Do Some Athletes Matter More?

Texas' highest court on Friday overturned a lower court's controversial 2003 ruling that participating in intercollegiate sports is not a constitutional right -- unless an athlete has an international reputation and the potential to make lots of money from his or her talents.

Friday's decision by the Texas Supreme Court is a victory for the National Collegiate Athletic Association and had been sought by leading higher education associations, which argued that the 2003 ruling by the Texas Court of Appeals was out of step with prevailing law elsewhere in the country and inappropriately gave rights to athletes based on their potential earning power. 

While the new ruling sets precedent only in Texas, since it was decided under state law, its symbolic power is noteworthy, at a time when more and more athletes in more and more sports are developing national if not international reputations by the time they are college aged (can you say LeBron?). "There are an increasing number of people who are coming to intercollegiate athletics with established reputations, and who have the potential to be injured by an NCAA determination or an interpretation of it by an individual school," says Paul Haagen, a professor of sports law at Duke University.

The athlete in the Texas case, Joscelin Yeo, was one of Singapore's most visible and successful athletes. The swimmer represented her home country in the 1992 and 1996 Olympic Games before enrolling in 1998 at the University of California at Berkeley, whose swim coach at the time, Michael Walker, also coached the Singapore national team. Before the 2000-1 academic year, Walker left Berkeley to coach at the University of Texas at Austin, and as is often the case with top collegiate athletes, Yeo chose to follow Walker to Texas.

NCAA rules regarding transferring athletes required Yeo to sit out of collegiate competition for a full academic year (after Berkeley rejected Yeo's request for a waiver of the regulation), which she did in 2000-1. Yeo began swimming for Texas in the fall of 2001. But because she had participated in the Olympic Games in the fall of 2000 instead of enrolling in classes -- athletes must be enrolled for the time they sit out to count under NCAA rules -- Texas erred in letting her compete. 

When Berkeley officials complained to the NCAA, Texas acknowledged its error and declared Yeo ineligible to compete for part of the winter. In March 2001, the NCAA ordered Texas to withhold Yeo from four events to make up for the ones it had mistakenly let her compete in earlier in the year.

Among the events Yeo was to miss was the association's upcoming women's swimming and diving championship, and she argued that being barred from that meet, when her planned participation had already been promoted, would "harm her reputation as an athlete" and, not incidentally, undermine potential endorsements.

To avoid that fate, she sued Texas and its chief lawyer, Patricia Ohlendorf, in state court. A judge granted Yeo's emergency request and she was allowed to compete in the championship meet. In November 2002, in a trial on the merits of the case, a Texas judge ruled that the university had denied Yeo due process under the Texas Constitution.

A Texas appeals court endorsed the lower court's ruling in July 2003, saying that although athletes in general do not "possess a constitutionally protected interest in their participation" in intercollegiate sports or extracurricular activities, Yeo herself risked being deprived of property and other interests, because of her "established athletic reputation earned in the context of another country's amateur athletic program." (Yeo went on to win a Rhodes Scholarship.)

Texas and the NCAA asked the Texas Supreme Court to review the appeals court's decision, and several higher education associations encouraged the state's high court to overturn it, arguing that its ruling opened the door to legal challenges to students claiming that disciplinary or other administrative decisions that keep them out of intercollegiate sports or other activities could harm their career prospects or financial status.

In its ruling Friday, the Texas Supreme Court rejected the appeals court's finding that Yeo's international fame somehow made her loss of eligibility more grievous than another athlete's. "The United States Supreme Court has stated, and we agree, that whether an interest is protected by due process depends not on its weight but on its nature," the Texas court said. "Yeo does not take issue with this principle but argues in effect that the weight of an interest can determine its nature. A stellar reputation like hers, Yeo contends and the court of appeals concluded, is categorically different from a more modest reputation. We disagree. The loss of either may be, to its owner, substantial."

The court rejected Yeo's arguments that the eligibility decision denied her due process by harming her earnings potential -- "while student-athletes remain amateurs, their future financial opportunities remain expectations" --  and that participation in athletics is a "protected liberty interest" in the same way that the Texas Supreme Court found a student's graduate education to be in another case. "We decline to equate an interest in intercollegiate athletics with an interest in graduate education," the court ruled Friday.

Although the University of Texas was technically on the winning side (with the NCAA) in Friday's decision, it still could find itself paying a price for the court's ruling. Under NCAA rules, when an ineligible athlete is allowed to compete because of a court ruling that is eventually overturned, association officials are required to review the case to determine whether the athlete's participation affected the outcome.

Often, an NCAA spokesman said, "the points earned by the ineligible student-athlete are vacated and team scores adjusted based on points earned by the ineligible student-athlete. The principle is that the ineligible student-athlete must return to competitors what was gained improperly, even in cases where the involved institution was required by court action to let the student-athlete participate."

In other words, Yeo's performances in the disputed events, including conference and NCAA championships, could be voided.