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.) 

Half of all FBS signees lived between Texas and North Carolina

ORLANDO, FL - DECEMBER 29: Johnny Jefferson #5 of the Baylor Bears carries while defended by Dominquie Green #26 and Des Lawrence #2 of the North Carolina Tar Heels during the first half of the Russell Athletic Bowl game at Orlando Citrus Bowl on December 29, 2015 in Orlando, Florida.  (Photo by Rob Foldy/Getty Images)
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ESPN recruiting analyst Gerry Hamilton provided a massive public service through his Twitter account on Tuesday, releasing a data dump of fascinating information about the signing class of 2016.

In short, Texas was the most popular breeding ground for FBS prospects, but half of all signees came from a clean sweep from Texas, across the Gulf of Mexico to Florida and up to North Carolina.

The Lone Star State produced 359 players, with nearly half of those heading to Power 5 institutions. In fact, Hamilton reports, 72 of 128 FBS programs and 38 of 64 Power 5’s signed at least one player from Texas.

Florida trailed with 327 players, followed by California with 248 players and Georgia with 225. For what it’s worth, Ohio was not included in the study.

Data dump, begin!

AAC releases 2016 conference schedule

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The American Athletic Conference released its 2016 conference schedule highlighted by, oddly enough, non-conference games that pit league gem Houston against Oklahoma (on opening day at Houston’s NRG Stadium) and Louisville (in Houston on Nov. 19).

Those two games, more than any others, will sink or swim the conference’s chances of not only grabbing the Group of Five spot in the New Year’s Six, but a spot in the College Football Playoff itself.

The 2016 conference slate kicks off with Navy meeting Connecticut on Sept. 10 and concludes with the second annual AAC title game on Dec. 3 at a to-be-determined campus site.

The AAC led the way in scheduling Power 5 opponents — highlighted by a Week 3 schedule that will see the entire East Division punching up a weight class — and includes the likes of Florida State, Maryland, N.C. State, Virginia, Syracuse, Kansas, TCU and Oklahoma (for all intents and purposes) visiting AAC campuses.

View the full AAC slate here:

 

Former Notre Dame QB Tommy Rees hired as Chargers offensive assistant

SOUTH BEND, IN - NOVEMBER 02: Tommy Rees #11 of the Notre Dame Fighting Irish passes against the Navy Midshipmen at Notre Dame Stadium on November 2, 2013 in South Bend, Indiana. (Photo by Jonathan Daniel/Getty Images)
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Just like we all thought when watching him play at Notre Dame, Tommy Rees will be in the NFL in 2016. Just not as a quarterback.

The San Diego Chargers announced his hiring as an obnoxiously vague offensive assistant, assisting with the club’s offense in some form that they aren’t inclined to elaborate on.

After completing a career in which he threw for 7,670 yards with 61 touchdowns against 37 interceptions from 2010-13, Rees was cut by the Washington Redskins in 2014, then spent the 2014-15 seasons as a graduate assistant at Northwestern.

Report: Wisconsin DBs coach Daronte Jones leaving for Miami Dolphins

MADISON, WI - SEPTEMBER 27:  Wisconsin Badgers cheerleader waves the flag after the team scores a touchdown during the fourth quarter against the South Florida Bulls on September 27, 2014 at Camp Randall Stadium in Madison, Wisconsin.  The Wisconsin Badgers defeated the South Florida Bulls 27-10. (Photo by Tom Lynn/Getty Images)
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The post-National Signing Day coaching carousel is now in full tilt.

According to a report from Adam Caplan of ESPN, Wisconsin defensive backs coach Daronte Jones is leaving to become the assistant defensive backs coach for the Miami Dolphins.

The Badgers already endured a significant loss this winter after defensive coordinator Dave Aranda took a lateral position with LSU. He was replaced in January by former USC defensive coordinator Justin Wilcox.

Jones spent but 13 months in Madison, a January 2015 addition to Paul Chryst‘s first staff after spending three seasons at Hawaii.

Wisconsin possessed one of college football’s top pass defenses in 2015; the Badgers ranked seventh nationally in pass defense, tied for sixth in yards per attempt allowed, placed third in opponent completion percentage and finished second in pass efficiency defense.