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.) 

Suspended Michigan State staffer receives another contract extension

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Michigan State has added another one-month extension to the contract of suspended football staffer Curtis Blackwell as the school continues to investigate several sexual assaults involving the Spartans.

A schools spokesman confirmed the extension to the Detroit Free Press on Friday.

The move comes on the heels of a previous one-month contract extension for Blackwell that came at the end of March. His official title is that of the team’s director of college advancement and performance and he was hired by head coach Mark Dantonio back in 2013 after running a number of major recruiting camps in the region.

Blackwell was originally suspended back in February as the school and police began multiple investigations related to sexual assaults. According to reports, one Michigan State staff member had an arrest warrant issued for obstructing an investigation but he was never publicly identified by the school.

Probes into the matter, including a Title IX investigation, remain ongoing in East Lansing. The football team recently wrapped up practice missing over a dozen players in the spring game so it appears this wide-ranging scandal that has embroiled the Spartans is not going to be over anytime soon.

Ex-USC coach finally lands court date with NCAA over Reggie Bush case

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After years and years of meandering through the court system, former USC running backs coach Todd McNair finally has his day in court with the NCAA.

ESPN is reporting that the two parties will meet in Los Angeles County Superior Court on April 18, 2018. The trial will finally get underway next year after nearly a decade of appeals on both sides.

McNair was the Trojans’ running backs coach during the glory days under Pete Carroll and responsible for coaching or recruiting many of the team’s top players. He was one of the few links to the program that the NCAA cited when determining that former star Reggie Bush received extra benefits, later leading to brutal sanctions back in 2010. McNair was given a one-year show-cause as a result of the Committee on Infractions findings and never coached again after the school let his contract expire shortly thereafter.

That wasn’t the end of the story however, as McNair later filed a defamation lawsuit against the NCAA in which he accused the association of violating protocol and showing bias against himself and the program in order to level unprecedented sanctions. Documents in the case have continued to seep out that have given credence to McNair’s case and the NCAA’s lawyers have fought bitterly at every turn in order to prevent the trial from actually getting underway.

Those efforts were unsuccessful however and it appears an already nasty legal battle is still not over. It remains to be seen if the trial will even happen, as a settlement could eventually take place between now and next April. If it does indeed go in front of a jury though, it just might be one of the most fascinating insights into one of the biggest NCAA scandals of the past few decades.

Biletnikoff Award semifinalist Jonathan Giles announces transfer from Texas Tech

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Thursday may have been a high point for the Texas Tech football program upon learning that former quarterback Patrick Mahomes was taken in the top 10 of the 2017 NFL Draft.

On Friday afternoon though, the Red Raiders dipped right back down as star wide receiver Jonathan Giles took to Twitter to announce that he was leaving the program and transferring out of Lubbock.

Giles was a Biletnikoff Award semifinalist a season ago after catching 69 passes for 1,158 yards and 13 touchdowns. Those numbers led the team in each category despite trailing off a bit down the stretch as Tech missed out on a bowl game.

Playing time could have been a big factor in the decision to leave the program as both Cameron Batson and Keke Coutee emerged as the top receiving targets and Giles was relegated to second-team status coming out of spring practice.

Tech’s Air Raid system and NFL quarterbacks had a lot to do with Giles’ big numbers but it’s fairly rare to see such highly touted and productive wideouts hit the transfer markets. While the decision probably isn’t what some Red Raiders fans wanted to hear on Friday, the receiver probably won’t be lacking for options when it comes to his next stop.

Pitt dismisses senior defensive tackle for disciplinary reasons

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Bad news in college football is typically reserved for Friday and it appears the Pitt Panthers just got a taste of some.

Per Pittsburgh Tribune-Review beat writer Jerry DiPaola, head coach Pat Narduzzi has dismissed starting defensive tackle Jeremiah Taleni for disciplinary reasons.

Taleni emerged as a starter down the stretch for the Panthers and will be a big loss up front for the team as they already have to replace the stellar production from the soon-to-be-drafted Ejuan Price.

No further comments were given when the school confirmed the news so it might be a while before we find out what led to Taleni’s dismissal and whether he plays college football at all next season.