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.) 

Report: Mike Sanford’s fate at WKU directly tied to last two games

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There are already four openings (maybe five) at the FBS level. Depending on how things play out over the rest of this month, one Conference USA program could throw its name into the 2018-19 coaching carousel mix.

According to the Bowling Green Daily News, “Mike Sanford’s future as Western Kentucky’s coach hinges largely on the outcomes of his team’s final two games.” The Daily News reports that, if WKU wins its last two games — vs. UTEP, at Louisiana Tech — Sanford will be retained.

However, if the Hilltoppers drop both of those contests, Sanford is expected to be fired.

“Sanford’s future if the Hilltoppers split those two contests is unclear,” the newspaper added.

Sanford, the former offensive coordinator at Notre Dame, took over a WKU program in 2017 that had won 23 games the previous two seasons under Jeff Brohm before he left for Purdue. In his first season in Bowling Green, Sanford’s 6-7 record was the program’s worst since 2009; the Hilltoppers are currently 1-9, which even if they win out would be WKU’s worst since that winless 2009 season.

Mike MacIntyre reportedly out at Colorado at season’s end

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It appears yet another head coach will hit the unemployment line in the not-too-distant future.

Citing multiple unnamed sources, the ABC affiliate in Boulder is reporting that “Colorado will part ways with football coach Mike MacIntyre effective at the end of this season.” School officials have thus far declined to comment on MacIntyre’s future with the football program.

Based on a new deal agreed to in January of last year and approved five months later, CU would owe MacIntyre a buyout in excess of $10 million if he’s fired without cause.

In five-plus seasons with the Buffaloes, MacIntyre has posted a 30-43 record overall and 14-38 in Pac-12 play.  Coming off a 5-7 season in 2017, the Buffs won their first five games of the season and climbed to 19th in the Associated Press Top 25.  However, they’ve dropped five straight since then, with three of the five losses coming by 10 or more points.

Colorado will play its home finale this weekend against Pac-12 South leader Utah before closing out the regular season at Cal a week later.  The Buffaloes need to win at least one of those games to reach bowl eligibility.

Right now, there are officially four openings at the FBS level: Bowling Green (HERE), Kansas (HERE), Louisville (HERE) and Maryland (HERE).  Last year, 20 FBS jobs came open for one reason or another during the 2017-18 spinning of the coaching carousel.

Nick Saban bristles at suggestion to sit Tua Tagovailoa vs. FCS team this weekend

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A few days before a final, final decision needs to be made, it doesn’t appear that Nick Saban is inclined to err on the side of extreme caution when it comes to the triggerman of his high-octane offense.

Late in the third quarter of top-ranked Alabama’s shutout win over Mississippi State, Tua Tagovailoa took a shot to his right knee, the same knee that gave him issues earlier this season, and didn’t return. As a Week 12 date with FCS Citadel looms, conventional wisdom had Saban sitting the Heisman Trophy front-runner and saving him for the annual Iron Bowl grudge match in the regular-season finale.

Essentially, the head coach scoffed in the general direction of that wisdom, stating he has no plans to sit Tagovailoa and that the true sophomore, as well as his teammates, need to do a better job of limiting the quarterback’s exposure to hits.

From al.com:

No,” Nick Saban responded when asked if sitting Tagovailoa is a consideration. “Why would we do that? To say that this is not an important game or he doesn’t need to play? I think we need to do a better job of the people playing around him doing what they’re supposed to do so he doesn’t get hit. And he needs to do a better job of stepping up in the pocket and getting rid of the ball, which he had several opportunities to do. Some of these hits can be avoided just by better execution, and I think that’s what we’re going to focus on, not trying to take a guy out of a game so he can’t improve or do what he needs to do to get better or do what we need to do to get better as a team and develop some confidence in each other.

While Tagovailoa is expected to start — provided, of course, he doesn’t suffer a setback in practice during the days leading up to what’s essentially a scrimmage that counts in the standings — it’s highly likely that his day will consist of, at most, a couple of quarters worth of work.

The Crimson Tide should make short work of Bulldogs as they have beaten FBS teams this season by an average score of 49-13. Against ranked teams, that average is 33-8.

Safety who started first four games transferring from Oklahoma State

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A one-time starting member of Oklahoma State’s secondary has opted to take his leave of Mike Gundy‘s football program.

On his personal Twitter account over the weekend, Thabo Mwaniki announced that, after “thoughtful consideration,” he has decided to transfer from the Cowboys. The defensive back gave no specific reason for his decision to transfer.

The fact that the Denton, Texas, native lost his starting job a third of the way through the 2018 season, however, would likely be a good place to start in looking for his reasoning.

Mwaniki, a three-star member of OSU’s 2017 recruiting class, started the first four games of this year. However, the safety was replaced after Week 4 and never returned to the starting lineup. All told, he played in seven games this season, none of which came the last three weeks.

Last season, Mwaniki started two games for the Cowboys; he was the only true freshman on either side of the ball to start a game for OSU in 2018.