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.) 

Ex-Miami, current Charlotte QB Kevin Olsen arrested on felony rape charges

PHILADELPHIA, PA - SEPTEMBER 24: Kevin Olsen #2 of the Charlotte 49ers throws a pass in the second quarter against the Temple Owls at Lincoln Financial Field on September 24, 2016 in Philadelphia, Pennsylvania. (Photo by Mitchell Leff/Getty Images)
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It was thought that Kevin Olsen had hit rock bottom a couple of years ago.  Based on what transpired earlier today, it’s time to rethink that stance.

According to the Charlotte Observer, Olsen was arrested Sunday afternoon on multiple charges.  Specifically, the Charlotte 49ers quarterback was charged with felony second-degree forcible rape, cyberstalking, assault on a female and second-degree forced sex.

From the Observer‘s report:

A statement released by UNC Charlotte said that the allegations against Olsen “appear to involve sexual assault within an existing relationship.”

UNC Charlotte said it had been in communication with Charlotte-Mecklenburg Police following the arrest Sunday afternoon. Allegations in the case stemmed from an incident that occurred off campus, the university said, but provided no details.

As a result of the arrest, Olsen has been suspended by his latest football program.

The younger brother of former Hurricanes standout and current Carolina Panthers tight end Greg Olsen, Kevin Olsen was a four-star member of Miami’s 2013 recruiting class, rated as the No. 12 pro-style quarterback in the country.

In September of 2014, Olsen was arrested and charged with driving under the influence and possession of a stolen or fictitious driver’s license following a traffic stop. That off-field misstep came a month and a half after it was reported Olsen would be suspended for the opener, reportedly for failing a drug test.

In mid-September, after the arrest and on the heels of what were multiple suspensions, UM announced that Olsen was “no longer a student at the University of Miami.” In December of 2014, Olsen announced that he would be transferring to Towson; he was kicked off that team for violating unspecified team rules before he ever played a down for the FCS program.

After spending the 2015 season at a California junior college, Olsen transferred to Charlotte.  Olsen passed for 842 yards and six touchdowns in his first, and potentially only, season with the 49ers this past year.

Alabama fan launches campaign to have new offensive coordinator’s name changed to “Run” Daboll

TAMPA, FL - JANUARY 09:  Running back Bo Scarbrough #9 of the Alabama Crimson Tide rushes for a 25-yard touchdown during the first quarter against the Clemson Tigers in the 2017 College Football Playoff National Championship Game at Raymond James Stadium on January 9, 2017 in Tampa, Florida.  (Photo by Jamie Squire/Getty Images)
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Forget about pass-heavy offensive systems. One Alabama fan is making it pretty clear all he wants new offensive coordinator Brian Daboll to do is run the ball. He’s even going so far as to launch an online campaign to have the new Tide coordinator’s name changed to “Run Daboll.”

Alabama fan Bobby Wesson has opened up a petition on Change.org to collect digital signatures. As of this posting, the petition had just 92 supporters, but it was just hoping to reach 100 supporters.

“Imagine what the Alabama offense would look like on Saturdays if Brian Daboll heard “RUN DABOLL” 7 days a week,” Wesson says in his petition. “Imagine a world with Nick Saban yelling “RUN DABOLL” at Brian on the field instead of you yelling it at him through the television. Imagine 3rd and 3 and a stadium screaming as [Bo Scarbrough] breaks down the field for it all because “Run Daboll” called RUN DA BALL.”

The imagery here is dazzling.

If there is one thing Alabama is generally good at doing, it is running the football. With a healthy stable of running backs that would have options capable of starting at almost any other program in the country and one of the best offensive line sin the sport, why wouldn’t Alabama want to run the ball?

Unfortunately, it doesn’t exactly work like that, but this is humorous enough. It can be his nickname, however, and we suspect that may have a chance to catch on if things go according to plan for this Alabama fan.

WATCH: FSU QB Deondre Francois throws football over giant frat house

MIAMI GARDENS, FL - DECEMBER 30:  Deondre Francois #12 of the Florida State Seminoles scores a touchdown in the fourth quarteragainst the Michigan Wolverines  during the Capitol One Orange Bowl at Sun Life Stadium on December 30, 2016 in Miami Gardens, Florida.  (Photo by Chris Trotman/Getty Images)
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Today in acts of feats of strength, we have Florid aState quarterback Deondre Francois showing off his strong arm.

Francois was captured on video launching a football over large fraternity house, which was met with wild applause from the frat bros on hand to observe the demonstration.

According to SB Nation, this particular fraternity house claims to be the largest of its kind in the nation, so Francois being able to throw the football over it is no small task. Of course, this may just be an FSU tradition, as Jameis Winston once performed the same accomplishment as well. Add this one to the preseason Heisman hype film reel for Francois.

[SB Nation]

Colorado hires lawyers behind Pepper Hamilton report to investigate Joe Tumpkin response

DENVER - AUGUST 30:  A University of Colorado Buffaloes fag is brought onto the field during the game against the Colorado State University Rams at Invesco Field at Mile High on August 30, 2003 in Denver, Colorado. Colorado defeated Colorado State 42-35. (Photo by Brian Bahr/Getty Images)
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Joe Tumpkin is no longer with the Colorado football program, but the Buffaloes are still sorting through the way he left.

To recap: The longtime girlfriend of Tumpkin called head coach Mike MacIntyre in early December to inform him of a pattern of abuse from his safeties coach, which she later told investigators occurred more than 100 times over a 21-month period. According to the woman’s account given to Sports Illustrated — which the school has not denied — MacIntyre and the woman spoke a couple of times with the coach pledging to handle the situation until the line of communication went dead.

In the meantime, Tumpkin remained on staff and was promoted to interim defensive coordinator for the late-December Alamo Bowl after Jim Leavitt left for Oregon. MacIntyre suspended Tumpkin in mid-January, and Tumpkin resigned a couple weeks after that after a restraining order was filed against him.

However, the SI story created a level of blowback in Boulder that prompted MacIntyre to issue a statement defending the program’s response to the situation.

Still, the CU Board of Regents felt necessary to delay the approval of MacIntyre’s announced extension, and on Friday announced they have hired the two lawyers behind the Pepper Hamilton report that sunk Baylor’s leadership to probe the school’s response to the Tumpkin allegations.

“We are looking at what occurred and when, if our policies were violated, or whether those policies should be modified to better explain the reporting (requirements),” CU Board of Regents Chair Irene Griego said in a statement, via the Boulder Daily Camera.

The probe will be conducted by Leslie Gomez and Gina Maisto Smith, a pair of former Philadelphia prosecutors who now work for the Cozen O’Connor law firm in Philly. At center of their investigation will be whether MacIntyre, AD Rick George and chancellor Phil DeStefano followed the university’s protocol for reporting sexual assault.

Still, Greigo noted the pair’s hiring doesn’t indicate a predetermined outcome one way or the other.

“Let me be clear, in no way should this decision to wait be viewed as an indication that the Board of Regents has determined that any employee violated a policy or that any disciplinary action is warranted,” Griego said. “We are simply being prudent.”