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.) 

Conference USA releases 2018 schedule

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Conference USA released its 2018 schedule on Tuesday, confirming that once again the league will play football this fall.

The league slate kicks off Sept. 8 with FIU’s visit to Old Dominion, while the first game involving a C-USA team is set for Aug. 25, when Rice hosts Prairie View A&M. Conference games are scattered throughout the month of September, with the first full Saturday slate coming on Oct. 6 with Old Dominion at Florida Atlantic, UAB at Louisiana Tech, Middle Tennessee at Marshall, North Texas at UTEP and UTSA at Rice.

While the MAC has opted for a full embrace of midweek football, Conference USA has gone in the exact opposite direction. Not one C-USA game is scheduled as of today for a weeknight — Thursday or Friday included — and only one game will be played on a day other than Saturday, a Friday, Aug. 31 visit to Wisconsin by Western Kentucky.

The most-anticipated non-conference games involving C-USA teams are Florida Atlantic’s opener at Oklahoma and on Sept. 1 and the Owls’ Sept. 22 visit to reigning American and Peach Bowl champion UCF. North Texas also has two shots to win nationwide respect for the league in its opener against SMU on Sept. 1 in Denton and a Sept. 15 visit to retooling Arkansas.

The highlight of the league schedule comes on Nov. 17 with a rematch of the 2017 title game when Florida Atlantic visits North Texas. The Owls won both meetings last season by a combined score of 110-48.

The 14th C-USA Championship will be held on Dec. 1 at the home of the division winner with the best conference record. FAU will look to become the second straight back-to-back C-USA champion, joining Western Kentucky in 2015-16.

Former LSU offensive coordinator Matt Canada reportedly lands at Maryland

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It’s good to be Matt Canada.

He parachuted into Baton Rouge for a year, got paid a bunch of money, then got paid even more money to leave. And now he’s set to get paid from another school.

According to ESPN’s Adam Rittenberg, Canada is set to join the Maryland staff as offensive coordinator. Rittenberg notes that Canada signed a multi-year agreement with the Terps, though salary terms were not revealed. Walt Bell, who left to become the offensive coordinator at Florida State, made $500,000 in 2017, according to USA Today.

Maryland will be Canada’s seventh school to call plays for in this decade alone. He spent 2010 (and three years before that) at Indiana, then moved to Northern Illinois in 2011. He parlayed that into one season at Wisconsin, three at NC State, and then one season stints at Pittsburgh, LSU and now Maryland.

Report: Oklahoma State signs 27-year-old Australian punter

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Australian punters are the hot new commodity in college football, and word has made it back to the Land Down Under: punt the ball far and high enough and you, too, can receive a full scholarship to an American university.

According to the Latrobe Valley Express — which you now is legit, because its header as of press time already reads Wednesday, January 24 — 27-year-old Australian punter Tom Hutton has signed with Oklahoma State. Hutton hails from Newborough, Australia, about a two hour ride from Melbourne, and in December attended a training session at Prokick Australia.

“I was told about [American football] a few years ago so I thought ‘I’ll probably be too old for it now’, thinking that it was like Aussie Rules and that if you were over 21 then you had no chance,” Hutton told the paper. “But then I saw a few older blokes getting scholarships so I thought I may as well give it a go.”

Prokick Australia claims the last five Ray Guy Award winners as alums, including 2017 victor Michael Dickson of Texas. Oklahoma State saw his ability up close, as Dickson punted 11 times for a 50.9-yard average in October, nearly booting his way to victory in a 13-10 Cowboys overtime victory. “Their punter is — did he win the Ray Guy Award last year?” Mike Gundy said after that game. “He should have won it. He changed the field on us. I don’t know what the yardage is, I just know that every time we go a little bit of field position, he changed the field … he was fantastic for them.”

The story of how Hutton was approved for an Oklahoma State offer doesn’t go into details, but Hutton’s recollection of how Hutton, who works overnights at a paper mill in addition to playing Aussie rules football in the Mid Gippsland Football League, received the offer is perfect.

“I woke up after night shift on two hours sleep and this person said ‘we know where you’re going, you’re going to Oklahoma State and we’ve got the coach on the phone,'” he said. “I thought ‘Jesus Christ, can you give me half an hour? I need to have a shower and actually wake up and make sure this is not a dream.'”

According to the Oklahoma State blog Pistols Firing, Hutton will arrive in Stillwater in July and have four years of eligibility.

Arkansas adds TCU signee who signed with New York Yankees

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Austin Aune‘s circuitous sports journey, one which Chris Weinke and Brandon Weeden would approve, has taken its next stop in Fayetteville.

According to 247Sports.com, Aune has joined the Arkansas football program and is enrolled in classes at the university.  At least initially, the quarterback will be a part of the Razorbacks as a walk-on; it’s expected he’ll take the field with the rest of his new teammates when spring practice kicks off month after next.

According to the Arkansas Democrat-Gazette, Aune had also considered TCU and North Texas before the SEC’s mystique proved to be too much.

“The allure of the SEC and the SEC West and Chad [Morris] and Coach [Joe] Craddock, and everybody being on the same page up there as far as the opportunity goes,” the player’s father, Greg Aune, told the Democrat-Gazette. “He likes their system. It’s a fast-paced system, wide-open system. That’s what he played in high school. It’s a pass-oriented offense. He’s a read-run oriented guy, so that’s a lot of what those guys do.”

The fact that Aune considered TCU as a potential landing spot before settling on Morris and UA shouldn’t come as a surprise as he actually signed with the Horned Frogs back in 2012.  However, he was drafted by the New York Yankees that same year and, after signing a contract that included a $1 million signing bonus, embarked on what turned out to be a six-year career in the minor leagues.  Despite that financial commitment, Aune never made it past Single-A ball.