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.) 

Texas Tech gets commitment from ex-Arkansas WR Jojo Robinson

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JoJo Robinson‘s winding college football road will apparently take him next to Lubbock.

Using his Twitter account as a microphone, Robinson announced that, “with a lot of prayer and support,” he has decided to continue his playing career at Texas Tech.  The wide receiver had spent the 2016 season at a junior college, thus making him eligible to play immediately in 2017.

Including this season, Robinson will have two years of eligibility remaining.

Originally a Florida State verbal, Robinson ultimately flipped to Arkansas to become a four-star member of the Razorbacks’ 2014 recruiting class. He was suspended for one game his first season in Fayetteville after he was arrested for armed robbery after signing with UA; that charge was ultimately dropped.

In 2015, Robinson was dismissed by head coach Bret Bielema, reportedly for not going to class. Prior to that dismissal, he caught six passes for 53 yards as a redshirt freshman.

The Red Raiders had lost at least two wide receivers to transfer this offseason, including their top pass-catcher, Jonathan Giles, in late April.  Tech’s leader in receptions (69), receiving yards (1,158), receiving touchdowns (13) and yards per catch (16.8) last season ultimately opted for LSU a month later.

In early May, Tony Brown announced his decision to transfer as well.  Earlier this month, he revealed that he would be moving on to Colorado.

Two Vanderbilt players shot in incident involving stolen phone

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While that’s a serious-sounding headline, it could’ve been a lot worse for a pair of Vanderbilt football players.

According to WSMV-TV, O’montae “Tae” Daley and Frank Coppet were shot outside of a Nashville Target store Monday night.  The former, a true freshman defensive back, was shot in the leg while the latter, a redshirt freshman defensive back, was shot in the arm.  Both of the injuries are considered non-critical.

The shooting occurred after a third Commodore football player, wide receiver Donaven Tennyson (pictured), had his phone stolen in an earlier incident and, along with the other two, concocted what was described by police as “an ill-conceived plan to recover a stolen cellphone.”

From the television station’s report:

Police said the incident leading up to the shooting happened on Monday when… Tennyson met up with someone to try to sell his cellphone. Tennyson’s cellphone was stolen during the meeting in the parking lot of the Chili’s on West End.

Tennyson told police he noticed his stolen phone was listed online, which is when he reportedly made a fake profile and arranged a meeting with the seller at Target.

The 19-year-old brought two friends with him, 18-year-olds O’montae Daley and Frank Coppet. The trio brought a pellet pistol with them.

Coppet reportedly got out of their car with the pellet gun, which is when two people in a gray Buick sedan opened fire.

In addition to getting shot, one of the victim’s had his car stolen by the alleged shooters for good measure.  Police are still searching for the alleged assailants, and haven’t yet released a description.

The school has yet to publicly comment on the shooting.

Last season as a true freshman, Tennyson played in eight games for the Commodores, while Coppet took a redshirt his first season with the program.  Daley was a three-star member of Vandy’s 2017 recruiting class coming out of high school in Georgia.  He signed early and participated in spring practice this year.

Committee launched to formulate plans for college football’s 150th birthday

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On Nov. 6, 1869, Princeton and Rutgers squared off in the first-ever college football game.  Nearly 148 years later, the powers-that-be in the sport are in the beginning stages of commemorating the momentous event.

The National Football Foundation announced in a press release that “[a] group of college football leaders announced plans today to launch a nationwide celebration to commemorate the game’s 150th anniversary.” The group will be headed by Kevin Weiberg, longtime college athletics administrator and former Big 12 Conference commissioner.

There are a baker’s dozen other individuals who will be involved in planning the festivities as part of the committee, including the two current athletic directors of the teams involved in the sport’s first game.

  • Todd Berry, executive director, American Football Coaches Association
  • Ari Fleischer, president, Ari Fleischer Communications
  • Bill Hancock, executive director, College Football Playoff
  • Steve Hatchell, president & chief executive officer, National Football Foundation & College Hall of Fame
  • Pat Hobbs, director of athletics, Rutgers University
  • Chris Howard, president, Robert Morris University
  • Mike Kern, associate commissioner, Missouri Valley Football Conference/FCS Managing Director
  • Oliver Luck, executive vice president of regulatory affairs and strategic partnerships, NCAA
  • Mollie Marcoux Samaan, athletics director, Princeton University
  • Larry Scott, commissioner, Pac-12 Conference
  • Jon Steinbrecher, commissioner, Mid-American Conference
  • Bob Vecchione, executive director, National Association of Collegiate Directors of Athletics
  • Wright Waters, executive director, Football Bowl Association

“This is a very exciting moment for fans of college football,” Weiberg said in a statement. “Across the country, college football is a deeply ingrained part of life for millions and millions of people. While it’s too soon to know our exact plans, we want to put something together that is big and special, something fans can be proud of. We will work closely with leaders from all divisions of college football to build a national celebration for fans to enjoy.

“No one could have imagined that since the first football game was played on November 6, 1869 that college football would grow to become one of America’s greatest traditions, beloved by tens of millions of fans every year,” said Scott. “At all divisions of play, college football is special and we intend to launch a nationwide celebration to mark the anniversary.”

Ex-Alabama WR T. Simmons officially a WVU Mountaineer, too

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In the post below this, we noted that Jovani Haskins is officially a member of the West Virginia football program.  T.J. Simmons can say the same as well.

After Simmons announced it via social media over this past weekend, WVU has confirmed that the wide receiver has signed a grant-in-aid for the 2017-18 academic year and will continue his collegiate playing career with the Mountaineers.  That continuation won’t happen immediately as, after sitting out the 2017 season to satisfy NCAA transfer bylaws, Simmons will have three years of eligibility remaining with the Mountaineers.

Simmons had decided last week to transfer out of the Alabama football program.

A three-star member of the Crimson Tide’s 2016 recruiting class, Simmons was rated as the No. 58 receiver in the country and the No. 9 player at any position in the state of Alabama.

As a true freshman, Simmons played in 12 games, mainly on special teams.  In this year’s annual spring game, the 6-2, 201-pound receiver caught six passes for 82 yards and a touchdown for the Crimson Tide.