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.) 

Colorado AD says Denver won’t be option for future CU-CSU games after 2020

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Colorado and Colorado State are scheduled to wrap up their current scheduling agreement in 2020, and the future of the in-state rivalry remains in question beyond that. Both schools are in talks to continue the series beyond 2020 once scheduling vacancies are available, but there is no target date currently in sight. What is known, however, is any such scheduling arrangement will not include games being played in Denver if Colorado’s athletics director has his say.

We won’t have any future games in Denver with CSU in any kind of new relationship,” Colorado athletic director Rick George said in a story published by The Daily Camera.  George did state he and his counterpart at Colorado State, Joe Parker, share an interest in keeping the series going on in the years beyond the current deal in place.

As it stands right now, Colorado State will host the final game in the current arrangement in 2020. No games will be possible in 2021 and 2022 because Colorado’s non-conference schedule is currently booked. The Buffs will face UMass, Texas A&M, and Minnesota in 2021 and TCU, Air Force, and Minnesota in 2022. Colorado currently has scheduling vacancies in 2023 and beyond, making 2023 the earliest possible year the series could be rekindled. The concern, at least for Colorado, will be overexerting the strength of schedule with games against TCU and Nebraska already lined up in 2023.

“With this College Football Playoff game now, there’s a lot of discussion on strength of schedules,” George said. “We certainly don’t want to over-schedule ourselves, but at the same time, we want to be in a position as we continue to compete on a yearly basis for championships, we want to be in the conversation. We don’t want the schedule to be a deterrent to us longer term.”

Geroge has previously expressed his interest in continuing the series if it could be agreed to play the games on campus sites instead of neutral fields. George has said it is not in Colorado’s best interest to continue the series. His latest statements about the strength of schedule keep in line with that logic. Having a potentially very good Group of Five program on top of previously announced games against power conference opponents in addition to a nine-game Pac-12 schedule becomes quite challenging. Having a less threatening opponent from the FCS provides a better chance to keep making money on a home game and increasing the chances for a win to rely on.

Colorado and Colorado State have faced off 88 times since 1893, with the Buffs holding a 64-22-2 edge in the all-time series. Colorado won last year’s meeting in Denver by a score of 44-7 for its most lopsided victory in the series since a 47-7 victory in Boulder in 1956. Colorado and Colorado State have played annually since 1995.

Mark Richt tweets his best wishes to Georgia

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A new college football season is just about here (there will be actual college football played this week), and Miami head coach Mark Richt has plenty to look forward to with the Hurricanes. A show at coaching Miami to its first appearance in the ACC Championship Game is right in front of him, but Richt spent a quick moment on Twitter to extended his best wishes to his former program; the Georgia Bulldogs.

Richt recruited the majority of the players currently on Georgia’s roster, and by all accounts, Richt had as healthy a relationship with Georgia’s players than any coach could hope to have. With that in mind, there is no shock in seeing a coach of one program offer this kind of warm and fuzzy feeling to his former program. This is also not the first time Richt has wished Georgia well under new head coach Kirby Smart. In May 2016, Richt was praised for his classiness toward Smart and Georgia for the upcoming season just months after being fired.

Georgia parted ways with Richt following the 2015 season despite a long and successful tenure as head coach (although without as many SEC titles as some would have liked, and a lack of national title appearances during a run that saw the SEC dominate the BCS era). Richt was quickly hired by Miami, and this season Richt is expected to help lead the Hurricanes forward another step toward national prominence.

If there is a college football god watching from the skies above, then we will be blessed with a bowl matchup between Miami and Georgia. Richt said in December 2015 that he believes the two programs are on a collision course for a national championship.

There is a solar eclipse tomorrow, but Nick Saban has work to do

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Stores may be sold out of special solar eclipse glasses for what some are dubbing the Great American Eclipse on Monday, but Alabama head coach Nick Saban may be more likely to be found in his office preparing for a mega matchup to open the season next week.

Besides, Saban has seen how an eclipse works already because he is a devoted fan of The Weather Channel.

“I watch the Weather Channel every day,” Saban said Saturday, according to AL.com. “They’re already saying what it’s going to look like in every city in America. So, what’s going to be significant? Watch the Weather Channel and you’ll see what it’s going to be like in Portland, Oregon.”

That Saban sure is a curmudgeon, isn’t he? But that’s part of the legacy of Saban. Unless the eclipse can help Alabama win a game against Florida State in Atlanta next week, Saban has little time to worry about such nonsense. Otherwise, it is business as usual for Saban and Alabama. However, Saban will allow his players to take advantage of what is, for some, a once-in-a-lifetime experience.

“We’ll set it up so if the players want to go out there and get some sunglasses, I guess they can,” Saban said.

The eclipse is having a slight impact on some football practices around the country, including in the NFL. The Tennessee Titans, for example, have modified their practice schedule for Monday due to the eclipse and will organize a team party around the event.

“I thought what a cool thing to do, but then I thought I’d like them to finish practice and give them time to put the glasses on and really enjoy the experience,” Titans head coach Mike Mularkey said (per ESPN.com). “I wanted to be on the field when it happened, as a team, I thought it’d be a neat memory for these guys.”

Clearly, Mularkey is not watching the Weather Channel on a daily basis.

Kansas surprised four walk-ons with scholarships at Royals-Indians game

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There has been no shortage of videos and stories about walk-ons at various college football programs receiving scholarships by surprise. It is an annual tradition around college football during the offseason, and the fun and pure joy of the moment never gets old.

The Kansas Jayhawks took the game to a whole new level, and a whole new playing field this weekend.

Kansas took its football team out on Friday night to enjoy a Major League Baseball game between the Kansas City Royals and Cleveland Indians. During the course of the game, four walk-on players — defensive end Mazin Aqi, offensive lineman Beau Lawrence, punter Cole Moos, and running back Reese Randall — were shown sitting next to each other on the video screen in Kauffman Stadium. As they were shown on the screen, a message popped up congratulating them on being awarded a scholarship.

Video of the players soaking in the moment and realizing they had just had their lives changed was captured by the Royals.

It sure beats the heck out of a stadium proposal.