U.S. Athletic Associations' rules challenges by International Prospective Student-Athletes--NCAA DI amateurism.

• Author: Kaburakis, Anastasios

This article is part of a broader research stream investigating policy and regulatory frameworks impacting International Prospective Student-Athletes (IPSAs) and their transition to the U.S. combining education and athletics. Elsewhere analyzed are the problems faced by IPSAs in particular relation to the amateurism framework as applied by the National Collegiate Athletic Association Division I (NCAA DI) when contrasted with the international federalized club-based governance model (Kaburakis & Solomon, 2005), as well as the policy recommendations that may attend to policy conflicts and the challenges faced by IPSAs, Athletic Associations, and their member institutions (Kaburakis, 2005). This research examines the legal handling of such cases through the U.S. system of Jurisprudence and summarizes the important concepts from legal theory and the major lessons from precedent that may be instrumental in litigation and policy evolution on such matters.

Introduction

U.S. Athletic Associations and their member institutions frequently are called upon to resolve complex problems in regard to eligibility of International Prospective Student-Athletes (IPSAs). In order for the latter to be declared eligible for interscholastic or intercollegiate athletic participation, they need to document their valid status according to the respective Association's regulations. As is elaborated in prior literature (Kaburakis & Solomon, 2005; Kaburakis, 2005), especially in the case of National Collegiate Athletic Association Division I (NCAA DI) member institutions, there are many problems in the determination of amateur status of an international prospect, and NCAA and member institutions' staff members engage in a time-consuming and frequently ambiguous procedure when trying to reach eligibility decisions.

In this process, especially in regard to intercollegiate athletics, there are legal ramifications for the NCAA and member institutions. This study may forecast and prepare for potential legal challenges and litigation initiated by international prospects and their families, after being denied access to NCAA DI institutions and declared ineligible for intercollegiate athletics. Under the prism of U.S. Constitutional Law, there is a need for identifying the legal importance of the outcomes present tactics may have in IPSAs cases, and whether these practices should be amended in order to achieve Equal Protection of the laws for specific classes.

IPSAs are pre-empted from pursuing higher education and athletics in NCAA DI schools, due to the systems of origin and their incompatibility with the NCAA DI structure, after they have been offered the chance to do so by means of scholarship offers. Does that create a door through which IPSAs may successfully challenge such NCAA DI amateurism policy and their handling by member institutions and the NCAA staff? Is that considered a legal "Achilles' heel"? Is the very gift of an athletic scholarship offer to an IPSA a "Trojan Horse", use of which in U.S. courts may prove detrimental to NCAA DI member institutions and NCAA staff? Can IPSAs challenge a negative eligibility reinstatement decision by member institutions or the NCAA staff? If so, what are the chances of success in U.S. courts? For that matter, were there any IPSAs that have done so successfully in the past?

This legal analysis ultimately attempts to answer two simple, straightforward, and at the same time difficult questions: Is there something wrong in the handling of IPSAs by NCAA DI amateurism as mentioned above? If so, can they do anything about it?

These questions lead to Athletic Associations' rules' challenges, their constitutional scrutiny, the characterization of their regulations as discriminatory or not, and an analysis of basic legal concepts applicable to the cases examined. It is convenient and helpful, when discussing amateur Athletic Associations rules and their challenges, to include high school regulations and to distinguish the differences between cases handled at the high school level and at the collegiate level. This way the contribution of this paper is twofold, for research both on interscholastic and intercollegiate athletics, with the hope that more academic research will soon target sport grassroots and youth sport development. Furthermore, International Student-Athletes (ISAs) in U.S. high schools is a fertile ground for legal and policy analysis, and future research projects may find the constitutional analysis presented here forth useful.

As noted by Wong (2002, p150), the validity of High School and Intercollegiate Athletics Associations rules, under the U.S. Constitution, has historically come under frequent scrutiny. In what follows, procedural issues of importance are analyzed, and examples of precedent case law are demonstrated. The theoretical framework and the process by which ISAs can challenge Athletic Association rules are revealed, along with the outcomes of cases that have displayed successful procedures in the past. Especially in terms of NCAA DI policy, the differences between the NCAA DI and the international sport system's legal structure have created many areas of challenges, mainly pertaining to the definition of amateur status. These differences have been particularly evident in sports such as men's and women's basketball, where most sport-specific rules are applied, and in other cases such as tennis, soccer, swimming, diving, and ice-hockey where most ISAs participation is observed (NCAA report on ethnicity 1999-2004). Such structural incompatibility between sport governing systems led to litigation and IPSAs and ISAs challenged regulations adversely affecting them, claiming -among other things- that their Due Process and Equal Protection rights were not upheld (after being offered the chance to join the U.S. system of sport by means of an athletic scholarship offer and enrolling in NCAA member institutions), or that the Association was not serving its purposes (i.e. SA welfare and competitive equity).

Fundamental legal concepts

Three important concepts regarding Constitutional Law and Athletic Associations' rules challenges should be put forth here, for a complete and proper understanding of the applicable regulations: Judicial Review, Standing, and Injunctive Relief.

Judicial Review

As a general rule, courts have declined to intervene in the internal affairs of Athletic Associations when membership is voluntary (Masteralexis, 2003, p.426). However, especially on the issues of amateurism and eligibility, there has been an increasing number of cases that were granted judicial review (Wong, 2002, p.170). In order for the latter to take place, one of the following conditions has to be met:

--The rule(s) under question violate(s) an individual's constitutional rights.

--The rule(s) violate(s) public policy and deemed fraudulent or unreasonable.

--The rule(s) exceed(s) the scope of the Athletic Association's authority.

--The rule(s) is/are applied unreasonably or arbitrarily.

--The Athletic Association is violating its own rules.

Even if the court decides to grant judicial review, it does not amend a specific regulation itself, but instead remands it to the respective Athletic Association (Wong, 2002, p.170). Violations of constitutional rights that have been identified with successful challenges of Athletic Associations' regulations were dealing with either Due Process or Equal Protection considerations (Masteralexis, 2003; Schoonmaker, 2003; Wong, 2002). Due Process refers to infringements of life, liberty, and most importantly--for Athletic Associations rules' challenges--property, which is examined further; Equal Protection involves fair application of the law, irrespective of one's national origin, among other protected classes. Both Due Process and Equal Protection considerations require the additional element of State Action to be present, in order for judicial review to be granted. The analysis that follows examines how State Action affected the outcome of various cases of Student-Athletes challenging Athletic Associations' regulations.

Standing

Equally important is the notion of proper standing (Masteralexis, 2003; Wong, 2002). For a court to decide on a case challenging associations' regulations, the SA has to show proper standing. For a plaintiff to be able to bring a case in court, he/she must meet three criteria:

--The plaintiff sustained an injury.

--The interest which the plaintiff seeks to be protected is one that falls at least arguably within the zone of interests protected by the Constitution, legislative enactments, or judicial principles. In other words, "substantiality of federal question" is explored, in a way that is investigated in the subsequent portions of this discussion.

--The plaintiff has an interest in the outcome of the case, which would entail being either directly or otherwise indirectly involved.

The aforementioned elements are of utmost importance to potential plaintiffs, who challenge the validity of Associations' regulations. If an individual Student-Athlete (SA) is not directly involved, or is not indirectly affected by a certain regulation, the crucial elements are missing, and the courts do not proceed further (Masteralexis, 2003; Wong, 2002).

Injunctive Relief

Provided that a plaintiff has established the elements of judicial review and standing, the crucial step is seeking injunctive relief against a rule that adversely affected him/her, e.g. by rendering a SA ineligible and not allowing him/her to compete (Masteralexis, 2003; Wong, 2002). Practically, an injunction of some form allows a SA to compete and not suffer irreparable harm from not participating in competition as a result of the challenged regulation. Injunctive relief prevents from future wrongdoings, as opposed to punishment of past actions. Bearing in mind modern systems of jurisprudence and the administration of justice, injunctive relief becomes the single most...