Penn State Abuse

Does the Paterno lawsuit have legs? A Q&A with NCAA guru John Infante

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Unless you bypassed both our front page and rumor mill, you know that the Paterno family, as part of a group of plaintiffsannounced its lawsuit against the NCAA last night seeking 1) to overturn the sanctions levied against the Penn State program and 2) compensatory and punitive damages.

“Costas Tonight” spent time last night examining the multiple angles of the fallout of the Jerry Sandusky scandal, including the lawsuit — which you can see HERE — that directly attacks the NCAA’s use of the Freeh Report in its decision to hand Penn State its consent decree.

But does the Paterno family’s suit have a chance to succeed? What will the NCAA’s response be? How will it be impacted by the similar antitrust suit filed by Pennsylvania Gov. Tom Corbett, if at all? To answer these questions, we rang NCAA guru and author at athleticscholarships.net, John Infante. Below is our Q&A.

What are you initial thoughts on the statement released by the Paterno family Wednesday night?
John Infante: It looks to be a similar version of the lawsuit that the Commonwealth of Pennsylvania is filing. While the Paternos are seeking a different recovery than the commonwealth, which appears to be focused on the $60 million fine, the theories in both cases are similar in that there’s some combination of antitrust and [the NCAA] “not following your own rules.” They’re throwing some additional things in there because this is specifically involving Joe Paterno and a defamation claim, but it tracks similarly to the Corbett lawsuit.

In that vein, does the Corbett lawsuit have any influence on the direction of the Paterno family lawsuit?
JI: Certainly, they’re intertwined in that they’re both talking about the same theories, same legal questions. Obviously, if Corbett were to win or lose decisively one way or the other, it would have a big impact on the chances of success of the claims the Paternos are making. And since [the Paternos are] talking about reducing the sanctions — and that’s also a big focus of Corbett’s lawsuit — if the NCAA lost and the sanctions are reduced in that case, or if the NCAA came to some sort of settlement with Pennsylvania, then you remove some of the things the Paternos are asking for in their own lawsuit.

So they are tied together, but there’s enough difference that you wouldn’t combine these two cases into one big case and you wouldn’t necessarily say if Corbett wins or loses then the entire Paterno case is essentially decided for them.

Do you think a settlement is likely?
JI: I would be shocked if a settlement happens at all in either case. People have talked about sanctions potentially being reduced and a couple of people are predicting that as public opinion has shifted, as you’ve had a number of court cases coming, that the pressure will be on the NCAA. The NCAA, with the athletics monitor and the athletics integrity agreement, has an out to reduce the sanctions and that had nothing to do with the lawsuits. So the NCAA could come in and say “Penn State has done such a good job with the athletics integrity agreement that we’re going to reduce the sanctions,” but I think they would do that and then continue to vigorously defend against the lawsuits because they get to the core of the legal underpinnings of the NCAA and how they’re able to do what they do. The NCAA is a private association and all they have to do is follow their own rules, and in cases like this they have an antitrust exemption.

As much as the NCAA would maybe like to get out of the case with a settlement, I don’t think they want to open a precedent of every time they sanction a school, the state government can come in and try to bully them. So I think the NCAA is going to see this process to the end, even if through some other justification they gave the plaintiffs — in one or both cases — what they want.

Speaking of setting a precedence, that was the theme when NCAA President Mark Emmert handed  the consent decree to Penn State last year. It would appear that the crux of the Paterno family lawsuit is that Emmert and the NCAA forced Penn State’s hand. Is that accurate?
JI: Yes, but the basic thing is that the plaintiffs are saying the NCAA didn’t follow their own rules; the NCAA is arguing that they did, except what they’re relying on is a broad, catch-all rule. This is not like the NCAA defending a specific bylaw. This isn’t the Ed O’Bannon case where the NCAA is defending certain elements of amateurism. It’s defending what is the equivalent to the “best interest of baseball clubs” that MLB has. It’s the catch-all rule that the executive committee and board of directors can do what is necessary in the best interest of college sports.

When you get into those broad and expansive clauses that’s where there’s a lot of interpretation. There’s the chance for the plaintiffs — in both cases, in fact — to argue that rule doesn’t mean anything, that you can’t say you’re following a rule, or say you have a rule that claims an organization can do whatever it wants, whenever it wants. That’s going to be the main point of the legal arguments for both Corbett and the Paternos, and it’s also going to be the piece the NCAA is trying to defend because it does give the Association a lot of cover and leeway to take action like they did against Penn State.

Does the fact that Penn State President Rodney Erickson signed the consent decree without consulting the university’s Board of Trustees play a role in the outcome of the Paterno suit?
JI: I don’t think so. The fact that he signed off on the consent decree and the board eventually agreed to it* hurts the two cases. Anything that makes this look less like the NCAA is doing whatever it wants and more like the NCAA and Penn State coming to a plea bargain or settlement is harmful to the cases. It’s one thing to argue that the NCAA went outside of their power to punish one of its members, it’s an entirely different thing to say one of the NCAA’s members and representatives of the rest of the membership agreed to these sanctions. The NCAA would say that if you don’t sign this [consent decree], you’ll face the death penalty and a Committee on Infractions hearing as soon as we can put one together, or as soon as we go do our own investigation. In a way, to the NCAA, that’s negotiating. That’s the stickler of when it came time to hash out this settlement.

The fact that there haven’t been more specific attacks against Erickson is a tactical mistake by Corbett and the Paternos. One of the best arguments is to say that Erickson didn’t have the authority to agree to the consent decree, and this is something that needed to go through the full board of trustees, and there wasn’t enough discussion, and they had never granted him this authority. The fact that there has been no legal attack on that is a mistake. The longer that it’s allowed to go on, the longer that Penn State continues to agree to go along with the consent decree and the integrity agreement, to comply with the sanctions, the harder it’s going to be to argue that you haven’t ratified Erickson’s decision. That would have been the first place to attack, but it appears [the plaintiffs] have let that opportunity go by. Now, it’s going to be hard to come back at this point and make that an essential part of the lawsuit, especially against the NCAA.

In your professional opinion, do you think the NCAA handled the Penn State situation correctly?
JI: If you look broadly at what their options were, they were left to a bunch of bad options. If they had done nothing, they would have been criticized. If we were waiting now, a year on from when they imposed the sanctions, for a criminal trial of the [PSU] administrators to finish for the NCAA to do an investigation, and sanctions are another one, two, three years out even from today — I think that’s a bad look for the NCAA as well.

To say there’s a right answer defies belief, but given what the NCAA chose to do, you can look at ways that process could have been better. If this had been a more open process, and I understand it was a tough time, but if the full board was involved, if there were public discussions about this and it looked more like a settlement than the NCAA coming in with and saying here’s take it or leave it offer, maybe the NCAA would have looked better. It probably wouldn’t have resulted in any less gnashing of the teeth at Penn State, but the process probably would have been over quicker because it would have been during this period of negotiation and settlement. Then, everybody could have had their say, and even if they don’t get their way, they tend to go along with it.

The place for constructive criticism is, having made the decision, how’d you go about bringing it around? I think you can find some areas where the NCAA could have done something different that would have resulted in less backlash even now a year after the penalties were imposed.

(*Clarification: Penn State Board of Trustees board chairwoman Karen Peetz said last year in an email obtained by the AP that it was time to move on from the sanctions handed down onto the program; Outside the Lines reported the board was prepared to ratify the consent decree. However, this did not happen.) 

Car accident will likely sideline Texas RB Roderick Bernard for all of 2016

AUSTIN, TX - SEPTEMBER 5:  A fan waves a large Lonhorns flag during the game between the Louisiana Monroe Warhawks and the Texas Longhorns on September 5, 2009 at Darrell K Royal-Texas Memorial Stadium in Austin, Texas. The Longhorns defeated the Warhawks 59-20. (Photo by Brian Bahr/Getty Images)
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Car accidents have been a sad theme in college football this past week, and, unfortunately, it has continued.  Fortunately, though, this latest one didn’t involve a fatality.

According to a tweet from Brian Davis of the Austin American-Statesman, the high school coach of Texas’ Roderick Bernard confirmed that his former player was injured in a car accident earlier this month.  As a result, the coach expects Bernard to miss the entire 2016 season.

There were no details as to the nature of the injuries sustained by Bernard, nor has UT addressed the player’s status moving forward.

As a true freshman in 2014, Bernard served as the Longhorns’ primary kick returner before sustaining a knee injury (torn ACL)) in the fifth game that ended his season prematurely. He returned for the 2015 season after missing spring practice rehabbing the knee and played in 10 games, primarily on special teams.

This past spring, hBernard, a three-star 2014 signee, moved from wide receiver to running back.

Packers already talking another Wisconsin game at Lambeau Field

GREEN BAY, WI - NOVEMBER 16:  Fans are seen outside of Lambeau Field before the Green Bay Packers play against the Philadelphia Eagles on November 16, 2014 in Green Bay, Wisconsin.  (Photo by Ronald Martinez/Getty Images)
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Wisconsin has yet to play one game at an iconic NFL stadium, but their upcoming hosts are already anxious for Round 2.

UW will open the 2016 season Sept. 3 against LSU at the home of the Green Bay Packers, historic Lambeau Field.  Tuesday, athletic director Barry Alvarez confirmed that the Packers would “love” for the Badgers to play another game — or games — at the stadium.

“We’ve visited. (The Packers) would love it,” Alvarez said according to madison.com. “(Packers president/CEO Mark Murphy) has talked to me about, he gets heat all the time from his chamber of commerce in Green Bay that they’d love more activities in the stadium. They tried concerts, and he said the field is built for football. They’d like to get more games up there. We’ve talked, and I know they’d be interested in it, so we’ll see what happens.”

It has previously been reported that the Packers are interested in hosting the Big Ten championship game at their home, although that seems unlikely to happen.

The upcoming opener was officially announced in October of 2013, and will become the first-ever meeting at Lambeau between two FBS teams.  It will also serve as just the fourth college game ever played there.  As the release announcing the game stated, “St. Norbert College twice hosted Fordham University at Lambeau Field in a Vince Lombardi Memorial Game, winning both contests. The Green Knights defeated the Rams 14-10 on Nov. 20, 1982, and 18-9 on Nov. 19, 1983. St. Norbert also hosted Mankato State College on Oct. 29, 1960, defeating the Indians, 29-14.”

UW will make in the neighborhood of $3 million for the first-ever contest.

LSU kicker injured in crash that killed Nebraska, Michigan State punters issues statement

COLLEGE STATION, TX - NOVEMBER 27:  Colby Delahoussaye #42 of the LSU Tigers kicks a 43-yard field goal in the second half of their game against the Texas A&M Aggies at Kyle Field on November 27, 2014 in College Station, Texas.  (Photo by Scott Halleran/Getty Images)
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As the Michigan State and Nebraska football communities come to grips with the loss of their loved ones, there’s an LSU player who very well could be coming to grips with survivor’s remorse.

On their way home from a kicking camp Saturday night, Cornhuskers punter Sam Foltz and ex-Spartans punter Mike Sadler were killed in a car accident as they were driving through a severe thunderstorm in Wisconsin.  Additionally, LSU placekicker Colby Delahoussaye, a backseat passenger in the Mercedes driven by Sadler, was injured in the crash that claimed the players’ lives.

Delahoussaye sustained burns to his legs and lacerations that required stitches, but it’s the former injury that’s being credited with saving his life.

“All he remembers is that the fire was burning his leg and that woke him up,” Dwayne Delahoussaye, told the Baton Rouge Advocate. “He was knocked unconscious. The burning sensation revived him. That’s all he remembers. He doesn’t even know how he got out. He doesn’t know where he crawled out of.”

The told the Advocate that his son has no recollection of how he escaped.  Through his dad, the Tiger kicker also declined to discuss the incident.

The younger Delahoussaye did, though, issue a statement on his personal Twitter account:

In 2013 and 2014, Delahoussaye, a senior walk-on with the Tigers, converted on a combined 24-of-29 field goal attempts.  He was replaced last season by Trey Domingue, who announced earlier this month that he was transferring from LSU after his scholarship wasn’t renewed before confirming this weekend that he’ll be continuing his collegiate playing career at Texas.

It’s unknown if Delahoussaye will be healthy enough to participate in the start of summer camp, which kicks off early next month.

As for celebrating the lives of of Foltz and Sadler, the two football programs both announced arrangements Tuesday.

One-time Wisconsin commit Marvin Robinson lands at Kentucky

LEXINGTON, KY - SEPTEMBER 29: The Wildcat mascot for the Kentucky Wildcats works up the crowd against the South Carolina Gamecocks at Commonwealth Stadium on September 29, 2012 in Lexington, Kentucky.    (Photo by John Sommers II/Getty Images)
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Marvin Robinson was never able to make it to the Big Ten to start his collegiate career, but now it appears he’ll get that opportunity in the SEC.

On Kentucky’s official online roster, Robinson is now listed as a wide receiver for the Wildcats.  According to John Hale of the Louisville Courier-Journal, Robinson, at least initially, will be a walk-on on Mark Stoops‘ squad.

Robinson had been a verbal commitment to Wisconsin and was set to sign with the Badgers in February of 2015.  However, the Fort Lauderdale product failed to qualify academically at UW.

The 6-4, 175-pounder sat out the 2015 season, so he’ll be eligible to play immediately in 2016.  Whether seeing the field actually comes to fruition remains to be seen as the Wildcats return five wide receivers who caught at least 10 passes in 2015, including the top four on the team in receptions and receiving yards — Dorian Baker (55-608), Garrett Johnson (46-694), Jeff Badet (29-430) and Blake Bone (20-210).  Ryan Timmons (12-114) is the fifth, with those five also accounting for nine of the team’s 10 touchdown receptions on the season.

Robinson was a three-star 2015 prospect who was rated as the No. 146 receiver in the country.