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 onFirst Amendment rights believes both men may have a legitimate legal case.
Paul Donahoe and Kenny Jordanwere dismissed from the teamlast week after posing nude for a gay pornographic Web site, Fratmen.tv.
University of Nebraska-Lincolnofficials 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 appearednude, 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.
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 firt 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.
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 choie. 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.