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How Fair Is the NCAA’s Judicial System?

“In America, a person is presumed innocent until proved guilty. Unless, that is, he plays college sports.” If you had to pick a dominant theme from Joe Nocera’s recent attacks against the NCAA, these two sentences would neatly summarize it.

Nocera (left), a New York Times columnist, has written more than 11,000 words about college sports since late December. The vast majority of those words have condemned the NCAA for failing to treat athletes fairly in its eligibility and enforcement actions.

The association has pushed back hard, defending its practices and calling Nocera out for a perceived conflict of interest and errors in his reporting. I write about their war of words in this week’s Chronicle.

How fair is Nocera’s complaint that the NCAA mistreats athletes? Brian L. Porto, an associate professor at Vermont Law School, has an interesting take.

Porto, who just published a book, The Supreme Court and the NCAA: The Case for Less Commercialism and More Due Process in College Sports (University of Michigan Press), describes two prominent cases that have shaped college sports: NCAA v. Board of Regents (1984) and NCAA v. Tarkanian (1988). The Regents case led to the emergence of the billion-dollar commercial enterprise we see on TV every night. The Tarkanian case, Porto argues, helped strip away adequate procedural protections for athletes and others charged with wrongdoing.

In Tarkanian, the Supreme Court held that the NCAA, as a private association, was not sufficiently linked to public colleges and universities to be considered a “state actor” within the Fourteenth Amendment to the Constitution. As a result, the NCAA is not legally obligated to observe due process in its investigations and hearings.

Since Tarkanian, the association has provided athletes and others with various protections, Porto said in an interview. Those protections include the ability to hire legal counsel and know in advance about any NCAA charges they are facing. Still, Porto says, the association could do a lot more to treat athletes and others fairly.

“The NCAA has been very slow to adopt anything like what most lawyers and most non-lawyers think of as due process,” he  says. “The people who hear the cases are typically professors, the hearings tend to occur hurriedly… and there’s no clear standard of evidence.”

In short, he says: “The NCAA has created a big-time athletics enterprise with high stakes for people who break the rules, but it still has horse-and-buggy legal protections.”

One of Porto’s suggestions: Tap retired judges to hear cases. “You need people familiar with the role of playing a judge and weighing evidence and conducting fair procedures,” he says. “In that setting, you could be confident of fairer results.”

He also thinks the NCAA needs to establish a clearer evidentiary standard. And he believes that athletes and others accused of wrongdoing should be allowed to cross-examine witnesses: “If people are going to provide evidence that Joe Smith has taken money under the table or whatever, I think those people should have to come before the judge and provide that evidence and be cross-examined on it.”

Finally, he thinks that all athletics employees ought to have more chance to fight charges against them, instead of having to settle matters in the courts. “Very often, institutions under investigation take someone who is young or at a lower level and fire him or her as a way of saying to the NCAA, ‘Look, we’ve cleaned house, we’re going in a new direction,’” he says. “Those people should have the opportunity to present evidence showing that, in fact, they didn’t do anything wrong.”

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