Penn State Abuse

Does the Paterno lawsuit have legs? A Q&A with NCAA guru John Infante


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, 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-Clemson WR Demarre Kitt tweets he’s committed to Colorado State

CLEMSON, SC - SEPTEMBER 27: Demarre Kitt #8 of the Clemson Tigers is interfered with while trying to make a catch during the game against the North Carolina Tar Heels at Memorial Stadium on September 27, 2014 in Clemson, South Carolina. (Photo by Tyler Smith/Getty Images)
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After a nearly two-year absence, it appears Demarre Kitt is headed back to the FBS level.

On his personal Twitter account, Kitt announced that he has committed to Colorado State and continuing his collegiate playing career with the Rams. Since leaving Clemson in December of 2014, Kitt has played for at least two different junior colleges — Mississippi Gulf Coast Community College and Ventura (Calif.) Junior College.

In his lone season at Clemson, Kitt had five receptions for 47 yards. A four-star member of Clemson’s 2014 recruiting class, Kitt was rated as the No. 16 receiver in the country and the No. 11 player at any position in the state of Georgia.

As Kitt will be coming in as a JUCO transfer, the wide receiver will be eligible to play immediately in 2017. He’ll have two seasons of eligibility remaining.

Michigan coach Jim Harbaugh says replay decision was the ‘worst call he’s ever seen’

ANN ARBOR, MI - OCTOBER 22: Head coach Jim Harbaugh talks with a referee while playing the Illinois Fighting Illini on October 22, 2016 at Michigan Stadium in Ann Arbor, Michigan. (Michigan won the game 41-8. Photo by Gregory Shamus/Getty Images)
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Jim Harbaugh has been known for using a bit of hyperbole from time to time but it sounds as though he was really, really, really upset at a call in the final few minutes of No. 2 Michigan’s 41-8 win over Illinois on Saturday.

Wolverines quarterback John O’Korn had completed a third-and-nine pass to Drake Harris that officials had marked short of the first down by nearly two yards. Harbaugh quickly challenged the spot but Big Ten replay officials upheld the call to force a fourth down decision that was a little longer than it should have been according to the coach.

“I’ve never seen a worse call in the game of football,” Harbaugh said at his Monday press conference. “My understanding of the rules and the review system is it’s the spot, it’s to get the correct spot.”

Michigan won the game in blowout fashion of course and the call was irrelevant to the final score as the Wolverines got the first down on the next play and then kneeled down to end the game. But the comments and decision to challenge a call over a few feet does show the level to which Harbaugh will compete on the field.

Apparently that is something that is now well-known by Big Ten officials too.

Clemson RB Wayne Gallman says hit that knocked him out of N.C. State game was “dirty”

CLEMSON, SC - OCTOBER 01: Wayne Gallman #9 of the Clemson Tigers carries the ball against the Louisville Cardinals during the second quarter at Memorial Stadium on October 1, 2016 in Clemson, South Carolina.  (Photo by Tyler Smith/Getty Images)
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Clemson running back Wayne Gallman has been dealing with the aftereffects of a concussion that knocked him out of the team’s win over N.C. State.

He seemed pretty clear on what he thought about the hit that caused that concussion however, telling the Associated Press that the play was “dirty.”

“You saw him lead with his head,” Gallman said of Wolfpack defensive back Dravious Wright. “He came with his head.

“I wanted somebody to hurt him that was in the game if they could.”

Gallman was knocked out on the play and said he didn’t recall anything until a few minutes later. Clemson apparently sent video of the hit to the ACC office, but was told that it was a legal play (no flag was thrown on it either).

The tailback was held out of some of the Tigers practices last week as they rested on their bye but added that he will be good to go for this week’s matchup with Florida State in a game that could seal the ACC Atlantic division for Clemson with a win.

Gallman, a redshirt junior, is expected by many to enter the NFL Draft after the season so it means he likely won’t be facing N.C. State again on the field so it looks like he’ll have to take his frustration about the play out on the Seminoles on Saturday.

Bob Stoops defends brother Mike following Oklahoma defense’s performance at Texas Tech

LUBBOCK, TX - OCTOBER 22: Head coach Bob Stoops of the Oklahoma Sooners talks to his players on the bench during the first half of the game between the Texas Tech Red Raiders and the Oklahoma Sooners on October 22, 2016 at AT&T Jones Stadium in Lubbock, Texas. (Photo by John Weast/Getty Images)
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Oklahoma’s defense has not had the best of weeks.

The Sooners gave up 59 points on Saturday to Texas Tech and allowed quarterback Patrick Mahomes to set an FBS record for total offense as he did just about whatever he wanted in the passing game. While the team ultimately won the game, giving up that many points and yards has naturally led to some questions about Oklahoma’s defensive coordinator.

Head coach Bob Stoops isn’t having any of that however, and it’s not just because the coordinator in question is his brother Mike Stoops.

“It’s all of us, too. It isn’t just my brother and I. It’s also coach [Kerry] Cooks, coach [Calvin] Thibodeaux, coach [Tim] Kish, everybody in there,” Stoops said Monday, according to the Associated Press. “It’s the same coordinator that also led the league in every defensive category a year ago, and made it to the final four. We’re not running a new defense. He didn’t bring in something different. It’s the same defense. If it’s worked before, it’ll work again, and I’ve got confidence in it. And I’m also part of what we’re doing.”

Oklahoma is ranked 16th in the country and remain one of the favorites to win the Big 12 this season but it’s clear that they won’t be doing that if things don’t improve on the defensive side of the ball. The Sooners are allowing over 40 points per game in conference play and are last in the league in pass defense.

Luckily there is a cure for some those defensive ills coming up this week as Oklahoma hosts 1-6 Kansas for homecoming. It’s probably safe in saying the defense will be able to bounce back against the lowly Jayhawks but if they struggle again, you can bet those calls for Stoops to make some changes on his coaching staff will grow even louder.