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Two state court judges issued temporary restraining orders against the NCAA within a two-day period earlier this month, each one ordering the organization to restore the eligibility of a student athlete.
The cases are different in many ways. One involves University of Cincinnati quarterback Ben Mauk, who sued the NCAA after he was denied an appeal seeking another year of eligibility for medical reasons. Mauk’s attorney, Kevin Murphy, said the NCAA ruled that Mauk could not count his freshman year at Wake Forest University as a medical redshirt year because the school did not keep adequate medical records. The NCAA “took away his eligibility over something he had no control over,” Murphy said.
Mauk sued the NCAA for breach of contract and breach of fiduciary duty. Hardin County, Ohio, Judge William Hart issued an order on Aug. 13 stating that the NCAA “is hereby restrained from preventing Gary Benjamin Mauk from practicing, participating and playing football for the University of Cincinnati.”
Two days later, in Erie County, Ohio, Judge Tygh Tone ordered the NCAA to reinstate the eligibility of Oklahoma State University pitcher Andy Oliver, who was declared ineligible this spring over allegations that his former advisers acted as agents. Oliver sued the NCAA for breach of contract and tortious interference with contract.
What the cases do have in common is that both athletes claim they were treated unfairly by the NCAA.
“Despite being a model student-athlete (and person) for the NCAA, and despite having brought the NCAA significant revenues, the NCAA has wrongfully, arbitrarily and capriciously denied Mr. Mauk’s request to participate in a fourth year of athletic competition for reasons beyond Mr. Mauk’s control,” the quarterback’s lawsuit alleges.
Oliver’s lawsuit claims the NCAA made arbitrary and capricious findings and denied him the ability to request his own reinstatement. Only the university, not the student athlete, can apply for the student athlete’s reinstatement.
Tone, in his order, said arguments made by the NCAA that Oliver had not exhausted his administrative remedies before filing the lawsuit were “patently untrue.”
The NCAA declined SportsBusiness Journal’s request for a telephone interview but answered some questions by e-mail. NCAA spokesman Erik Christianson wrote that under NCAA rules, the university “may apply for reinstatement on the student-athlete’s behalf if it concludes the circumstances warrant restoration of eligibility. That reinstatement process has not yet occurred (in Oliver’s case) and, as we’ve said previously, it should precede any review by a court.”
David Cornwell, an attorney who represents athletes in NCAA matters — including former USC and current New Orleans Saints running back Reggie Bush — said it’s too early to tell if the judge’s decisions could have a long-term effect on athletes or NCAA policy. “It would be far more significant if either or both of the judges issues a preliminary injunction,” Cornwell said.
But James Quinn, partner at Weil Gotshal & Manges, who has represented players associations and athletes, said, “Any time you can get a judge to enjoin the NCAA, it’s significant, because the NCAA is looked at as this all-powerful organization that is acting in the best interest of its members.”
The NCAA is not required to give student athletes the same level of due process rights the government must give individuals accused of crimes. Still, for the NCAA, as a private organization, “the law requires that they act with some form of reasonableness and fundamental fairness,” Quinn said.
There is another difference in the two cases. Oliver, who returned to school last week, has been told by OSU officials that he will be allowed to practice with the baseball team, according to his attorney, Richard Johnson.
Mauk, however, was not allowed to practice with the football team that he led to a 10-3 season last year, despite the court order. UC football coach Brian Kelly said he was holding Mauk out of practice because he feared that if the NCAA ultimately won the case, UC could be forced to forfeit games and return bowl money, according to a story in the Cincinnati Enquirer.
Contact Liz Mullen at email@example.com.