, at least not in terms of its disciplinary process. The Restitution Rule hasn't been brought up on Capitol Hill since the 2004 hearing involving Bloom's case, an experience that was eye-opening for the then 22-year-old athlete.

      "I sat there and listened to these congressmen hammer the NCAA on how and why they were operating the way they were," said Bloom, who is now a successful tech entrepreneur and CEO of Integrate. "But ultimately, at the end of the day, they couldn't do anything about it. It was satisfying to be a part of the tongue-lashing, but Congress seemed powerless. It felt like the mafia. The NCAA was untouchable."

      With lawmakers reluctant to stand up for athletes' rights, it's perhaps unsurprising that 32 state high school athletic associations have enacted their own versions of the Restitution Rule, with some organizations even copying the NCAA's language word for word. Only the Kentucky High School Athletic Association specifically exempts a school from punishment for complying with a court order that is later vacated or overturned.

      Without a seat at the bargaining table and no voice in the legislative process, athletes will continue to face the consequences of a rule designed to place athletic governing bodies beyond the reach of the justice system. Is that right? Years ago, Bloom thought otherwise—and today, he knows nothing has changed.

      "Even though [Colorado] really did support me every step of the way, I was hurt because the bylaw makes it impossible, or at least incredibly difficult, for a university to side with their student athlete," he said. "Even if I had won, Colorado couldn't have let me on the field because of the Restitution Rule. The NCAA really is the judge, the jury, and the executioner. They do not have to answer to anyone."

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