NCAA Division I Recruiting: Identifying and Mitigating Institutional Risk Associated with the Official Visit
Journal of Legal Aspects of Sport, Vol. 18, No. 1, pp. 89-125, 2008
38 Pages Posted: 31 Oct 2009 Last revised: 2 Mar 2010
Date Written: April 30, 2008
In 2006, the National Collegiate Athletic Association (NCAA) celebrated 100 years of providing opportunities for students to participate in intercollegiate athletics. During that time intercollegiate athletics underwent tremendous transformation. Beginning as student-run endeavors on Ivy League campuses, it has now evolved into a multibillion-dollar industry within the United States. "Intercollegiate athletics is now so entrenched in American society that in 2004 the United States House of Representatives Subcommittee on Commerce, Trade, and Consumer Protection held two special hearings to address their concerns about the recruitment of student-athletes" (Lawrence, Merckx, & Hebert, 2008, p. 4). The concerns addressed in the hearings centered on the negative culture of the official visit (U.S. House of Representatives, 2004a; U.S. House of Representatives, 2004b).
A prospective student-athlete or recruit is an individual who has begun ninth grade and has an interest in playing college sports (NCAA, 2007, p. 28). As of the first day of their senior year in high school, prospective student-athletes are allowed to take up to five official visits to college campuses (NCAA, p. 30). NCAA Division I Bylaw 13.02.15.1 states that an "official visit to a member institution by a prospective student-athlete is a visit financed in whole or in part by the member institution" (NCAA, n.d.a.). Additionally, the Division I on-campus official visit is limited to 48 hours and is governed by over 300 bylaws that contain the words "official visit" in the NCAA Legislative Services Database (NCAA).
With intercollegiate sports taking on competitive business characteristics in recent years, success in recruiting student-athletes has become critical to coaches in all divisions of the NCAA. The official recruiting visit is one part of an increasingly complex recruiting process that engages collegiate coaches and high school athletes year-round. NCAA Division I institutions have received more negative publicity about recruiting practices in recent years than their counterparts in Division II or III (Anderson & Dohrmann, 2004; Jacobson & Suggs, 2004; Landman, 2005; Wieberg, 2005). The media and the United States Congress have publicized allegations of recruits being involved with alcohol, drugs, strippers, sex, vandalism, and violence during their official visits (Anderson & Dohrmann; Jacobson & Suggs, 2004; Landman, 2005; U.S. House of Representatives, 2004a, U.S. House of Representatives, 2004b; Wieberg, 2005). These incidents raise questions as to the level of legal responsibi ty that NCAA institutions have for the actions of recruits during the official visit.
The official visit is an inherently risky venture for an institution. To date, no statutory law exists and few cases are available to guide institutions as to the duty they owe prospective student-athletes during the official visit. In most cases, recruits are under the age of 18 (minor) or between 19 and 20 (underage) when they are invited to campus for an official visit. Occasionally a prospect over the age of 21 (adult) may participate in an official visit. Current case law has established that college students are adults in the eyes of the legal system and finds no special duty owed by institutions under normal circumstances (Booker v. Lehigh University, 1993). However, courts have held that student-athletes are owed a special duty of care when they are engaged in athletic endeavors, especially if they have been actively recruited by the institution (Kleinknecht v. Gettysburg College, 1993). Because prospective student-athletes are not yet college students, it is unclear as to how they would be viewed by the legal system as it relates to duty. To establish duty and determine if a defendant's action has breached that duty, the circumstances of time, place, and person must be examined (West & Ciccolella, 2004).Additionally, legal precedent also will contribute to the establishment of duty in state law-based cases.
The purpose of this article is to examine in detail the liability exposure an institution may assume during the official visit, emphasizing Division I. Specifically, we explore (a) the risks associated with the official visit, (b) the institutions' duty to protect prospective student-athletes during the official visit, (c) if the age of the prospect alters the standard of care owed to the prospective student-athlete, (d) the potential for tort liability resulting from injuries sustained by prospective student-athletes on and off campus, as well as whether such liability may transfer to the institution through the student-athlete host, and (e) mitigation strategies to reduce institutional exposure to risk related to the official visit.
Keywords: Institutional liability, Negligence, Official visit, Higher Education Law, NCAA, Student Athletes, Compliance, Sport Policy
JEL Classification: K00, K10, K13, K19, K20, K29, K30, K32, K39, K40, K41, K49
Suggested Citation: Suggested Citation