Random Thoughts on Southern Cal and the Sanctions

Bumped. GO BRUINS. -N

I got a letter from my Alumni Association on Thursday -- no, not UCLA, but the other one that purports to represent me because I am a graduate of a law school that happens to occupy some of its real estate. The trogans want me to know that they are taking steps to deal with the dirtiest program in college sports. My reaction?

1. On Hiring Freeh to "Protect" the trogan Athletes from Those Who Prey On Them

Oh, those poor $c athletes -- the Reggie's, the OJ's, the tennis players who run up thousands of dollars of phone bills on school calling cards, the people who take free rent to live off campus, the guys who drive their "baby mama's" Range Rovers and park them in plain sight on campus,  the the weak and simple -- we must tell the world, and the NCAA that they are all VICTIMS. Yes, VICTIMS. Victims who have no moral compass, who, although they are admitted as "students" cannot understand that taking the money and favors they took breaks the rules they are sworn to abide. 

What's the solution? Let's outsource. Let's hire someone else to fulfill the responsibility, that is ours,  (and take the blame if need be) of educating our student/athletes on evils of agents.

So, sc has to hire Freeh to teach people like Reggie Bush that it’s wrong to ask an agent for a new car, for money for rims, and for even more money?

They have to hire Freeh to teach people like Bush that his parents are not allowed to take a house from an agent?

And, to teach coaches that when their running backs are clearly taking cash they have to speak up and stop it?

And, that it’s wrong to have agents in the locker room?

Reggie Bush is the victim? And, by golly, sc is going to help Reggie and all of their players like him to learn the simplest of moral lessons?

Are you really taking the position that your players and coaches are so "vulnerable" as to need someone to install both a moral compass and and NCAA GPS so that they can understand, find and see violations?

Are you really saying that your athletic director and coaching staff cannot fulfill that role?

Are you really saying that your student/athletes are so amoral and uninformed or dumb that they don't know or understand the simple rules that govern "amateur status" in college sports?

If so, shame on you, your program and your people. You deserve far harsher sanctions than you received.

As to the "we are victims" lament, this may be one of the lamest responses I’ve ever seen and certainly not one I would base my reputation or future on.

If I trotted this out in court to defend a client, I’d lose all credibility and my client would be severely punished for not taking responsibility for its actions and not showing an ounce of understanding or contrition.

And, by the way, were sc my client, I’d advise it not to appeal, to get the sanctions behind it as quickly as possible. Living in the limbo of an appeal with be living under a cloud for many years. At that time, sc will be under intense scrutiny. And, who will want to go there knowing that any moment the shoe will drop.

Mr. Sample, do you really think your new victim protection group will make all of this right?

I think sc is getting very bad advice. Or, maybe it isn't. Maybe the collective arrogance and traditional "we own the cops" mentality makes it  think it is invincible. It is not. And, it will learn that, soon enough.

Sue on! You will lose in the courts of justice. And, you will get killed in the courts of public opinion.

2. "Fight On! We will win this on appeal". Uh, I don't think so. 

The likelihood of winning on appeal? Probably not very good.

The trogans have announced that they will appeal on three grounds. Frist, that the facts do not support the findings. Second, that the penalty was excessive. And, third, the "we didn't know" any of this was going on, lament.

Let's get rid of the "we didn't know" first. The answer is simple. You should have known. That was your job. And, there is evidence that you knew -- a certain running back coach is still in trouble over this. And, so too the person who paid the calling card bill. Do you really think that saying "I didn't know" is a defense? Do you think that planned or feigned ignorance is enough?  It's not. The rules do not allow one to deliberately or recklessly close one's eyes. You have to keep them open. You have to do the right thing. And, you didn't.

The trail to victory on the other two paths is very steep. I don't think they'll make it to the top. Be it an administrative hearing or a court challenge, I don't think they will prevail.

They will have a hard time challenging the factual findings. From what I learned by listening to the panel press conference, and from what I've read, the NCAA was very conservative in its findings — most seemed to be carefully anchored in the record. I think they were restrained because they knew there would be challenges. They have several lawyers on the panel -- people trained in making a record that will withstand attack. We wondered what took so long? Why they didn't come down harder? I think they were building a rock solid record -- one that would withstand challenge.

Yesterday, we heard from Cheaty and Athlete #1 -- they both want to help, they want to clear the "misunderstandings" up.

It's a little to late to decide to be open and honest.  sc will not be able to bring in "new facts". It had a chance to build the record and, apparently, was not completely forthcoming. I draw this inference from the fact that the penalties were not mitigated because sc did not cooperate at a level that would lead to mitigation.

It is very hard to overcome findings of fact on an appeal. Appeals boards and courts defer to the people who heard and saw the actual evidence. On a pure factual challenge, sc would have to prove that no reasonable fact finder could have reached the conclusions the committee reached. Interestingly, it was a well credentialed committee that had more than one lawyer and law professor in its ranks. I don’t see a court messing with the factual findings.

sc’s seems to be rooting its claims in an argument that the penalty is "excessive". The problem it faces here is that the NCAA regulations state that the standard of review requires that an appellate body find that the panel "abused its discretion" in making its findings and setting the penalty. The "abuse of discretion" standard is, like most in law, amorphous. But, it connotes a "higher" standard of review — one that is very difficult to satisfy.

I dont’ know that any of the trogans actually believe that they will win the appeal.  I don't think they can win a "pure" legal challenge.

They may be banking on "political" power and/or influence -- the staples of their survival. If they had any influence, I would have thought it would have been most effective against a toothless NCAA before it made its findings. I actually think that "influence" tempered the penalty some. (Unlike most around here, I do not think the trogans were hit all that hard. And, I think that will make their appeal weaker. For purposes of an appeal, they would have been better off with a death penalty.)

But, I have a hard time believing that any appeals panel, be it administrative within the NCAA or a court will feel that influence after today. Why should it? As much as sc thinks it is important, there is no constituency out there that is vested in protecting sc’s approach to sports. And, without that nationwide political pressure, what little influence sc may wield in getting players off when charged with local crimes will not do it much good in this bigger case.

The burden of proving an "abuse of discretion" will be on the trogans. Those of us who have faced that standard on appeal know it is very difficult to approve.

The NCAA has taken a stand. I’m sure it was tough to take. They socked the bully in the eye and made him cry. I don’t think they are afraid of him any more. And, the way sc is whining and posturing now, is not going to scare them. The bully is no longer intimidating.