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.) 

Police give ‘all-clear’ after threat was made against Beaver Stadium

STATE COLLEGE, PA - SEPTEMBER 17:  Joe Paterno is seen on the scoreboard during a time out against the Temple Owls during the game on September 17, 2016 at Beaver Stadium in State College, Pennsylvania.  (Photo by Justin K. Aller/Getty Images)
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Apparently someone didn’t want the Minnesota-Penn State game to go on.  Or has waaay too much time on their hands.  Or both.

Penn State Police confirmed Saturday that the department had “received information about a potential threat made against Beaver Stadium” prior to today’s game.  According to a release, “[p]olice have conducted several exhaustive searches of the facility and surrounding areas, and have found no evidence of a potential risk.”

The game, scheduled for a 3:30 EI kickoff, has been given the “all-clear” and will be played as expected with no delays.

“Out of an abundance of caution we are notifying fans and the public of the threat that was received, so that they can make their own choices about personal safety and their attendance at today’s game,” said David Gray, senior vice president for Finance and Business, in a statement. “Our first obligation is to the safety of the public and, while police and safety officials have given an all-clear for today’s game, we wanted to ensure that visitors were aware of this decision.”

The release added that, “[a]s is typical for home football games, increased security measures are in place and police are on heightened alert.”

T. Boone Pickens issues statement to ‘clear air’ on comments regarding Mike Gundy

STILLWATER, OK - SEPTEMBER 17 :  The scoreboard near the end of the game September 17, 2016 at Boone Pickens Stadium in Stillwater, Oklahoma. Oklahoma State defeated Pitt 45-38. (Photo by Brett Deering/Getty Images)
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The relationship — or lack thereof — between Oklahoma State’s biggest financial booster and its head football coach is once again in the news.

Earlier this week, billionaire T. Boone Pickens offered an “update” on his rocky relationship with Mike Gundy, saying he doesn’t “have any conversations” with the head coach.  The business magnate also decided to take a shot at Gundy’ personality.

“I don’t know, but Mike doesn’t handle people relationships very well. And he gets mad about things,” Pickens said Tuesday. “I’ve heard he’s written some notes about me that weren’t very complimentary.”

The comments made news and remained in the headlines for the rest of the week, enough so that Pickens decided he needed to issue a statement on game day to “clear [the] air” on the situation.  In the statement, Pickens describes himself as “88 years old… [with] competitive spirits [that] have not diminished.” Pickens, who reminded everyone again that he recommended Gundy for the job, further clarified the current status of his relationship with the coach, stating that “I have not placed a call to Mike Gundy in years.”

“It’s his program to run, not mine,” wrote the man whose name adorns the Cowboys’ football home.

Pickens went on to say that he does “not intend to talk about our relationship publicly going forward.”  Why Pickens decided to make his “final” statement on the day of a huge Big 12 matchup with Texas — less than two hours before kickoff at that — is a question that many OSU fans — and school officials — will be asking themselves for quite a while.

Leonard Fournette reportedly ‘very doubtful’ for LSU vs. Mizzou

GREEN BAY, WI - SEPTEMBER 3:  Leonard Fournette #7 of the LSU Tigers runs with the ball in the third quarter against the Wisconsin Badgers at Lambeau Field on September 3, 2016 in Green Bay, Wisconsin. (Photo by Dylan Buell/Getty Images)
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Earlier this week, interim LSU head coach Ed Orgeron labeled Leonard Fournette as a “game-day decision.”  With game day upon us, the decision doesn’t appear to be a positive one for the Tigers.

While there’s been no official word from the football program, Brett McMurphy of ESPN.com is reporting that the star running back is “very doubtful”for today’s game against Missouri because of a lingering ankle issue.

The All-American initially injured the ankle during a mid-August summer camp practice; then aggravated it against Wisconsin in the opener; sat out the Week 2 game against an FCS foe; and then aggravated it again in Week 4 against Auburn.

After leading the country in yards per game last season with nearly 163 yards per game, Fournette is currently 10th at 128.7. That total still tops the SEC.

With Fournette sidelined, the running-game burden will likely fall on the legs of Derrius Guice.  The sophomore is currently second behind Fournette with 239 yards, and leads the team with an 8.2 yards per carry average on his 29 attempts.

Checking in on the nation’s longest winning & losing streaks

Alabama's head coach Saban instructs his players as they take on the LSU Tigers during their NCAA football game in Baton Rouge
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Unbelievably, at the end of today, we’ll be more than one-third of the way through the 2016 regular season as the calendar flips from September to October. And, not surprisingly, some teams are faring better than others — and some, suffice to say, are not.

In “water’s wet, sky’s blue” news, defending national champions and undefeated top-ranked Alabama holds the nation’s longest winning streak at 16 in a row. ‘Bama’s last loss came Sept. 19 a year ago against Ole Miss. In fact, the Tide hasn’t really come close to seeing that streak end since as just two of their last 16 games have been decided by 10-plus points, with the lone exceptions being a 19-14 win over Tennessee in October of last year and 43-37 over Ole Miss just two weeks ago.

What might surprise you, though, is the second-longest streak behind ‘Bama. The holder of that honor? San Diego State, which has peeled off 13 wins in a row entering Week 5. Tennessee is the only other team in double digits, with 10 wins in a row dating back to last season.  The Vols’ last loss?  To the Tide, of course, a defeat that UT will get to avenge two weeks from today in the friendly confines of Neyland Stadium.

A total of nine teams will also take the field Saturday with a winning streak of at least five in a row:

7 — Houston, Washington
6 — Louisville, Utah, Western Michigan, Wisconsin
5 — Boise State, Navy, Ohio State

Clemson could join some combination of the above at that five-game winning-streak plateau Saturday, but to get there they’ll have to beat… Louisville.

On the other side of the won-loss ledger, the “proud” owner of the nation’s longest losing streak entering the 2016 season was Kansas* at 15 straight, followed by UCF (13), Charlotte (10), Eastern Michigan (10), Oregon State (nine) and Boston College (eight).

All six of those teams have seen those losing streaks come to a merciful end, with EMU actually off to a 3-1 start to the year. The team that was just behind BC, Wake Forest, carried a six-game losing streak into 2016 before surprisingly (stunningly?) winning their first four games of the season.

So, with all of that winning from last year’s biggest losers, who’s the current “top” loser? That title now belongs to the Northern Illinois Huskies, the winners of the last six MAC West championships — and three of the last six conference titles — who have started this season with four straight losses to stretch their ignominious streak to a nation’s best/worst seven in a row. Just three other teams have a streak that began during the 2015 season: Florida International, which has lost six in a row and already fired their head coach; Arkansas State, which lost its first four of this season to push its streak to five in a row; and Georgia State, 0-3 on the season to add to a loss in the 2015 Cure Bowl for a four-game losing streak.

Two additional teams are winless on the season after winning their last game of 2015: Miami of Ohio and Rice, which are each 0-4 in 2016.

(*While Kansas’ overall losing streak came to an end, they’ve still lost 17 in a row against FBS opponents, with the last one of those coming in early November of 2015 against Iowa State.)