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JUDICIAL ARBITER GROUP. INC.

1601 Blake Street, Suite 400


Denver, Colorado 80202
303-572-1919

CLAIMANT:
Ranger College
vs

RESPON]DENT:
National Junior College Athletic Association

AArbitrator Use OnlyA


JAG File No.: 2016-1C)l0A

ARBITRATION DECISION

An arbitration hearing took place on September 19 and 20, 2016. Ranger College
('Ranger") 'was represented by Paul K. Stafford. National Junior College Athletic
Association
("NJCA4") was represented by Tom James. A court reporter was present. Mary Elle.n Leicht,

Brian Beck and Darla McCarley-Celentano provided s*o.n testimony. Ranger exhibits
A and B
and NJCAA, exhibits I through 29 were admitted. The Arbitrator has cJnsidered
the sworn
testimony olf the witnesses, the exhibits admitted at hearing, the arguments and trial
briefs of
counsel and issues the following reasoned award. As a preliminary matter, the parties
agreed that
Ranger's bur:den of proof in this matter is a preponderance of the evidence.
ISSUES FOR DETERMINATION
Ranger filed a Notice of Arbitration in this matter to appeal the decision of the NJCAA
Executive Committee that denied Ranger's oral appeal of the NJCAA national office,s \/Iay
2,
2016 witten notification of ineligibility and sanctions issued for a violation of NJCAA nylaws
Article V, Section 4.A'2.f.. This May 2,2016 ruling determined the ineligibility of studeniathlete Joshua Simmons and resulted in sanctions imposed against Rangeiby tfie NJCA4. The
basis for the appeal is that Joshua Simmons did not "enter" the NBA Orat Uecause
he didlnot
personally complete, sign and submit the NBA Draft Early Entry Application. In
an ame'ded
Notice, Rang;er added that NJCAA's action violated the constitutionat rigtrts of Joshua Simmons
and Ranger umder the First, Fifth and Fourteenth Amendments of the U.S. Constitution.

NJCAA asserts that Joshua Simmons did "enter" the draft; that the constitutional
protections asserted by Ranger do not apply; and that the NCJAA interpretation of its bylaws
should be upheld.

FINDINGS OF FACT
The NJCAA is a nonprofit, 501(c)(3) voluntary organization that governs a wide variety
of collegiatro sports for its over 500 two-year member colleges. The mission statement of NJCAA
as stated irL its Articles of Incorporation and Constitution is "to foster a national program of
athletic partticipation in an environment that supports equitable opportunities consistent with the
educational objectives of member colleges." The NJCAA national office is located in Colorado
Springs, Colorado.
Ranger is an NJCAA member college located in the State of Texas. Ranger has two
representatives on the NJCAA Board of Directors. Student-athlete Joshua Simmons transferred
to Ranger and played basketball there for the2015-2016 season.
Pursuant to its authority, the NJCAA adopted Bylaws. Member colleges must consent to
be bound b), the Bylaws as a condition of membership. Art. VIII, Section 1.A.1.

Artir;le V, Section 4.A.2.f provides that "[a]n athlete loses amateur status and shall be
deemed permanently ineligible for competition in an NJCAA certified sport if...
[t]he athlete
enters into a professional draft." The Bylaws do not frrther define the terms "athlete" or "enter."
The NJCArf s interpretation of this provision is that it does not matter whether the student
personally enters his name in the draft or it is entered by someone else with or without his
knowledge. This is a reasonable interpretation. The NJCAA interprets the term "enter" to include
a declaration of intent to enter the NBA draft. Given the variety of sports governed by the
NJCAA, it'would be unreasonable to expect that the word "enter" be specifically defined in the
Bylaws with respect to the requirements of each professional draft.
Artiole V, Section 4.B.4 provides that:
an NJCAA member college, who after investigation has been found to
have allowed to participate a student-athlete in violation of Amateur
status bylaws shall be prohibited from participation in the current year's
postseason tournament. If the violation is determined after the sport
season has ended, the member college will be prohibited from
postseason participation in the next academic year.

The Bylaws provide that if a sanction is imposed under this provision, it "shall be
effective, final, and enforced immediately, subject to the following appeal provisions.. .." Article
VIII, Sectio.n 2.D. For at least twenty years, the NJCAA has interpreted this to mean that the
sanction is iLn place while the appeal process proceeds and is not stayed. This is a reasonable
interpretation of the plain language of that provision. The appeal process is set forth in Article
Vru.

Coll.eges are free to request an interpretation


opportunity to request a change in the Bylaws. Article IX.

At

of a term. Colleges also have the

erll relevant times,

Maty Ellen Leicht was the Executive Director of the NJCAA and
Brian Beck was the Assistant Executive Director, responsible for overseeing compliance
and
enforcement of the Bylaws.
In April 2016, Mr. Beck became aware of an article in The Sporting News published on
May 6,2013.It is undisputed that the article contains many quotes from Mr. Simmons and his
mother. The tenor of the article was how unlikely a candidate for the draft Mr. Simmons was.
Mr. Simmons was interviewed as he was in Atlanta preparing for potential NBA tryouts with his
ttainerlcoach. Mr. Simmons said "I'm going through doors mosi people never dieam of going
through. BuLt I'm comfortable. I know what I'm doing and why I m doing it." His motirer, pa:t
Ellison, said of her son: "But he thought, he could either be all-in academically, or all-in
athletically. He told me, 'I can give it two years of putting myself into this; then if it doesn't
work, I can go back to trying academically."'Thus, at least by May 6, both Mr. Simmons and his
mother were aware that his name was submitted for the NBA Draft and supported it.

Mr. Beck contacted Michelle Leftwich, NBA Vice President and Assistant General
Counsel, to confirm the information that Mr. Simmons had "declared" for the 2013 draft. Ms
Leftwich responded by email, "[t]his will confirm that Joshua Simmons applied for the 2013

NBA Draft, but laterrvithdrew."

She provided a link to an NBA press relear. lirting the players


who had withdrawn from the draft. That release listed the names ol "players who had declared as
early entry r;andidates for the 2013 NBA Draft [who] have withdriwn." Mr. Simmons was on
that list of the players.

On the morning of May 2, 2016, Mr. Beck emailed Stan Feaster and Billy Gillispie at
Ranger as a courtesy, saying "It has been brought to our attention that Joshua Simmons declared
for the 2013 NBA Draft. Were you aware of this?" Mr. Feaster responded: "Brian, when an
NJCAA pla'yer declare [sic] for the draft is his eligibility immediately expired or is it like the
NCAA whereas since he has not retained an agent can he remove his name from the draft and
restore his eligibility?" Mr. Beck cited Article V, Section 4.A.2.f and responded that there is no
allowance fi>r amateur status to be reinstated should the student withdraw from the draft. He
indicated that an official ruling would be issued by the NJCAA. Mr. Feaster merely thanked Mr.
Beck for the Bylaws reference.
Later that day, Mr. Feaster emailed Mr. Beck:

coach Gillispie and I just met with Joshua Simmons and he has denied
this or any involvement. However, based on the information you have
provided and our own investigation the story seems to hold true. Ranger
college will follow through with letters of forfeiture and will adhere to
aLll sanctions placed on the school. on behalf of Ranger college I truly
aLpologize, and am disappointed.

Mr. Beck provided an official ruling letter both by mail and email to Mr. Feaster on May
2,2016, which found that Mr. Simmons was ineligible when he played for Ranger in the 2015'
2016 season under Art. V, Section 4.A.2.f because he had declared for the 2013 NBA draft. The
ruling went on to impose sanctions on Ranger under Art. V, Section 3.D.1.a. All games in which
Mr. Simmons participated were forfeited. Ranger men's basketball was also put on probation
pursuant to Art. V, Section 3.D.2. Ranger is currently prohibited from engaging in any postseason men's basketball competition for this coming season. Ranger was put on notice that it
could appeal the ruling to the NJCAA Executive Committee under Art. VIII, Section 3 of the
Bylaws.

The next morning, Mr. Feaster indicated there were conflicting stories. Mr. Beck
provided the NBA press release link to Mr. Feaster.
On May 6,2016, Dr. William Campion, Ranger's President, formally requested an oral
appeal. Thel stated basis for the appeal was that Mr. Simmons had represented to them he did not
knowingly enter his name in the draft and that Mr. Simmons' mother told Ranger she was
unaware of' those actions.

Ms. Leicht set the appeal hearing before the eleven-member NJCAA Executive
Committee for June 15,2016 in Dallas, Texas. She notified Ranger and asked them to forward
any information from the NBA relative to Mr. Simmons' draft status. "If the documentation is
such that tfte NJCAA can provide an updated ruling, it could eliminate the need for an appeal."

Dr. Campion forwarded letters from Joshua Simmons, his mother Patricia Ellison and his
workout cc,ach Bobby McDuffie, Sr. to the NJCAA by a June 6,2016 email. Dr. Campion stated
"Ranger College is not contesting the fact that his name was entered in the NBA draft, but it was
not enteredl in the draft by the student athlete." Ms. Leicht found the letters were not sufficient
and deciderC to proceed to the oral appeal.

The letter from Joshua Simmons has a notary stamp but no full notary information and no
attestation as to the authenticity of the signature or any date. It is not an affidavit. The letter
implied thirt Mr. McDuffie had entered Mr. Simmons' name in the draft. Mr. Simmons did not
testiS undr;r oath subject to cross examination. This leffer has been given minimal weight.

A grammatically very similar letter from Patricia Ellison also had a notary seal with no
notary information, verification of signature, or date, and is not an affidavit. In that letter the

writer concludes with this language: "...do we take away a voice that is finally speaking because
of an impullsive decision that was made by Mr. McDuffie that did not consult with me his mom
on behali of a child that he thought was ready for a life he would not have been able to handle, or
do we allow the journey to play out." Ms. Ellison did not testify under oath subject to crossexamination. This letter was given minimal weight.
Fin.ally, there is a fully notarized statement, not an affidavit, by Bobbie McDuffie, Sr. In
the statemr:nt he takes the responsibility "of placing and signing Joshua Simmons name into the
2013 NB,a. Draft without his knowledge. After careful consideration, I withdrew his name...."

Mr. McDul.fie did not testify under oath subject to cross-examination. This letter carries more
authenticity'than the others, and although hearsay, was given more weight than the other two.

Prior to the oral appeal, Mr. Beck and Michelle Leftwich exchanged emails. On June 9,
Mr. Beck c:ited language from Ranger's position letter regarding the etigibility rules for a student
playing for a member school in the NCAA or NAIA who files documents "to officially enter the
NBA Draft:." Ms. Leftwich responded that she was unfamiliar with the quoted language and
instead stated "I don't think it reflects the current NCAA rule for determining whether a player
who enters the NBA Draft will lose his collegiate eligibility." After being asked by Mr. Beck if
the Simmons declaration and withdrawal documents were similar to what the NBA receives to
declare for and to withdraw from the draft, she responded, in part, "To declare for the NBA
Draft, a player needs to send us a signed letter indicating their desire to enter the Draft. To
withdraw, a. player needs to send us a signed letter stating their desire to withdraw from the NBA
Draft. Players are also given a NBA Draft application to complete prior to the Draft. The
...application sent to Joshua Simmons was never returned to the NBA." Ms. Leftwich later wrote
Mr. Beck that Mr. Simmons "declared on the Draft on April 9, 2013 and withdrew on June 17,

20t3;'
Ms. Leftwich answered Mr. Beck's question about a player's status if he never completes
the application and never withdraws his name by citing the NBA Collective Bargaining
Agreement. Article X, Section l(b)(ii)(F) 'orequires that for an 'Early Entry' player to be eligible

for selection in an NBA Draft the player must express 'his desire to be selected in the Draft in a
writing received by the NBA at least sixty (60) days prior to such draft.' We send each entry
player who sends us such a writing a Draft Application to be completed. However, if a player
withdraws fiom the Draft the application is no longer required to be completed."
The Executive Committee was given an exhibit packet for its consideration that included
the docume:nts tendered by Ranger. The packet included, in part, these letters and photocopies of
the declaration and withdrawal documents. The hearing was held and was recorded. The oral
appeal was denied on June 20,2016. This appeal through arbitration followed. Ranger was
provided with a copy of the recording upon request.

Evetr after the oral appeal was denied, Ms. Leicht reached out to Ms. Leftwich as to
whether ther NBA considers that a player has "entered" the draft by submitting his letter of
declaration or whether he must also submit an application. Ms. Leftwich responded that Mr.
Simmons was included on the Early Entry list and was eligible for selection in the Draft. "[I]n
order to conLtinue the process, each early entry player ...is sent aDraft.Application...." "...early
entry players are entitled to withdraw...."
Based on all of the evidence, the Arbitrator finds that the term "declate" and the term
NBA. Even Ranger did not dispute
that Mr. Sirnmons entered the draft, before and after it filed its initial request for appeal. The
evidence is clear that Mr. Simmons entered into the 2013 NBA Draft. The only questions of fact
are whether he himself signed the declaration or whether it was signed by Mr. McDuffie, and
whether it u'as submitted with or without Mr. Simmons' knowledse.
'oenter" are used interchangeably, both by the NJCAA and the

The undated declaration purporting to be from Joshua


Juice Simons reads in part:,,Dear
Commissio:ner David Stern" and recites his history, including that',My
intent then as it is now
was the NBA before I red shirted and transfened to
Spartanburg Methodist College 2012 which I
unrolled in January 2013 to begin training for the Nga lRApr
to be a professional basketball
player'" It includes a telephone number and email address
where he can be reached. The dated
withdrawal letter purported to be from Joshua Alexander
Simmons is in formal memo style: ,,I,
Joshua Ale>lander Simmons request that my name is removed
from the 2013 National Basketball
Association's Draft."

Forensic Document Examiner Darla McCarley-Celentano testified


credibly that based
-Sirn-orr.
upon her expert examination, it was probable that Mr.
signed the declaration, meaning
that the eviclence "points_rather strongly toward the questioned
and known writings having bee,i
written by the same individual; however, it falls rhort of the 'virtually
certain, degree of
confidence." The Arbitrator finds that it is more probable than not that
Mr. Simmons signed the
declaration. Ms. McCarley-Celentano also opined credibly that there were
indications that the
signature on the withdrawal document were not Mr. Simmons'.

Whether or not he personally signed the Declaration, Mr. Simmons approved


and
consented to' the
thus ratifying it, instead of immediately repudiating it by witirirawing his
"ttt_ry,
name and he movedforward with the process by preparing for tryouts as "noted in the tvlay iotz
Sporting Ne'ws article.

CONCLUSIONS OF LAW
The lSylaws provide that arbitration is the sole method of challenge to set aside a decision
by the Executive Committee. Art. VI[, Section 4.A. The Arbitrator issuJs this written
decision
under Art. VIII, Section 4.F.5, which limits her authority solely to the interpretation of the
NJCAA rules.

]{JCAA has interpreted its Bylaws as to (1) the eligibility student-athlete Joshua
Simmons [Art. V, Section 4.A.2.f] and (2) the immediate impositionof a sanction without a
stay
[Art. Vm, Section 2.D]. The NJCAA's interpretation of its Bylaws is (1) it is irrelevant whether
a student enters a draft on his own behalf or through a third person, with or without his
consent;
(2) a declatal;ion of intent to enter the NBA draft constitutes an entry; and (3) a sanction
is
imposed immediately and not stayed pending appeal. The Arbitrator has found that these
The

interpretations are reasonable. Ranger argues that there could be alternate interpretations that
are
equally reas0rnable, that is, that the Bylaws require that the student personally enter the draft in
order to find a violation, that the declaration is not an"entry" into the draft and that the sanction
is stayed pending appeal. Ranger urges that where there is more than one reasonable
interpretatiort, no sanction is justified based on the NJCAA interpretations. The Arbitrator
disagrees.
Caselaw cited by the NJCAA accurately and persuasively establishes that in order to
overtum an otganization's interpretation of its own rules, the standard is to find that its
interpretationLis arbitrary and capricious. Otherwise, deference must be given. Here, the
interpretatiolliS &ro reasonable , not arbitrary and capricious, and thus tnuri b. given deference.

The Arbitrator has found that Mr. Simmons entered the NBA Draft under the Bylaw
interpretation of the NJCAA, whether or not he personally submitted his declaration (although
there was a,Cditional persuasive evidence in support of a conclusion that he himself signed the
declaration and knew he was an early entrant into the NBA Draft). This constitutes a violation
Art. V, Secttion 4.A.2.f.

of

Ranger argues that if it is found that Mr. Simmons entered the draft, the Arbitrator should
consider Ramger's constitutional arguments and conclude that any violation and sanction be set
aside. Caselaw cited by the NJCAA accurately and persuasively establishes that the actions of
the NCJAA. are not subject to the First, Fifth and Fourteenth Amendments of the U.S.
Constitution. The NJCAA is a private association, not a state actor. Ranger has not cited any law
to the contrary to support the applicability of the rights of free speech and association, due
process and equal protection guaranteed by the Constitution to this non-profit, voluntary
organizatiorn.

ORDER
Based on the above findings and conclusions, the Arbitrator finds in favor of the
NJCAA and against the Claimant Ranger College. Ranger's appeal does not rise to
the level of being groundless and frivolous and therefore each party will bear its own attorney
fees and costs.
Respondenl.

Dated: October 5,2016

Nancy

Arbiter Group,

I hereby certify that on this 5ft day of ostobe420l6,a


true and correct copy of the foregoing
order was served via electronit dfiog (File
& seruixprrri and e-mail), addressed to the
following:

All Counsel ofRecord


Paul K Stafford, Esq.
pstafford(@ staffordbarrow. com
Richard M. Nichols, Esq.

Original Signature on File


Lisa Garci4 Administrative Clerk
Judicial Arbiter Group, Inc.