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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.) 

Four-star OL JP Urquidez says he will not enroll at Baylor

during the Goodyear Cotton Bowl Classic at AT&T Stadium on January 1, 2015 in Arlington, Texas.
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Continuing an unfortunate trend for the Baylor football program over the course of the last week, Class of 2016 offensive lineman JP Urquidez announced he will not be enrolling at Baylor tomorrow morning as originally planned. Urquidez made the announcement via Twitter.

Rivals rated Urquidez as a four-star prospect out of Copperas Cove, Texas. The recruiting service ranked him the ninth-best offensive tackle in the country in the Class of 2016 and the 24th top player overall from the state of Texas. Urquidez sent a message of support to the recently indefinitely suspended (with the intent to terminate) Art Briles once the news became official.

Urquidez joins fellow Class of 2016 recruits of Baylor Patrick Hudson (another four-star offensive lineman) and four-star running back Kameron Martin in deciding not to enroll in the first summer session at Baylor. Others could soon join them as reports suggest four-star wide receiver Devin Duvernay already wants to move on to another program as well.

Baylor’s Class of 2016 ranked 17th in the nation according to Rivals, but in the wake of this latest scandal news the Bears are already seeing key ingredients of that class looking elsewhere at the final hour.There is not a whole lot that can be done by Baylor other than allowing those players a release from their

National Letter of Intent and offering them best wishes on their way out.

LSU’s Mike the Tiger begins radiation treatment at cancer center

BATON ROUGE, LA - OCTOBER 06:  LSU mascot Mike VI, a Bengal/Siberian mixed tiger, is displayed on the field before the Florida Gators take on the LSU Tigers at Tiger Stadium on October 6, 2007 in Baton Rouge, Louisiana.  (Photo by Doug Benc/Getty Images)
Photo by Doug Benc/Getty Images
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LSU is doing everything in its power to help take care of the lovable and symbolic Mike the Tiger. On Saturday, the live tiger mascot underwent anesthesia and was transported to Mary Bird Perkins – Our Lady of the Lake Cancer Center for radiation treatment for what the school previously announced was a rare form of cancer.

The cancer center has a long history of working with LSU’s School of Veterinary Medicine and has long assisted in consulting about animals  receiving radiation treatment at LSU. Basically, LSU trusts this cancer center to take care of their favorite tiger.

Mike went through a simulation process that will be used to create the best possible care plan for his treatment. The CT images taken will help to create a map of the tumor on Mike’s face during the planning of the treatment and will be used to later target the tumor in the hope of avoiding complications during the treatment process.

Today, as shared on the official Facebook page for Mike VI, the tiger has recovered from the anesthesia and was out and about to enjoy the weather.

Can Mike Sinlgetary save Baylor football?

WACO, TX - AUGUST 31:  A general view of play between the Southern Methodist Mustangs and the Baylor Bears at McLane Stadium on August 31, 2014 in Waco, Texas.  (Photo by Ronald Martinez/Getty Images)
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In the days after Baylor rocked the football world with the firing of head coach Art Briles amid alarming controversy and the likely intent to wipe the slate clean after getting through the 2016 college football season, there is much anticipation to see who steps in to take over the suddenly startled Baylor football program. Whoever steps in to be the new permanent head coach in the years to come will do so knowing he is taking on an unenviable task at a program that has never had things come served on a silver platter.

Maybe Mike Singletary is just the man for the job?

Singletary’s name has come up at times in the recent days as the guessing game begins for figuring out who takes on the role of head coach of the Bears. Singletary should be Baylor’s next head coach, writes Jarrett Bell for USA Today. He is also already receiving some high praise and a recommendation from another familiar name in the football world, Pro Football Hall of Famer Kellen Winslow.

“Experience. Reputation. Ties to the school. He’s a good fit,” Winslow said. “They need to restore their credibility, as a school and with their football program. To do that, you need to change the whole culture.”

Hiring Singletary would be a drastic change of culture for the Baylor program, which has come under fire for operating under a terribly misguided football culture for the sake of winning games. Singletary is hard-nosed and would set a brand new tone and establish a new order at Baylor. Singletary has never coached in college football but has some experience at the NFL level. The former Super Bowl champion linebacker with the Chicago Bears was a head coach for the San Francisco 49ers for the 2009 and 2010 seasons before being removed in favor of then-Stanford head coach Jim Harbaugh. The majority of Singletary’s coaching career as been filled as an assistant with the Baltimore Ravens, 49ers and Minnesota Vikings.

A Baylor alum and member of both the College Football Hall of Fame and Pro Football Hall of Fame, Singletary would likely be well received by the Baylor community from the start. He would also command a level of respect from day one given his football background, but he would most certainly need a good offensive-minded staff around him to help balance out his defensive focus.

For now, Singletary is sitting on the sideline and hoping his university sorts out its issues to establish a firm path going forward. He has not shut down the idea of being a part of that plan, but he is not actively and publicly throwing himself at the front of the line for an interview.

“The most important thing for me to do is just wait and see what they’re thinking,” Singletary said. “We’ll just have to wait and see.”

Houston wants to keep options open rather than focus just on Big 12

HOUSTON, TX - DECEMBER 05:  Cameron Malveaux #94 of the Houston Cougars and Nick Thurman #91 kiss the AAC championship trophy after defeating the Temple Owls 24-13 at TDECU Stadium on December 5, 2015 in Houston, Texas.  (Photo by Bob Levey/Getty Images)
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The University of Houston wants a spot in the Big 12, but it will also look for ways to keep its options open just in case. The Houston Chronicle highlighted the current situation for the Univeristy of Houston as the ongoing Big 12 expansion rumor mill spins, with a few mentions of the Cougars popping up here and there.

“We want Houston to be at the top of that list,” said Hunter Yurachek, Houston’s vice president for intercollegiate athletics. Asked about focusing entirely on the Big 12, Yurachek said “I think that limits us. We have to keep all our options open.”

Aside from potential membership in the Big 12, which appears to be the top goal for Houston, the two other options mentioned by The Houston Chronicle include sticking with the American Athletic Conference and continuing to be a power player in what could be the top non-power conference (with the hope and dream of one day being considered a power conference with a new media deal in the future) or holding out for the Pac-12 in the event the conference wants to set foot in the state of Texas. That last option may be the biggest reach, but a school like Houston would be wise to keep every scenario on the drawing board.

“We’re thinking long term at the University of Houston,” Yurachek explained. “We’re not making these changes for the immediate future. These are investments for anything that can happen in the collegiate landscape, not just any decisions the Big 12 could make in their future meetings.”

If the Big 12 is going to expand, Houston has a good set of pros and cons to consider. Among non-power conference options, Houston is well-positioned for future success in a very attractive media market. Of course, the Big 12 already has a strong presence throughout Texas with the Longhorns. If the purpose is to expand viewership, as seems to be the case with many realignment moves, this is a big drawback for Houston and it is one they cannot overcome. Of course, the Houston market is starting to tune into more SEC football recently with the addition of Texas A&M. Houston could help regain a stronghold for the Big 12 in the Houston market, but then again so could a dominant Texas Longhorns program in all likelihood.

Houston leaders have now reportedly met with leaders at each of the current Big 12 members. It is clear Houston would jump at the opportunity to join the Big 12, just as TCU did after jumping from the Mountain West Conference to the Big East, where the Horned Frogs never played a down before accepting a Big 12 invite.If the Big 12 chooses to expand, which is still no guarantee to happen, Houston has plenty to offer as the program continues to grow.

If the Big 12 chooses to expand, which is still no guarantee to happen, Houston has plenty to offer as the program continues to grow. Whether adding Houston makes sense to the rest of the Big 12 is still up for debate, just as is the possible membership of other options like Cincinnati, UConn, UCF, Memphis and BYU.