NCAA Sports: Strict Liability And Eric Bledsoe

By now, we all have some idea what the legal term, "strict liability" means.  It means that you are liable for an act regardless of mens rea (guilty mind, in Latin), or negligence.  In other words, if it happens that you are liable for a strict liability offense, whether you did it on purpose, by accident, or had no idea it was wrong, it doesn't matter.

The NCAA has recently adopted strict liability to some of its transgressions, or so they appear to say.  The now-famous University of Memphis case involving Derrick Rose is the archetypal strict liability application on record in the NCAA when it comes to academic eligibility.  In the NCAA bylaw context, the Committee on Infractions said in Memphis that it doesn't matter whether or not Calipari, the school, Rose, or God Himself knew about Rose's invalid college entrance exam.  It doesn't even matter if it was declared invalid after the basketball season was over, and without dispositive proof of wrongdoing or even due process.  All that matters is the fact that it was declared invalid, and that rendered Rose ineligible, period.  No further inquiry required.  No blame to Memphis, or Rose, or Calipari, or anyone else, but wins must be vacated.

Strict liability is most often applied where state of mind and exercise of due care are irrelevant, or in cases of inherently risky behavior.  If, for example, you run a zoo and an animal gets out and hurts someone or damages their property, that is usually a case of strict liability.  Even if you took every reasonable precaution, the inherent risk places liability for the damages caused by the animals at your doorstep.  Another good example is speeding.  If you get caught speeding taking your pregnant wife to the hospital, a policeman is perfectly justified writing you a ticket -- there is no exception for pregnant women in our traffic laws, and it doesn't matter how careful you were in your driving efforts.

The NCAA, in the Memphis precedent, attached strict liability to academic qualifications for college athletics eligibility.  What it said was that it didn't matter if Derrick Rose cheated, it didn't matter if the school knew, and it didn't even matter if the process the (Educational Testing Service) ETS used to invalidate Rose's exam was fair.  All that mattered was that the exam was invalid because the ETS, the authority that validates college entrance exams, said it was. With an invalid SAT, Rose could not play college basketball within the NCAA bylaws.

This struck many as unfair, because the NCAA itself had examined the suitability of Rose's qualifications and had blessed them.  Of course, the NCAA Clearinghouse would certainly not have certified Rose had it known or thought the test would possibly be rendered invalid later by the ETS.  The NCAA did not know that, so based on the evidence in their possession from competent third-party authorities, they certified him academically qualified to play college basketball. 

The sequence of events in Memphis essentially places the NCAA Clearinghouse in the position of being a threshold organization rather than an actual clearinghouse.  What the Clearinghouse says about NCAA qualifications is only relevant if they do not clear an athlete in question.  If the athlete does get past their screen, it provides no cover or comfort to the member organization requesting the clearance.  It merely means that the NCAA is satisfied that the student athlete has facially met the threshold requirements to be offered a grant-in-aid.

What all this boils down to, and what the Memphis precedent appears to say, is that if any organization responsible for certifying the academic eligibility of a student athlete retroactively removes that certification, the NCAA is within its rights to declare the student athlete retroactively ineligible and force the school to vacate all games in which the player was a contestant.  In fact, based on what the NCAA said in Memphis, it is arguable that ordering the school to vacate wins is mandatory, even thought the NCAA bylaws give it discretion in the matter and do not require the strict liability standard. This is a doctrine that the Committee on Infractions has fairly recently adopted of its own accord.

So what does this mean for Eric Bledsoe?  Basically this:  No matter what the findings of the Alabama Athletic Association investigation, unless the school system invalidates the transcript that UK used to qualify him and replaces it with an amended one that would have rendered him an academic non-qualifier, Eric Bledsoe will not be declared academically ineligible.

Even assuming a teacher "fesses up" to changing that grade, the only thing that matters in terms of the strict liability application is the validity of the transcript.  If it does not get changed, then Bledsoe's eligibility will not be retroactively removed.

A Sea of Blue diarist creature has explained in some detail why this transcript change is unlikely to happen.  The fact of the matter is that the mere discovery of wrongdoing (assuming it is not imputed to Kentucky or any representative of the university) will not be enough.  The official record will have to be changed by the authority who issued it for the strict liability provision to be invoked by the NCAA.  How the Alabama school system issues grades is not the purview of the NCAA, at least not on an ad-hoc basis.

On thing that people fail to understand is the difference between an amateurism violation and an academic eligibility question.  In Memphis, the NCAA clearly separated the two, and that separation is punctuated by its actions (or rather, non-actions) against Duke University in the Corey Maggette matter.  While that case looks similar to Memphis in that both teams played a player that was (or should have been) ineligible during the season, the difference was that one was ineligible because his academics were not certified, and the other took money from an agent.

The NCAA has never explicitly applied strict liability in cases of amateurism violations with regard to vacating wins, although it has appeared to do so several times, not the least of which was in UMass during Calipari's last year there.  In UMass, the NCAA issued no public report, found no university wrongdoing, no wrongdoing by the coaches or anyone else associated with the program, yet it still vacated games in which Marcus Camby participated.

The Duke case is almost identical to this, yet the NCAA chose not to vacate wins in the Duke case for reasons nobody can quite figure.  Gary Parrish of CBS sports offered the official explanation some time ago:

Here was his [NCAA Vice President of Enforcement David Price's] explanation: "Our executive regulations specify that if an individual plays while ineligible in the NCAA championships, we can either vacate the team's participation in the championship and/or assess a fine for the money that they received. The standard for that is whether either the institution knew or should have known that Maggette was ineligible or if Maggette himself knew that -- or should have known that he was ineligible. After a lengthy investigation, we came to the conclusion that there was insufficient evidence to determine that Maggette knew or should have known, and we believe firmly that the institution did not know and should not have known."

This is what Parrish really means by selective enforcement (or should have meant, but the Rose case is the wrong antecedent).  The circumstances surrounding UMass and Duke are virtually identical -- players admitting to amateurism violations after the season -- but the results were different despite the axis upon which vacated wins allegedly turns being absent in both cases -- university culpability.  The NCAA action against UMass was indefensible by the above standard, so I think we can safely say that it is not a standard since the NCAA did not apply it in both cases.  What happens next time is anyone's guess.

It is hard to explain why the NCAA would "vacate" wins in any case.  The NCAA member institution, along with the other members of the team, get punished for rulebreaking committed by a player or even third parties not connected with the school who are no longer under the NCAA's jurisdiction, and who's conduct often could not reasonably have been foreseen by the member institution. 

It is wrongheaded, ineffective, and demonstrably does more harm than good.  It was the wrong thing to do in the UMass case, just as it was in the Memphis case.  The NCAA should apply the doctrine of stare decisis, or letting settled matters alone.  Punishing the innocent is not an acceptable substitute for punishing the guilty.

In Memphis, it is clear that the NCAA was determined to punish Memphis' program as much as possible due to some egregious violations it found in the program as a whole.  It did not say so, because it declared that it need not reach the matter of whether Rose cheated or not, but they clearly believed that Rose did cheat, and was determined to punish the school for that belief.  This was made more clear by their reaction to the Memphis appeal, in which they threatened to make the punishment even worse if Memphis got a break from the appellate group.  In the end, the NCAA used strict liability in the Memphis case in order to avoid having to reach the standard of proof required by it's own bylaws as to Rose's guilt or innocence, probably because it feared it could not reach that standard based on the available evidence.  So it just decided it didn't have to.

As far as Eric Bledsoe is concerned, the key is the qualifying document -- his high school transcript.  If that transcript is not changed officially, regardless of error or even wrongdoing on the part of a teacher or other person involved with its creation, the NCAA will not apply the strict liability doctrine.  That does not mean they will not fault Kentucky for carelessness if they find there should have been a reasonable basis for suspicion that was ignored, but absent that, unless the transcript is changed, Kentucky's 35 wins should be safe.

That is, if the NCAA were consistent.  But we have seen that is simply not the case, so the outcome, as usual, is anybody's guess.

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