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 and Penn State land two Jim Thorpe Award semifinalists

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Th semifinalists for the Jim Thorpe Award were unveiled on Monday, and it goes to show how good the defensive secondaries are for Alabama and Penn State. The Crimson Tide and Nittany Lions were the only schools with two semifinalists out of the 13 total players to be announced as semifinalists for the award for the nation’s top defensive back.

Alabama is represented by Minkah Fitzpatrick and Levi Wallace. Alabama has one Jim Thorpe Award winner in the history of the award (first awarded in 1986), with Antonio Langham winning the award in 1993. Penn State is looking for the first Jim Thorpe Award winner in school history. Marcus Allen and Grant Haley have been named semifinalists for the award this year, giving Penn State a chance to have a player win the award.

Other notable players named as a semifinalist include Florida State’s Derwin James and Duke’s Jeremy McDuffie and Ohio State’s Denzel Ward. The Big Ten, SEC, and ACC all have three semifinalists. The winner of the award will be announced during the annual Home Depot College Football Awards Show on December 7 on ESPN.

2017 Jim Thorpe Award Semifinalists

Marcus Allen, Penn State
Quin Blanding, Virginia
Jalen Davis, Utah State
DeShon Elliott, Texas
Minkah Fitzpatrick, Alabama
Grant Haley, Penn State
Derwin James, Florida State
Jeremy McDuffie, Duke
Parry Nickerson, Tulane
Justin Reid, Stanford
Dominick Sanders, Georgia
Levi Wallace, Alabama
Denzel Ward, Ohio State

College football’s Week 9 mid-afternoon schedule is loaded

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The Week 9 schedule in college football is lacking for too much buzz in the primetime slot this week, so you will want to stay plugged in in the middle of the afternoon. Before Virginia Tech, Clemson, Oklahoma, and Washington State all get into action in the primetime slots across the networks, the biggest games of the day will have already been played.

This week’s 3:30 pm ET time slot is stacked and highlighted by three games between ranked opponents, all with various conference championship and/or playoff implications on the line. And because the World Series is scheduled to have a game Saturday night, FOX has reserved a colossal Big Ten matchup for the 3:30 pm time slot this week. As good as the game may be, it will have some stiff competition from each of the the other networks.

No. 6 Ohio State vs. No. 2 Penn State (3:30 p.m. ET, FOX)

The game of the week will take place in the Big Ten. After a dismantling of Michigan’s defense, Penn State heads to Columbus to take on a rested Ohio State squad looking for revenge for their lone regular-season loss from a season ago. Saquon Barkley will be in the spotlight once again, but don’t overlook J.T. Barrett’s recent string of success. The winner of this one is likely heading to the Big Ten championship game to face Wisconsin. But the way this season is going, both teams could still very much be on the College Football Playoff radar if the Buckeyes win a close one.

No. 9 Notre Dame vs. No. 14 NC State (3:30 p.m ET, NBC)

You can probably consider this one an elimination game just before the College Football Playoff selection committee gets to work. Each team enters with one loss, which makes a second loss nearly devastating for playoff hopes. Josh Adams running the ball is tough to slow down, but NC State has already locked down wins against Florida State and Louisville, so they are feeling confident off a bye week. A loss for the Wolfpack dings the ACC a bit, but of course, NC State remains undefeated in conference play with Clemson at home coming up soon. A two-loss NC State could end up hurting the ACC’s playoff chances.

No. 3 Georgia vs. Florida (3:30 p.m. ET, CBS)

The Bulldogs have been ruling, but throw the records out when these two teams face each other in Jacksonville, right? The bottom line is the Gators lack any offensive punch so it will be up to Florida’s defense to find a way to keep the game within reach just in case Georgia makes a costly mistake. A Georgia win puts the Bulldogs one giant step closer to Atlanta for the SEC Championship Game.

No. 25 Iowa State vs. No. 4 TCU (3:30 p.m. ET, ABC/ESPN2)

The Cyclones have cracked the top 25 rankings and are hoping to score another upset to stay there. This week, Matt Campbell and his rising program host TCU with a chance to remain in the hunt for an appearance in the Big 12 championship game. It is probably unlikely Iowa State reaches the conference championship game, but we can no longer assume a loss for Iowa State any given week.

Other midafternoon games worth noting

No. 12 Washington vs. UCLA: Huskies still on the playoff radar but need to be impressive moving forward.

No. 17 USF vs. Houston: Bulls look to score nice win to stay near the top of Group of Five pecking order.

No. 17 South Florida breaks AP Poll-era record of consecutive games with 30-plus points

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South Florida has been viewed by most as a bit of a disappointment this season. Such is the burden of perfection, because a so-called disappointing start still sees Charlie Strong‘s Bulls sitting at No. 16 in the AP poll with a 6-0 start and its streak of scoring 30-plus points still intact.

Correction: South Florida’s AP Poll-era record streak of scoring 30-plus points is still intact.

The Bulls beat Tulane 34-28 on Saturday, pushing the streak to 24 games. And according to ESPN’s Stats and Information department, that is now the FBS record for the AP poll era, which dates back to 1936.

For the year, South Florida is tied for ninth in FBS with a 41.6 scoring average. The Bulls are one of seven FBS teams to average more than 300 rushing yards per game, and one of just three non-triple option teams to accomplish the feat, joining Arizona and No. 13 Notre Dame.

The streak could actually be at 25 games right now if not for Hurricane Irma. The storm forced South Florida to push back at trip to Connecticut from Sept. 9 to Nov. 4 and in the process eliminated a scheduled Oct. 14 game against UMass. UConn and UMass both allow more than 30 points per game.

As it stands, South Florida has a great shot to push the record to at least 27 games. The Bulls’ next opponent, Houston, allows 24 points a game and just surrendered 42 points in one half in a home loss to No. 25 Memphis. USF visits UConn on Nov. 4, and then concludes its home schedule against Tulsa, who ranks No. 117 nationally with a 37.6 scoring defense average.

Then comes the big test: the regular season finale at No. 20 Central Florida. The Knights rank 16th nationally with 17.5 points per game allowed and have not allowed more than 23 points in a game this season (a game in which they scored 51).

Georgia Southern confirms firing of head coach Tyson Summers

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As was reported by a handful of outlets moments ago, Georgia Southern has now confirmed that Tyson Summers is out as head coach.

Summers went 5-13 as head coach, including an 0-6 mark this season after falling to previously winless Massachusetts 55-20 on Saturday.

“I thank Tyson and his family for their contributions to Georgia Southern,” AD Tom Kleinlein said in a statement. “Being the leader of a college football program is more than just coaching games; it’s managing academics and leading 120 young men. Tyson did a great job in areas that the public doesn’t see, but at the end of the day, the results on the field weren’t where we needed them to be as we continue our growth as an FBS program. I wish he and his family all the best moving forward in their future endeavors.”

Kleinlein also confirmed that assistant head coach Chad Lunsford will be bumped to interim head coach.

“Chad is as ‘True Blue’ as they come and I’m excited to have him lead our team for the remainder of the 2017 season,” Kleinlein said. “The players respect him and I have full confidence in his abilities as we head into the final six games of the season.”

Lunsford will begin his tenure as interim head coach at Troy on Saturday.