Athlete’s Academic Failings Spare College in Fraud Case

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Academic fraud is a phenomenon that has cast shadows on collegiate athletics for decades, prompting interested parties — including faculty groups — to shine a light on the exploitation of student-athletes in the interest of on-field competitive advantage.

To curb such abuses, the NCAA has made it more difficult for colleges to recruit academically unprepared athletes. Today, to get an athletic scholarship, high school athletes need to maintain a required GPA in 16 core courses and have an SAT/ ACT score certified by the NCAA Eligibility Center (though the latter requirement has been waived for the 2021-22 recruiting class due to impacts of the coronavirus pandemic). Once admitted to college, the NCAA requires that all students be admitted into a degree-granting academic program and make yearly progress toward a degree.

However, no matter what safeguards the NCAA and colleges put in place, athletes seeking scholarships and coaches trying to make a name for themselves are going to try to find ways around the system — as evidenced in Thomas v. The County of Westchester, Index No. 66883/2015, a case decided in August.

Email sparks investigation
Keith Thomas enrolled at Westchester Community College in Valhalla, N.Y., in January 2011. For the next three years, Thomas was a member of the men's basketball team coached by Tyrone Mushatt.

In October 2013, the National Junior College Athletic Association, the State University of New York chancellor's office and the New York inspector general received an email from an anonymous source using the pseudonym Ron Mexico. The email stated that Mushatt had committed fraud by changing the grades of some of his star players, adding credits for classes never taken, and fixing or tampering with WCC official transcripts in an effort to secure player scholarships or have non-qualified players play in games.

The email specifically identified one player, referred to by the court as JW, who played for Mushatt during the 2012-13 season. According to the email, a coach at a Division I school pulled JW's scholarship offer after receiving an official WCC transcript from Mushatt that was filled with inconsistencies.

The Mexico email was forwarded to WCC administrators, who requested that Donald Weigand, the college's dean of student affairs, investigate it. After conducting an in-house inquiry into the allegations — which included speaking with the registrar, coach Mushatt and director of athletics Larry Massaroni — Weigand found that no one in the athletic department had the ability to change a transcript grade, as official transcripts are sent sealed directly from the registrar's office to another institution. In addition, Weigand found that Mushatt had no access to JW's school records, there was never any eligibility filed for JW, and JW did not appear in the WCC official team photo. Weigand considered the investigation into the Mexico email completed and determined that no further action was necessary, as did the SUNY chancellor's office and the NJCAA.

After the 2013-14 season, Thomas was offered a scholarship to St. John's University. With Thomas at St. John's in October 2014, it was revealed that 18 transcripts of WCC players, including Thomas, were forged and fraudulently sent to schools by Mushatt.

Somehow, Mushatt had obtained a stack of blank old transcript paper with the name of a retired registrar and sent them to colleges. As a result, Thomas' scholarship and admission to St. John's were revoked. Ultimately, Mushatt pleaded guilty to criminal charges of possession of a forged instrument and conspiracy.

After his scholarship was revoked, Thomas sued WCC claiming that it negligently supervised and retained Mushatt after the Mexico emails. As a result, Thomas claimed that he lost a scholarship to St. John's University, jeopardizing his hopes for an NBA career.

Duty breach, but no damages
A trial jury found WCC negligent. However, before the jury could decide on damages, WCC moved to have the verdict set aside or, alternatively, a new trial. In support of this motion, WCC argued that Thomas failed to prove that WCC was negligent in the supervision or retention of Mushatt. In addition, WCC argued that Thomas failed to prove that he suffered any damages because of the action or inaction by WCC.

In order for Thomas to show that WCC was negligent, he first had to establish four elements: 1) that WCC had a duty to Thomas; 2) that WCC breached that duty; 3) that WCC's breach of duty caused Thomas an injury; and 4) that Thomas suffered an actual injury or damages. Based upon the testimony before the jury, and viewed in the light most favorable to Thomas, the court found that it was possible based on the evidence that a jury could rationally conclude that WCC had a duty to investigate the Ron Mexico email thoroughly.

The email, the court held, alleged that "official" WCC transcripts received by other institutions were being forged by Mushatt and that he had access to permanent grade changes in the system, an allegation that the coach was allowed to look into himself and subsequently deny. The court found that since Mushatt was the subject of the investigation, it was inappropriate to involve him in it.

In addition, the court held that even though Weigand's investigation revealed that Mushatt did not actually have access to the official school computer database, proper due diligence should have included speaking to the other coaches and institutions mentioned in the email. Therefore, the court concluded that a reasonable jury could have concluded that WCC had a duty to Thomas to properly supervise Mushatt and breached that duty when it retained him after receiving the Mexico email.

As for the question of causation and damages, the court concluded that while it was mindful of concerns about the exploitation of student-athletes, based on the evidence, there was no permissible inferences which could possibly lead a rational person to conclude that any breach of duty of the part of WCC was a substantial factor in causing Thomas' injury.

Ineligible all along
While Thomas' basketball talent was not an issue at trial, the court found that talent alone is not all that is required to play Division I basketball. To transfer from a junior college to a Division I school, the court held that Thomas was required to earn an associate's degree and have six transferable credits in English, three credits in math and three credits in science. In addition, the court found that Thomas, by his own admission, knew that an associate's degree was required to play and that he did not meet those basic requirements for a scholarship.

Therefore, Thomas was not academically eligible to play Division I basketball and was never entitled to the scholarship offered by St. John's.

As for WCC's negligent retention of Mushatt, the court found that the Ron Mexico email was received by WCC on or around Oct. 23, 2013. Therefore, excluding the remainder of the fall 2013 semester, Thomas only spent one semester at WCC after the receipt of the email. Prior to the email, between the spring 2011 semester and the summer 2013 semester, Thomas registered for approximately 23 classes. Of those, Thomas withdrew from six classes and failed five.

Based upon Thomas' own admission, the court found that he was aware — even before the email — that he was not on track to meet the requirements needed for an associate's degree and to transfer to St. John's. As a result, the court found that there was no nexus between Thomas' injury and any negligence on the part of WCC in retaining Mushatt after the email surfaced.

As for Thomas' lost NBA career, the court found that the NBA does not have any requirement that a player have an associate's degree or be enrolled in a Division I school to declare for the NBA draft. In fact, there was nothing preventing Thomas from declaring for the NBA draft after he left WCC, or even while at WCC.

Therefore, the only way a jury could have possibly found a connection between WCC's potential breach of duty and Thomas' perceived injury of the loss of a Division I scholarship and an NBA career is to have relied on speculation and alteration of existing NCAA or NBA rules. Since such speculation is not allowed, the court overruled the jury and dismissed Thomas' claims.

Classroom accountability
In making its decision, the court noted that college athletics is no stranger to scandal. There are numerous cases of student-athletes being exploited by their coaches and colleges. As for this case, there are several lessons that students and athletics administrators should consider.

First, athletes are going to be held accountable for what they do, and do not do, in the classroom. College athletes need to take an active part in the education process and should not merely rely on their coach's assurances. While coaches may control athletes on the court or field, the athletes are responsible for their own education.

Second, even though WCC was not liable for damages, the jury still found that they had a duty to supervise Mushatt. Therefore, when presented with evidence of coaching abuse or academic, recruiting or other NCAA violations, athletics administrators have an obligation to conduct a thorough investigation. The court held administrators need to conduct proper due diligence — to thoroughly investigate allegations of wrongdoing by speaking to all parties involved. By trying to keep any investigation in-house and out of the press, administrators only create conflicts of interest and make it more difficult to investigate issues properly.

This article originally appeared in the October 2020 issue of Athletic Business with the title "Athlete’s academic failings spare college in fraud case." Athletic Business is a free magazine for professionals in the athletic, fitness and recreation industry. Click here to subscribe.


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