Tuesday, May 31, 2011

Does Ohio State have a cause of action for Tresselgate?

Like most graduates of THE Ohio State University, I am saddened by the resignation of head football coach Jim Tressel.  I've been a fan of Tressel going back to his days at Youngstown State.  He was an is a good man who helped Ohio State recover from the arrogance and incompetence of the John Cooper regime.  He respected and even celebrated our history and traditions, creating some new ones of his own, and made us a family again with the team, fans, marching band and cheerleaders.  I hope interim coach Luke Fickell, himself an Ohio State football alum, or whoever replaces him continues these positive developments.

That is not to say Tressel was right in all this.  The news reports indicate that Tressel made one major mistake: he did not tell the university when he found out about his players trading their own awards for, of all things, tattoos.  Tressel says he did not for fear of endangering the players from the Tattoo Man, who himself was under federal investigation for racketeering and other dangerous things.  Tressel also said he feared hurting the federal investigation.

That in my mind made the NCAA and its often ridiculous rules seem even -- they give you a choice of breaking NCAA rules and protect the federal investigation or keeping clean with NCAA rules and hurting the investigation.  Dumb.  And monumentally arrogant.  But the best thing for Tressel to do was to tell the university's lawyers.  He apparently did not. In my opinion, that is not a firing offense but it is still an offense.  Given the very questionable ethics and judgment of Ohio State Athletic Director Gene Smith, I wonder if Tressel did tell them and Smith is trying to cover it up.

This is not to exonerate those who in my opinion are the real villains in this sad affair -- the players who sold their awards, including Big Ten Championship rings and Gold Pants, for tattoos.  Not food, not money for movies or video games, but tattoos.  It's nice to know how much those players cared about and respected Ohio State and its traditions.

While the NCAA rule that says you can't sell your own stuff, such as those awards, it, like many NCAA rules, stupid and arrogant, it is still the rule.  The NCAA is the definition of arbitrary and capricious.  Jim Tressel makes a judgment error and is roasted alive.  Yet, they found nothing wrong with the "recruitment" of Cam Newton.  Or the suspicious activities of Barry Alvarez during his tenure as Wisconsin football coach, which, if rumors among Big Ten athletic departments were true, made Rich Rodriguez and Kelvin Sampson look like Sandra Bullock.

The final nail in the coffin against Tressel, however, was the revelation about the players getting deals on cars from a Columbus-area auto dealership.  That is bad.  Not that Tressel necessarily had anything to do with it. But Ohio State is likely to pay a heavy NCAA price for the actions of Car Man and Tattoo Man.

Which makes me wonder -- does Ohio State have a cause of action against Car Man and/or Tattoo Man?

Think about it for a bit: With respect to Ohio State, neither Car Man nor Tattoo Man appear to have done anything illegal.  Their actions, however, did put Ohio State players in violation of NCAA rules, which will cost the university financially.  Both Car Man and Tattoo Man had to know that their actions would put those Ohio State players in violation of NCAA rules.  At the same time, they targeted Ohio State players because a big star Buckeye driving a car or wearing a ... tattoo he got from you is pretty good advertising.  They sued the players' status with Ohio Sate to leverage more sales, which put Ohio State in violation of NCAA rules.

Some states have statutes in place to deal with situations like this -- when it comes to athlete agents.  Not other businesses.  I'm not sure what the law is in Ohio.  Even if there is no such statute that doesn't necessarily mean there is no tort case.

The formula for tort is as follows:

1. The existence of a duty, ...
2. The breach of which was the ...
3. Proximate cause of ...
4. Injury.

Is there a tort case here? If so, what is the tort? How should the case be framed?

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