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Vol. 7, Iss. 2
March 7, 2018

Encore: NCAA Tournament And Courts (Of Law)

[This article appeared in the March 22, 2017 issue of Coverage Opinions. It is republished here, with minor changes to account for its timing now versus then.]

If you are reading this, then, at this moment, you have temporarily stopped working on your algorithm to fill out your NCAA Tournament bracket next week. And once the Tournament starts you’ll be ruminating over the fact that Gladys from H.R. is in first place in the office pool – despite that she spelled Xavier with a Z and has never heard of Gonzaga.

It is not surprising that, given the money involved, the NCAA Men’s Basketball Tournament has been the subject of some legal disputes, especially involving intellectual property rights.

Jason Gay, sports columnist for The Wall Street Journal, recently reported that the NCAA is not happy with USA Gymnastics for wanting to use “The Final Five” for its gold medal winning team from the Rio Olympics. As Gay put it: “You know, because Final Five sounds like Final Four.” The NC2A is also less than pleased with the Big 10 Conference wanting to trademark the phrase “March is On!”

Gay himself came up against the NCAA’s don’t-mess-with-us attitude in 2014 when, while covering the East regional final at Madison Square Garden, between Connecticut and Michigan State, he violated the NCAA’s “cup policy.” As he recounted in a wonderfully entertaining column, the NCAA forbids outside cups at tournament games and requires that beverages be consumed in official NCAA cups. Gay, aware of this policy and looking to wage a small protest – and, no doubt, have some fun with it -- drank a beverage from a coffee mug he brought along featuring eleven illustrations of cats. He was approached by a tournament staffer who made a subtle threat that, on account of Gay’s cat mug, the Journal could be denied credentials to cover the Final Four the following weekend. Gay was forced to turn over the mug. It was returned to him after the game.

The NCAA Men’s Basketball Tournament in fact shows up in cases that have nothing to do with the Tournament. This too is not surprising, given the hold that the tournament has on the public consciousness. Consider these judicial opinions where the NCAA Tournament made an appearance on a different kind of court than basketball.

In People v. Evans, 2011 Cal. App. Unpub. LEXIS 2648 (Cal. Ct. App. Apr. 12, 2011), the California Court of Appeal held that the trial court did not commit error when explaining to a jury how it may use its common sense – despite there being no evidence of a fact presented. The trial court gave as an example someone accused of theft of jewelry in April whose defense was, at the time of the theft, he was home watching the NCAA basketball tournament -- March Madness. The court explained that the jury could use its common sense in assessing the testimony, even though nobody introduced evidence of the dates of the tournament.

In Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000), the Fourth Circuit Court of Appeals upheld the constitutionality of a Virginia statute to the extent that it precluded professors of public colleges and universities from accessing sexually explicit materials, on state-owned or leased computers, for work-related purposes. The dissent saw it differently, noting that “[t]he Commonwealth has not explained, and cannot possibly explain, why employees who access sexually explicit material are any less ‘efficient’ at their work than employees who check espn.com every twenty minutes during the NCAA tournament.”

In Pirschel v. Sorrell, 2 F. Supp. 2d 930 (E.D. Ky. 1998), the court upheld the suspension of a student found in possession of beer while attending a basketball tournament at another school. The court looked at the impact that a school’s players can have on its team’s reputation and applied that conclusion to the team’s fans: “While a school may reap the benefits of a successful team and well-behaved fans, it may also be strapped with a negative label in the event its teams display poor sportsmanship. For example, most, if not all, University of Kentucky basketball fans recall Duke University star Christian Laettner stepping on a Kentucky player’s chest during a NCAA tournament game. Although that incident took place several years ago, many still consider Duke a dirty team.” Likewise, the court observed, “[j]ust as a school may be labeled as having excellent students based on others’ perception of their conduct, a negative reputation will result if students’ behavior is unbecoming.”

In Stainbrook v. Kent, 771 F. Supp. 988 (D. Minn. 1991), the parties agreed that serving a summons and complaint upon LSU, by delivering the documents to its assistant to the athletic director, while the LSU men’s basketball team was competing in the regional final of the NCAA tournament, did not constitute proper service.

Meinke v. VHK Genesis Labs, 2006 U.S. Dist. LEXIS 85664 (N.D. Ill. Nov. 21, 2006) involved employment-related claims brought by a sales employee who worked in the field and from home. He was directed to report to the company’s offices on March 18, 2004. When the employee did not show up, his boss called and told him to turn off the NCAA basketball tournament. He denied that he was watching the tournament at the time.

Denial – That’s my advice to you.

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