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.) 

Alabama, SEC reign in first round of NFL draft

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And, in other news, water’s wet, sky is blue, death and taxes and yadda yadda yadda.

The first round of the 2018 NFL draft has officially been put to bed, and four Alabama players and 10 total from the SEC were selected amongst the first 32 picks.  Those totals represent the most for an individual school and a conference yet again.

For perspective, that conference last year had a record-tying 12 players taken in the first round; Alabama, with two, was tied with Clemson and Ohio State for most for an individual school.  This year, there were six other schools with more than one player selected: College Football Playoff championship game runner-up Georgia with three, while Louisville, Notre Dame, Ohio State, UCLA and Virginia Tech were next with two each.

The Tech picks, incidentally, were linebacker Tremaine Edmunds (No. 16, Buffalo Bills) and safety Terrell Edmunds (No. 28, Pittsburgh Steelers).  Those two are brothers, making them the first siblings ever selected in the first round of the same NFL draft.

Aside from the SEC, the Power Five conferences went, in order of the number of selections, the ACC (six), Big Ten (four), Pac-12 (four) and Big 12 (one).  That number for the Big 12, incidentally, is two fewer than the Mountain West’s three and the same as the one each from the AAC and Conference USA.

Over the last six NFL drafts in the first round, the Power Five conference selections look like this:

SEC: 60
ACC: 36
PAC-12: 33
Big Ten: 25
Big 12: 12

Alabama joins Miami in some very exclusive NFL draft company

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It took a little while longer than what some of the early mock drafts had projected, but Alabama has finally joined some rarefied Player Selection Meeting air.

With the 11th overall pick of the 2018 NFL, the Miami Dolphins selected Alabama defensive back/Swiss army knife Minkah Fitzpatrick. With that selection, the Crimson Tide has now seen a player taken in the first round of the draft each of the last 10 years, joining the Miami Hurricanes as the only program that can make that claim.

The All-American Fitzpatrick was the second player from the SEC taken thus far, joining Georgia linebacker Roquan Smith, who was taken eighth overall by the Chicago Bears.  And,  just as we were getting ready to post this, one of Fitzpatrick’s teammates, Da’Ron Payne, was taken by the Washington Redskins with the 13th-overall pick.

Baker Mayfield becomes first former walk-on to be selected No. 1 overall in NFL draft

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You can add yet another notch to Baker Mayfield‘s burgeoning list of accomplishments.

In the weeks leading up to the 2018 NFL draft, most mock drafts had either USC quarterback Sam Darnold or Wyoming quarterback Josh Allen going No. 1 overall to the Cleveland Browns. In the last 24 hours, however, there was a growing buzz surrounding the Oklahoma signal-caller for that top spot.

Thursday night, at a little after 8 p.m. ET at AT&T Stadium, that buzz turned into a reality as the Browns made Mayfield the first pick of this year’s draft. And, not only did he become the fourth-ever Sooner to be taken No. 1 overall, he becomes the only player who began his collegiate career as a walk-on to be selected first in the draft.

Famously, Mayfield walked not once but twice in his collegiate playing career — first at Texas Tech and then again at Oklahoma after he decided to transfer from the Red Raiders. Mayfield, a three-star 2013 recruit who was rated as the No. 42 pro-style quarterback in the country, actually held offers from pre-Lane Kiffin Florida Atlantic, New Mexico and Rice before opting to become a walk-on in Lubbock.

While with the Red Raiders, Mayfield became, it’s believed, the first-ever to start a season opener as a true freshman walk-on.

After transferring to the Sooners and sitting out the 2014 season, the Austin, Tex., native became one of the most prolific quarterbacks in college football history. He helped lead the Sooners to the College Football Playoffs two of the last three seasons and put together back-to-back years in 2016 and 2017 that were the best, passer rating-wise, in the history of the game. He capped off that prodigious statistical run by winning the 2017 Heisman Trophy in one of the biggest landslides in the award’s history.

Report: QB Shea Patterson will be eligible for Michigan this fall

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The Michigan Wolverines may have their new starting quarterback. Shea Patterson, after a drawn-out battle for eligibility this season, will be eligible to play for the Wolverines this fall. According to a report from The Detroit News, Patterson has been granted a transfer waiver from the NCAA after the NCAA, Michigan and Ole Miss came to terms on an agreement to allow for Patterson to become eligible.

From The Detroit News report;

An agreement has been reached among the NCAA, Michigan and Ole Miss, according to the source, and with the completion of some paperwork, Patterson will be eligible to play this fall.

The source requested anonymity because an official announcement has not been made, but that announcement is expected soon.

A Michigan official said Thursday night the athletic department has “no new information on a final decision from the NCAA.”

Ole Miss had been holding up the transfer process for Patterson because the school did not accept Patterson’s reason for wanting to transfer from the Rebels to Michigan. Frustrated with the process, Patterson ripped Ole Miss and former head coach Hugh Freeze. With Ole Miss blocking the transfer for Patterson, the former Ole Miss quarterback had been hanging in limbo with Michigan with no idea if he would be cleared to play this fall for the Wolverines or if he would have to sit out a season due to typical NCAA transfer rules.

Because Ole Miss was placed on probation amid scandal, Patterson sought a transfer after feeling he had been misled and lied to by Freeze and Ole Miss. Now at Michigan, Patterson can immediately begin focusing on competing for the starting job at quarterback for Jim Harbaugh and Michigan. Given how much Michigan could stand to improve at the position, Patterson could give the Wolverines a much-needed boost this fall.

A formal announcement on Patterson’s status at Michigan is expected to be made once the legal paperwork is completed between the NCAA, Michigan, and Ole Miss.