Corey Surrency: swallowed by the system?

Florida State wide receiver and senior-to-be Corey Surrency's life has taken several twists. As the Orlando Sentinel reports:

Surrency dropped out of high school in the ninth grade, he said, to support his family. He served jail time, 90 days, after being charged with various crimes, some felonies. He decided to make something of himself. Earned his diploma. Began playing football. Wound up at a California community college, then at Florida State.

. . .

Before enrolling at Florida State and before enrolling in El Camino Community College, where Surrency played for two seasons, he played with the Florida Kings, a South Florida "minor league" football team that has helped athletes with troubled pasts to earn opportunities to play in college.

Quite the saga. But there's a new twist, and it's the cruelest yet:

A little-known NCAA rule has jeopardized his future.

The rule is No. 14.2.3.5 in the NCAA Division I Manuel. It is titled, "Participation After 21st Birthday," and it mandates the following: If an individual participates in an organized sport after his 21st birthday, but before enrolling in college, that participation "shall count as one year of varsity competition in that sport."

. . .

Surrency played with the [minor league] Kings after he had turned 21. Had he not, he might never have had the chance to go to college. Regardless, though, his time with the Kings has cost him his final year of eligibility — at least for now. Florida State is appealing on Surrency's behalf.

If FSU loses the appeal, Surrency's college football career would be over. It's likely, too, that his pursuit of earning a degree in criminal justice — Surrency would become the first member of his family to earn a college degree — would also be over.

Sad stuff. Dr Saturday rightfully rails against this rule as "tone-deaf bureaucracy par excellence, and I have little to add to that.

But I was curious: does Surrency have a chance on his appeal? Unfortunately, my tentative answer is no. I don't have all the resources and I'm no NCAA expert, but Surrency is behind the eight ball having already been ruled ineligible, and things from here look bleak.

His best shot is on his appeal before the NCAA, being fought for him by Florida State. I tried in vain to locate all the standards for NCAA eligibility appeals, but it looks to me they don't have the power to just cast aside a rule that should otherwise apply. In that case the only way around the rule is for the NCAA, through its rulemaking body, to remove it. But in that case it wouldn't even be clear that the removal could work retroactively in Surrency's favor. The upshot is that unless the NCAA appeals body decides to (and has the power to) act charitably in direct defiance of the rules, Surrency will probably lose.

So what does that leave? Litigation. But litigation on these eligibility questions rarely goes well for the would-be student-athlete. There's not much of a hook to hang it on: you have to find a source of law that allows you to overturn what some NCAA body does -- or, more precisely, tells the University to do: the NCAA doesn't have the power to fire employees or take students off the football teams, they just threaten the University with fines and sanctions if they don't comply. This is relevant when it comes to litigation because, while the University typically supports the student during the appeal to the NCAA, after that the school tells the kid to get lost lest it lose money, wins, or scholarships, so the student often winds up suing both the NCAA and their school that had formerly supported them.

Anyway, there is no constitutionally protected property right to participate in college sports, and further undermining any suits against the NCAA grounded in the constitution is that the Supreme Court has ruled that NCAA is not a "state actor." (Set in stone in the famous NCAA v. Tarkanian case involving former UNLV basketball coach Jerry Tarkanian.) This is important because only governments and related "state actors" can violate people's constitutional rights; private parties aren't restricted by the various amendments, something many people -- including plenty of public officials -- don't realize.

So what could he say? Well, when Ben Mauk, former Cincinnati quarterback, sued to get his seventy-third year of eligibility, sued he tried to hang it on a theory that the NCAA had deprived him of a a shot at playing professional football by -- and this is important -- making an erroneous factual finding that his redshirt year at Wake Forest was not injury-related. The court didn't buy it, partially because the standard is so high and the supposed harm to Mauk (a ruined shot at an NFL career) was so ephemeral. (I can only imagine a trial where Mel Kiper Jr. is an "expert witness.")

And that's really about it. Any hope for Surrency? I guess he could try for the Mauk "this-is-killing-my-pro-career," but it's not like it worked for him, and I'm not even sure it's a real lawsuit even if you could prove it. The NCAA has been deemed a private body, and their even arbitrary rulings on who gets to play a college sport are, rather understandably, something courts don't want to be in the position of constantly second guessing. (And I leave aside the issue of whether Surrency can afford all this costly litigation as compared with Mauk.)

But that means that just about all of Surrency's eggs are in this NCAA appeal, and it appears that the rule was properly applied to Corey; it's just that the rule itself is stupid.

Good luck to Surrency and FSU, and I'll leave him with the last word.

Surrency said this experience has worn on him. He is beginning to question his love of football. He said, "It's killing me, man. I'm losing my fight for the game right now."