Originally published at: https://pistolsfiringblog.com/10-thoughts-on-the-ncaas-full-detailed-report-on-what-oklahoma-state-did-wrong/
Let’s get steep on some legalese!
OSU appears to have lawyers without common sense representing the institution. Wrapped up in the technical language of NCAA rules and regulations in their responses. Evans plead guilty and was convicted of violating his duties to OSU and stealing from OSU. Read the indictment. Evans was convicted of violations of law relating to his duties to OSU. He was convicted of a criminal offense of stealing from OSU. Now read the committee’s position. OSU is responsible for conduct of a criminal and should be punished for a being the victim of his crime?
At this point, if the ban was overturned and the other penalties were enforced, I would be okay (not happy) with it.
Here’s my take on it. If we accept the premise that the institution can be held responsible for the actions of its employees during their employment then the institution should face punishment commensurate with the confirmed violations. Post season bans punish more than the institution though. A fine, and even the loss of scholarships can be seen as punishing the institution more than the athletes, but a post season ban falls most heavily on the shoulders of the athletes who cannot be held responsible for the actions of a coach, particularly one they did not play for. The institution will have future opportunities to be represented in post-season tournaments. The athletes have a limited number of chances anyway, taking away even one of those is punishing them for actions they cannot be held responsible for, and is the real tragedy here.
I don’t understand why the NCAA doesn’t just make the university forfeit the revenue from the post season instead of banning them.
I wouldn’t be surprised if we get stuck with the announced penalty, but this change happens in the next few years.
Interesting in that the Alabama semi-precedent referenced (regarding separation of Parties & Penalties), it could be argued that the ‘underlying’ infraction (recruiting-Level II) that indeed the institution typically ‘does directly benefit’. In OSU case, the ‘underlying infraction’ (unethical actions etc) you cannot even argue OSU would directly benefit …in fact, you could argue OSU was extremely ‘harmed’ and therefore already suffered ‘consequences’ …go figure that !
Common sense has to matter here. IF we did NOT benefit. We simply did not benefit. Common sense has to apply to NCAA rules and regs. I mean jeez. Context and not benefitting has to matter. If not it’s absurdity and ridiculous and we need to argue as such. hopefully that works. If not, then we need to tie this up in the federal courts if we can. Throw everything at them.
In summary herein lies the problem. THE NCAA HAS A DANG CHART TO SHOW WHAT IT’S GOING TO DO. ARE YOU FREAKING KIDDING ME!
Yeah OSU is getting screwed. All you need to do is rename yourself Duke, North Carolina, Kansas or Kentucky and the NCAA will look the other way for you.
This is the main point. Everything the NCAA points to regarding an institution being responsible for employees is based on the implication that the actions of the employee benefited or intended to benefit the institution otherwise it makes no sense. The NCAA doesn’t have years or history and thousands of cases to draw precedents from like the legal system. The one case they try to use as precedent had recruiting violations underlying, meaning they benefited or would have benefited by getting an advantage recruiting an athlete even if they didn’t know what the employee was doing.
It’s easy to take pot shots at oSu’s legal counsel (especially as an attorney myself), but I’m really having trouble trusting the same attorneys that handled the infractions to handle their next steps.
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File an injunction in Federal Court arguing that the decision was “arbitrary and capricious” and that oSu would “suffer irreparable harm if the injunction is not granted.” With the courts backed up for miles because of COVID (trust me, they are), that pushes any determination past the '20-‘21 season. The 5th Circuit is an ideal jurisdiction for this type of action (as opposed to the 2nd Circuit (NYC) which is why Dallas’ attempt to do the same in the Elliott case failed).
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Roast the NCAA due to the inconsistencies in their ruling.
a) They distinguish the Alabama case, stating that the Asst committed a derivative violation by lying to investigators. But, then they turn around a hold that oSu has violated the second rule because Evans did not cooperate after he’d been fired? That’s inconsistent logic and, frankly, bush league.
b) How in the hell did we only come up with TWO mitigating factors when it should have been clear to everyone from the start that our entire hope hinged on a reduction of the penalty tier? The Bylaws give you one of the broadest catch-all provisions for mitigating factors I’ve ever seen, and you come up with two? How about: our record of rules compliance, the fact that we didn’t benefit, the fact that the punishment does not deter the conduct appropriately, the fact that Underwood is gone, the fact that we held Carroll out 3 games, the fact that the decreased ticket sales will destroy revenue that is used for x,y, and z good causes outside of our men’s program? The fact that a legal team paid D-1 Compliance Office money couldn’t come up with a 5 page list of mitigating factors is the most troubling aspect of all of this.
c) The Bylaw interpretation they used to determine that oSu violated the rules as a result of Evans’ meeting with a non-OSU mom and an advisor honestly doesn’t even deserve analysis. That’s egregious conflation. The fact that our legal team failed to come up with 5 slippery slope/absurdity in application arguments to swat that to half-court is troubling, as well. Agents (Evans) are not always acting as a representative of their principal (oSu). If a truck driver takes his rig to a Shell on his off day, robs it and drives off in it. The trucking company is NOT liable for the robbery. Whereas if the company set rigid delivery times and the driver had to speed to meet his time and T-bones a mini-van because of it, the company IS liable. This is first-year level analysis.
- When we lose the appeals decision, which we will given our ineptitude in fighting the first stage and the impossible legal standard that we’re up against, we amend our injunction and lawsuit or we bring a new one.
The legal team needs to focus on taking the NCAA to court. Not to win, but to delay the penalty past next season. It’s not a difficult task. Lawyers do it every day in every Circuit, and we happen to be located in the best possible Circuit for taking on a sports league’s penalty panel.
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Yeah, after reading everything, I’m now very worried about our legal team. If the NCAA was able to make it’s decisions on this basis, it’s because we didn’t harp on the right things and did not present the right arguments.
The fact that we offered a clearly distinguishable case as our only precedent made us dead in the water. Either you find better precedent (maybe not in the final outcome, but in the text of the NCAA’s decision) to accentuate your arguments or you simply argue that precedent does not control a case that is the first of its kind. “We could not find any cases on point because this is the first time the NCAA has attempted to punish a school for the confined actions of an immediately terminated assistant from which it received no benefit and was actually the victim.”
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What are the chances that the non-OSU athlete in SC was Jawaun Evans who is not being considered an OSU athlete at the time because he had declared for the draft?
Unlikely, if they could have tacked that on to us, they would have. Jawun was from South Carolina, but Lamont Evans had also been coaching for South Carolina Univ. from 2012-2016. It could have been someone he recruited at South Carolina, or just someone in high school that he connections with due to his ties to the state.
I googled “integrity of the NCAA Collegiate model” and it returned “no results found.” …
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