Penn State Abuse

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.) 

Texas Tech parts ways with offensive line coach Lee Hays

TEMPE, AZ - SEPTEMBER 10:  Head coach Kliff Kingsbury of the Texas Tech Red Raiders reacts on the sidelines during the first half of the college football game against the Arizona State Sun Devils at Sun Devil Stadium on September 10, 2015 in Tempe, Arizona.  (Photo by Christian Petersen/Getty Images)
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Kliff Kingsbury has parted ways with one longtime member of his coaching staff and said goodbye to another recent addition at the same time.

Texas Tech announced on Saturday afternoon that Lee Hays would not be returning to the staff in 2017, having previously served as the team’s offensive line coach the past four seasons. In addition, the program confirmed the departure of DeShaun Foster as running backs coach after just one year on the job.

“We appreciate all that Coach Foster and Coach Hays have done for our football program,” Kingsbury said in a release. “We wish them nothing but the best moving forward.”

The reason for Foster’s departure was made clear earlier in the day when it was announced he was taking the same position at his alma mater UCLA.

While many expected a new look to come to Kingsbury’s staff after a disappointing 5-7 season in 2016, the fact that the first two changes occurred on the offensive side of the ball is pretty notable for a team that struggled to stop just about anybody on the defensive end. Hays notably has been around the program since 2013 when the head coach returned to Lubbock and is the more surprising name not coming back to the staff for next year.

UCLA’s Jim Mora hires two more coaches, including former Bruins RB DeShaun Foster

PASADENA, CA - NOVEMBER 12:  Head Coach Jim Mora of the UCLA Bruins looks on during the first half of a game against the Oregon State Beavers  at The Rose Bowl on November 12, 2016 in Pasadena, California.  (Photo by Sean M. Haffey/Getty Images)
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Jim Mora’s offensive overhaul appears to be complete.

UCLA announced a pair of hires on Saturday to the team’s coaching staff, starting with Hank Fraley as the Bruins’ new offensive line coach and the return of former tailback DeShaun Foster as the new running backs coach.

“DeShaun is a Bruin through and through, which makes this such an exciting addition to our staff,” said Mora in a statement. “On top of being a tremendous alum, consummate professional, trusted voice and valued mentor, he is an exceptional football coach whose pedigree and knowledge of the game command respect.  We’re thrilled to welcome Deshaun back home where he belongs.”

Foster spent last season in the same position at Texas Tech but was in Westwood from 2013-2015 serving a variety of roles with the program. He is a familiar face to many in the powder blues, ranking third on the school’s all-time rushing list. He also had a lengthy stint in the NFL, most notable with the Carolina Panthers.

Fraley also has plenty of NFL experience, having spent 11 years in the league as a player before joining the coaching ranks. He recently served three seasons as the Minnesota Vikings assistant offensive line coach.

The duo replace Kennedy Polamalu and Adrian Klemm, both of whom were dismissed in the past month. They’ll join new offensive coordinator Jedd Fisch at UCLA, who was recently brought on board himself.

Michigan graduate transfer QB Shane Morris announces move to Central Michigan

ANN ARBOR, MI - APRIL 04: Shane Morris #7 of the Michigan Wolverines throws a pass during the Michigan Football Spring Game on April 4, 2015 at Michigan Stadium in Ann Arbor, Michigan.  (Photo by Gregory Shamus/Getty Images)
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Central Michigan has their replacement for star quarterback Cooper Rush and didn’t have to go far to get him.

Former Michigan signal-caller and recent graduate transfer Shane Morris announced Saturday on Twitter that he would be making the move up the road to play for the Chippewas in 2017.

Morris was a former four-star recruit coming out of high school in the state but never quite lived up to those expectations with the Wolverines. He did start two games for the team over the course of his career but was third on the depth chart in 2016 behind Wilton Speight and John O’Korn.

As a result, he wraps up his time in Ann Arbor by completing 47 of 92 passes for 434 yards, with no touchdowns and five interceptions. He’ll be eligible right away for Central Michigan, which is a great landing spot for an incoming quarterback with almost all of the offensive starters returning from last season’s team.

Tennessee goes in-house for new offensive coordinator

MIAMI GARDENS, FL - NOVEMBER 21: Interim Head coach Larry Scott of the Miami Hurricanes look on at the start of the game against the Georgia Tech Yellow Jackets on November 21, 2015 at Sun Life Stadium in Miami Gardens, Florida.(Photo by Joel Auerbach/Getty Images)
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With Mike DeBord off to IndianaButch Jones is staying in-house for his next offensive coordinator.

Tennessee announced Friday it has promoted Larry Scott to be its new offensive coordinator. Scott joined the staff before last season as tight ends coach and special teams coordinator. He spent the previous three seasons coaching tight ends at Miami, and racked up a 4-2 mark as the ‘Canes interim head coach after Al Golden‘s mid-season 2015 firing.

To replace DeBord in the quarterbacks room, Tennessee has hired long-time offensive coordinator Mike Canales as quarterbacks coach, and handed defensive backs coach Charlton Warren special teams coordinator duties to free Scott to focus on the offense.

Canales has previously served as offensive coordinator at Snow College, South Florida, Arizona and North Texas. He deposited two separate stints as the interim head coach at North Texas, and spent the ’16 campaign as assistant head coach, running backs and tight ends coach at Utah State.

“We spoke to a lot of very quality candidates,” Jones said in a statement. “Our goal was to gather as much information as possible in a timely manner but also go through a detailed process, which we did. We feel strongly about our offensive staff and that Larry Scott is the best fit moving forward to lead the unit.

“Larry played an important role in the success we had offensively last year and was heavily involved in all aspects of our game plan, both during the week and on game day. We felt it was vital to maintain our continuity on offense and keep building on what we have established the past four seasons.

“I’m also really excited about adding Mike Canales to our staff. Mike has recruited, coached and developed numerous quarterbacks at the collegiate level. He will be of great benefit to our players and staff with his extensive experience and knowledge of the quarterback position.”

The Vols finished the 2016 season ranked 24th nationally in both yards per play and scoring