Ohio State, Daniel "Boom" Herron Should Sue NCAA for Violating Law

Cedric Hopkins@FieldandCourtContributor IDecember 20, 2011

CHAMPAIGN, IL - OCTOBER 02: Dan Herron #1 of the Ohio State Buckeyes runs against members of the Illinois Fighting Illini defense including (L-R) Justin Green #26, Nate Bussey #18, Tavon Wilson #3 and Martez Wilson #3 at Memorial Stadium on October 2, 2010 in Champaign, Illinois. Ohio State defeated Illinois 24-13. (Photo by Jonathan Daniel/Getty Images)
Jonathan Daniel/Getty Images

With the NCAA imposed sanctions against The Ohio State Buckeyes having been determined, it's time to turn the tables on the NCAA and examine whether they are operating in violation of the law. 

The NCAA punished five Buckeye players (Terrelle Pryor, DeVier Posey, Daniel Herron, Mike Adams and Solomon Thomas) for exchanging Ohio State memorabilia for tattoos at the Fine Line tattoo parlor on the West Side of Columbus. The items seized at Edward Rife's tattoo parlor were given to the players, either by the Big Ten conference or the Ohio State University.

According to NCAA bylaw 16.02.1, "An award is an item given in recognition of athletics participation or performance." 

Given, i.e., a gift.

I remember my first day of law school. During that first day, I recall my Property Law professor explaining what constitutes a gift. A gift?, I thought. Is this going to be one of those Bill Clinton moments arguing over what the definition of "is" is?

It turns out that it's a big deal in the law about whether or not a person actually gives a gift to someone else.

There are three parts to a gift: 1) the person giving the gift has to intend to give the gift, 2) the property, or gift, has to be given, or delivered to the other person and 3) the property has to be accepted. That's it. Easy enough.

Or, maybe not.

Let's take a look at the gold pants that were exchanged for tattoos.

The university intended to give the gold pants to the players who received them, the gold pants were actually delivered to the players and the players, of course, accepted the gold pants. Ladies and gentlemen, we have a gift.

Federal law, as well as Ohio law, makes it clear that once you have received a gift, it is yours to do with as you will. No exceptions. You can destroy it, sell it, burn it and yes, even trade it for a tattoo.

If there is an exception made on that gift, such as a restriction on selling the item, then another law is invoked: the Sherman Act.

The Sherman Act, named after an Ohio senator, ensures that no person's ability to work or trade goods in the free market is restrained. In other words, there can be no restraint of trade. 

The same NCAA bylaw (16.02.1) that defined what constitutes an award also places restrictions on what athlete's can do with their awards or gifts. Therein lies the illegality of the bylaw. 

And as you have now learned, because the Big Ten Conference and/or the Ohio State University gave (think, gifted) the items to the athletes, ownership of the items transferred from the conference or university to the individual player receiving the item(s). 

After all, if these items were stolen from, say, running back Daniel Herron, the university wouldn't be entitled to be reimbursed for the loss; Herron would be the proper victim, and a judge would order that he receive any restitution, not the university; that's because it is his sole property.

The NCAA suspended the five Buckeyes for the first five games of the season because they violated the NCAA bylaws by receiving a benefit from exchanging their property for tattoos. In so doing, the NCAA forever changed the Buckeyes' 2011 football season and the lives of each one of those players.

Pryor, who intended to play his senior year at Ohio State, left early and entered the NFL's supplemental draft (Oakland Raiders).

And Herron, who will enter the 2012 NFL Draft, most assuredly lost value in terms of his draft stock. Herron is perceived to be a third or fourth-round pick, but had he played the entire 2011 season, he most likely would be picked higher.

The NCAA restricting Herron's, or any other athlete's, ability to do with what they will their own property is not only in violation of state and federal law, but it demoralized the entire Buckeye Nation. The NCAA bylaws and the sanctions they impose on those who violate them are woven together by a common thread: accountability. It's time to hold the NCAA accountable for their unbridled control of college athletes by way of illegal bylaws. 


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