Suits by Student-Athletes Against Colleges for Obstructing Educational Opportunity

30 Pages Posted: 25 Oct 2011 Last revised: 9 Apr 2017

See all articles by Michael N. Widener

Michael N. Widener

Bonnett, Fairbourn, Friedman & Balint; Embry-Riddle Aeronautical University

Date Written: October 24, 2011

Abstract

"No learning taking place." This appears to be the motto of NCAA-member universities recruiting underqualified athletes while engaging them and their administrators in a fraud upon higher-education. With the 2015 book publication of "Cheated" by Jay M. Smith and Mary Willingham, enrolling physically talented and naïve young athletes by schools merely for revenue generation via the entertainment of alumni and their fan bases is unmasked. We are reminded - again - that athletic departments at most institutions haven't the slightest intention to require these students' growth as learners of anything beyond a "play book." This 1982 note's claims of student-athlete contract violations were "upheld" by the decision in Ross v. Creighton University, 957 F.2d 410 (7th Cir. 1992). Still, the conduct of athletic departments at the major universities has not changed after that decision. Yet the note is useful for those students being introduced to the world of contracts in a survey course in business law. The plaintiff in the 1992 appellate opinion, Kevin Ross, is the immediate subject of business and law school student empathy due to Ross' status as a former student and to the poignant "aftermath" of his higher "education" experience. Initially, however, the 7th Circuit's opinion illustrates the challenge of reaching a community standard "due care" for a defendant's conduct where duty to educate is the crux of the educational negligence dispute.

The Ross v. Creighton University opinion, together with this note, demonstrate how a contract offer and acceptance can be assembled from pieces of documentation, coupled with oral statements, to create contracts implied in fact or in law--or both. This note, coupled with the opinion, spurs conversation about the contract doctrine of "good faith and fair dealing" in performing a contract by both parties. Finally, the article and the opinion demonstrate the difficulty of fashioning a sustainable remedy to the student-athlete apart from money damages. Students introduced to the opinion, as armchair quarterbacks, "require" specific performance of the NCAA contract by the defendant university to Mr. Ross -- until they recognize that this contract remedy is unworkable.

Remarkably, while the 7th Circuit Court's Ross opinion is 25 years old, the issues of how meaningfully to educate student-athletes, and the responsibilities of the stakeholders in that process, remain elusive concepts cynically ignored by many NCAA-member institutions, as Smith's and Willingham's 2015 expose demonstrates. If the University of North Carolina (Chapel Hill) is a "public ivy," what is expected from student-athletes among less prestigious institutions? What are these athletically talented, charismatic players demanding of their host schools? How many of these athletes are complicit in their classroom outcomes? I describe this further in a 2016 paper, "Compensating Collegiate Athletes in 'Store Credit'."

Keywords: contract law, good faith and fair dealing, duty, negligence, contract remedies, NCAA, student-athletes, college sports, amateur sports, college athletics

Suggested Citation

Widener, Michael N., Suits by Student-Athletes Against Colleges for Obstructing Educational Opportunity (October 24, 2011). 24 Arizona Law Rev. 467 (1982). Available at SSRN: https://ssrn.com/abstract=1948778

Michael N. Widener (Contact Author)

Bonnett, Fairbourn, Friedman & Balint ( email )

2325 East Camelback Road
Suite 300
Phoenix, AZ 85016
United States

Embry-Riddle Aeronautical University ( email )

Prescott, AZ 86301
United States

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