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.) 

LB Jaden Hunter was second Georgia player arrested in March

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A member of the Georgia football program was arrested Wednesday night. Linebacker Jaden Hunter was arrested and charged with driving with a suspended or revoked license. He was also charged with stopping, standing, or parking in a prohibited area.

Hunter spent just two hours in jail after being released on bond late Wednesday night.

The charges are misdemeanors and his status with the Bulldogs has not been confirmed with regard to any possible suspensions or other forms of discipline by head coach Kirby Smart. Given the nature of the charges, it would seem this would be far from calling for removal from the program or any significant form of discipline unless there is more to the story behind the scenes.

Hunter did become the second Georgia football player to be arrested in the month of March. Earlier in the month, redshirt freshman Latavious Brini was arrested on one count of simple battery.

William & Mary football player killed in shooting incident

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The William & Mary football family is mourning the death of Nate Evans. Evans, 19, was the victim of a shooting Thursday night, according to a report from The Virginian-Pilot on Friday.

“Nate’s is a loss we are feeling deeply within our program,” William & Mary head coach Mike London said in a released statement. “Faith and family are the foundations of our program. We value relationships first.

“Our team has gathered together to support each other as we deal with the grief that comes from this tragedy. Additionally, we will do all we can to support and comfort Nate’s family and loved ones through this difficult time.”

Police in Norfolk responded to a call about gunshots late Thursday night. The running back was declared dead at the scene of the call. What led to the shooting remains unknown. No arrests have been made at this time as an investigation continues.

Ohio State receiver to transfer from Buckeyes, per reports

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Ohio State seems to be losing a wide receiver from the program. Multiple reports from around the Ohio State football program have suggested wide receiver L'Christian Smith will leave the program as a transfer at the end of the spring semester.

Smith was a four-star recruit in Ohio State’s Class of 2018. Smith redshirted the 2018 season and still has four years of eligibility remaining. Smith played in three games, allowing him to preserve a year of eligibility under the NCAA’s modified redshirt rules last season.

Of course, barring any potential waiver request, Smith will have to sit out the 2019 season due to NCAA transfer rules (that continue to be more flexible than ever before) if he transfers to another FBS program.

Ohio State should still be in pretty good shape as far as the wide receivers are concerned after the potential loss of Smith. And with Justin Fields eligible to play right away at the quarterback position, the Buckeyes should still have good firepower in the passing game working for them next fall.

Former USC kicker Matt Boermeester sues school over controversial expulsion

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USC is dealing with many negative stories on a number of fronts and now you can add one more to the Trojans’ docket.

As detailed by ESPN, former cardinal and gold kicker Matt Boermeester has filed a lawsuit against the university in district court over his controversial expulsion in 2017:

The lawsuit includes seven causes of action, including selective Title IX enforcement, breach of contract, negligence, intentional infliction of emotional distress and represents the latest step in Boermeester’s ongoing legal battle with the school. In 2017, Boermeester, who remains two classes shy of graduation, sued for his expulsion to be overturned in superior court, but the attempt was unsuccessful.

“What happened to Matt Boermeester at USC should terrify anyone who believes in the right to due process and innocent-until-proven-guilty,” attorney Andrew T. Miltenberg said in a statement to the site. “Based on nothing more than a third-party report by a nonwitness — essentially a rumor that was easily and repeatedly disputed — a star athlete lost his education and his future career in the NFL.

Boermeester was kicked out of the school not long after he delivered one of the highlights of the Clay Helton era at USC with a game-winning kick to secure the Rose Bowl back in January of 2017. The issue started back when a member of the school’s tennis team reported an incident allegedly involving the kicker putting his hands on his girlfriend, which prompted a school investigation into the matter. That eventually led to Boermeester’s expulsion despite the woman in question (who is still with Boermeester, according to ESPN) denying what happened and blasting the school for their handling of the matter.

USC’s Title IX coordinator was also named to the suit, which comes after legal wrangling between the parties last year in Los Angeles Superior Court.