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.) 

Chip Kelly won’t make QB change despite UCLA offensive woes

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Chip Kelly revolutionized college football back when he was at Oregon, becoming so successful that not one but three NFL teams tried or succeeded in hiring him.

Kelly’s return to the sidelines in the college game however… could be going better. UCLA was blown out of the water on Saturday night at the Rose Bowl by No. 5 Oklahoma and the Bruins offense is actually among the worst in all of FBS.

They’re dead last in yards per play, second to last in total offense and No. 127 in scoring offense. Oh and sophomore quarterback Dorian Thompson-Robinson is No. 99 nationally in passer rating.

Despite those numbers, it appears Kelly isn’t contemplating a new face behind center as the team moves into Pac-12 play.

“We didn’t,” Kelly said when asked by the LA Times whether he thought of making a change at quarterback on Saturday. “…we felt confident in Dorian.”

To be fair, Thompson-Robinson did seem a little improved against the Sooners than he did in his first two starts of 2019 against Cincinnati and San Diego State. But those numbers speak for themselves with road trips to Washington State and Arizona coming up for the 0-3 side from Westwood.

Pony Up! SMU off to best start since 1984 at 3-0

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TCU may have moved into the top 25 of the AP Poll this week after dispatching Purdue on Saturday but upcoming opponent SMU is off to an equally hot start coming into Week 4 after topping Texas State.

In fact, it’s a historic one down in Dallas.

As the school noted recently, the 3-0 start to the 2019 campaign is the Mustangs’ best since… 1984. That’s just after the Pony Express days on the Hilltop and right before the program got hammered by the NCAA for major violations.

Sonny Dykes’ tenure got off to a rough start after going 5-7 last season but the team looks much improved thanks in part to the play of Texas transfer QB Shane Buechele.

We’ll see if the two can keep things rolling against the rival Horned Frogs but the AAC might just have another intriguing team in the mix after such a hot start by SMU.

Schools reportedly spent an average of $8,200 on hotel rooms before home games last season

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College football coaches love controlling every element that they can in the lead up to a game in order to minimize distractions. As a result, it’s become common place for nearly every football team in the country to spend the night at a hotel before home games.

Now most folks might think it’s strange to have teams shack up in rooms when they can spend the hours before a game at home but that’s not what schools do. And those hotel bills add up to quite a pretty penny in most cases as an investigation into the practice by Gatehouse Media shows.

In 2018 alone, public schools spend a median of $44,000 on hotels and nearly $5 million total across some 109 programs according to the report. That included low spenders like Coastal Carolina (just $2,800 per game) to those rolling in cash like Texas A&M ($278,000 total, or nearly $40k per home game).

Remarkably the Aggies spent so much because the hotel they stay at requires a two-night minimum and they leave the rooms unoccupied for one of those nights.

“We believe we would be breaking sleep routine if we did not stay in a hotel before a football game,” said OSU Associate Athletics Director Jerry Emig told the site after the Buckeyes spent nearly six figures on hotels for home games. “Ohio State has stayed in a hotel the night before every road game and every home game for more than 50 years.”

There’s some interesting sortable data in the full report, which includes noting that the SEC spends the most rooms on average and the Big Ten the least.

So next time you see the buses pull up to your favorite team’s stadium on a Saturday in college football, just remember it cost a decent chunk of change for the school to house those kids in a hotel prior to the game.

Florida drops in latest Super 16 poll, UCF moves in, UGA-Notre Dame battle set to be a top seven affair

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Uncertainty over Florida’s future without starting quarterback Feliepe Franks is already causing voters to drop the Gators in national polls following the team’s escape at Kentucky over the weekend.

Dan Mullen’s squad dropped two spots to 11th despite winning to move to 3-0 on the season, a good indication that a forthcoming slide might happen in the AP and Coaches Polls as well. They weren’t the only ones to drop however, as Michigan slid from No. 10 to No. 12, Texas A&M dropped out altogether and Oregon moved down a spot to No. 16.

The SEC once again occupies slots 2-4 in the poll and have five of the top 16 teams overall. There was a slight change however as some voters apparently forgot about LSU’s win over new No. 9 Texas and flipped the Tigers with Georgia in the 3/4 spots. That makes the upcoming battle in Athens between the Bulldogs and No. 7 Notre Dame a top seven affair with huge College Football Playoff implications.

It should be noted that three writers (Kevin McGuire, Zach Barnett and Bryan Fischer) here at CFTalk have weekly votes in the Super 16 poll. Without further ado, here’s the full rankings heading into Week 4:

  1. Clemson (34 first place votes)
  2. Alabama (8)
  3. Georgia (1)
  4. LSU (3)
  5. Oklahoma
  6. Ohio State
  7. Notre Dame
  8. Auburn
  9. Texas
  10. Utah
  11. Florida
  12. Michigan
  13. Wisconsin
  14. Penn State
  15. UCF
  16. Oregon

Also notable were the debut of UCF in the poll, the highest ranked Group of Five team as a result of their thumping of Stanford down in Orlando.