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.) 

Florida State planning new facility to catch up with Clemson

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Florida State completed a major facility overhaul not even three years ago. But the thing about arms races is that when someone pulls ahead of you it means you are behind.

And Clemson officially pulled ahead earlier this year with the opening of its glistening, slide-equipped new home.

As such, Jimbo Fisher told reporters Friday that Florida State now has plans to construct its own standalone facility, going as far as meeting with an architect.

“We need room. We need meeting space, player development areas. You’ve got to have those areas and also to show off your history. That’s what Florida State is known for, being a great football program,” Fisher told ESPN. “You can never stand still. If you’re not evolving and moving, people are going to bypass you. You’ve got to keep going. The great programs never settle. We’re always looking for that edge. It’s going to help recruiting. It’s going to help player development. We get a lot of guys that are three-and-out, so we’ve got to have space for them to get them developed as quickly as we can so we can get production out of them.”

While saying that it’s a “competitive” race and not an arms race, Fisher also tried to sell that the plans for the ‘Noles’ new home were unrelated to Clemson’s new facility.

“I don’t care what they’ve got,” Fisher said. “I’m worried about what we’ve got. If I don’t think it’s going to make a difference in our program for these kids to develop as people, students and players, I won’t ask. I didn’t grow up with a lot. I was taught if you need it, do what you’ve got to do to be successful but don’t waste. I’m not going to do that. But there’s things you’ve got to have to be successful and that’s the next step, in my opinion.”

Former Michigan TE Jake Butt says college players should be able to cash in on likenesses

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For the record, Jake Butt shouldn’t “be paid” in the strictest sense of the term — to receive a paycheck for services rendered. Rather, the former Michigan tight end believes players should be able to profit from their statuses as college athletes when the NCAA, its conferences and member schools are already doing the same.

(Having an extremely marketable last name probably contributed to the forming of this opinion.)

“Something needs to change,” Butt told ESPN.com at Michigan’s pro day. “I don’t want a check from the NCAA. I don’t know if that’s something that’s likely. But the big thing is they say you can’t use your name to benefit. I can’t go into my favorite breakfast spot, Benny’s, I can’t go in there and get a free breakfast because I’m only getting that because of my name.

“That’s not to say I can’t make friends with the owner because of the person I am. I’m a good guy, a really good guy — sociable guy, made a lot of friends. I can’t accept anything free for that. They said I can’t go down the street, the example one of them gave us is you can’t go to [get] tires and negotiate your price from $600 to $500 because that’s only because of your name. But Joe Schmo can go down the street and he can negotiate his price. It’s kind of ridiculous to me.”

Butt was a victim of the cruelest twist in circumstances possible for a college athlete — a season-ending injury at the end of his final season. A senior, Butt was one of the top tight ends on the draft board before suffering a torn ACL in the Wolverines’ Orange Bowl loss to Florida State. The Mackey Award winner as the nation’s top tight end will be drafted next month, but the damage to his bank account resulting from the injuries is significant. Being able to profit from his own name and image would have served as insurance against the loss of value he suffered due to the injury.

“I should be the example of why college athletes should be getting paid in college or why I can’t use my name to benefit off my likeness in college,” Butt said.

“Why can I see ‘I Like Jake Butt and I Cannot Lie,’ I see those shirts and I’m living paycheck-to-paycheck in college. Who knows? Heaven forbid something happens in the NFL, can I really benefit off of it when it was at the most? No, I can’t.”

Baylor strength coach apparently no longer with the program

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It seems every bit of news related to Baylor football nowadays has to do with the school’s on-going sexual assault scandal but it appears there is one bit of information coming out of the program that doesn’t have something to do with that.

A school spokesperson told ESPN on Friday that football strength coach Kaz Kazadi has been “reassigned to a role outside the athletic performance staff.” A report from the local ESPN Radio affiliate in Waco indicates that the move will eventually have the coach leaving the school altogether.

Kazadi spent nearly a decade with the Bears and played a big role in the team’s on-field turnaround under the former coaching staff. Several former players took to Twitter on Friday to express their shock over the loss of one of the cornerstones of the team in recent years.

After the hire of Matt Rhule this offseason, it isn’t too surprising to see some turnover among those staff members connected to the previous regime. Baylor’s new head coach brought most of his strength staff with him from Temple so it was probably only a matter of time before Kazadi moved on, though the timing of the quasi-announcement (the Bears started spring football last weekend) is somewhat interesting.

Either way, it appears Baylor will have a new direction in the weight room going forward.

Michigan’s Jim Harbaugh has ditched his Dockers for another

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Peanut butter and jelly. Milk and cookies. Batman and Robin. Maize and blue. Jim Harbaugh and khakis.

All are iconic combinations, but it appears the latter is undergoing a few changes right now.

The Michigan head coach’s affinity for a pair of khakis has been so strong over the years that it’s become almost comical how much he likes the style of pant. Heck, he even got a commercial out of it a few years ago when he specifically started getting outfitted with Dockers brand khakis.

Despite being a paid endorser though, it appears that Harbaugh has dropped the famous Levi’s brand version of khakis to attack the day with an enthusiasm unknown to mankind in another pair of pants.

Not only is the switch from Dockers to Lululemon result in a lot more comfort for the Wolverines coach, it’s probably a bit more of a hit to the ol’ wallet than dropping by Walmart for a pair of khakis off the shelf. It probably doesn’t make a huge difference for Harbaugh though given that he’s the highest paid coach in the country but it might result in a few more trips to the mall.

Either way, what it does mean is that now we demand a new commercial featuring Harbaugh and khakis. After all, if you’re upping the clothing game, you’ve got to up the ad game as well.