McAdoo case asks: What are student athletes owed?

by Ned Barnett, News and Observer, November 15, 2014.

Michael McAdoo lost his NCAA eligibility to play football for the University of North Carolina at Chapel Hill after a student honor court found him guilty of receiving impermissible help from a tutor who footnoted and sourced one of his papers.

When McAdoo unsuccessfully sued to be reinstated in 2011, he included a copy of the disputed paper, which turned out to have been heavily lifted from material on the Internet. That led to questions about why the professor involved, Julius Nyang’oro, hadn’t detected the paper’s flaws and opened the university’s scandal involving the Department of African and Afro-American Studies and no-show classes for athletes.

But what began with unacknowledged use of others’ writing is turning into an entirely original legal chapter. McAdoo, a defensive end out of Antioch, Tenn., who played during UNC’s 2008 and 2009 seasons, has sued the university for breach of contract claiming he was denied the education promised him by then-head UNC football coach Butch Davis.

McAdoo filed the suit in federal court and asked that it be accepted as a class action including himself and all football players on scholarship between 1993 and 2011. That is the period that a report from Kenneth Wainstein, a former Justice Department official, says the more than 3,000 students, nearly half of them athletes, were steered into a “shadow curriculum” of bogus classes.

The contract at issue is the promise Davis made to McAdoo, his mother and his grandparents when he came to McAdoo’s home to recruit him. “I can’t guarantee that Michael will play in the NFL,” Davis allegedly said, “But one thing I can guarantee is that he will get a good education at the University of North Carolina.”

It’s unlikely McAdoo’s suit will be granted class action status – it doesn’t help that it starts with only one plaintiff – and even if he pursues it alone, it will be on tenuous legal ground. One obvious problem will be proving that he didn’t consent to the fraudulent classes and was exploiting the school as much as it was of him.

McAdoo, who played football in Canada and is trying to break into the NFL, lives in Maryland. He was not available for comment.

Prospects for its success aside, the McAdoo lawsuit is a significant development in UNC’s academic-athletic scandal and in the debate about college revenue sports. Should it go forward, the discovery process and testimony under oath could bring more harsh light on how UNC routed athletes into sham courses. It also brings into sharp focus this question: Just what is the exchange athletes make when they give their time and talents to a major football or basketball program? The schools and coaches collect millions of dollars. What do the athletes get? Apparently it’s not always an education. If that’s not provided, what are they owed?

Jeremi Duru, an American University law professor and one of McAdoo’s attorneys, says compensation is not the aim of the suit, reform is. The suit asks that all athletes be given four-year scholarhips, not the current renewable one-year scholarships. And it wants the curriculum for football athletes to be reviewed by a court-appointee who would confirm that the courses are legitimate for five years.

“We want to ensure that UNC remains committed to the student-athlete principle …. We’ve seen a departure from that. We would love to see that restored,” Duru says. “McAdoo came forward because he wants to right a wrong.”

Bob Orr, a Raleigh attorney who is a former member of the N.C. Court of Appeals and former justice on the N.C. Supreme Court, informally advised McAdoo when he was seeking reinstatement of his NCAA eligibility. He is not involved in the current lawsuit, but he said it is focused on a central problem for top sports programs at schools with quality academics.

“You can’t bring somebody in with a skill set below the median at UNC, Duke or Notre Dame and work them 40 hours a week and expect them to get up to speed doing normal college-level work,” Orr says. He expects that McAdoo’s case is the first of a series that will focus on this conflict between obtaining performance and providing an education.

“I think the McAdoo case is the tip of the iceberg,” he says. “I think there will be other litigation, more expansive litigation.”

Paul Haagen, a professor of sports law and policy at Duke Law School, says the lawsuit is unlikely to succeed, but it could have value nonetheless.  “This one sounds like it’s got some real problems,” he says, “but independent of the ability to get damages, this is another opportunity to get discovery and highlight an issue that is going to expose the divide between running an educational institution and running an entertainment wing of a university.”

Haagen says the case “may go nowhere,” but if it advances at all it will get at the key question that is emerging about college revenue sports: “What inexactly is the value being exchanged for the risk and time of what these kids are engaged in, especially when some people are benefiting extraordinarily?”

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