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Donte Hill and the NCAA Supreme Court

Back in April when Donte Hill’s eligibility issue first came up, I was not optimistic about his odds for success, and remain skeptical he will get to play. The fact that I am skeptical is why many have advocated that the NCAA stop with staff decisions, guidelines, and subcommittee appeals and instead just have one person make the correct call. As Gary Parrish puts it, a Director of Common Sense and Decency. And if you want to cry about the ramifications of having an all-powerful staff member in Indianapolis making unilateral decisions, Parrish has you covered:

To that I say, don’t talk to me about your slippery-slope that granting these waivers to Hill and Okoro could create with a precedent because the only precedent it would create is a precedent of common sense and decency.

Hill’s case and the case of Steven Rhodes both raised this issue, that the NCAA should ignore its rules, ignore its process, ignore precedent, ignore guidelines and just do the right thing.

The problem with Parrish (and other’s) idea is two-fold. First, common sense is less common that some people think and it is not always clear what common sense dictates. A sizable group argues that common sense says there should be no waivers. But then again, that’s what judgement is for and changes don’t need to be perfect, they just need to be better.

The bigger problem is that Hill and Rhodes do not need waivers, they need better rules. Rhodes was caught up in a clear case of poorly drafted legislation. Proposal 2009–22 switched the rule that applied to a couple sports and the rule that applied to all other sports without keeping the exception for military leagues in the new general rule. Now that Rhodes case is resolved, the process moves on to (hopefully) changing the delayed enrollment rule to restore the exception for competition while serving in the US armed forces.

Hill’s case is different in that he presents about as poor a case for relief from a rule as possible. There was no misinformation, no one mistakenly believed he was not using a season of eligibility. The only mitigation it seems ODU and Hill can argue is that the rule is bad. If Hill is granted a waiver, it would not just create a precedent, it would create an exception—not written in the rule book—that swallows the rule.

That’s not what the waiver process is supposed to do. The waiver process starts with the assumption that the rule is generally good. The goal of that process is then to decide when other considerations trump the fact that the rule is generally fair and useful.

In some cases, the Subcommittee for Legislative Relief comes across something it would be hard to call anything but a mistake, like the missing military exception in the delayed enrollment rule. In those cases, SLR has the blanket waiver to give the Legislative Council and/or Board of Directors time to fix the issue. But as I outlined in April, the rule that charged Hill with a season of competition for playing in a scrimmage is not a mistake, it was one of multiple alternative proposals selected back in 2004.

The last thing the NCAA needs is one person in Indianapolis nullifying its rules with no more explanation than “common sense”. But what the NCAA could definitely use is a person or more likely a group of people who are charged with deciding important cases that result in rule changes. What the NCAA needs is a Supreme Court.

The NCAA has a hierarchy of rules. It has a constitution which sets out the core values of the association. Each bylaw has principles which should guide the operational rules contained within.

What the NCAA lacks is any person or persons who, when presented with a case, have the power to say a rule is bad because it contradicts with higher authority and not just grant relief to that student-athlete but to change or eliminate the rule. In Rhodes case that means writing the military exception back into the rule. In Hill’s case it means recognizing that the concept of a “minimum amount of competition” has evolved since the rule was passed almost a decade ago and it simply cannot stand next to other, similar rules which create vastly different results.

Beyond just handling cases like Rhodes and Hill more neatly and completely than the current waiver process, a Supreme Court is necessary for deregulation. It can eliminate byzantine rules and exceptions, making for a more fluid rule book but ultimately a simpler one. More important that making a smaller rule book, it is required to keep the rule book small. A Supreme Court can prevent all those rules that were painstakingly removed from being added back in every time a school thinks someone else is getting a leg up.

A “VP of Common Sense” is not going to make waivers or case decisions more consistent. Maybe less controversial, but certainly not more predictable. Adding another layer of appeal back in (a layer the NCAA has worked hard to remove over the last few years) will result in another opportunity for cases to go differently than people expect. But at least then, we may know why and going forward the rule that caused the waivers may be gone, eliminating the inconsistent decisions altogether.

An underrated aspect of an NCAA Supreme Court is that almost by definition it must be more transparent. If a rule is declared “unconstitutional”, that has to be broadcast to the membership at the very least. And to have any legitimacy at all, that decision has to be explained. Even if the waiver is denied and the rule stands, by implication that says enough about what such a group decided: that the rule is good, valuable and consistent with NCAA standards. Which is an excellent starting point for deciding if it should stick around.

Bakersfield College Athletic Recruiting.

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