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U. Nebraska: Nebraska wrestlers dismissed for posing nude online might
not go quietly
(U-Wire Via Acquire Media NewsEdge)
UWIRE-08/21/2008-U. Nebraska: Nebraska wrestlers dismissed for posing
nude online might not go quietly (C) 2008 Daily Nebraskan via UWIRE
By Jonathan Crowl, Daily Nebraskan (U. Nebraska)
LINCOLN, Neb. --
At least one of the two athletes recently dismissed from the Nebraska
wrestling program is planning to take legal action against the
university. An expert on First Amendment rights believes both men may
have a legitimate legal case.
Paul Donahoe and Kenny Jordan were dismissed from the team last week
after posing nude for a gay pornographic Web site, Fratmen.tv.
University of Nebraska-Lincoln officials have not pointed to any
particular bylaw the athletes violated.
However, Fratmen.tv owner John Marsh, who paid the two wrestlers, said
the NCAA rule in question prohibits athletes from using their photos
for commercial use. Athletes are ineligible for competition if they
accept compensation.
The NCAA has not yet determined whether a violation actually took place.
John Zelezny, a California communications lawyer and author of
textbooks covering First Amendment law, said the dismissal of both
athletes may constitute an infringement of their First Amendment rights.
Zelezny said it's not enough to have a rule in print; athletes have to
be able to interpret the rule and understand its application.
"We are talking about expressive activity," Zelezny said. "The only way
you could curtail that would be with rules that are known from the
outset or voluntarily adopted by these athletes as they move forward in
this sport."
Under the pseudonyms "Nash" and "Cal", Donahoe and Jordan appeared
nude, separately, and shot solo masturbation videos. Zelezny cited the
precedent set by similar instances in sports programs not receiving
public money. In those cases, he said, the organizations were within
their legal boundaries in dismissing those athletes.
"Here it's different because you have, essentially, the state stepping
in to take punitive action, and that is your typical First Amendment
scenario," he said.
Fighting back
Cal State Fullerton student-athlete Leilani Rios found herself in a
situation similar to the wrestlers' in 2001. The hurdler who worked at
a strip club threatened the university with a federal lawsuit after
officials dismissed her from the athletic program. Her head coach said
her employment "portrayed CSUF athletics in a bad light." Rios'
attorney argued the university violated her right to freedom of
expression, and the school quickly reinstated her.
Zelezny said UNL would have a difficult time enforcing moral conduct if
the student-athletes did not have a clear understanding of what they
could or could not do.
Nebraska's only official remarks regarding the dismissals came Aug. 12
in written statement from wrestling coach Mark Manning.
"The history of behavior of these men, including the current matter,
does not reflect the standard of excellence we aspire to on and off the
mat," Manning said in the statement, referring to previous run-ins with
the law. "We have outstanding student-athletes in our program and we
will move forward in a positive manner toward our goals."
Nebraska's Sports Information Office didn't provide a specific rule in
the Student-Athlete Handbook that was used in the decision to dismiss
Donahoe and Jordan. Sports Information Director Keith Mann only pointed
to the student-athlete code of conduct, which covers topics such as
alcohol abuse, proper dress attire and acquaintance rape.
Two phone messages left for the NCAA were not returned. Messages left
for Gary Bargen and Josh White, NU associate athletic directors in
charge of compliance, and an e-mail to White also were not returned.
Fratmen.tv's Marsh has been working to maintain the NCAA eligibility of
Donahoe and Jordan since Manning first contacted him on Aug. 7.
"As I understand it, Nebraska really is using other criteria for their
dismissal from the team," Marsh said. "It's the team's policy and not
the NCAA policy. The NCAA policy is a side issue. I haven't seen any of
the team rules.
"I would maintain that this really isn't a violation of [the bylaw's]
intent because we never said 'Look, this is Paul Donahoe, NCAA
Champion.' The fantasy is the character."
The next step
Marsh said he thought that Donahoe and Jordan may need to seek legal
counsel.
Jordan seems to be a step ahead. In a message sent Tuesday through the
social networking Web site Facebook.com, the former wrestler told the
Daily Nebraskan " ... what we did was legal. So when i settle down I
want to take some (legal) action."
Previously, Jordan had told the Daily Nebraskan that he "messed up."
"I made a bad decision and I got in trouble," Jordan said. "My
punishment is definitely fair."
Marsh said Jordan's original statement was likely a shock reaction and
an attempt to handle any disappointment or anger his parents may have
had.
Jordan and Donahoe will have to wait for an official ruling from the
NCAA to determine if they actually violated an NCAA bylaw, and what, if
anything, they would need to do to restore their eligibility.
Although Marsh was not aware Donahoe and Jordan were NCAA athletes when
they were hired, he is confident both athletes have complied with NCAA
bylaws.
NCAA rules
Much of the concern Marsh said he is seeing from the university and the
NCAA is the NCAA bylaw 12.4.1, which states that "compensation may not
include any remuneration for value or utility that the student-athlete
may have for the employer because of the publicity, reputation, fame or
personal following that he or she has obtained because of athletics
ability."
Marsh declined to give specific wages paid to Donahoe and Jordan, but
said they were "the going rate" for pornography models and "consistent
with what we pay all our models." Marsh said he could supply proof of
their incomes to the NCAA if requested.
The concern is that the pictures were taken for commercial use, which
may be an NCAA violation.
But the NCAA will have to determine whether the pictures are of two
NCAA wrestlers or two amateur pornography models.
If they appeared as NCAA wrestlers, they'd be in violation of the
bylaw. If they appeared as amateur models, they would likely retain
eligibility.
Donahoe's and Jordan's characters Nash and Cal are among 15 models
featured on the homepage of Fratmen.tv -- which charges $24.95 for
monthly access -- but the wrestlers' faces are hidden and it is unclear
whether the torsos depicted are theirs. Links to their profile pages
have been disabled and all media has been removed from the Web site.
Marsh said the use of their photos is a technical violation but not a
violation of the spirit of the bylaw, which is intended to prevent
college athletes from profiting off endorsement deals.
"It's akin to someone working at Hooter's and their using her picture
on a bulletin board or on a flyer," Marsh said.
Looking to the future
Nebraska is in the process of submitting a report to the NCAA
concerning Donahoe and Jordan's involvement with Fratmen.tv. Associate
athletic directors White and Bargen have been in contact with both the
wrestlers, the NCAA and Marsh.
Marsh said White e-mailed him a case report from 2006 in which a
student-athlete at another school was given the opportunity to regain
amateur status in exchange for paying all money earned plus the cost of
travel expenses to a charity of his/her choice. Marsh said White
suggested this was the solution Nebraska would seek.
Marsh said the proposal was unfair to Donahoe and Jordan.
"We paid them for the modeling work that should be allowed," Marsh
said. "To ask that the guys should pay back all that money and lodging
and expenses is really draconian and not proportionate to the this
circumstance."
Both wrestlers are intent on wrestling this season, Marsh said. Donahoe
had been hoping his situation could be rectified with Nebraska, so he
could rejoin the team rather than deal with the problems of
transferring programs as a senior.
But after his recent discussions with White and Bargen, including a
phone conversation with Bargen on Tuesday afternoon, Marsh concluded
that the scenario was unlikely.
Donahoe and Jordan both returned to their respective homes in Michigan
and Illinois, weighing opportunities at other schools and waiting to
see how the NCAA investigation turned out, Marsh said. On Tuesday,
Bargen called Jordan and asked him to return to Nebraska and "sign some
papers", Marsh said, adding that Jordan was working to get his
transcripts released to send them other schools. Jordan, who has two
years of eligibility remaining, placed fourth at the 2008 Big 12
championships at 133 pounds.
Jordan and Donahoe didn't answer phone calls from the Daily Nebraskan.
Donahoe declined to respond to a message sent through Facebook.
Donahoe, the 2007 national champion at 125 pounds, had chosen a school
to transfer to Wednesday, while Jordan had received interest from
"three or four" schools, Marsh said. Both athletes will have to wait
for a NCAA ruling to determine what their eligibility might be.
##30##
((Distributed on bahalf of U-Wire via M2 Communications Ltd -
http://www.m2.com))
((U-Wire - http://www.uwire.com))
Copyright ? 2008 U-Wire
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