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Kentucky Basketball: Examining The Kanter Decision

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We haven't talked much about the ruling on Enes Kanter's college eligibility here at A Sea of Blue, but given that it has been a major topic of conversation, and will continue to be until the final i's are dotted and t's crossed, I thought we'd take a look at the situation and handicap UK and Kanter's chances of success on appeal.

At first blush, winning an appeal like this seems unlikely.  The NCAA carefully weighed the relevant factors and rendered a decision that looks, prima facia, to be correct.  According to competent reporting, at issue was some $33,000 in compensation that Fenerbahçe Ülker paid to Kanter over a 3-year period when he played for their junior and senior teams.

Let's look at the NCAA rule and see how it was applied.  Rule controls the beginning (Source- NCAA 2010-11 Division I Manual): Competition with Professionals. An individual shall not be eligible for intercollegiate athletics in a sport if the individual ever competed on a professional team (per Bylaw 12.02.4) in that sport. However, an individual may compete on a tennis, golf, two-person sand volleyball or two-person synchronized diving team with persons who are competing for cash or a comparable prize, provided the individual does not receive payment of any kind for such participation. (Revised: 1/9/96 effective 8/1/96, 1/14/97, 4/25/02 effective 8/1/02)

[Emphasis mine]

The NCAA presumes Kanter ineligible, because he has clearly played for a professional team as defined in, which is unquoted here due to it's length, but basically defines a professional team as a team that pays any of its athletes for athletic performance beyond "necessary and actual expenses", which the rule goes on to define.

But the NCAA does provide this exception the the above rule, which was the basis for Kanter's hope to achieve amateur status: Exception—Competition Before Initial Full-Time Collegiate Enrollment—Sports Other Than Men’s Ice Hockey and Skiing. In sports other than men’s ice hockey and skiing, before initial full-time collegiate enrollment, an individual may compete on a professional team (per Bylaw 12.02.4), provided he or she does not receive more than actual and necessary expenses to participate on the team.  (Adopted: 4/29/10 effective 8/1/10; applicable to student-athletes who initially enroll full time in a collegiate institution on or after 8/1/10)

Fenerbahçe Ülker is a Turkish Euroleague team, which places them within the scope of this exception.  Unfortunately, the NCAA decided that the additional $33,000 paid to the Kanter family (some of which has been held in a separate bank account and the rest of which were paid by the Kanter family for educational expenses) were determined to be in excess of "actual and necessary expenses."  This does not really seem to be in dispute by either Kanter, his family, or Kentucky.

The Kanters and UK claim that $20,000 of the $33k were used for educational expenses.  However, the rule on educational expenses pre-college is: Educational Expenses or Services—Prior to Collegiate Enrollment. A prospective student-athlete may receive educational expenses or services (e.g., tuition, fees, room and board, books, tutoring, standardized test preparatory classes) prior to collegiate enrollment from any individual or entity other than an agent, professional sports team/organization, member institution or a representative of an institution’s athletics interests, provided the payment for such expenses or services is disbursed directly to the individual, organization or educational institution (e.g., high school, preparatory school) providing the educational expense or service. (Adopted: 4/25/02 effective 8/1/02, Revised: 1/14/08)

[Emphasis mine]

Fenerbahçe Ülker paid the money to the Kanters, not to the educational provider as required by NCAA rule, so a claim that the $20k should not count in the excess calculation is clearly wrong, at least as the rules are written.  So we are still talking about $33k, not $13k.  That's where we stand today.

When you look at this all on its face, you wonder why UK would even bother with the appeal.  After all, there is really no dispute that Kanter does not qualify under the exception, and the amount of money we are talking about here is not just a couple of thousand dollars.  Kanter derived significant financial benefits from Fenerbahçe Ülker that are impermissible under the NCAA's rules of amateurism.  That is a fact.  As a matter of rule, the NCAA's decision is beyond rational dispute.

But as we all know, this is not just about the rules.  If it were, Renardo Sidney would not now be an amateur.  The rules provide the background in a kind of legal format, but there is the other side of that coin, the concept of fairness and equanimity.  The strict application of law is not always the last word in our legal system, and it is the same way when it comes to NCAA eligibility.

The Sidney case would seem to be the most similar recent case for comparison.  Sidney was suspended for the entire 2009-10 season for lying to the NCAA about the impermissible benefits he received.  Additionally, the $11,800 in impermissible benefits themselves put him on the wrong side of this rule: Preferential Treatment, Benefits or Services. Preferential treatment, benefits or services because of the individual’s athletics reputation or skill or pay-back potential as a professional athlete, unless such treatment, benefits or services are specifically permitted under NCAA legislation. For violations of this bylaw in which the value of the benefit is $100 or less, the eligibility of the individual shall not be affected, conditioned on the individual repaying the value of the benefit to a charity of his or her choice. The individual, however, shall remain ineligible from the time the institution has knowledge of the receipt of the benefit until the individual repays the benefit. If the violation involves institutional responsibility, it remains an institutional violation per Constitution 2.8.1, and documentation of the individual’s repayment shall be forwarded to the enforcement staff. (Revised: 1/11/94, 1/14/08)

It doesn't require a mental Leviathan to see that both Sidney and Kanter were effectively professionals by rule -- Kanter for not refusing $33k in extra benefits (no matter what you think about how they were used), and Sidney for accepting almost $12k in extra benefits.  But one may wonder why Kanter was declared permanently ineligible and Sidney, despite unethical conduct as well as being an NCAA-rule professional, was returned to amateur status with some game penalties.

This is a fair question, and one that the NCAA has yet to address.  They claim that every situation is different, and based on their actions, that is so.  But it does seem passing strange that no consideration of allowing Kanter to repay his professional gains, sit out 30% of the season (the current punishment for paid-back impermissible benefits in excess of $1001 and up), and become eligible after that as they did with Sidney.

My take is that the NCAA is trying to put on a very strict face when it comes to amateurism these days.  Under new leadership, the NCAA seems to be trending toward less leniency, and the Kanter case was an easy one to get tough on, since Kanter is in no real danger of being denied either an education or professional success by being declared a professional due to his family's wealth and his own skill.  In other words, it was circumstantial ethics on the part of the NCAA to professionalize Kanter -- they get to show the world how serious they are about amateurism issues with absolutely no chance of harming the actual future of the young man.

As a bonus, the NCAA gets to look like they are  sticking it in the eye of an institution that has been a serial rules violator over the years, and also appear to get in a poke in at a coach who is unreasonably but ubiquitously seen as an NCAA cheater.  There is no downside to the NCAA , even if it is apparently inconsistent with recent prior rulings.  The amount of money here just made the ruling easier, not any more correct in terms of prior precedent, and the NCAA figures rightly that they are universally seen as inconsistent anyway, so why not use it to their benefit for once?

In the end, the NCAA has merely taken this opportunity to make itself look good to the public.  Sports commentators like Mike DeCoucy, among others, have criticized the NCAA's stance on Kanter, and rightly so, but crying wolf about NCAA inconsistency simply draws a shrug from anyone who's ox is not being gored by their decision.

So what are Kanter's chances of a successful appeal?  Well, I suppose that pretty much depends on who is on the panel issuing the ruling.  The NCAA has been anything but consistent on appeals, just as on initial eligibility rulings.  UK's best chance would be to appear to the apparent hard line taken by the initial panel, especially in light of the Sidney case.  Kanter hasn't lied to anybody, the Kanters made a good faith, if ultimately futile effort, to segregate any benefits from young Enes' use and has offered to pay back the entire sum, something the NCAA had to force the Sidneys to do after they repeatedly lied to them, and after young Sidney himself tried to hide the money, and dissembled about it to the NCAA's face.

Taken that way, Kanter looks unfairly singled out, primarily due to his family's economic circumstances.  Will the appeal's panel agree?  I'm not betting on it, but the argument definitely has force.