There’s an intriguing new ruling out from North Carolina’s Court of Appeals that, while not directly related to free expression, portends difficulty for the inevitable legal challenge as more college athletes are punished for what they say on social media.
The court of appeals decided Tuesday that a former Tar Heels football player has no claim against either the University of North Carolina or the NCAA for the loss of earnings he believes he suffered when he was barred from the team for his senior season, leaving him to enter the NFL as an undrafted free agent receiving the league’s minimum salary.
Michael McAdoo was kicked off the team after being accused of accepting inappropriate help from a tutor in completing a term paper for (yes, really) his Swahili class, leading the NCAA to declare him ineligible to play.
On top of the NCAA disqualification, UNC suspended McAdoo for a semester and put him on academic probation, but did not take away his athletic scholarship entirely.
It’s worth perusing the entire opinion, but the bottom line is that, in the view of the three-judge panel in North Carolina, McAdoo has no case because he lost only playing time, not his scholarship, housing and other tangible university benefits. And because it’s speculative that another year on the team would have caused him to be drafted and signed to a better-paying contract, the court won’t allow a lawsuit to proceed based on mere speculation:
Although any specific level of injury to Plaintiff’s career prospects and earning potential is too ‘conjectural’ and ‘hypothetical’ to estimate, it is clear that the actions of [the Defendants] did not prevent Plaintiff from pursuing a professional football career.
This is not a groundbreaking ruling. Other courts similarly have decided that the mere loss of a shot at a successful pro sports career (or, as in McAdoo’s case, a more successful career) is too indefinite of a loss to sustain a lawsuit.
That presents a significant (though perhaps not insurmountable) obstacle for a student excluded from a sports team. Dozens of student athletes have been disciplined for postings on social media sites that, in the view of their athletic departments, reflect bad character. Policing athletes’ social-media ramblings has become a cottage industry.
The First Amendment normally precludes government agencies from punishing citizens for offensive or uncivil speech. But when the punishment stops at exclusion from participation in an extracurricular activity, such as cheerleading or student government, some courts have found the penalty too ephemeral to deserve much constitutional scrutiny.
However, at least one recent ruling (in the setting of a high school) found that being disqualified from extracurricular activity in response to constitutionally protected speech is a legally actionable injury. That’s the right answer. When the government sets out to deter speech by taking away something that the speaker values, that’s enough of a First Amendment wrong to entitle the speaker to a day in court.