By RICHARD CHEEKS

It is clear that individuals, aggrieved by NCAA action, have a right to sue the NCAA [See Tarkanian vs. NCAA].  Member schools, similarly aggrieved, may also sue the NCAA [See University of North Dakota vs. NCAA].  Therefore, despite the widely held view that member schools cannot sue the NCAA, our discussions should move past UK’s legal right to sue and move to the relevant questions.

•    Should UK sue the NCAA?  And,

•    Will UK do so?

My short answers are Yes and No!  For the details of my analysis, read on.

THE NCAA USES ITS POWER INCONSISTENTLY
The NCAA has progressively gained power over the years.  As its power has multiplied, the NCAA has adopted a seemingly consistent policy of using its power to impose its will upon its members in an inconsistent manner.  Most observers can cite their own personal litany of anecdotes to prove this point, and while these individual anecdotes vary, the underlying conclusion they support is inescapable:  The NCAA has its favorites, and observers can easily contrast the treatment that the favorites receive against the treatment that those who are outside the NCAA’s favor receive.

A good example of this occurred when the NCAA declared a few years ago that certain school nicknames and logos are racially offensive to the Native American community.  “The NCAA objects to institutions using racial/ethnic/national origin references in their intercollegiate athletics programs,” said NCAA President Myles Brand.  This NCAA dictate affected many schools.  The NCAA said identified mascots it deemed unacceptable include the “Alcorn State Braves, the Central Michigan Chippewas, the Utah Utes, the Bradley Braves, the Arkansas State Indians, the Illinois Fighting Illini and the Louisana-Monroe Indians.”  Some of them simply made internal changes in deference to the NCAA mandate.  The St John’s Redmen became the St. John’s Red Storm, and Marquette’s Warriors became Golden Eagles, for example.  However, not all schools complied immediately, or willingly.  Florida State for example refused to change its Seminole nickname and logo, threatening legal action to preserve its rich tradition and heritage.  Eventually, Florida State received a precious waiver from the NCAA, and Florida State continues its use its “Seminole” nickname and logo to this day.

Other schools also received waivers from the NCAA, including Central Michigan [Chippewas], and Utah [Utes].  However, not all who opposed the NCAA’s mandate for this change gained waivers, such as William and Mary and the University of North Dakota.  William and Mary did not want to change its “Tribe” nickname, and after the NCAA denied its waiver request, William and Mary considered legal action.  However, W&M decided not to sue over the nickname issue because the school could not justify the use of their limited funds for that purpose.  The University of North Dakota traveled a similar road as William and Mary and the NCAA denied North Dakota’s waiver petition.  However, North Dakota concluded that the principle involved was so significant to them that they sued the NCAA despite the substantial cost.

North Dakota is not the only member institution that has sued the NCAA over the years, and the nickname/logo flap is not the only issue that has prompted a member school to take the NCAA into court.  Regardless of the school or the disputed issue, the realities about these actions have become clear.  Tarkanian ultimately lost his protracted and expensive legal battle when the US Supreme Court Affirmed the NCAA position.  In fact, the vast majority of individuals and schools who have sued the NCAA have lost.

The NCAA has vast resources that it is willing to use to defend its power and authority.  Those resources provide the NCAA access to the best lawyers in the business and the ability to wage a war of attrition against all comers.  Upon the filing of the North Dakota suit, NCAA President Miles Brand said the NCAA would defend its policy “to the utmost.”

In addition, NCAA representative Bob Williams said he was not surprised by the lawsuit and that the NCAA is “planning on aggressively defending our right … to conduct our own NCAA … free of racial stereotyping.”  Member schools, and their athletic programs, have limited resources to carry the fight to the NCAA in a serious and meaningful manner, and cannot survive the NCAA’s war of attrition against them.  The propensity of losing in my opinion is related much more to this disparate power and resources that the NCAA has against any of their legal adversaries, not the merits of the respective legal positions of the parties.

Why are Seminole, Chippewas, and Utes acceptable exceptions for the NCAA’s worries about racial stereotyping, but Fighting Sioux, Redmen, Warriors, and other similar nicknames are not?

THE NCAA’S INCONSISTENT EXAMINATION OF KENTUKCY AND CALIPARI

This background and history provides the backdrop for the relevant questions.  In the fifteen (15) months since John Calipari arrived in Lexington as Head Basketball Coach, the NCAA and the Kentucky Basketball have either gotten cross ways, or nearly so, regarding at least three very public issues:

•    The Validity of Eric Bledsoe’s High School Transcript;

•    The Eligibility of Enes Kanter; and

•    The number of wins earned by Coach Calipari during his collegiate coaching career.

Why does the NCAA conclude that it must lay a heavy hand on Kentucky/Calipari over the number of official wins UK publicizes about its coach, but the NCAA does not feel equally compelled with respect to Alabama/Saban, San Diego State/Fisher, Conference USA/Calipari, UMass/Calipari, and others?  Add to this list the proverbial rectal exam of Eric Bledsoe’s High School transcript only because he played basketball at Kentucky for Calipari.  Add to this list the “permanent ineligibility” ruling toward Enes Kanter after he decided to play college basketball for Kentucky/Calipari, while the NCAA found “reasons” with a wink and a nod to allow Ohio State footballers and Auburn’s Cam Newton to play in lucrative post season bowl games, indeed for the national championship and national recognition.  Are these situations valid evidence of the inconsistency of the NCAA’s heavy hand?  That is how I read it; I believe these are examples of the selective enforcement by the NCAA that support the public perception that the NCAA is inconsistent, playing favorites and picking winners and losers.

SHOULD UK SUE THE NCAA?
Should the University of Kentucky use the legal system to challenge the NCAA for being arbitrary and capricious, and exceeding its authority in the administration and enforcement of the NCAA rules?

A segment of the Big Blue Nation not only believes that the University of Kentucky should do just that, but also holds a parallel view that the University lacks the courage to do so.  I am not sure the issue is strictly a matter of guts, but also one of prudence.  I believe that a program with the national stature and prominence of the University of Kentucky must ultimately be prepared to first rally public and private support for its positions that are adverse to the NCAA, and when the stakes are sufficiently high, take legal action to fight for its autonomy and right for equal protection and fair treatment.

However, I do not think that UK, or any other school for that matter, should ever make such a decision lightly.  A school must be very selective and only decide to move their argument into the legal arena when the principle at stake and the impact of the NCAA’s arbitrariness and capriciousness is so severe as to elevate the argument to a level that the school cannot simply turn and walk away.  Finally, if a school does make the decision to sue the NCAA, it must be prepared and capable of funding that lawsuit to withstand the NCAA’s war of attrition.

Applying these principles to the three events of the last 15 months that have affected UK, I do not believe that Win-Gate, or Enes Kanter meets this test.  With Win-Gate, UK could have avoided this entire controversy if it had taken a more conservative and prudent approach at the beginning.  UK’s position boils down to a statement that others are flaunting the rules, so UK should be allowed to do the same.  This is a weak argument that will not win a legal battle because there is an element of dirty hands embedded in the argument.  With Enes Kanter, no one disputes the facts that his family accepted more money than necessary for Enes’ education, and the family kept the excess money after Enes’ “pro” playing days ended in Turkey.  These facts make the NCAA conclusion defensible [not arbitrary or capricious], and the UK argument would then reduce to the negative “the NCAA let Cam Newton and Ohio State players continue to play despite evidence of their cheating, but not Enes.”  For these reasons, UK should not sue the NCAA over either of these issues even though the NCAA’s treatment of UK was more severe and harsher than its treatment of these other obvious offenders.

With respect to the Eric Bledsoe situation, I continue to believe that had the NCAA imposed sanctions on UK over the Eric Bledsoe high school transcript issue, that UK should take that fight to the courts, IF, and only IF, the UK actions toward Bledsoe’s recruitment were without any fault or negligence.  I wrote extensively on this question a year ago in Vaught’s Views.  As I stated at that time, the central reasons for my conclusion that a lawsuit would have been required are two-fold:

•    The retroactive imposition of sanctions without evidence of wrongdoing is fundamentally unfair, and a principle worth resisting; and

•    If the NCAA forced UK to vacate 35 wins from the 2009-10 basketball season, the impact of that sanction upon the program would be so severe and completely inappropriate in the absence of provable wrongdoing by the program or the program’s coaches.

The stakes were too high to simply turn and walk away.  It would have been a classic case of the Courts being there to protect a minority from the tyranny of the majority.  This is why the US courts are there.  This is what makes the US legal system special in the world.  This is why the US Courts will not deny access to an aggrieved person [or organization] to resolve such important disputes.

I appreciate that other folks who are more conservative than me might reach another conclusion about whether UK should sue the NCAA over the Bledsoe matter.  Similarly, I understand that other folks who have a more aggressive worldview than me advocate suing over Enes Kanter and Win-Gate.  I am good with such differences of opinion.  These different points of view are exactly what should define the parameters of UK’s private debate of the “Should UK sue the NCAA?” question within the inner sanctums of the UKAA.  I certainly expect the UKAA and its staff to consider this question at the highest levels, including the UKAA Board, the UK AD, the UK President, and their outside counsel.  However, avoidance of this question within the UKAA would not be acceptable.

WILL UK SUE THE NCAA?
The second question, “Will UK ever sue the NCAA?” is much more speculative.  There is nothing I can say to objectively support my opinion, and each of us undoubtedly has one.  However, suffice it to say, I do not believe that UK will ever sue the NCAA so long as Mitch Barnhart is sitting as UK’s AD.  Will future UK ADs take a more aggressive view, as Tom Jurich has done in the past at Louisville?  I do not know, but I for one would welcome that philosophical shift at the top of the UKAA.  However, to be clear, my view of Mitch Barnhart on this question is not a statement about his courage but about my understanding of his philosophy.