While the NCAA is well known for its on-court success, this summer may go down as a banner time for the Association in courts, both state and federal.

The NCAA came away with several important legal decisions in its favor, and those decisions also have clarified important principles the Association has been defending for some time. From initial eligibility, continuing eligibility and antitrust to trademark infringement, contracts and intellectual property, the Association has posted victories lately.

"It's been an extremely successful quarter," said Elsa Cole, NCAA general counsel. "We've had victories in important cases with significant ramifications."

As in athletics, the victories have been the results of several years of hard work.

"It's taken a long time, procedurally, to get to where we are," Cole said. "These have not been quick successes. In many cases there have been multiple appeals, but our perseverance has been rewarded."

Initial eligibility

Cureton v. NCAA

Perhaps the most high-profile case resolved in the NCAA's favor this summer was Cureton v. NCAA, filed in 1997. At the heart of Cureton was the Association's right to set academic standards for incoming freshmen. "This has been one of the most important cases for the Association," Cole said. "In many ways, the Cureton case has been the focus of much of our attention."

In the 1990s, in response to calls for increased academic rigor in athletics, the NCAA Presidents Commission sought to improve academic standards by strengthening the Association's initial-eligibility rules. The NCAA's current initial-eligibility standards, known as Proposition 16 and in effect since August 1996, require that Division I freshmen student-athletes graduate from high school, successfully complete at least 13 core academic courses and achieve a grade-point average and test score on the ACT or SAT, based on a qualifier index, to gain eligibility.

On March 8, 1999, a U.S. district judge ruled that Prop 16 did have an unintentional disparate impact on African Americans, and the court ruled the legislation invalid. The court also held that the NCAA was a recipient of federal funds through its control over the National Youth Sports Program and also because the Association's member schools ceded control of their federally funded athletics programs to the NCAA.

The plaintiffs then sought to amend their complaint to assert intentional discrimination on the part of the NCAA. The Cureton case came to an end in May when the U.S. Circuit Court of Appeals for the Third Circuit denied that request. The plaintiffs had 90 days after the May 2001 decision to seek review of that decision with the U.S. Supreme Court, which they did not do.

Earlier in the spring, a U.S. Supreme Court ruling in an Alabama case in which the NCAA was not involved, Alexander v. Sandoval, said that only the government, not private individuals, could sue alleging "disparate impact" under Title VI. As that was essentially the plaintiffs' original argument in Cureton, the plaintiffs could not take the December 1999 Third Circuit decision in the NCAA's favor to the Supreme Court.

"The Third Circuit decision ends the plaintiffs' attempt to argue deliberate discrimination," Cole said. "The appeals court said the NCAA's intent in creating a test-score standard had been characterized by the plaintiffs as 'laudable' and that the trial court termed our intent 'legitimate.' "

Amateurism/eligibility

Lasege v. NCAA

While the plaintiff has asked the Kentucky Supreme Court to reconsider its decision, the decision in June makes the long-term outcome of this case appear promising.

Muhammed Lasege, a Nigerian-born student-athlete, was ruled ineligible to play basketball at the University of Louisville because the NCAA had determined that he had an agent, had signed a contract and had received money for playing in a professional league in Russia. Lasege alleged that he was pressured into signing the contracts and that false representations were made to him by those involved with the league in Russia. He sought a temporary and permanent injunction mandating that the NCAA and all its members reinstate his eligibility to participate at Louisville.

On December 20, 2000, the trial court granted Lasege a preliminary injunction allowing him to compete. It also prohibited the use of the NCAA's rule of restitution, holding that it violated Lasege's equal-protection and due-process rights. That meant Lasege could play without Louisville needing to worry whether another court would later rule against him regarding his eligibility, thus perhaps triggering the rule of restitution and causing Louisville to forfeit wins in games in which he had participated.

In June, the Kentucky Supreme Court vacated the lower court's injunction that had permitted Lasege to participate for Louisville, and it affirmed the NCAA's right to decide matters such as eligibility.

The Kentucky Supreme Court determined that Lasege failed to show that the NCAA's decision was arbitrary and capricious, noting that the "NCAA's ruling has strong evidentiary support -- Lasege unquestionably signed contracts to play professional basketball and unquestionably accepted benefits."

The Kentucky Supreme Court took a strong position in support of the NCAA's rule of restitution, stating that, "the University of Louisville and other NCAA members reached an agreement as to how competitive equity should be restored in the event of an erroneous court determination regarding a player's eligibility, and the trial court simply released Louisville from that obligation."

Said Cole, "The court said it's not illegal to try to restore the status quo, which is what the rule of restitution is intended to do. It's an attempt, albeit not a perfect one, to restore competitive equity by redistributing wins and losses and imposing sanctions on a member institution that allows an ineligible player to compete under a subsequently vacated order."

Cole also noted that use of the rule was not automatic, and its use varied by NCAA division. In the Lasege case specifically, no determination had been made at the time of the trial court decision as to whether Louisville would be subject to the rule.

Initial eligibility

Pryor/Spivey v. NCAA

Thus, the case was really a disparate-impact case, the court said, which, because of the earlier Supreme Court Alexander v. Sandoval ruling, Spivey had no right to bring since he was a private citizen. The plaintiffs are appealing those rulings.

"While we're confident the Third Circuit will uphold dismissal, we're also able as an Association, to go forward with a review of our eligibility requirements thanks to a Supreme Court decision in another case to which we were not a party," Cole said.

Before the U.S. Supreme Court's decision in Buckhannon v. West Virginia Department of Health and Human Resources, if the NCAA had changed its initial-eligibility rules in what the courts determined was a response to a lawsuit, the NCAA would have had to pay the attorney's fees of the plaintiffs, regardless of whether the plaintiffs won the case on its merits. But in Buckhannon, the Supreme Court reversed that longstanding interpretation of the law, stating that the plaintiffs could not collect attorney's fees just because their suit may have been the catalyst for the change.

"That case changed the way the law had been interpreted for the last quarter century," Cole said. "Previously, the possibility that the plaintiffs in Cureton would make a claim for attorney's fees was an impediment to the Association establishing new initial-eligibility rules. Now that impediment is gone and the membership is free to make changes in the Association's initial-eligibility requirements if it wishes."

Antitrust

Tananka v. NCAA

More recent observers of intercollegiate athletics will recall the infamous "restricted earnings" case, in which the NCAA ultimately agreed to pay $54 million -- and drop its appeal -- to coaches after an unfavorable antitrust ruling trebled a jury's determination of actual damages in the case.

"When the courts look carefully at the requirements for violating antitrust law and compare them to the situations where the NCAA has developed rules, the courts have consistently ruled that those requirements have not been met," Cole said.

This summer, the NCAA got some more good news on the antitrust front with a favorable ruling by the Ninth Circuit Court of Appeals in Tananka, a case brought against the Association, the University of Southern California and the Pacific-10 Conference.

Rhiannon Tananka, a soccer student-athlete recruited by the University of Southern California, wanted to transfer to the University of California, Los Angeles, after her freshman year. She alleged that the NCAA and Pac-10 transfer rules, which resulted in her losing a season of eligibility by transferring from Southern California to UCLA, were violations of the Sherman Antitrust Act.

In November 1999, the trial court dismissed the plaintiff's antitrust claims on the grounds that the transfer rules challenged were not commercial and therefore not subject to Sherman Act scrutiny. In June, the Ninth Circuit affirmed the lower court's dismissal and then denied the plaintiff's petition to rehear the case.

Cole said the Tananka case reaffirms that the NCAA has the ability to make such rules to provide a level playing field for member institutions, which is important to the day-to-day functioning of the NCAA as a membership rules-making body.

"The Ninth Circuit's decision was a reaffirmation that transfer and those types of rules do not violate antitrust laws," Cole said. "From the Association's perspective, we need to be able to reserve the right to make such noncommercial rules by which members voluntarily abide."

Contractual relationship

Hart v. NCAA

In another important case resolved in the NCAA's favor this summer, the West Virginia Supreme Court affirmed that participation in intercollegiate athletics is a privilege, not a right. This concept is important because the NCAA and its member schools have stated that their approach to sports consistently has been that participation is a privilege and thus can be regulated as the membership finds appropriate.

This case was brought in 2000 by Jeremy Hart, a wrestling student-athlete at Appalachian State University. Hart wrestled in the 134-pound weight classification during 1996-97. He was denied a waiver to compete in a lower weight classification for the 1997-98 season due to rule changes implemented after the deaths of three collegiate wrestlers.

Hart alleged that he had been denied the opportunity to fulfill his scholarship contract and that such denial constituted unreasonable, arbitrary and capricious conduct by the NCAA. The NCAA argued that the wrestling weight regulations are in place to promote and protect the health and safety of student-athletes.

The court also ruled that there is no contractual relationship between the NCAA and a student-athlete such that the student-athlete can sue for breach of contract if he or she does not get to compete, another important principle as far as the Association is concerned.

"The institution is the member of the Association, not the student-athlete," Cole said. "And the West Virginia Supreme Court reaffirmed that the proper party to bring a challenge in contract law is the school, to whom we have a legal duty, not the student-athlete."

And again, this decision was an important one for the NCAA because it helps to limit the Association's liability.

"As an organization, we are always trying to limit the risk and exposure of our members' assets to those situations in which we legally have a duty," Cole said.

The NCAA as plaintiff

The NCAA typically spends its time in court defending the Association and the decisions of its members. This year, for the first time in years, the NCAA filed lawsuits and became the plaintiff. It was prompted by Internet sites that used NCAA trademarks and associated them with online gambling.

"This year we decided to commence litigation in order to protect the NCAA name and the values associated with it," Cole said. "We did not enter into that decision lightly. We always send a cease-and-desist letter first, and we commenced litigation only after all other efforts to resolve the matter have been unsuccessful. We've also been selective, and those sites using our name in connection with gambling have been our first target area."

The Association contended that use of its marks on those sites led consumers to mistakenly believe that the sites are sponsored by or approved by the NCAA, and the courts agreed.

On March 16, the day the NCAA filed suit, the Association won a temporary restraining order freezing the U.S. assets of BBF International and requiring the company to shut down two gambling-related Internet sites, www.ncaa-march-madness.com and www.ncaabettinglines.com. In addition to their unauthorized use of the trademarks, the sites also contained pictures of current student-athletes. The court has since issued a permanent order shutting down the sites, and awarded the domain names to the NCAA, along with damages of $20,000 and attorneys' fees.

In NCAA v. NCAAbasketballodds.
com, the Association filed against several domain names, which contained NCAA trademarks and gambling references, that had been registered and offered to sale to the NCAA and to Internet gambling businesses. In that case, the NCAA won a default judgment and was granted transfer of the domain names.

The NCAA also filed a cyberpiracy lawsuit recently against an online ticket broker that is using NCAA marks in its domain names and promoting the resale of NCAA championship tickets at inflated prices.

"We want to send a warning that we will pursue companies and individuals who inappropriately register and use domains associated with NCAA trademarks," Cole said. "Our hope is that by vigorously enforcing our rights in these cases there will be a chilling effect on others who may consider misusing our names in this fashion."

Whether the Association decides to pursue such litigation in the future will depend on the specific circumstances, but companies tempted to misuse the NCAA mark next March might consider if they would prefer to face what the opposing attorneys faced all this spring and summer -- a full-court press.

-- Kay Hawes

Association's legal team works to establish a formidable home court

When Elsa Cole came on board as general counsel in 1997, it became her charge to oversee and manage all of the Association's legal matters. The Association had contracted for the services of a law firm previously, but Cole's hiring meant that the NCAA would have its own legal team on board as NCAA staff. The change has resulted in a greater coordination of efforts, which has since benefited the Association as society as a whole has become ever more litigious.

The NCAA has seen a great variety of different types of litigation over the years. The most common cases seem to involve student-athlete eligibility, but the Association also has been named in suits involving disgruntled ticket holders, traffic accident victims and sports event promoters.

Because of the variety of cases and the fact that the NCAA must defend lawsuits all across the nation, Cole's office contracts with outside counsel to handle the litigation.

"We use a variety of different firms across the country, and we typically pair up an attorney who has experience with a particular type of case, such as initial eligibility, for example, with an attorney who practices in the location where the case will be tried. That allows for the technical expertise while also providing someone who knows who the judges are and what the local legal climate is like," Cole said. "We've assembled teams and sent them on a moment's notice to Hawaii and the far reaches of Montana, when necessary."

In addition to coordinating all litigation involving the Association, the general counsel's office also advises the NCAA president and staff on a wide range of legal issues. Cole provides regular litigation updates to the Association's governance groups, and she also provides legal opinions on legislation proposed by the Association's governance structure and its membership, with an eye toward preventing future legal problems.

"It's our job in the general counsel's office to defend the Association, protect its right to determine its own rules and regulations, and also to protect the assets of the membership," Cole said.

-- Kay Hawes