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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.) 

South Carolina DB Ali Groves takes medical hardship, will remain on scholarship

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The injury-plagued career of a member of South Carolina’s secondary has officially come to an end.

USC officials confirmed to The State that Ali Groves will not return to the Gamecocks football team. The defensive back has taken a medical hardship waiver, making him ineligible to suit up again for the Gamecocks.

The Georgia native will, though, remain on scholarship. He’s expected to graduate later this year with a degree in business administration.

A three-star member of USC’s 2013 recruiting class, Groves was rated as the No. 47 safety in the country. Groves sustained a right shoulder injury his true freshman season, with the injury lingering over the next couple of seasons as well.

This past spring, Groves, who didn’t play a down for the Gamecocks, was moved from cornerback to safety. Twice in his career, Groves was named to the SEC Fall Academic Honor Roll.

Four-star 2017 QB Kellen Mond, an ex-Baylor commit, verbals to A&M

COLLEGE STATION, TX - OCTOBER 31: Texas A&M Aggies mascot Reveille runs onto the field before a NCAA football game against the South Carolina Gamecocks at Kyle Field on October 31, 2015 in College Station, Texas. (Photo by Eric Christian Smith/Getty Images)
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Baylor’s recruiting loss will turn into another football program’s gain.  Again.

On his Twitter account Monday, 2017 quarterback prospect Kellen Mond announced that he has decided to verbally commit to play his college football at Texas A&M.  Mond had been considered the crown jewel of Baylor’s 2017 recruiting class after committing to the Bears in the summer of 2015, but opted to decommit less than a week after Art Briles was dismissed as BU’s head football coach.

Shortly after decommitting from Baylor, Mond announced a new Top 3: Auburn, Ohio State and A&M.  Those schools were listed in his order of preference at that moment, although the Aggies were, obviously, able to make up ground on the other two.

Mond visited College Station earlier this month, and, coupled with the Buckeyes landing a verbal from five-star quarterback Tate Martell — a former A&M commit, incidentally — had seemingly pared his choices down to the Tigers and Aggies.  According to his tweeted announcement, A&M’s “tradition of excellence,” along with the coaching staff, led him to his latest commitment.

Mond, a Texas native who is playing his senior season at the IMG Academy in Bradenton, Fla., is rated as a four-star prospect on 247Sports.com‘s composite board. That recruiting website rates him as the No. 4 dual-threat quarterback in the country and the No. 103 player overall.

Pitt joins trend of stadium-wide beer sales for football games

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Ohio State announced earlier this month that it would be offering cold beers to all of-age fans during football games this fall in The ‘Shoe.  A couple of weeks later, a fellow FBS member to the east has followed suit.

As part of its press release on new fan initiatives for the 2016 season, Pittsburgh announced that beer will be sold stadium-wide throughout Heinz Field this upcoming football season.  Prior to this season, alcohol sales were only permitted to those ticket holders in the club and suite sections of the stadium.

The first opportunity for fans to take advantage of the new policy is the home opener against Villanova Sept. 3.  The ACC opener Oct. 8 against Georgia Tech.

From the press release:

The expansion of this amenity will coincide with the implementation of appropriate safety measures for Pitt game days, ensuring the continuation of a fan and family friendly environment for all. (Such measures are already in place for Steelers home games. Aramark, Heinz Field’s official food and beverage concessionaire, provides comprehensive staff training in the sale of alcohol.) A portion of the funds from beer sales proceeds will be dedicated to drug and alcohol education programs for the overall student body through Pitt’s Division of Student Affairs.

According to the Pittsburgh Post-Gazette, there are now nine Power Five members with a similar beer policy for football games.  One of the nine is West Virginia, with the Post-Gazette writing that athletic director Scott Barnes cited data from WVU “suggesting that beer sales in the stadium could actually cut down on alcohol-related incidents.”

Houston’s Howard Wilson granted medical hardship waiver

Howard Wilson
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Not surprisingly, one member of Houston’s secondary will get back the time he lost last season.

According to a press release from the Houston sports information department, Howard Wilson has been granted a medical hardship waiver for the 2015 season. Wilson sustained a season-ending torn ACL in the third game of 2015, making the decision to grant the waiver a no-brainer.

The waiver will extend Wilson’s eligibility clock through the 2018 season, and makes him a redshirt sophomore for the upcoming season.

As a true freshman in 2014, Wilson played in all 13 games, starting one of those contests. He had three interceptions that season.

Prior to his injury, he started the first three games of last season. He’s projected to start at one of the corner spots for the Cougars entering summer camp.