It's August, so I understand if you're following the Olympics and wondering if it's not too late to pick up table tennis instead of following Ray-Ray Armstrong's pending lawsuit against the University of Miami. That lawsuit could be fascinating and have implications across the NCAA. But a major impediment to that is that Armstrong might sue the wrong entity.
By way of background, Armstrong is a fourth-year senior who got booted from the Hurricanes most likely because of dubious use of Twitter, though he was also named in the Nevin Shapiro investigation. College kids are always going to use social media for dumb shit; you only need to look at Facebook photos that I forgot to untag for proof of that. Armstrong does appear to have a case that the pictures he tweeted do not show NCAA rule violations, but Miami does not want to chance fielding an ineligible player with the NCAA already set to crush the program over Shapiro.
Armstrong is no scrub; he is a Bednarik finalist who expected to spend his senior year building his NFL Draft stock. So he was understandably angry when he got dinged. Like any angry person, Armstrong lawyered up, and he's going to sue Miami for dismissing him without reason and demand the court put him back on the football team. But as Ice-T taught us, don't hate the player, hate the game. Miami has every right to dismiss Armstrong from the team. Rather, it's the NCAA, the organization that Miami is complicit with, the people setting the idiotic transfer rules, that's in the wrong. If Ray-Ray Armstrong wants justice, he'll sue the NCAA.
Now, when you sue someone it's a lot easier to just ask for monetary damages instead of asking the court to force the person who wronged you to undo their illegal act (what us lawyers call an injunction). Think about it, if you were a judge would you rather rule that a wrongfully terminated employee could go back to his old job or just have his employer cut a fat check? Obviously, the latter; it is much easier to enforce. That's why if you ask for an injunction, a judge will make you show that the wrongful act is causing irreparable harm, and that the only way to remedy such harm is to receive the injunction.
Armstrong has a valid point regarding irreparable harm. He is a fourth-year senior and, by dismissing him right before his senior season, Miami damages his professional career. If he sat out a year before going to another FBS school it would be another year exposed to injury risk before receiving a professional paycheck. And the average professional football player's career lasts three years, so it makes sense to spend as much of his athletic prime in the pro ranks as possible. The option of playing Division II doesn't seem that great either, as doubts about the competition level could harm his draft stock.
However, Armstrong's lawsuit against Miami suffers because it is hard to allege that the U engaged in an underlying wrongful act. Teams should have latitude over who is allowed on their rosters. A Georgia appeals court ruled that Georgia Tech essentially had the ability to dismiss football players at will in a similar case. That court ruled that a dispute between a player and his university is not justiciable; no law is broken when a football team dismisses a player, so there is no legal controversy to rule on. It's the same reason that I can't sue Al Groh because he was a bad coach who ruined UVA football for years; a dispute has to implicate an actual legal wrong and not just hurt feelings.
Further, it is much easier to force someone to refrain from doing something than to take an affirmative action when handing down an injunction. A judge would rather force an employer to stop discriminating in its hiring than rehire all the people it wrongfully terminated. So a judge would find Armstrong's request particularly difficult to enforce. My colleagues at the Seventh Floor Blog have already outlined the logistical nightmares of forcing the Hurricanes to reinstate him.
Which is why Armstrong's lawyers would be short-sighted to enjoin the University of Miami from dismissing him. Instead, they need to enjoin the NCAA from preventing him from playing FBS football for someone else.
The NCAA has always treated its athletes like chattel; Exhibit A by Taylor Branch is all you need as proof. The rule requiring Armstrong to sit out a year or go to FCS or Division II is emblematic of the NCAA's indifference toward the rights of its athletes. The NCAA is the real enemy here; instead of enjoining Miami from dismissing him, Armstrong should enjoin the NCAA from enforcing its rule requiring players to sit out for one year before transferring.
Armstrong can argue that NCAA transfer rule could be an illegal restraint on trade as a blanket non-compete clause. If you are not familiar with non-compete clauses, they are covenants made by one party (usually an employee but possibly a student athlete as well) not to compete against another party that hires them. For example, Rick Reilly had to take an extended break from writing before joining ESPN from SI because of a non-compete covenant (I can't wait for Reilly to finally start writing again!). But we don't want employees to become indentured servants, so non-compete clauses generally have to have a limited scope, both in terms of duration and the number of competitors that an employee cannot join. SI could have prevented Reilly from joining ESPN for a few months, but it couldn't have prevented him from joining any media company for five years.
So what Ray-Ray Armstrong should really allege is that the NCAA transfer limits that prohibit a player from joining another FBS team without waiting a year are an illegal restraint on trade. Considering the effect the rule will have on his draft stock, he can allege that its scope is not commensurate with the harm it seeks to prevent. And non-competes are usually given out to only the highest-level employees; it's not like the fry cook at McDonald's can't jump ship to Burger King. If Armstrong were that valuable to the University of Miami, wouldn't they pay him beyond an in-kind scholarship? Armstrong's lawyers should try to prove that the NCAA, in preventing players dismissed from FBS teams from playing for any competitor within one year of such dismissal, is acting like a plantation owner.
The NCAA hegemony over college athletics, where players become commodities controlled by their owners the second they accept their scholarships, cannot last much longer. The NCAA's student athlete liability avoidance system not only runs contrary to the values underpinning the American judicial system, but there is a lot of money to be gained by challenging it. A lawsuit needs only injustice and money to take place; they're like a spark and oxygen for a fire. Just look at that other lawsuit against the NCAA taking place in California right now, where erstwhile UCLA star and current Las Vegas car salesman Ed O'Bannon is spearheading a case that just forced the NCAA to reveal how much revenue it makes off its unpaid athletes. The concept of "student athletes" generating billions in revenue for their schools and bowls is a house built near a fault line, ready to fall in on itself but waiting for a big enough jolt.
But that jolt will take time. The judicial system does not operate speedily, and judges rule on precedent, so change can take a while. For example, it took baseball players more than 50 years of lawsuits to finally institute free agency. But you will see small victories pile up over time. By attacking the most egregious acts of the NCAA, players can eventually force the organization to reform from within or force a judge to do so. Ray-Ray Armstrong's lawsuit could be a crucial step.
So sue the NCAA, Ray-Ray. And if you win, I'm sure Terry Bowden would love to talk to you about the great things they're doing up in Akron.
For more on Canes football, visit Miami blog The 7th Floor.
While we’re here, let’s watch some of the many fine college football videos from SB Nation’s YouTube channel: