Can Georgia sue Gurley’s accuser?

Last week, news that Todd Gurley was suspended indefinitely amid allegations of violating the rules of amateurism caused many Georgia fans extreme consternation. Shortly after the word broke, the alleged accuser retained legal counsel. And the next day an interesting notion started popping up: could UGA sue Gurley’s accuser?

Apparently, in 2003, the General Assembly passed a law designed to allow universities to recover damages from situations like this. While this law has been on the books for over a decade, it does not appear to have ever been used. But O.C.G.A. 20-2-317 and O.C.G.A. 20-2-318 are finally getting some press. At first blush, it may seem like 20-2-318 may give UGA a cause of action against Gurley’s accuser.

Subsection (b) provides:

Each public and private institution of postsecondary education located in this state that participates or engages in intercollegiate athletics shall have a right of action against any person who engages in any activity concerning student-athletes that results in the institution being penalized, disqualified, or suspended from participation in intercollegiate athletics by a national association for the promotion and regulation of intercollegiate athletics, by an athletic conference or other sanctioning body, or by reasonable self-imposed disciplinary action taken by such institution to mitigate sanctions likely to be imposed by such organizations as a result of such activity. The institution shall be entitled to recover all damages which are directly related to or which flow from and are reasonably related to such improper activity and to such penalties, disqualifications, and suspensions. Damages shall include, but not be limited to, loss of scholarships, loss of television revenue, loss of bowl revenue, and legal and other fees associated with the investigation of the activity and the representation of the institution before the sanctioning organizations in connection with the investigation and resolution of such activity. If the institution is the prevailing party in its cause of action, it shall be entitled to an award of court costs, costs of litigation, and reasonable attorney’s fees. The institution may also request and the court may enter an injunction against any person found liable from having any further contact with the institution, its student-athletes, and student-athletes who have expressed or might express an interest in attending the institution and from attending athletic contests, exhibitions, games, or other such events in which one or more of the institution’s student-athletes is participating. The right of action and remedies under this Code section are in addition to all other rights of action which may be available to the institution.

(Emphasis supplied).

In the words of one ESPN commentator, “[n]ot so fast my friend.” 2-20-318 is an obvious example of “feel good” legislation. But in the rush to pass such legislation, it appears a possible loop-hole may exist for any potential defendants.

These words are significant, “that results in the institution being penalized, disqualified, or suspended,“ because it requires the university to be penalized in some form or fashion. The university, not the player.

By contrast,  NCAA Rule 2 (c) only punishes a player by removing their eligibility. (Full disclosure, NCAA website indicates these are the Division 1 rules and links to this PDF). Meaning no cause of action exists under 20-2-318 if the university is not directly penalized in some form or fashion. The argument can be advanced that 20-2-318 applies to institution levied suspension of players to avoid future NCAA sanctions against the university for turning a blind-eye to the student’s activities violating NCAA rules.

Assuming that argument survives a Motion for Summary Judgment, a new problem arises, what precisely are the damages? The statute defines damages as everything from legal expenses, loss television revenue, and loss of scholarships. Again, this law hasn’t been vetted by the various trial courts and appellate courts of Georgia, thus how far one can take damages under 20-2-318 remains unclear. For instance, what is equitable and just compensation for losing six scholarship positions over the course of three years? The hypothetical amount of money a five-star recruit could have made the school? We can easily figure out some of these damages, they are tangible and quantifiable. For instance, legal fees associated with the investigation of a student athlete and his defense costs “X.” We know what “X” is in terms of dollars. But many of the damages are akin to “lost profit” damages, partially based on past precedent and partially based on speculation. UGA’s case is weakened by the total domination of Missouri. The team would need to lose out and ruin their season to increase the school’s damages.

Our analysis cannot stop there. The potential defendant can argue apportionment of fault. Imagine that Gurley actually did commit a violation of the NCAA rules, with multiple purchasers of his signature. Blaming one individual doesn’t seem fair. Thus, any award of damage would need to be spread amongst multiple parties, or so the potential defendant could argue. And if Gurley actually broke the rules, should we punish the defendant and not Gurley? Gurley could have been predisposed to break the rules. The seeds of doubt begin to form in a jury’s mind.

For the sake of fun, assume we get over the hurdles and obtain a judgment against the potential defendant. Set the damages at twenty million dollars and let the university reap in the rewards that were so callously snatched from the university’s grasp. And then the potential defendant discloses his personal and business finances, shows he doesn’t have any applicable umbrella coverage insurance, and files bankruptcy. Two years later, we will have vindicated Gurley, vindicated the university, and obtained a judgment that is symbolic and without monetary value.

Invariably, potential clients come to me and as: “Can I sue [X]?” The answer is sometimes “Yes,” but sometimes it is “Yes, and it will cost you [Y.]” That “Y” deters lots of folks. UGA CAN sue Gurley’s alleged accuser. UGA will likely get nothing but a hollow victory and wind up losing more money. I think there are three better options than suing someone who likely can’t pay a judgment. 1) Hire lawyers to file a suit on behalf of Gurley against the NCAA citing recent rulings in the O’Bannon case seeking injunctive relief preventing the NCAA from taking action against Gurley. 2) Have the General Assembly revisit 20-2-318 and provide a strict guideline of damages, i.e. a set penalty of $200,000.00, to give the statute some actual teeth and, further, amend the language of the statute to include causes of actions for student athlete suspensions. 3) Spend all of this money on “guards” who act as friends to players and create a protective barrier around them to keep out undue influences such as driving while intoxicated, selling autographs, doing drugs, stealing crab legs, and a litany of other things like moonshining.

Please note, this is a blog post and not a thorough in-depth legal analysis of 20-2-318, and under no circumstance should it be construed as legal advice.