Young Lawyers Journal

Issue 1

Sports in the Courts: “Degree of Difficulty”

by Marc A. D’Antonio, Esq. and Jared D. Correia, Esq.

Whatever the final result of your March Madness bracket, it’s a safe bet that you did not pick many successful programs from the field.

As the tournament hurtled toward its penultimate conclusion, resulting in one shining moment, a final achievement at the podium, victorious athletes and their spoils, the scene then presented ends up standing in stark contrast to future graduation ceremonies, to take place at podiums on the campuses of schools across the country, the same victorious athletes then being conspicuously absent. A significant number of those winning lasting fame on courts in April will never make their last appearances as “student-athletes” in May. A significant number of those collegiate basketball players competing in the NCAA Tournament will never hold diplomas.

The most recent study by the University of Central Florida’s Institute for Diversity and Ethics in Sports, which Institute releases a study of graduation rates for NCAA Tournament teams each year, indicates that half of the top-seeded Tournament teams this year, Kansas and Ohio State, have poor graduation rates for players.1 The worst offense may be attributed to the national runner-up Ohio State University, which graduated just 10% of basketball players who entered as university freshmen between 1996 and 1999. Other seeded teams with poor graduation rates include Tennessee (8%), UNLV (10%), Maryland (13%), Texas A&M (15%), Virginia Tech (17%), Gonzaga and Louisville (22%), Georgia Tech, Kentucky and Oral Roberts (23%), Memphis, North Texas and Texas A&M at Corpus Christi (25%). Tied up into a fine Gordian knot, together with poor percentages representing general graduation rates, is the racial disparity underlining those rates. Upon closer inspection, it is revealed that, “while 76% of white basketball players receive degrees, only 51% of black players do.”2 And, although certain schools do have better graduation rates than the bottom of the barrel schools just referenced, including top seeds Florida and Kansas, it is interesting to note that the schools with the 5 best graduation rates (Holy Cross--86%; Butler--82%; Creighton--78%; Davidson and Michigan State--75%) won a grand total of 3 Tournament games, 2 by Butler, while the schools with the five worst graduation rates won 12 games.

These graduation rates are more alarming when taken in the context of college sports in general, and with respect to the eligibility requirements attached to those sports. NCAA basketball teams traditionally have the worst graduation rates of any collegiate sports teams; and, recent data indicates an overall graduation rate of 59%.3  This despite the fact that NCAA eligibility requirements for athletes are notoriously low. An incoming freshman may play Division I basketball if he has achieved a cumulative 2.5 GPA along with a combined 820 SAT score in high school.4 To continue playing after his freshman year, a player need only show minimal satisfactory progress toward a degree, which consists of taking a minimum number of semester hours per year, and maintaining a below average cumulative GPA, cresting at a 2.0 by senior year.5 

The most disturbing question arising from these figures, then, is whether the "student-athlete" is being exploited for the benefit of universities that receive substantially all the financial rewards attendant upon competing at the highest level of collegiate athletics. The pressure placed upon coaches and athletes, directly and indirectly, by the university, through the recruiting process, is only intensified once the player signs. In addition, during his four years of competition, the “student-athlete” becomes more athlete than student, spending nearly 40 hours per week on basketball-related activities.6 The system prevailing defines the athlete’s importance in his game and not in his education, and so resigns the athlete to failure in the classroom.

Article 2.9 of the NCAA bylaws mandates that, “Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived. Student-athletes should be protected from exploitation by professional and commercial enterprises.”7 Universities are required to comply with the aforementioned bylaw; and the party line is that athletics play an integral role in the student-athlete’s overall educational development, that, through sports, student-athletes have the opportunity to cultivate the values of teamwork, perseverance and community, which acquisition of values is not as easily accessible to the general student body. The reality, however, is that college sports has become a multi-billion dollar per-year industry. If universities continue to benefit financially from the talents of top recruits, should not they have a duty to educate those same recruits when they enter upon the glorious, bifurcated life of the student-athlete?

Generally, courts have been reluctant to impose a duty to educate upon universities because such a duty may force courts to pass judgment on the educational policies and procedures of public and private universities. However, some courts have entertained the notion that contract law could provide a cause of action for student-athletes aggrieved by their lack of secondary education.

The theory propounded is that the arrangement between the university and the student-athlete represents a binding, bilateral contract. The promise of an athletic scholarship induces the student-athlete to commit to a particular school to participate in that school’s athletic program. The National Letter of Intent (NLOI) is the key document a court would look to in order to find the express terms of an agreement. The NLOI provides that the promisor, the student-athlete, promises to attend a particular school in exchange for that school’s promise to provide financial aid and to provide the student-athlete with an education. If the university fails to satisfy its duty to provide an education for the student-athlete (which, in many instances seems to be the case, as evidenced by the abysmal graduation rates outlined above), a breach of contract action may lie.8

In Ross v. Creighton University9 , a former collegiate basketball player sued his school. Mr. Ross alleged that Creighton agreed, in exchange for his promise to play basketball, and despite his deficient academic background, to allow him the opportunity to participate in the academic program of the University. The court, however, denied Mr. Ross’ claim, in holding that: “To state a claim for breach of contract, the plaintiff must do more than simply allege that the education was not good enough. He must point to an identifiable contractual promise that the defendant failed to honor.”10

The Ross decision is in keeping with the general posture of courts in this area, which courts have consistently refused to interpret the student-athlete/university contractual relationship as imposing a duty to educate upon the university. Until we recognize that the commercial realities of college sports supersede the idealistic notion that education comes first, the system will be screaming for reform.


1 Information in this sentence, and information relayed in the remainder of this paragraph, is taken from “Report notes disparity between grad rates of top seeds”, March 12, 2007, News Services, available, at the time of publication of this article, at

2 Ibid.

3 Information taken from “Grad rates increase slightly for Division I schools”, September 27, 2006, Associated Press, available, at the time of publication of this article, at

4 NCAA Initial Eligibility Rules are available, at the time of publication of this article, at

5 Cumulative GPA requirements are as follows: 1.7 (second semester freshman); 1.8 (sophomore); 1.9 (junior); 2.0 (senior).  Lehigh University’s website provides a neat outline of NCAA Eligibility Requirements, including continuing, or competition, eligibility, available, at the time of publication of this article, at

6 See Harold B. Hilborn, Student-Athletes and Judicial Inconsistency: Establishing a Duty to Educate as a Means of Fostering Meaningful Reform of Intercollegiate Athletics, 89 Nw. U.L. Rev. 741, 742 (1995).

7 The 2006-2007 NCAA Division I Manual is available, at the time of publication of this article, at Article 2.9 appears on page 20 of the document.

8 See Generally Michael Cozzillio, The Athletic Scholarship and the College National Letter of Intent: A Contract by Any Other Name, 25 Wayne L. Rev., 1275 (1989).

9 957 F.2d 410 (1992).

10 Ibid. at 417.

Marc A. D'Antonio, Esq., is a staff attorney with the Massachusetts Bar Association responsible for the management of the Associations' Fee Arbitration Board. A native of Southern California, Mr. D’Antonio believes Larry Bird owes his career to Magic Johnson.

Jared D. Correia, Esq., is publications attorney with the Massachusetts Bar Association. Prior to joining the MBA, Mr. Correia was a private practice attorney, working in the areas of general practice and disability law. His favorite athlete of all time is Larry Bird, and he believes that Doc Rivers should be fired immediately.


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